January 2023
SINGAPORE-INDONESIA EXTRADITION TREATY
- On 13 January 2023, a new extradition treaty signed in February 2022 between Singapore and Indonesia (“Treaty”) came into force. The Treaty is aimed at helping Indonesian authorities in their effort to reach fugitives involved in a broad range of cross-border crime.
- The Treaty stems partly from Indonesia’s longstanding concerns about the difficulty of bringing in fugitives who had embezzled significant amounts of state funds during the Asian Financial Crisis. Although Singapore and Indonesia had previously signed an extradition agreement in 2007, the Indonesian parliament did not ratify the agreement. The Treaty is substantially similar to the 2007 agreement and represents the two nations’ renewed commitment to combating cross-border crimes, with an especial focus on financial crimes such as money-laundering and graft. With the ratification of the treaty, both countries will be able to provide each other full support for cross-border law enforcement.
- The text of the Treaty has been made public since its ratification. We summarise the features and effects of the Treaty below
What are the features of the Treaty?
Broad range of extraditable offences
- Under Article 2 of the Treaty, extraditable offences are specified both by way of listing and by categories. This means that while the Treaty lists certain specific extraditable offences such as murder, it also states broader categories of offences such as “an offence against the law relating to benefits derived from corruption, drug trafficking, and other serious crimes.” Extraditable offences must be punishable by the laws of both Singapore and Indonesia by a term of imprisonment not less than 2 years, or by a more severe penalty.
- The Treaty adopts a purposive approach to the definition of extraditable offences. The Treaty specifies that the laws of Singapore and Indonesia need not describe the extraditable offence in the same manner; nor do the offences need to have the same constituent elements. This purposive approach to defining extraditable offences means that suspects are less likely to escape extradition on definitional technicalities.
- Under the list of offences in Article 2, fugitives suspected of 31 extraditable offences include corruption, money laundering, bribery, forgery, banking crimes, narcotics, terrorism, and terrorism funding, can be extradited to Indonesia. It should also be noted that under the Treaty, those who abet, procure or conspire to commit an extraditable offence, or whom are accomplices to such an offence, or whom attempt such an offence, are also liable to be extradited.
Long retroactive and prospective effect
- In view of its ability to combat money-laundering, graft and other financial crimes, the Treaty will help to optimize asset recovery.
- In particular, the Treaty will cover offences dating back 18 years from the date of ratification. This will allow law enforcement agencies to take action under a presidential decree issued in 2021 to seize unreturned money and assets from the Bank Indonesia Liquidity Assistance (BLBI) fund that was disbursed during the Asian Financial Crisis.
- Further, the Treaty is expected to be in force for 18 years after its ratification. With a long effective range extending both forwards and backwards in time, more suspected criminals will fall within the Treaty’s reach.
Targeted provisions to close loopholes
- Indonesian government officials are confident that the extradition agreement will help effectively reach those implicated by the BLBI investigation.
- To assist the task force in bringing criminals to justice, the Treaty is expected to close existing loopholes which allow criminals to evade law enforcement authorities. For example, targeted provisions in the Treaty mean that fugitives will not be able to avoid extradition by methods such as changing their citizenship.
Persons likely to be affected by the Treaty
- In view of the features described above, those implicated under the Treaty are likely to include certain high net-worth (with net financial assets of more than US$1 million) Indonesians or Indonesian passport holders in Singapore, who may have neglected to comply with Indonesian tax regulations or laws within the past 18 years.
- Once extradited to Indonesia, fugitives will come within the purview of Indonesia’s criminal justice system. If convicted, fugitives potentially face punishments including long prison terms, heavy fines, and, in serious cases, the death penalty. Fugitives convicted of corruption and financial crimes may also be ordered to make substantial restitution to the state.
- Thus:
- Financial partners of those implicated under the Treaty; and/or
- Financial institutions and accounting organisations serving those implicated under the Treaty;
may also be affected with the Treaty’s ratification.
How will the Treaty dovetail with Singapore’s current extradition laws?
- Extradition under the Treaty will happen in accordance with the laws of both countries. Currently, Singapore’s main source of legislation for extradition is the Extradition Act 1968 (“EA”). The Treaty forms part of the framework set out in the EA.
- As a preliminary, it should be noted that amendments to the EA were recently passed in April 2022 to modernise Singapore’s extradition framework. We thus summarise the state of the law under the new amendments.
Legal process for extradition
- Extradition begins with a requisition from the Indonesian authorities to the Singapore authorities.
- Upon receiving the requisition, the Minister for Law of Singapore has the discretion to issue a notice to a Magistrate of Singapore.
- After receiving a notice from the Minister, the Magistrate will issue a warrant for arrest of the requisitioned fugitive if the evidential requirements are met.
- Once the fugitive is arrested, the Magistrate will place the fugitive in custody to await his extradition to Indonesia.
- The fugitive must be held in custody for no less than 15 days before he is extradited unless he consents to waive his right of review of detention and surrender to the extradition.
Challenge of and release from detention
- After being placed under custody, the fugitive may challenge his detention by applying to the General Division of the High Court of Singapore for an Order for Review of Detention.
- The fugitive may also be released from detention if he is placed under custody for a certain amount of time but is not extradited.
Grounds for refusal of extradition
- Under the Treaty, there are also grounds by which a request for extradition may be refused. Some of the notable grounds are as follows:
- Where the offence that the fugitive is suspected of or convicted of is a political offence (this excludes murder and terrorism-related offences);
- Where the fugitive has already been punished, pardoned or acquitted by a competent authority in respect of the extraditable offence;
- Where the request for the extradition of a fugitive is made for prosecuting or punishing that fugitive on account of his race, religion, nationality, or political opinion;
- Where a fugitive was convicted of an extraditable offence in his absence, unless he had the opportunity of being at his trial, or he would be entitled to a retrial in his presence.
We hope that the above is useful to you. If you require any clarification or further guidance in respect of the above, please do not hesitate to reach out to us and we would be more than happy to help.
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