Mutual Legal Assistance and extradition treaties with Iran: Requests for ratification

Meeting report

Agreement between the Government of the Republic of South Africa and the Islamic Republic of Iran on Mutual Legal Assistance in Criminal Matters: Department of Justice and Constitutional Development briefing
Mr Herman Van Heerden, Principal State Law Advisor, Department of Justice and Constitutional Development, said that the agreements for Mutual Legal Assistance and an extradition treaty (to be presented later in the meeting) were signed in 2004. It was not clear why they had only now reached Parliament for ratification. The State Law Advisors had tried on a number of occasions to have the agreements submitted to Parliament. The two agreements with the Islamic Republic of Iran were based on, and identical to the agreements with Egypt.

Mr van Heerden outlined the content of the agreement for Mutual Legal Assistance. He noted that any request was subject to the domestic law of the requested state. Both agreements had been submitted to the State Law Advisors in the DoJ&CD to determine whether the provisions were in line with the domestic laws of the country, as well as to the Department of International Relations and Cooperation (DIRCO) to determine whether the agreements were in conflict with any other existing international agreements. No objections were raised on these grounds. Article 2 dealt with the scope of application. Article 3 merely stated that other mechanisms could still be used when the parties were assisting one another. Article 5 made provision for what had to be in the request itself. Article 6 provided for the refusal or postponement of assistance. Article 7 related to the execution of a request, and specified that this had to be subject to domestic laws. Article 13 provided for search and seizure. Article 14 provided that the requested State must, when requested, try to locate any property or assets of a person against whom a forfeiture, confiscation, pecuniary penalty order or similar order was given. Article 16 dealt with service of documents. Article 18 related to the consultation process regarding the implementation and consequences of the agreement.

Discussion
Adv L Adams (COPE) referred to page 14 of the Mutual Legal Assistance agreement and asked what was meant by the words, in sub-article (2), that ‘the treaty shall enter into force on the date of the last written notification that the constitutional processes have been completed’.

Mr Van Heerden replied that this would mean, in South Africa, after the processes set out in the Constitution, including the submission of the treaty to both Houses of Parliament, for ratification, was completed.

Adv S Holomisa (ANC) said that the matter seemed fairly straightforward.

Extradition Treaty between the Government of the Republic of South Africa and the Islamic Republic of Iran
Mr Van Heerden then noted the content of the Extradition Treaty signed between South Africa and the Islamic Republic of Iran. He noted that the requirement for dual criminality appeared under Article 2(1), which stated that an offence was regarded as extraditable only if that offence was punishable under the laws of both States by a sanction of at least one year’s imprisonment. Article 2(2) also set out when an offence would be extraditable. Article 3 provided that neither state shall be bound to extradite its own nationals. Article 5 was important, dealing with other grounds for refusal.

Mr van Heerden noted that Article 1 read that extradition could be refused if the requested State had “substantial grounds to believe that the probable sentence of the offence in the Requesting State is qualitatively different from the probable sentence given on the same offence in the court of the Requested State’. Iran had specifically requested that there be no reference to the death penalty. Article 5(2) provided that extradition may be refused if the Requested Party did not give sufficient undertaking or assurance that the person whom it sought to extradite would not be detained without trial; tortured, or treated or punished in cruel, inhuman or degrading way. South Africa would not extradite if the death penalty would be applicable in the requesting state. 

Mr van Heerden continued that Article 6(1) stated that a person could not be extradited when already convicted, or acquitted of the offence under Article 6(1). Article 11 provided for translation and authentication of any documents accompanying the extradition request. Article 24 made provisions for when and how a person would be handed over. Article 25 set out conditions for the ratification; entry into force, amendment and termination of the Treaty. Finally, he noted that Iran had already concluded its constitutional process to ratify the treaty.

