The case of Sirul Azhar Umar poses a diplomatic dilemma for both Malaysia and Australia, says Queen's Counsel Mark Trowell of Australia.

Trowell noted that though both countries shared good ties, Australian law does not allow the deportation of a person facing the death sentence in his or her home country.

"Unless Malaysia undertakes not to execute him, we would not send him back. For example, if it undertakes that he would face life imprisonment only.

“In that case, there would be no impediment to extraditing him back to Malaysia," Trowell said in an email communique to Malaysiakini.

He also saw no reason why Sirul would not be allowed to stay in Australia and that if he is indeed to be deported, it is likely that it would not be back to Malaysia.

Trowell (left) said this when asked to comment on a Sydney Morning Herald (SMH) report that the extradition law in Australia would not permit the government to send back the former Malaysian police commando.

On Tuesday, Sirul and another ex-police special forces member Azilah Hadri were sentenced to death for killing Mongolian national Altantuya Shaaribuu.

'He will be arrested'

Commenting further, the Queen’s Counsel pointed out that Australia has not had the death penalty since 1967.

"The extradition law prohibits the attorney-general surrendering a person for extradition where he or she has substantial grounds to believe the death penalty may be imposed on the person to be extradited.

"Under Section 22, of the Australian Extradition Act, the attorney-general may order that person to be surrendered if an undertaking is given by the extradition country to Australia that the death penalty imposed on the person, will not be carried out," he added further.

However, Trowell said, Australian authorities would definitely arrest Sirul (right) if found, and the latter would remain in detention until the extradition process is exhausted.

Sirul, he added, would be held in a maximum security special facility for persons facing deportation.

A long process

In explaining the extradition process, Trowell said normally, the request for extradition must be from the attorney-general of Malaysia to his counterpart in Australia.

The latter would then refer it to the Australian government.

“If a request (for extradition) is accepted, a notice to a magistrate that the request has been received is issued. To accept the request, the AG or minister must be of the opinion that the person is an 'extraditable person' in relation to the extradition country,” he said.

“The decision by the AG or minister to issue the notice is subject to a judicial review or challenge,” he said.

Trowell said the AG or minister, in issuing the notice, would require the magistrate to produce an extradition arrest warrant which would be executed by the Australian police.

Following the arrest of the individual, the magistrate would determine if the accused person is allowed to be surrendered and this is subject to a judicial review.

Conditions of AG's decision

Trowell said before deciding to surrender the person who is arrested to the extraditing country, there are several conditions the Australian attorney-general must consider, namely:

- Whether there are any extradition objections;

- Whether there are substantial grounds for believing that the person would be in danger or be subjected to torture on surrender to the foreign country;

- Whether the offence is punishable by death;

- Whether the foreign country concerned has given a speciality assurance in relation to the person; treaty requirements, and any other issue.

Trowell said a review of the magistrate's decision could be sought, right up to the Federal Court in Australia.

Yesterday, Deputy Home Minister Wan Junaidi Tuanku Jaafar also acknowledged that the Australian government might not extradite Sirul but said that it was morally obliged to do so.