Re Westerling

• Judgment Date: 15 August 1950
• Date: 15 August 1950
• Docket Number: Case No. 21
• Court: High Court (Singapore)

Singapore, High Court, Original Criminal Jurisdiction.

(Evans J.)

Case No. 21

Re Westerling.

Conclusiveness of Statements by the Executive — Succession to Treaty Rights — The Law of Singapore.

Extradition — Conditions of — Necessity for Validly Subsisting Treaty Incorporated into Municipal Law — The Law of Singapore.

Treaties — Operation of — Requirement of Incorporation in Municipal Law — The Law of Singapore.

Treaties — Succession to Treaty Rights — Colony Gaining Independent Sovereign Status — Indonesia.

State Succession — Treaties — Effect of a Colony Gaining Independent Sovereign Status — Conclusiveness of a Statement by the Executive on Succession to Treaty Rights — Requirement of Incorporation of Treaty Rights in Municipal Law — Extradition — Conditions of — The Law of Singapore.

The Facts.—The Government of the Republic of the United States of Indonesia requested the extradition of Westerling, who was accused of the commission of certain crimes in Java while on his way to Malaya. Proceedings were commenced before the District Judge and First Magistrate, Singapore. Westerling applied to the High Court for an Order of Prohibition, to prevent any further hearing by the First Magistrate of the extradition proceedings then before him. The applicant claimed that the District Judge had no jurisdiction in the matter, as no extradition treaty existed between His Majesty's Government and the Government of the United States of Indonesia, and that the rights and benefits provided for by the Extradition Acts, 1870 to 1906, were, therefore, not available to the Government of the Republic. Alternatively, it was submitted that even if an extradition treaty existed between the respective Governments the rights, benefits and duties provided for by that treaty would not have become part of the municipal law of England or of the Colony because the Extradition Act, 1870 (which applies to the Colony and on this point was the sole relevant Act), had provided impliedly that the only Governments entitled to proceed under the Act (or subsequent related Acts) were Governments of States to which the Acts had been applied by Order-in-Council, and no Order-in-Council had been made applying the Extradition Acts to the Republic of the United States of Indonesia.

Counsel for the Government of the Republic of Indonesia argued that the Republic had succeeded to the rights of the Netherlands Government under the Anglo-Netherlands Extradition Treaty of 1898, and the related Order-in-Council of February 2, 1899, in respect of Indonesia.

The Attorney-General entered an appearance and made a statement on the authority of the Secretary of State for Foreign Affairs that Indonesia had succeeded to the rights of the Netherlands under the Treaty. He claimed that such a statement was binding on the Court.

Held: that the application must be granted. The Courts of the Colony had no jurisdiction to surrender the accused. Although an Extradition Treaty existed between His Majesty's Government and the Government of the Republic of Indonesia, as evidenced by the statement of the Attorney-General, no Order-in-Council existed which incorporated the Treaty into the municipal law.

I. Requirements of Extradition, Necessity for a Treaty. The Extradition Acts.—The Court said: “The ground was argued in two ways arising from the scheme of the Extradition Acts 1870–1932, of which Acts, however, that of 1870 alone is relevant. That Act does not deal with a purely internal matter or one which can be regulated by municipal law alone. Extradition imports two states, one requiring extradition and one from which the surrender of an alleged offender is required. It also touches on the liberties of the alleged offender. The Act, though it may be capable of general application, of itself may be said to apply to nothing. Before it can be made to apply, there must be states agreeing to mutual extradition. The Act, therefore, contemplates a treaty, or arrangement, entered into with another state desiring to establish a system of extradition, and it accordingly goes on to authorise His Majesty in Council to make an Order, reciting or embodying the treaty, and applying the Acts in the case of that state which is the other party thereto. Any act taken by officers of state, or by others, for the purposes of extradition against an individual must be under or in accordance with the Statute so applied.

“The applicant alleged that there was neither treaty, nor Order-in-Council with the United States of Indonesia, the requisitioning state in this case, under or in respect of which any action could be taken under the Statute. It is not disputed that there is no specific treaty entered into with the United States of Indonesia for this purpose, and, consequently, there is no Order-in-Council applying the Acts to that country in regard to that treaty. The argument on the first point was partly in anticipation of possible cases to be made, and partly in reply to a statement … that the United States of Indonesia is a ‘successor’ of the Netherlands. The argument was necessarily nebulous, as there were several points, such as the date, and mode, of His Majesty's recognition of the United States of Indonesia, and whether His Majesty's Government had consented to any devolution of rights which might be affected by Article 5 of the Draft Agreement on Transitional Measures made at the Round Table Conference at the Hague on 2nd November, 1949, on which it was suggested, the Court would have to seek information in some way or another. At an early stage I raised the question of how far these matters could be tried by this Court, since the view of His Majesty's Government would seem to be clearly inferable from the action already taken, and of how far they were relevant to the matter before it.”

II. Conclusiveness of Statements by the Executive on Questions of International Law. Succession to Treaty Rights.—The Judge continued: “Counsel, however, contended (and rightly) that, if there was no treaty, the Acts could not be invoked, and the matter should be determined beyond doubt. He argued that the United States of Indonesia was a new, and...