The Malaysian Government Must Uphold Provisions of International and Domestic Law
The Malaysian Bar, 15 February 2018
By George Varughese – The Malaysian Bar calls upon the Malaysian Government to adhere to principles of international law, specifically the customary international law of non-refoulement, and refrain from sending 11 Uighurs reportedly in Malaysian custody back to China.
According to both foreign and local news reports, the 11 Uighurs currently in Malaysian custody are part of a group of 20 that escaped from a Thai detention camp in November 2017. They had been detained in Thailand for immigration-related offences, having fled Xinjiang due to fears for their safety, and were heading for Turkey.
The Uighurs, who are predominantly Muslim, rebelled against Chinese Government rule in their native Xinjiang Province in July 2009. The Chinese Government views Uighurs as terrorists, agitating against Chinese rule over their province.
The Malaysian Bar calls upon the Malaysian Government not to repeat the incident in August 2011 when it returned to China 11 Uighurs who were residing in Malaysia, including some who were registered as refugees by the United Nations High Commissioner for Refugees in Kuala Lumpur. The fate of those 11 persons is not known.
The Malaysian Government’s record on respecting international law leaves much to be desired. Apart from the 11 Uighurs deported to China in August 2011, the Malaysian Government also forcibly detained three Turkish nationals in May 2017 and returned them to Turkey at the request of the Turkish Government, which alleged that these persons had some connection with the attempted coup in Turkey in 2016. Their fate is also unknown. In February 2012, the Malaysian Government detained Saudi Arabian journalist Hamza Kashgari and returned him to Saudi Arabia at the request of the Saudi Arabian Government over a tweet he had posted that was allegedly insulting of Prophet Muhammad. This was despite a Malaysian court order preventing his deportation having been obtained. Kashgari spent 20 months in jail in Saudi Arabia for blasphemy.
The possible deportation of the 11 Uighurs back to China raises grave concerns whether the Malaysian Government will “refoule” potential refugees or asylum seekers in violation of international law. The Malaysian Government must not abdicate or ignore its legal and moral obligation not to deport individuals to situations where their very lives may be in serious jeopardy.
Although China and Malaysia signed a treaty on mutual legal assistance in criminal matters in November 2015, under Section 8 of our Extradition Act 1992 there are 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 Malaysian Bar cautions the Malaysian Government not to dismiss due consideration of these provisions. The Malaysian Government cannot simply hide behind the reason of international cooperation in the fight against terrorism, as an excuse to deport the Uighurs back to China. Other potential factors — such as the massive amount of China’s foreign investment in Malaysia — should also play no role.
The Malaysian Bar calls on the Malaysian Government, as a responsible member of the international community, to honour, respect and uphold the rules and customs of international law, and the provisions of Malaysian law, and not deport the 11 Uighurs back to China.
Issued by George Varughese, President of the Malaysian Bar Council