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Zakir Naik should be charged in Malaysia, not deported if Malaysian laws were broken

Zakir Naik - Photograph: Maapu - Creative Commons, commons.wikimedia.org

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Malaysians Against Death Penalty and Torture (Madpet) is appalled by the calls of many in Malaysian including Pakatan Harapan-led government’s ministers that Indian national, Zakir Naik, be deported (The Star, 14 August 2019). If Zakir Naik had committed an offence in Malaysia, then they should be asking that he be charged and accorded a fair trial.

If someone has committed a crime, it is unconscionable, especially for members of Parliament or ministers to simply ask that he be sent out of the country beyond the jurisdiction of the Malaysian courts. They should be pushing for Zakir Naik to be charged and tried in Malaysia. This could be done very fast given the facts and circumstances of this case.

Human rights for everyone

Madpet is appalled that the police have prevented Zakir Naik from speaking.

Zakir can come to Perlis, but he can’t talk and action will be taken against him if he does so,” Senior Assistant Commissioner Noor Mushar [the Perlis police chief] said… (The Star, 16 August /2019).

“As Perlis police chief, I do not allow Zakir Naik to attend the programmes today as he has been raising issues that can threaten the general peace of Malaysians,” he told a press conference (Free Malaysia Today, 16 August 2019).

This is against one’s freedom of expression and opinion, and it is wrong for the police to arbitrarily do this. Are we a police state, where the police chief has so much power?

He also said Naik should inform state police in the future what he plans to speak on. “The way he talks, not everyone likes it. People of other races are unhappy. If he wants to talk, ask him to inform us first what he wants to talk, let us vet it” (Free Malaysia Today, 16 August 2019).

It is certainly wrong and discriminatory. Will the police be requiring every other speaker at any public event to tell the police in advance, what he or she will say – and then the police will ‘decide’ what you can say and what you cannot say? This is a violation of our human rights.

What law is the police relying on? Is it that draconian Peaceful Assembly Act 2012, which allows the police to impose ‘restrictions’ and ‘conditions’ on the exercise of our right to peaceful assembly? The Peaceful Assembly Act, a law that allows the police to arbitrarily impose whatever restrictions and conditions, ought to be repealed. A violation of any such police restrictions or conditions now becomes a crime.

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We recall during the Barisan Nasional reign, there was, I believe, at least one DAP-organised event where the police imposed a condition that there be no political speeches. The same also did happen in other peaceful assemblies.

Such draconian laws must be repealed; one should always be free to exercise one’s freedom of expression and opinion, and also the right to peaceful assembly. If later there is a breach of law in the exercising of such rights and freedoms, then the those responsible could be investigated, charged and tried for the alleged crimes.

We may not agree or even be angered by someone’s opinion or speech, but that is what the right to freedom of expression is all about. It is not only the right to say things that we agree with, but also to say things that may annoy us. It is a human right, and it must be respected.

It is sad that two ministers, Gobind Singh Deo and M Kula Segaran, were also reported asking that restrictions be placed on Zakir Naik so that he not be able to speak at public forums or say anything that will jeopardise race relations and public order in Malaysia (Berita Harian, 14 August 2019).

One must never forget the legal principle that one is innocent until proven guilty in a court of law after a fair trial. Even if this relates to the infamous Zakir Naik, there is no justification for the police to impose a gag order or restrict any of his human rights.

Are the two ministers asking for detention-without-trial laws, like the Prevention of Crimes Act 1959, Prevention of Terrorism Act 2015 and the Dangerous Drugs (Special Preventive Measures) Act 1985, which allow for administrative detention and restrictions to be imposed?

Under such laws, it is only the administration – not the judiciary – that imposes such restrictions or detentions, and the victims cannot even challenge the reasons for their detention or restrictions in court through a judicial review.

Sadly, the new ‘alternative’ government has not yet abolished laws that allow detention without trial in Malaysia. Madpet calls for all such laws to be abolished. The right to a fair trial must be respected in all cases.

If there is a desire to gag Zakir Naik or to restrict his freedom to talk on certain matters, then rightfully an application should be made to court, where Zakir Naik should be given the right to be heard before the court decides on the matter.

