Arif Naqvi’s extradition case to be heard after Nirav Modi case ruling

LONDON: A London High Court has ruled that the decision to extradite Pakistani businessman Arif Naqvi to the United States should be delayed until a legal test on the capacity to resist the impulse of suicide is made in the case of Indian diamond tycoon Nirav Modi, who is currently in prison at Wamdswroth jail and wanted by the Indian government under an extradition warrant.

On Wednesday, upon hearing brief initial evidence provided by Naqvi’s lawyer, Edward Fitzgerald QC, and the lawyer representing the US government, Mark Summers QC, Judge Philippa Whipple stated that she would prefer to adjourn the matter until a similar point of law was resolved in the extradition case of Modi, who is currently fighting an Indian extradition bid to take him back to India where he would face fraud charges of nearly US$ 2 billion.

Judge Whipple said: "The preferential way forward is to adjourn this permission application. I do that primarily on the basis of the district judge's decision where she noted that at this point there was no case to be run under section 91 of the Extradition Act 2003.”

In her ruling, Judge Whipple held that Naqvi "should have the opportunity" to see the outcome of Modi's appeal which challenges the suicide test as a matter of law to determine the risks to life of an accused if extradited. The judge said the outcome in Modi’s case could allow Naqvi to argue that his extradition would be oppressive if the bar is lowered.

The point of law that is in contention in both cases is in relation to Section-91 — under the Extradition Act of 2003 — which deals with whether someone’s mental condition would remove their capacity for self-harm and potential suicide. Psychiatrists acting for both Naqvi’s lawyers and the US government have concluded that the Karachi-born Abraaj founder suffers from serious mental health illnesses that would likely lead him to a high risk of suicide.

This same test is also at the heart of Julian Assange’s defence against the US government in his own extradition challenge that he faces from a UK jail. In that case, the test was met, and the US government appealed on the basis that they felt the court did not apply the test correctly — that the decision was on future potential deterioration versus his current state.

Naqvi’s leave to appeal also relates to Article 3 where arguments have been made on the basis of the lack of fundamental human rights in US prisons based on abhorrent prison conditions that have been uncovered in recent years, notably at institutions such as the Metropolitan Correctional Facility (MCC), which has since closed; the Metropolitan Detention Centre (MDC) in Brooklyn and the Essex County Correctional Facility (ECCF), the latter of which the US government intends to send Naqvi to.

At its peak, The Abraaj Group was the largest private equity firm in the world operating in emerging markets, with over US$ 14 billion of assets under management. Largely focused on what they called impact investing, it is said to have indirectly employed close to a million people through its portfolio companies.

Following the stunning collapse of the group in 2018 alongside a delayed sale of its prized asset, K-Electric, Naqvi was arrested upon returning to Heathrow Airport from Islamabad in April 2019 under a US indictment with 16 counts of fraud and related money laundering said to have been committed between 2014 and 2018. The American government has described him as the “leader of a criminal enterprise that courted Abraaj”, arguing that he had set up Abraaj from the very beginning with criminal intent to defraud US investors.

Naqvi has through his lawyers continued to strongly protest his indictment. He has said that the charges against him are unjustly motivated and claims he has been subjected to a media trial by "vested interests". Furthermore, it was accepted in court earlier that all investor monies were paid back with interest to investors in the disputed Abraaj Global Healthcare fund.

In January this year, the Westminster Magistrates’ Court ordered the extradition of the Abraaj founder to face charges of fraud, money-laundering and racketeering which carry, in total, 300 years in prison for white collar offences. Senior District Judge Emma Arbuthnot ordered the Pakistani businessman extradited to the US, ruling that his safety and rights will not be at risk in the US jail as argued by Naqvi’s lawyer during the extradition hearings.