Analysis: Unionists insist there was a political deal. The main Opposition parties have suggested there might be. But it seems that now that they have got back to Ireland, the "Colombia Three" don't need any political deal to ensure they can stay here.The Government appears to be off the'Colombia Three' hook, writes Mark Brennock
For there was consensus among legal sources yesterday that as things stand the three men cannot be extradited to Colombia. There is no extradition treaty between the two states.
It is theoretically possible that extradition could be sought under some international convention covering specific crimes to which both Ireland and Colombia have signed up.
However these conventions cover very specific offences and none seems immediately to cover the offences of which the "Colombia Three" have been convicted.
Even if a suitable convention could be found and the Government was to consider that an extradition request was in order, a court decision to extradite would be far from certain.
The protections afforded to citizens under the Constitution take precedence over any international convention.
Colombia faces regular international criticism for human rights breaches; the original trial judge suggested the two main witnesses against the men should be investigated for possible perjury, only for their evidence to be accepted by the appeal tribunal; Colombian political and military figures referred to the men as guilty long before the verdict.
Therefore in the event of an extradition request being considered acceptable under some international treaty, it would still face enormous obstacles in the Irish courts.
The existence of an Interpol arrest warrant for the three is of no assistance either to those who wish to see them sent back to Colombia.
Gardaí arrest people on the basis of Irish warrants only.
This analysis of the legal position therefore backs up the contention of the Taoiseach and his Ministers that the question of extraditing the men has "nothing to do with us". Extradition requests are made to the Government, and the Attorney General then acts upon them. But the current situation seems to be that there is no basis for the making of an extradition request.
Should the Colombian government nevertheless make an extradition request, it would be for the Government formally to decide, with advice from the Attorney General, that there was no basis for proceeding with it. However, legal sources suggested yesterday that the Government would not have any real discretion. To seek to extradite the three men on the basis of a Colombian government request would, in current circumstances, be unlawful, the sources say.
It also seems highly unlikely that the Government would seek to change this situation by conducting speedy negotiations with Colombia to agree an extradition treaty. It does not seem realistic to expect the Government to seek such a treaty - or for the Opposition to demand that it did - with a state whose human rights record has been criticised by the United Nations.
The Government therefore appears to be off the hook in relation to the fate of the "Colombia Three". It has little discretion, and no difficult decision to make.
So if the possibility of extradition to Colombia is indeed closed, what is left is the possibility of charging the men with travelling on false passports. This is a matter for the Director of Public Prosecutions and the Garda, not for the Government.
Government spokesmen said at the weekend that senior officials in the Departments of the Taoiseach and the Ministers for Justice and Foreign Affairs, as well as the Attorney General's Office, would this week examine carefully all of the legal possibilities. However, no official extradition request has yet been made by the Colombian government, and there is no sense in Government circles of any imminent dramatic developments.
This is the second alleged "secret deal" with Sinn Féin and the IRA that Mr Ahern had unambiguously denied in recent days. Mr Ahern indicated through a spokesman last week that claims by Gerry Adams that he [ Mr Ahern] had agreed to give Northern Ireland MPs the right to speak in the Dáil on a wide range of policy issues were wrong. Rather, the spokesman indicated, the Taoiseach had indicated support for a much narrower initiative: the idea that Northern MPs could be invited from time to time to speak at Oireachtas committees, but only on matters relating to Northern Ireland and the peace process.
"There has been much exaggerated comment on this point" the Taoiseach writes in today's editions of The Irish Times. "What we have in mind is sensible but modest. It would not involve speaking rights or privileges in the Dáil." He adds that "there are no other understandings or side deals".
The fact that other parties North and South suspect such deals - whether they be in relation to Dáil speaking rights or the "Colombia Three" - is down largely to the emergence last year of the news that at one point the Taoiseach had agreed secretly to release the killers of Det Garda Jerry McCabe in the context of a comprehensive deal in the North. This idea has been abandoned now.
The evidence against a deal on the "Colombia Three" is not only that the Taoiseach has clearly denied it, but the fact that no such deal appears to be necessary to ensure the three men can remain in Ireland and are not extradited back to Colombia to serve 17-year sentences.