Law opinion
Are all INTERPOL activities acceptable?
Shamsuddin Choudhury Manik
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wikipedia.Interpol.logo |
Answer to the above question lies in the undistorted revelation of the status of the body.
Contrary to general perception, the International Criminal Police Organisation (INTERPOL) is neither a creation nor an agency of the United Nations. It is not even a creation of any international Convention or treaty. Although in 1971 it received United Nation's Consultative status, like Amnesty International, Jurists International and many other international NGOs, INTERPOL is also nothing more than an international NGO.
This is to be appreciated that the United Nations Organisation can not have any police force because maintenance of such a force would be in derogation to that provision of it's Charter which ordains that the UNO shall unequivocally respect the sovereignty of it's members. No sovereign country would tolerate transgression by an alien police force in her domestic matters
While INTERPOL has, as of today, 186 members and it's role in tracking and tracing cross country fugitives can not be undervalued, and it stands cited as an information and request conduit in some international instruments like the Statute of the International Tribunal for the Former Yugoslavia, the Rome Statute of the International Criminal Court, International Convention for the Suppression of the Financing of Terrorism, UN Model Treaty on Extradition, Commonwealth Scheme for the Rendition of Fugitive Offenders, it is essential for all concerned not to be oblivious of the fact that INTERPOL , being a purely private association of the police forces of the world, does not stand on any statutory basis in Bangladesh or other countries and hence it operates in the same manner that a private detective body can act without flouting the laws of the host country. Contrary, again, to bizarre media publication , as a non statutory NGO INTERPOL can not have any power to issue any warrant of arrest and it's red coloured notice, by which it intimates it's members about high profile fugitives, is frequently designated as 'Red Warrant' by ill informed people.
It's creation and progression
In 1923 Dr. Johannes Schobber, the then head of Austrian police convened an informal meeting of some police forces of the world. The congregation was attended by some 20 members and it was that gathering which was the progenitor of an association of the attending forces . The association assumed the name ' International Criminal Police Commission' and set up it's headquarter in Vienna. In 1956, as the dust of the aftermath of the war settled down, the organisation moved to Leon in France, adopted it's present name and a new constitution, devoid of Conventional or Treaty basis. Over the period it's membership proliferated, it received various recognitions, it expanded and modernised it's modus operandi , but it has, nevertheless , remained a private body, an international NGO to be precise.
It's prime role
As a private, non governmental body it's main task is exchange of information, which job, because of it's global web-net , it performs quite proficiently. It does, as it can without breaking the law of the host country, keep track , follow the movement of and gather information about cross country fugitives and these information quite often pave ways for extradition proceedings. Now a days it also maintains a data bank storing DNA profile of international criminals.
It's constitution and obligation to respect the laws of the host country
As no country would allow a foreign body to interfere in her internal matters, Interpol in Article 2 provides that it would act within the limits of laws existing in different countries and in the spirit of the Universal Declaration of Human Rights.
Article 30 stipulates that the Secretary General and the staff shall neither solicit nor accept instruction from any government or authority outside the organisation.
Evidence of advent of diametrical trend in Bangladesh
I was alarmed and , indeed pensived , as I came across a case recently. Although it may look like a single isolated case, I sensed rat in it because it may very well herald the beginning of a new trend by INTERPOL personnel in Bangladesh to flout our laws and disregard our sovereignty
The history of the case, in nutshell, is that a Bangladeshi citizen , who established himself in business in Abu Dhabi, was sued by the Abu Dhabi branch of Janata Bank in an Abudhabi Court claiming recovery of a loaned amount. It was a civil case and the court decreed the suit. The decree was, obviously a civil one. As a recent move the court, at the instance of Janata Bank, issued a warrant of arrest for the apprehension of the judgment debtor in order to retrieve the decreed amount. In legal jargon the warrant would be described as a civil warrant as it stemmed from a civil decree.
