TRANSNATIONAL ORGANIZED CRIME

K.M.A. Samdani

Chairman,

ACPF Pakistan

　

　

The need to contain and curb transnational organized crime can hardly be over emphasized. Crime is crime whether it is intranational or international. Only a criminal or a pervert can talk or write in favour of crime. Having said all this, will it be out of place to say that the issue of crime is not all that simple? All of us who deal with law one way or another know the importance of defining terms before using them though not as rigorously as in mathematics. We all know that no act is an offence or crime in a given society unless it has been so defined by a valid law of that society. Consequently what is an offence in one society may not be an offence in another society and vice versa.

Now whether a crime is organized or not may be a matter of opinion and relative in nature. However, for the purposes of this paper, I will assume that the term “organized” is uniformly understood all over the world and there is no confusion about it. But the fact remains that the term ‘transnational’ necessarily implies more than one nation or society. Hence the question as to whether the two or more societies involved in a so called crime have the same uniform view about the criminality of the act in question. For example growing a certain crop or exporting the produce may not be an offence in country A. Similarly, importing and processing it to convert it into a finished product by another name may not be an offence in country B. But the import of the said finished product and its use in country C may be an offence in that country. Would that mean that the activities in countries A & B which led to an offence in country C were also offences per se ? Country C may consider the activities in A & B to be tantamount to abetment of the crime in C but this does not necessarily mean that the societies in A & B should also regard the said activities as criminal unless their respective laws say so. Will it then be right if in their over enthusiasm to curtail or eliminate transnational crime organized or disorganized, countries A & B start punishing their citizens for acts which according to their own laws are not offences? And worse, if they start extraditing their own citizens to country C to be tried and punished there for something the citizens of C alone treat as abetment to an offence in their own country?

This brings me to the question of extradition. The question of extradition by a country of its own citizen to another country necessarily involves the sovereignty and self respect of the former. And this question cannot be ignored while discussing transnational crime.

In the first place, an independent country is under no obligation to extradite its own citizen or, for that matter, a non-citizen for the time being in its territory, to another country unless there is a treaty to that effect creating such an obligation. In the second, there is a law in most countries to regulate the process of extradition, the requirements of which law have to be satisfied before the actual extradition is resorted to. Thirdly, in most countries again, like in mine, there are constitutional guarantees protecting a citizen against being pushed out of his own home land. It goes without saying that a constitutional guarantee overrides all sub-constitutional laws and treaties. Where such a guarantee exists, only a foreigner can be extradited provided all the requirements of the treaty and law in question are met. The question to be considered is whether we should, in our keenness to curb transnational crime, throw the requirements of law to the winds.

The purpose of this Paper is not to discuss ways and means of curtailing or eliminating transnational organized crime but to bring to the notice of this forum which is an Asian forum what happens in Asian countries in the name of suppression of transnational organized crime. The very term transnational implies involvement of more than one nation. If the crime involves more than one nation then its consequence including the trial and punishment will also do so. Each country represented here is a sovereign country and has immense national self-respect. We should, therefore, be slow to respond to a request for extradition particularly when it is in respect of a citizen. Even a foreigner presently on our soil is entitled to full protection of the laws of our land. Now, different nations in this world wield power in a varying degree. All nations are not equally powerful but it must be clearly understood that they are all equally sovereign. A less powerful nation is by no means less sovereign than a more powerful nation. Therefore, if cooperation is necessary to check transnational organized crime then mutual respect and recognition of each others sovereignty is also a must. Some non-Asian countries do not seem to show due respect to the laws of the Asian countries and demand immediate extradition of persons whom they consider to be guilty regardless of the laws of the country in which those persons happen to be. Imposition of one’s will over another is likely to undermine international cooperation and consequently promote transnational crime. This attitude needs, not just to be discouraged, but to be snubbed. We the Asian Nations ought to be on our guard against any attempt at compromising our self-respect or diluting our sovereignty.

　

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