Discussion
Mr S Swart (ACDP) asked why it had taken seven years for the treaties to make their way to Parliament for ratification. He strongly recommended that, in future, proposed treaties should come before the Portfolio Committee for full consideration, rather than Parliament simply being expected to “rubber-stamp” them. His concern was that human rights abuses in Iran were well-known and documented. He asked how a requested State could ensure that the person extradited would not be tortured and abused.

The Chairperson said that he had discussed the same concerns as Mr Swart, informally, with some of the Members of the Committee. The Constitution provided that the signing and negotiating of all international agreements was the responsibility of the National Executive, but they would only become binding after approval by the National Assembly (NA) and the National Council of Provinces (NCOP).

Mr Swart said that if Parliament had the right to approve the treaties, then it should surely also have the right to amend them.

Mr J Jeffery (ANC) said that consultation with Parliament would not be appropriate, at the early stages, because the negotiations were sensitive. Another state that was part of the negotiations could try to lobby Members of Parliament to get the best deal for themselves. However, he did agree that Parliament could play a role in the less controversial and technical agreements, such as extradition treaties, rather than in  trade agreements. The Committee of House Chairpersons could discuss the procedure that had to be followed.

Mr Jeffery asked whether the Committee’s Research Unit had prepared any commentary.

Mr Jeffery also asked why the Committee had received such late notice of this, when the tabling was apparently already done in April. He further questioned why the Department had taken so long to bring these agreements to the Committee, and what it was doing to rectify this.

Mr Jeffery then raised specific comments on the content of the Extradition Treaty. He asked whether a  South African committing a crime in Iran would be tried under South African law, given that South Africa did not have extra-territorial jurisdiction. He also asked why there was no provision under Article 5 that South African nationals would not be executed, since although something was mentioned in Article 5(2), this was in a different form. He asked why Persian was not specified as the language of the requesting state. He also questioned if the Iranian Parliament had ratified these treaties and, if so, when this occurred.

Mr Vhonani Raamano, Committee Secretary, said that today’s meeting was not part of the programme, as public hearings on the Superior Courts Bill were supposed to have taken place. This meeting had been arranged only on the previous Friday, following cancellation of the debate on the Judges’ Remuneration and Conditions of Service Amendment Bill. The documents had been e-mailed to Members on the previous day.

Ms Gillian Nesbitt, Committee Researcher, confirmed that although the Research Unit had been working on issues relating to cyber-crime, which was scheduled for discussion, this meeting was arranged at extremely short notice, giving insufficient time to Mr Dana to finish his background paper on the treaties.

Mr Jeffery said that this was not an adequate answer. The document was tabled in April, at a time when the Research Unit was not particularly busy with other work, given the election period.

Mr Van Heerden said that he could not give a further explanation, other than to tell the Committee that when an international agreement was signed, the State Law Advisers would draft a memorandum for the Minister of Justice to submit a draft to Parliament for ratification. The State Law Advisors would then receive a notice for briefing Parliament, and after final confirmation, the ratification would be given. It was  not clear what happened to the documents that were submitted to the Ministry of Justice by the State Law Advisors but he would follow up on this.

 Mr Jeffery suggested that the Chairperson should write a letter to the Minister of Justice, expressing concern, and asking to ensure that in future this did not recur.

Mr Van Heerden added that it was not clear as to exactly when Iran had ratified the treaties, but Iran’s constitutional process had been finalised.

Mr van Heerden clarified, for Mr Jeffery, that South Africa had no extra-territorial jurisdiction, which was why it had a need to extradite its own nationals who had committed offences.

Mr Jeffery asked why Article 3 was in place, saying that this would be understandable if the other country wanted to extradite its own nationals.

Mr Van Heerden said that he thought that Iran may extradite its own nationals, and it was also possible that this country  may have extra territorial jurisdiction.

Mr Jeffery commented that there were several uncertainties; although the treaty had been signed, South Africa did not appear to know whether Iran extradited its own nationals, nor whether Iran had extra territorial jurisdiction.

