Is an extradition request to the Antigua and Barbuda government the only way to bring fugitive diamond merchant Mehul Choksi back to India?
The Indian government could adopt a faster method by getting his Antiguan passport cancelled and having him deported to India.
Under Antigua and Barbuda law, Choksi’s local passport can be cancelled for “willingly making a wrongful declaration” in his application.
The Government of India (GoI) doesn’t need to give Choksi quite such a long rope by sending in an extradition request. Rather, the GoI should write to the Government of Antigua, informing them about the criminal charges levied against the fugitive diamantaire.
Let’s take a look at how Choksi’s Antiguan passport can be cancelled legally step-by-step.
Antigua and Barbuda Law On Registered Citizens
Chapter 8, Section 116 of The Antigua and Barbuda Constitutional Order 1981, says a citizen can expect the cancellation of their citizenship and revoking of passport for any of the following reasons:
“[...] depriving of his citizenship any person who is a citizen by virtue of registration, if such registration as a citizen was obtained by false representation or fraud or willful concealment of material facts or if he is convicted in Antigua and Barbuda of an act of treason or sedition.” [emphasis added]
Under Section 89 of the Antigua and Barbuda Constitution, the Attorney General of the country can “give general or special directions to the Director of Public Prosecutions” to initiate criminal proceedings against a person for any offence under any law relating to any right or obligation of Antigua and Barbuda under international law.
India has to pursue its case by asking Antigua government to apply its own laws and Constitution to cancel Choksi’s passport.
According to the experts, since Choksi was facing several cheating cases when he applied for the Antiguan passport, the Indian government can request the Antiguan government to cancel his passport for the act of concealing facts.
"The Government of India has to write to the Government of Antigua and Barbuda to cancel Mehul Choksi’s passport and point out he has defrauded the Antiguan Government and has committed criminal offences as per Antiguan law itself. Making a false declaration, as stated in the application for citizenship itself, is enough for revoking his citizenship. The moment his Antiguan passport is cancelled, he is liable to be deported back to India." - Prashant Kumar, Advocate, Supreme Court of India
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Cheating FIR Against Choksi Since 2015
The Bangalore Police had filed two FIRs against Choksi on 29 January and 18 March 2015 under charges of cheating worth Rs 10.48 crore. A jeweller, SV Hariprasad, entered into an agreement with Choski, which he later allegedly dishonoured.
It has also been reported that like Hariprasad, several other franchises of Choksi’s company filed cheating complaints against him, which were later converted into FIRs.
Antigua’s Citizenship Can Be Cancelled If Misled
Let’s take a look at what Section D of the Application Form of Citizenship by Investment Program, under which Choksi applied for the Antiguan citizenship, has to say. In this section, an applicant just needs to tick on Yes or No.
“I can confirm that to the best of my knowledge, I am not currently the subject of any criminal investigation.”
Certainly, for this question, Choksi must have ticked No, else the Antiguan government wouldn’t have claimed that “there wasn’t any derogatory information” on the applicant.
The form also says that if it is found that the applicant has misinformed the Antigua and Barbuda government while filing the application, then not only can his passport be cancelled, but the government can also initiate criminal proceedings.
“If it is found later that you have provided false or incorrect information, you may be deprived of your Antigua and Barbuda citizenship pursuant to Part 4, Section 3 of the Antigua and Barbuda Citizenship By Investment (Amendment) Act, 2014 and you may face criminal prosecution.”
The application form also lists 13 questions which are to be answered by the applicant with YES or NO. The three most important are:
- Have you ever been arrested, charged, convicted, found guilty or been expunged of any offence (s) against the law in any country?
- Have any charges, or accusations, of illegal activity of any nature been made against you in any country?
- Have you ever been under investigation by any law enforcement agency or tax authority in any country?
Again, Choksi must have concealed the facts in answer to these questions.
The 2 August 2018 statement released by the Citizenship By Investment Unit (CIU) confirms this. It says:
“Mr Choksi’s application was subjected to stringent background checks which included open source internet checks, Thompson Reuters World-Check, queries of various sanctions lists, engagement with regional and international intelligence agencies to include Interpol as well as contracted 3rd Party due diligence providers. It was only after the results of all of these checks had been received and assessed that a final decision was taken on the application. In no instance was any derogatory information disclosed on the applicant.”
The above statement shows that neither Choksi nor the Indian government revealed information about the pending cases against him to the Antiguan government.
India Can Put Pressure On Antigua Through FATF
India and Antigua and Barbuda are both members of the Financial Action Task Force (FATF), an inter-governmental body formed to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other threats related to the integrity of the international financial system.
FAFT assures mutual legal assistance among the 33 member countries. It says that:
“Countries should have an adequate legal basis for providing assistance and, where appropriate, should have in place treaties, arrangements or other mechanisms to enhance cooperation.”
Can Antigua Ignore FATF? "India can request FATF to put Antigua under high risk and other monitored jurisdiction category if it doesn’t act, which in return will affect Antigua’s capacity to attract foreign investment. Both the countries are signatories of 40 recommendations of FATF." - Prashant Kumar, Advocate, Supreme Court of India
India has already handed over its extradition request to the Antiguan government.
According to sources in agencies, in its extradition request, India has informed the Antiguan government about the ongoing criminal cases against Choksi.
But the Antiguan government is under no compulsion to act on India’s extradition request because there is no extradition treaty between the two countries.
"One has to see whether India’s extradition request to Antigua proceeds on the basis that Choksi holds Antiguan citizenship, then it gives a long rope to Choksi. Instead, India can very well first seek cancellation of his Antiguan citizenship, not just for hiding facts but for using the proceeds of crime to make investment to obtain citizenship of Antigua. India has a right to seek forfeiture and confiscation of money Choksi has paid for making investment to obtain citizenship as it is from proceeds of banking fraud and it belongs to India. Once his investment is frozen he is not entitled for Antigua citizenship. If pressed this way Antigua is bound to act as otherwise this brings disrepute to Antigua if not acted upon and exposes the citizenship by investment program of Antigua as a devise to facilitate money laundering and FATF can be requested to act against Antigua by putting Antigua in a list of countries having weak financial systems." - Prashant Kumar, Advocate, Supreme Court of India
Despite being aware that Choksi applied for an Antiguan passport, the Indian government and agencies did nothing to stop him from reaching that safe haven after he escaped in January 2018.
"Considering the way Indian authorities are pursuing the case, a court-monitored investigation is required." - Prashant Kumar, Advocate, Supreme Court of India
Ever since the Punjab National Bank scam of over Rs 13,000 crore broke, the government has consistently claimed ignorance about his location. All the while, they had in their possession documents that all but screamed of his whereabouts.
Now, when Antiguan laws allow for the cancellation of Choksi’s Antiguan citizenship, is the Indian government intentionally channelling its efforts in a direction it knows could be futile?
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