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Has Malaysia violated international law?

The deportation of a Saudi national has significant human rights implications

  • Joachim Francis Xavier, Kuala Lumpur
  • Malaysia
  • February 20, 2012
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Hamza Kashgari, a 23-year-old Saudi Arabian columnist, published a number of tweets earlier this month expressing his religious views pertaining to the Prophet Mohammed. These tweets went viral after it was deemed to be insulting to the Prophet and Islam.

Within 24 hours, the tweets drew over 30,000 responses, mostly negative. A Facebook page titled “Saudi people want punishment of Hamza” grew to more than 20,000 members. Before Hamza could wrap his head around what he had done, calls for his death were echoing in cyberspace and the print media.

Fearing for his life, Kashgari fled his country on February 7. He was to transit in Malaysia before heading to New Zealand. However, Malaysian authorities detained him upon his arrival at Kuala Lumpur International Airport.

On February 12, Kashgari was deported in a private plane to Saudi Arabia after a formal request was made to the Malaysian Home Ministry for his extradition to face apostasy charges.  This deportation was done despite attempts by Kashgari’s lawyers in Malaysia to block the deportation via a court order and also UNHCR’s request to interview Kashgari over claims that he was an asylum seeker.

During this time, Malaysia once again adorned the pages of newspapers around the world for the wrong reason – violation of yet another international law.

Kashgari was claiming his right to protection under Article 14 of the Universal Declaration of Human Rights (UDHR) or alternatively under Article 33 of the 1951 Convention Relating to Status of Refugees. Both instruments employing different words embody the international human rights principle of non-refoulement, or “prohibition to return.” Kashgari was claiming his right not to be deported for fear of being persecuted for his beliefs, in this case his religious opinions concerning the Prophet Mohammed.

Apart from that, Kashgari was very likely also asserting other related rights under the UDHR, namely Article 19 (freedom of expression), Article 3 (right to life) and Article 10 (right to a fair and public hearing).

Notwithstanding difficult questions as to whether there were actual violations of these rights or whether these human rights are absolute rights or not, it suffices to say that the circumstances surrounding Kashgari’s desperate departure from Saudi Arabia would at the very least entitle him to the Article 14 right.

Practically, this means that Kashgari should have at least been allowed access to the UNHCR staff in Kuala Lumpur so that the agency could make an objective assessment if he was indeed deserving of protection. According to press reports on February 16, UNHCR spokesperson in Kuala Lumpur Yante Ismail said “…Kashgari may have had legitimate claims to seek asylum but we were not granted access to verify the claim.”

Home Minister Hishamuddin Hussein defended the move to deport Kashgari saying, “Malaysia is not a safe haven for not only terrorists [but also] wanted people.” He went on to say that Malaysia was not a safe country for criminal activities. How does a minister in charge of law and order ignore altogether the possibility that people like Kashgari may actually have a right protected by law?

Perhaps the Malaysian government does not think that it is bound by international laws such as the UDHR and the 1951 Convention. Malaysia is not a signatory to the 1951 Convention, and the convention is not widely seen as one that has attained the ranks of customary international law (which binds all states regardless of whether they are signatories to it or not). So, it is possible that the Malaysian government does not see itself bound by it, at least not in so far as domestic law is concerned.

However, Malaysia is a signatory of the UDHR. Although the UDHR itself is not wholly incorporated into domestic law by an Act of Parliament, s.4(4) of the Human Rights Commission Act 1999 allows “regard to be had to the UDHR to the extent it is not inconsistent to the Federal Constitution.” This being the case, surely the good minister should have “had regard” to Article 14 of the UDHR, especially since there is no obvious inconsistency with the Federal Constitution and that there is a UNHCR office located right in the center of Kuala Lumpur. The argument that international law does not apply locally is at best a specious one.

Alternatively, did economics weigh in on the decision to comply meekly with the extradition request of Saudi Arabia, a major bilateral trading partner? In 2010, Malaysia's total trade with Saudi Arabia increased by 38 percent to US$2.896 billion from $1.923 billion in 2009. Foreign Direct Investments from Saudi Arabia are also on the rise. Malaysia is an important tourist destination for thousands of Saudi Arabian nationals flush with cash and looking for a place to spend it.

Let’s consider another possibility. Would it be going too far to suggest that the Malaysian authorities deported Kashgari under dubious circumstances because it wanted to circumvent the rule of law? Human Rights Watch and Charles Santiago, an opposition member of parliament, both confirmed that Malaysia and Saudi Arabia had no formal extradition arrangements. So how was this extradition done so efficiently and under what legal framework?

Then there is the claim by Kashgari’s lawyers in Malaysia that there are no official records of their client’s departure from Kuala Lumpur International Airport. This is bizarre for a country that prides itself on numerous e-government endeavors. Surely there must be an electronic record at the airport or immigration department. What about the private plane that landed in Kuala Lumpur International Airport and later took off with its prized cargo? Records of its flight number, time, refueling or anything at all? How is it possible that someone can be deported and yet there is no trace of such a departure?

The talk is that no records can exist because if they did, they would shed some light on the question of whether the authorities had acted in contempt of a court order secured by Kashgari’s lawyers on the very same day of his deportation. What if the records showed that Kashgari was deported an hour or two after the court order was served? Would that not be embarrassing if not demonstrating outright illegal actions?

Finally, did politics have anything to do with this? It is common knowledge that the United Malays National Organisation that dominates the ruling coalition has waged an ongoing but stale battle with the opposition Pan-Malaysian Islamic Party to win the hearts and minds of the majority Muslim voters in Malaysia. Could it be that deporting Kashgari was political posturing?

Now that Kashgari is in the hands of Saudi Arabian officials, we can only hope that he receives a fair trial and his life is spared. Yes, there is hope. His lawyer in Saudi Arabia, Sulaiman al-Jomaii, was reported to have said it is possible his client would not be executed so long as he repents of his “apostasy.” If that happens, Kashgari gains another opportunity to tell his story.

As for Malaysia, if the Kashgari fiasco was an opportunity to set its human rights track record right, especially concerning asylum seekers and refugees, she surely missed it … again.

Joachim Francis Xavier is a legally trained social activist who has worked with the Catholic Diocese of Penang for over 10 years. He now serves as chairperson of the Malaysian bishops’ Episcopal Commission for the Pastoral Care of Migrants and Itinerants
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