Saturday, August 31, 2019

Malaysia’s Arrest and Sending back Asylum Seeker Teacher, Wife and 4 Children back to Turkey Is Wrong and Unjust(MADPET)

Media Statement – 31/8/2019

Malaysia’s Arrest and Sending back Asylum Seeker Teacher, Wife and 4 Children back to Turkey Is Wrong and Unjust

-Respect Human Rights, Law And Principle Of Non-Refoulement

MADPET (Malaysians Against Death Penalty and Torture) is disturbed by the media report that Turkish teacher Arif Komis and his family, who are recognized by the United Nations High Commissioner for Refugees (UNHCR) as asylum seekers have been arrested by the Malaysian police and thereafter  deported back to Turkey for prosecution(Malay Mail, 30/8/2019). 

It is now learnt that Komis who arrived in Turkey with his wife and their four young children today was swiftly detained by police.(Free Malaysia Today, 30/8/2019)

Malaysia should respect the principle of non-refoulement especially when it comes to asylum seekers and refugees in Malaysia, which means that Malaysia should not be arresting and sending back these persons to countries from where they have fled from prosecution. 

The primary and universal definition of a refugee is contained in Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees, as amended by its 1967 Protocol,  which states that ‘ a refugee as someone who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it…”

An asylum-seeker is someone whose request for sanctuary has yet to be processed.

Article 14 United Nations Declaration of Human Rights state that ‘(1) ‘ everyone has the right to seek and to enjoy in other countries asylum from persecution.’ However, “(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.’

Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.

The prohibition of refoulement has been interpreted by some courts and international human rights mechanisms to apply to a range of serious human rights violations, including torture, and other cruel, inhuman or degrading treatment, flagrant denial of the right to a fair trial, risks of violations to the rights to life and/or freedom of the persons, serious forms of sexual and gender-based violence, death penalty or death row, female genital mutilation, or prolonged solitary confinement, among others.

Being a refugee or an asylum seeker entitles the person to a number of (refugee) rights, including the right not to be sent back to the country of origin (principle of non-refoulement).

However, the principle ought not protect criminals like murderers, rapist, money launderers and/or those involved in corruption and/or ‘kleptocracy’’.

There are many Malaysians in other countries that we may not be able to bring back to Malaysia to be tried for offences of corruption, abuse of power and ‘kleptocracy’, and MADPET believes that they should not be protected by this principle of non-refoulement. Neither should they be accorded status of asylum seeker and/or refugee.

Unfortunately, Malaysia still have no written law that deals with refugees and asylum seekers, which would also define the rights of these persons seeking such refugee status. Malaysia has to speedily enact such a law. Without a clear law, Malaysian’s actions in the past have been primarily political decisions made by the government (or Executive branch of government). In a democracy, as in Malaysia, such decisions is subject to review by the Legislative (Parliament) and/or the courts (the Judiciary).

Malaysia,  have in the past, accepted refugees and asylum seekers from Vietnam, Burma, Palestine and other countries, and allowed them to stay in the country. This protection have generally been accorded to persons who are UNHCR recognized asylum seekers or refugees.

Disappointingly, the new Pakatan Harapan led government violated this good practice when in May 2019, Malaysia arrested and returned to Thailand a Thai National, one Praphan Pipithnamporn, who then was a  UNHCR recognized asylum seeker.

Now the arrest and deportation back to Turkey of Arif Komis and his family, which included their 4 children is yet another violation of past policy and practice.

This recent sending back of also the 4 children also brings to light the concern about Malaysia’s position and concern for the rights of the child.

There is now concern about Malaysia’s treatment of refugees and asylum seekers.

In the case of Indian Zakir Naik, who may or may not even be a UNHCR recognized asylum seeker or refugee, Malaysia, vide the former government, not only allowed him to stay in Malaysia but also gave him a permanent residency (PR) status.

Malaysia’s new government even rejected an extradition order from India, allegedly because Malaysia did not believe that Zakir Naik will get a fair trial. Was this a decision in reliance of the Malaysian law on extradition?

Section 8 of our Extradition Act 1992 provides for prohibitions against extradition in certain circumstances, including:

    (1) if the offence in respect of which [an individual’s] return is sought is of a political character or he proves to the Minister that the warrant for his return has in fact been made with a view to try or punish him for an offence of a political character;

    (2) if the request for his surrender although purporting to be made for an extradition offence was in fact made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions; or

    (3) if he might be prejudiced at his trial or punished or imprisoned by reason of his race, religion, nationality or political opinions.