Mr Van Heerden said that the document was negotiated with the delegation from Iran, so, although he did not know the full background, there must be good reason why Article 3 was included.

Mr Jeffery asked Mr Van Heerden to tell the Committee what that reason was.

Mr Van Heerden replied that he would have to investigate this.

Mr Jeffery asked what Mr Van Heerden thought he was doing in Parliament, and asked whether the Committee was expected to just rubber stamp these agreements.

Mr Van Heerden then referred to the remainder of the questions. He said that Article 5 made it clear that South Africa would not extradite if the death penalty would apply in the requesting State. The principle set out in Article 5(2) was that if there were no assurances given that the death penalty would not be imposed in the requesting State, then South Africa would not extradite.

The Chairperson said that Mr Jeffery was concerned was that this treaty did not expressly mention that there would be no extradition if the death penalty applied. 

Mr Swart said that it would be useful if, in future, an official from the negotiating team could accompany the State Law Advisor giving the presentation, to assist the Committee in its understanding. He appreciated the difficulties that Mr van Heerden faced, as he effectively was only involved at the end of the process.

 Mr Van Heerden agreed that it was a good idea to include officials from the negotiating team, to answer questions as to why specific wording was used. South Africa would only engage at a diplomatic level to ensure that certain undertakings from the treaty would be honoured.

Mr van Heerden noted that the idea behind the language provision was based on the fact that there were eleven official languages in South Africa.

Ms D Schäfer (DA) said that the Committee had a choice to not ratify the treaties. She thought it was not acceptable that there was no express guarantee that the punishment meted out by Iran would not exceed what would be considered appropriate in South Africa. The Department’s behaviour in this matter has been embarrassing, including the fact that documents from 2004 had been lost. In answer to Mr Jeffery’s complaints, she noted that Mr Dana had been with the Committee only one month,  and it was unfair to expect him to work through the elections in April to produce a document for the Committee.

The Chairperson confirmed that the treaty should contain a guarantee to the effect that the death penalty should not be entertained. Members agreed that Article 5 did not go far enough in this regard, as it simply seemed to say that South Africa would not unless, in a given case, Iran provided a guarantee.

Mr Van Heerden reiterated that it was difficult for him to comment specifically, but the of Article 5(2) was that if there was this assurance given, then South Africa would extradite.

Ms D Smuts (DA) said that there were growing calls from Members of Parliament that they should be involved in the negotiating stage of treaties. The International Relations Portfolio Committee could take on some of this work.

Adv Holomisa added that all Parliaments in the Southern African Development Community (SADC) had raised similar concerns, that the Executive negotiated these treaties that had legal force, and bound the State, although it was the duty of Parliaments to make law. 

Mr Jeffery answered Ms Schäfer’s point that Parliament could choose to not ratify the treaty. In practice, this Committee could not expect the Ministry to re-open negotiations with Iran. The Constitutional Court had decided that South Africa could not extradite unless there was an undertaking that the death penalty would not apply. However, clause in Article 5 was worded as optional, since extradition “may” be refused. Although it might have been preferable to use different wording, he did not think that this concern was sufficient to refuse to ratify the treaties. He suggested, however, that The Committee should state in its Report that the provisions of Article 5(2) were of concern, and should propose that any undertaking made under Article 5(2) must include specific wording that there would be no extradition if the individual would face the death penalty, torture or being detained without trial. This should be monitored by South Africa.

The Chairperson emphasised to Mr van Heerden that these were serious concerns. He agreed that the Committee must draft a report highlighting its concerns.

Ms Schäfer asked if “domestic law” mentioned in Article 1  would include Constitutional Court (CC) judgments.

Mr Van Heerden said that case law would form part of domestic law.

The Committee, after discussion, decided to vote formally on the request for ratification only after the Report reflecting the Committee’s concerns had been drafted.

Mr van Heerden referred the Committee to Article 22, and said that since this provided for amendments, it was still possible for the Committee to suggest changes.

The meeting was adjourned.