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Refugees, asylum seekers should not be sent back

It is unclear whether Zakir Naik is a refugee or an asylum seeker in Malaysia, as Malaysia sadly to date still does not have a law on refugees and asylum seekers. As such, legally we cannot say who is a refugee or asylum seeker in Malaysia according to our laws – and it is wrong for the government of the day to simply decide according to their whims and fancies. One wonders whether the UN High Commission for Refugees in Malaysia has even considered and/or classified Zakir Naik as an asylum seeker or refugee.

If Zakir Naik is a refugee or asylum seeker, then Malaysia must not violate the principle of non-refoulement by deporting or repatriating him back to India or any other country where there is a risk that he may later be sent to India.

All we know is that Malaysia’s previous Barisan Nasional had in 2015 granted Zakir Naik a permanent residency status. This means that any of his children born after that will become Malaysian citizens. It is odd, when so many foreign spouses of Malaysians, even after 10 years, still do not have permanent residency status when they should justly be accorded such status upon the registration of marriages (their permanent residency status could be reviewed when and if the marriage is dissolved).

For a refugee and asylum seeker, permanent residency status in the first instance should not have been granted. Rather, a temporary visa or a ‘refugee’ visa [should have been issued] that allows him or her to remain in Malaysia. If after some years, maybe there could be a consideration whether to accord him or her permanent residency status, or even Malaysian citizenship. This again highlights the importance of having a law for refugees and asylum seekers in Malaysia.

This new government, as such, could review and even cancel his permanent residency status, and in its place grant him a long social visit visa, which could be for a year or even longer, with the possibility of renewal. If Malaysia had law for refugees and asylum seekers, then surely there would be a provision in that law for special visas allowing them to stay or even work in Malaysia.

Zakir is wanted in India on charges of laundering more than 1.93 billion rupees (RM116m) from proceeds of criminal activities in India and overseas (the Sun Daily, 14 July 2019), and as such, one wonders whether he is a refugee or an asylum seeker.

Many Malaysians involved in the 1MDB, SRC and other scandals are wanted by Malaysia for investigation and possible prosecution, would they too be considered refugees and asylum seekers by other countries, who may refuse to send them back to Malaysia to face justice? Malaysia certainly does not want to end up being seen as a safe haven for suspected criminals.

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Police investigations have commenced

It is to be noted that the Malaysian police have stated that:

India-born preacher Dr Zakir Naik is under investigation for provocation stemming from his remarks about Malaysia’s minority communities during an event in Kelantan last week. Federal Criminal Investigation Department director Commissioner Datuk Huzir Mohamed confirmed the probe under Section 504 of the Penal Code for intentional insult with intent to provoke a breach of the peace. (Malay Mail, 15 August 2019)

Given the nature of this case, this is a matter that could be speedily investigated, and there is no reason, if an offence is believed to be committed, to see Zakir Naik being charged in court soon.

Ministers, MPs and politicians

Ministers, MPs and politicians must always uphold the rule of law and uphold the cause of justice without fear or favour. They should be guided by values and principles and should not simply take positions to appease the populace for fear of losing popular support amongst certain classes of people.

Therefore, Madpet:

  • calls for Zakir Naik to be investigated, charged and tried in Malaysia if he has broken Malaysian laws before any attempt is made to send him out of Malaysia to ensure justice is done
  • calls for the removal of police powers to restrict, gag or vet anyone’s right to freedom of expression or opinion, and freedom of assembly
  • calls on Malaysia to immediately enact a law on refugees and asylum seekers
  • reiterates the call for Malaysia to repeal the Peaceful Assembly Act 2012 and all such laws which allow the police or government authorities to curtail or impede our human right to freedom of expression, freedom of opinion and freedom of peaceful assembly
  • respect the presumption of innocence until proven guilty, repeal detention-without-trial laws and ensure that all in Malaysia have the right to a fair trial
  • call on Malaysian MPs, ministers, politicians and the government to always act based on principles, values and human rights, and not succumb to taking ‘anti-justice’ positions out of fear of losing popular support amongst certain classes of Malaysians

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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