The refusal to return to China the 11 ethnic Uighur Muslims in October 2018 was a commendable act.(Asahi Shimbun, 12/10/2018), and that could have been because of there was a risk of prosecution and/or punishment on account of race and/or religion, being one of reasons in law not to deport back to China.

Now, with regard to the Turkish Arif Komis and his family, Malaysia could have refused an extradition request possibly on grounds that Turkey’s request for ‘return is sought is of a political character’, and as such Arif should have also been accorded the right and opportunity to prove ‘…to the Minister that the warrant for his return has in fact been made with a view to try or punish him for an offence of a political character..’ Was Arif and his family even given this opportunity by the Malaysian Home Minister to do that? When was this done, and what was the Minister’s decision? The Minister, according to the Act  is the Minister of Home Affairs.

Malaysia could also refuse to send Arif and his family back to Turkey as it was ‘… was in fact made for the purpose of prosecuting or punishing the person on account of his ….political opinions..’ or ‘…he might be prejudiced at his trial or punished or imprisoned by reason of his … political opinions…’

As, it can be argued, Malaysia may have had many legal reasons in Malaysian law to reject Turkey’s request that Malaysia send him and his family back to Turkey. What happened to people send back in the past would also be a consideration.

The Malay Mail report also disclosed that one of other Turkish sent back to Turkey in 2017 was not even accorded a fair trial. ‘In 2017, three Turkish men associated with Gulen — Turgay Karaman, İhsan Aslan and İsmet Özçelik — were deported from Malaysia to Turkey despite international warnings over the risk of torture. Ozcelik, a Turkish academic, in July was given a jail sentence of almost 10 years without even being able to present his final defence…’(Malay Mail). He certainly did not get a fair trial.

As such, the Malaysian government, especially the Minister of Home Affairs, must now provide an assurance that Malaysian law was adhered to in this particular case, and further that Malaysia is not in violation of the principle of non-refoulement.

Malaysia also must clarify its position as to whether Malaysia will still recognize UNHCR’s recognition of asylum seekers and/or refugees in Malaysia, and if so, will Malaysia protect such persons and no more return them to the very countries they are fleeing from in breach of the principle of non-refoulement.

If not, then even UN recognized asylum seekers or refugees are no longer safe in Malaysia, and the United Nations must immediately take steps to remove all such asylum seekers and/or refugees from Malaysia to a safer country. This will be a most embarrassing for Malaysia.

In the event that Malaysia cannot give the needed assurance, UNHCR may have to move out of Malaysia, for after all Malaysia may be a destination country for potential asylum seekers and/or refugees because there is a UNHCR office in the country.

Malaysia’s positive image for its stance against human rights violations by Israel and even Myanmmar, amongst others, may now be impacted by these recent violations of the principle of non-refoulement of asylum seekers, more so UNHCR recognized asylum seekers.

MADPET reiterates its call for Malaysia to speedily enact a Malaysian law on Refugees and Asylum Seekers, wherein there will be process on how Malaysia will determine who is asylum seeker and/or refugee, and their rights in Malaysia.  

MADPET also urges Malaysia to clarify its position when it comes to UNHCR recognized asylum seekers and/or refugees, including guaranteeing that Malaysia will no more in the future violate the principle of non-refoulement;

MADPET also urges the Malaysian Government including the Minister of Home Affairs  Muhyiddin Yassin to provide an explanation and legal basis as to why Arif Komis, his wife and their 4 children were arrested and returned to Turkey; and

MADPET reminds Malaysia that human rights must never be sacrificed for reasons of maintaining or improving political and economic relations with other countries.

Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)

See earlier posts:- 

Turkish teacher and FAMILY arrested and may be deported back to Turkey? Principle of 'non-refoulement" 

FMT has learnt that Komis who arrived in Turkey with his wife and their four young children today was swiftly detained by police.

Activists, rights groups blast Putrajaya after family of 6 sent back to Turkey

Arif Komis, with his wife and four daughters. Malaysia deported the family following a request by Turkey.
PETALING JAYA: Two prominent activists have condemned Putrajaya after a Turkish national and his family were handed over to Ankara, despite the United Nations High Commissioner for Refugees (UNHCR) classifying him a “person of concern” who could be harmed if he was forcibly returned to his home country.