Janata bank procured a copy of the warrant and the bank's managing director addressed a request to Bangladesh police with a request, obviously out of ignorance about the status and the function of INTERPOL, and the relevant laws of Bangladesh, that the INTERPOL representative be asked to round up the judgment debtor on the strength of the Abu Dhabi warrant. Surprisingly enough, an Assistant Inspector General of the police, identifying himself as the National Central Bureau (NCB) of the INTERPOL in Bangladesh and purportedly acting in that capacity, wasted no time to direct his subordinates to arrest the judgment debtor without giving heed to the fact that no law of Bangladesh empowers him or anyone else to apprehend a person, decreed as a judgment debtor by an overseas court in a civil suit.
Police power of arrest on the strength of a foreign warrant
The following information are worthy of Reckoning:-
Firstly, as stated above, INTERPOL's representative in Bangladesh , in that capacity has no power whatsoever even to stop a person , let alone arresting him as it would be tantamount to breaking Bangladeshi law and encroachment upon her sovereignty. Indeed the perpetrator would be guilty of the offence of unlawful confinement in such an event. Secondly a Bangladeshi police can arrest an individual if the latter is convicted or accused of or is suspected of an offence in Bangladesh or if a warrant of arrest issued by a Bangladeshi Court is in subsistence against him.
Bangladeshi police, not INTERPOL, can also arrest a person under the provisions of our Extradition Act1974, if and only if, the person concerned has been convicted by a foreign court of an extraditable criminal offence (some serious criminal offences listed in our Extradition Act 1974) or if he stands accused of such a criminal offence . In other words to attract and engage Extradition Act, under which alone a person can be arrested and surrendered to a foreign country, the conviction or the accusation must be of an extraditable criminal offence. Civil decree or claim has no place in extradition law and there is no law under which a person proclaimed judgment debtor by a foreign court can be arrested or extradited, whatever the amount of claim may be. Thirdly, there has to be request for extradition through diplomatic channel and there are also host of other criteria, such as extradition treaty or dispensation with treaty requirement, which are to be satisfied before the provisions can be invoked. So ex-facie the said Assistant IG's order was, whether he acted as the INTERPOL's man or as a Bangladeshi police personnel, from top to toe an illegal order because no law of the land authorises or empowers him to do so.
The enigmatic question
In the backdrop of the fact that the order for arresting the person concerned was totally illegal and devoid of powers, the question that would petrify any conscious person is what the police would have done in the event of their success in executing the unlawful arrest order.
Since the judgment debtor is not convicted or accused of any offence in Bangladesh or abroad, the arrest would have been illegal and without legal authority and hence, he could not be produced before a magistrate in Bangladesh in accordance with the provisions of our criminal procedural law. As the arrest would have been unlawful lawful , the judgment debtor could file a habeas corpus application in the Hon'ble High
Court and the AIG concerned must have been aware of it and yet he proceeded with the illegal design. The core question is what was the clandestine agendum and what goal could the author of the order achieve if he could implement his vacuous and unlawful order in the context of the above stated scenario.
The possible answer is that the police officer concerned , the INTERPOL's representative in Dhaka, would have put the judgment debtor on board an Abu Dhabi bound air in fasr tracking manner in order to torpedo the chances of a habeas corpus application and that would have been the beginning of a tragic episode for our nation. If a citizen can be forced out of the country illegally , without legal sanction, surely the foundation of the Rule of Law would be infernally jettisoned. It is ,therefore, imperative on the part of the authorities to act now, to thwart strong handedly, such horrendous designs which are aimed to violate our sovereignty ,erode the Rule of Law we adore and cherish as our most precious endowment.
It is also about time that the executive committee of the INTERPOL acts to prevent such high handed and unscrupulous occurrences. After all INTERPOL , for it's commendable services, has succeeded to portray itself as a revered body. It's image as such should not be allowed to be tarnished by loathsome acts of a few members who show insolent indifference to the laws of the host country.
The author is a Barrister, a former Judge and Presently an Advocate, Supreme Court and as a former Director of the UK's official immigration watchdog body, specialises in extradition law.
