Malaysia’s return of asylum seeker and family to Turkey unjust

Malaysians Against Death Penalty and Torture (Madpet) is disturbed by reports that Turkish teacher Arif Komis and his family, recognised by the United Nations High Commissioner for Refugees (UNHCR) as asylum seekers, have been arrested by the Malaysian police and then deported back to Turkey for prosecution.

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

Malaysia should respect the principle of non-refoulement especially of asylum seekers and refugees in Malaysia. This means 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 is 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 not yet been processed.

Article 14 of the United Nations Declaration of Human Rights state that:

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(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
• imposition of the 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, rapists, money launderers and those involved in corruption and “kleptocracy”.

There are many Malaysians in other countries who we may not be able to bring back to Malaysia to be tried for offences of corruption, abuse of power and kleptocracy. Madpet believes they should not be protected by this principle of non-refoulement. Neither should they be accorded the status of asylum seekers or refugees.

Unfortunately, Malaysia still has 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 are subject to review by the legislature (Parliament) and the courts (the judiciary).

Malaysia has 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 has generally been accorded to those who are UNHCR-recognised 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, Praphan Pipithnamporn, who was then was a UNHCR-recognised asylum seeker.

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

This recent sending back of the four children raises 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-recognised asylum seeker or refugee, Malaysia, through the former government, not only allowed him to stay in Malaysia but also gave him a permanent residency status.

Malaysia’s new government even rejected an extradition order from India, allegedly because Malaysia did not believe that Zakir Naik would 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;

(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 October 2018). That could have been because there was a risk of prosecution or punishment on account of race or religion as one of the reasons in law for not deporting them back to China.

Now, with regard to the Turkish Arif Komis and his family, Malaysia could have refused an extradition request possibly on the grounds that Turkey’s request for return is sought “[for an offence] of a political character”.

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”.’

Were 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 home affairs minister.

Malaysia could also have refused to send Arif and his family back to Turkey as it 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”.

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

The Malay Mail report also disclosed that one of the 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…”

He certainly did not get a fair trial.

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

Malaysia must also clarify its position as to whether it will still recognise UNHCR-recognition of asylum seekers and refugees in Malaysia. If so, will Malaysia protect them and no longer return them to the very countries they are fleeing from in breach of the principle of non-refoulement?

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

If Malaysia cannot give the needed assurance, the UNHCR may have to move out of Malaysia – for after all, Malaysia may be a destination country for potential asylum seekers and 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 affected by these recent violations of the principle of non-refoulement of asylum seekers, more so UNHCR-recognised asylum seekers.

Madpet reiterates its call for Malaysia to speedily enact a Malaysian law on refugees and asylum seekers so that there will be a process on how Malaysia will determine who are asylum seekers or refugees and their rights in Malaysia.

Madpet also urges Malaysia to clarify its position on UNHCR-recognised asylum seekers and refugees, including guaranteeing that Malaysia will no longer violate the principle of non-refoulement.

Madpet also urges the Malaysian government including the Home Affairs Minister Muhyiddin Yassin to provide an explanation and legal basis as to why Arif Komis, his wife and their four children were arrested and returned to Turkey.

Madpet reminds Malaysia that human rights must never be sacrificed fto maintain or improve political and economic relations with other countries.

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

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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