Prominent Muslim spokesman Dr Ahmad Farouk Musa and former ambassador Dennis Ignatius said the latest action of deporting Arif Komis, his wife and their young children was shameful and proof that the present ruling coalition’s commitment to defend human rights was a sham.

“We voted them into power thinking that the standard of human rights would improve. But they are just another group of arrogant politicians who only talk without having anything in effect,” Farouk, who heads the Islamic Renaissance Front told FMT.

Dennis contrasted the treatment meted out to Komis with government leaders’ repeated defence of Indian Muslim preacher Dr Zakir Naik, who has been charged in absentia in India with money laundering.
Dr Ahmad Farouk Musa.
Dennis recalled a statement by Foreign Minister Saifuddin Abdullah’s assurance that Putrajaya would be more careful in “sending people back”, with a promise to scrutinise extradition requests based on the spirit of human rights, freedom and the rule of law.

“Now we are left to wonder whether all those grand statements about human rights are just empty rhetoric, a mere ruse to justify the government’s refusal to deport Zakir Naik,” the outspoken former envoy told FMT.

FMT has learnt that Komis who arrived in Turkey with his wife and their four young children today was swiftly detained by police.

His deportation comes some two years after Malaysia fulfilled a similar request by the Turkish government to deport three of its nationals from Malaysia, which drew strong reactions from rights groups.

Ankara accuses Komis, who works at a Turkish private school in Kuala Lumpur, of links to the Gulen group, a faith-based social movement inspired by the teachings of exiled Turkish Muslim preacher Fethullah Gulen.
Dennis Ignatius.
The Turkish government and official media call the group Feto, or Fethullahist Terrorist Organization, and has accused it of masterminding the failed coup in 2016.

Farouk described the move to deport Komis as the latest in a long chain of incidents “that was like a knife that strikes deep into our hearts”, and warned that Malaysia risked being known as a “pariah state” in the eyes of the international community for its disregard of human rights and rule of law.
Farouk took to task Saifuddin for not fulfilling a promise to observe an SOP to ensure that no one will be victimised by deportations.

He said following the outrage by rights groups over Malaysia’s deportation of four men to the Egyptian military regime earlier this year, Saifuddin had said that future cases would be referred to his ministry first.

“But it seems that the right hand doesn’t know what the left is doing. And that the police have their own SOP and were oblivious of any such rule or regulations by Wisma Putra.

“To me it only shows how incompetent the foreign minister is in ensuring that human rights is observed in the new Malaysia,” said Farouk.
Dennis said the policy of deporting exiles wanted by authoritarian regimes was a shameful practice under the previous government, and was done to appease fellow Muslim states.

“It also raises the question of double standards – those fleeing persecution or prosecution from non-Muslim countries are given special protection whereas Muslims fleeing well-documented persecution from their own governments are sent back. It is imperative that the government adopts a fair and transparent policy for all such cases in the interest of upholding the rule of law,” he said.
Shamini Darshni Kaliemuthu.
Meanwhile, Amnesty International described the move to send back the Komis family as “deplorable”

“The family is at risk of serious human rights violations or abuses back in their country,” said Amnesty Malaysia’s executive director Shamini Darshni Kaliemuthu.

“The Malaysian authorities must never deport individuals where there is clear evidence of the human rights violations they may face at their destination,” she said, adding that Komis must be released “unless there is credible evidence of internationally recognisable criminal acts”.

Earlier, Human Rights Watch said the Pakatan Harapan government under Dr Mahathir Mohamad was “turning out to be just as bad as Najib and Barisan Nasional” in failing to protect refugees.

“This is a schoolteacher and his family who are persons of concern to UNHCR, with legal documents to work in Malaysia. They should be released and allowed to seek refugee protection,” HRW’s deputy Asia director Phil Robertson told FMT.

Komis is an asylum-seeker registered with the UNHCR office in Malaysia.

FMT has sighted a letter by the UNHCR urging Komis not to be deported to Turkey pending a decision on his application for refugee status.

FMT has reached out to the UNHCR for comments and is awaiting their response. The Turkish embassy in Malaysia has meanwhile refused to comment on the matter. - FMT, 30/8/2019


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