A missed opportunity for M’sia to embed human rights

February 21, 2012

Malaysia had the golden opportunity to embed human rights in our soil by preventing a human rights violation but sadly expediency outweighed principles.

The 23 year old Saudi Arabia journalist Hamza Kashgari, will face a likely death sentence over a Twitter post. Although Hamza apologized and deleted the message, this was not enough as Saudi Arabia prepares to punish him by death.

A similar incident has occurred in Libya- Niger where Gaddafi’s son Saadi, fled south to the West African state in September because he feared that he would face execution in Libya.

However, the Niger authorities have stated the following: “We cannot hand over someone to a place where he could face the death penalty or where he is not likely to have a trial worthy of the name.”

Whilst Niger has one of the lowest ranks in the United Nations Human Development Index, it would seem that the country is at the forefront of the human rights agenda.

Why Malaysia which has been ranked higher in the UN Human Development Index failed to facilitate such an observance of human rights?

To understand this issue, let us look at the underlying basis for extradition. MC Bassiouni in “International Extradition and World Public Order” states:

“The classical definition of extradition is that it is a process by which one state (the state of refuge or asylum) surrenders to another (the requesting state) an individual (the relator) accused or convicted in the requesting state of an offense for which the requesting state is seeking to subject the relator to trial or punishment.”

This simply means that extradition is when a person present in the territory of a state is, upon request from the competent authorities of another jurisdiction and by means of a formal procedure, surrendered to criminal prosecution or execution of a sentence in the latter jurisdiction.

It is very obvious, as Jon Yorke argues in his paper “Europe’s Judicial Inquiry in extradition cases” that when a criminal suspect flees abroad, the co-operation between the requesting and extraditing state is essential to obtain and retrieve the suspect.

Where there is a bilateral extradition treaty between the states, a procedure of request and consent will be regulated by the provisions included in the treaty. If no treaty exists, domestic and international law will be used to adjudicate on the procedures adopted by the states.

Ian Brownlie in “Principles of Public International Law” identifies that the circumstances surrounding the legality of extradition will depend on “questions of internal and particularly of constitutional law and the effect of treaties on municipal rules”.

This simply means that the decision to deport will broadly depend on the domestic laws and discretion of the deporting State. A few examples need to be highlighted from the International jurisprudence on how the complex legal questions and political vicissitudes on discretion, determining extradition procedures have been interpreted.

A good starting point will be the Soering vs United Kingdom judgment. The European Court of Human Rights found that the United Kingdom would breach its Human Rights obligations if it were to extradite Mr Soering to the United States of America where, after possibly being sentenced to death in the state of Virginia, he would be faced with extreme conditions on “death row”.

Human Rights had a major breakthrough in this case. The Courts have held that it could constitute a breach of the International Humanitarian Law and the European Convention of Human Rights for a state to extradite a person if his extradition would foreseeably expose him to human rights violations.

With the Soering judgment, the Court thus established that human rights may effectively be mandatory grounds for refusal of extradition. This violation of human rights need not be a certainty: it is only necessary to establish ‘substantial grounds’ for ‘believing that the person concerned… faces a real risk’.

From the Soering judgment, we can safely conclude that a state commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another state where a suspect may face the death penalty.

Another instance is where the Supreme Court of the Netherlands followed Soering in Short vs Kingdom of Netherlands and held that there is a rule against extradition where assurances were not obtained to safeguard the life of Short.

Following this decision, the United States gave assurances against the use of the death penalty, and Short was then extradited and found guilty and sentenced to 45 years imprisonment.

In Einhorn vs France, the French Court held that Einhorn could only be extradited once the United States had given sufficient assurances against the use of the death penalty.

The Courts cautioned that extradition might be denied if a conviction is obtained as a “result of a flagrant denial of justice”.

The Italian Constitutional Court went a step further in the case of in Venezia vs Ministero di Grazia e Guistizia where it was held that the government could not extradite a US citizen, despite assurances from the United States that he would not receive the death penalty.

Here, Professor Andrea Bianci in “International Decision: Venezia vs Ministero Di Grazia E Giustizia ” points out that an anomaly was created as even though the United States gave assurances against the death penalty, Italy still refused to extradite.

Instead the suspect was tried in Italy for crimes committed in the United States because the Italian Constitutional Court was of the opinion that the assurances were vague and not sufficient to guard against a death sentence.

From the above, it is very clear that case laws have clarified that when human rights require, extradition should be denied. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge.

Rightfully, Malaysia should have sought assurances from the Saudi government that the 23-year -old would not be subject to treatment so harsh as to constitute a crime against humanity. Once those assurances have been sought, only then they should have surrendered the fugitive.

As seen from the international jurisprudence, this practice is not in defiance of international law. If such assurances are not obtained, Malaysian officials must have allowed the fugitive to rake refuge in the diplomatic premises, in order to protect him against ill treatment and following the precedent of Italian Constitutional Court, should have tried him in Malaysian Courts.

Of course this does not mean Malaysia should be regarded as a safe transit for all fugitives or that Malaysia must operate as a carte blanche for avoiding arrest and detention. It simply means that by employing human rights principles, Malaysia will encourage fairness in extradition.

Unfortunately, Malaysia has been opted for convenience at the expense of humanitarian principles.

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