National may have some problems with its desire that Malaysian Diplomat Muhammed Rizalman bin Ismail return to New Zealand to face trial.
I had initially thought that Mr Rizalman was going to be ordered to return and would simply comply. It seems however that it will not be that simple and Malaysia’s extradition laws may need to be used. If so this is contrary to a previous statement that officials from both countries said the man was not being formally extradited.
John Key confirmed this week that a legal process is involved and is expected to take months, as opposed to weeks or years. The only thing that I can think he is referring to is formal extradition. This is somewhat different to an earlier statement which suggested that the delay was only because of Mr Rizalman’s mental health. The Herald previously reported on July 21:
Malaysia agreed to send Rizalman back to New Zealand to face the charges, but his return has been delayed while his mental health was being assessed.
Mr Key said Malaysian Prime Minister Najib Razak spoke to him during the Prime Minister’s holiday in Hawaii, and reassured him the diplomat would be sent back to New Zealand.
As Key should know extradition processes are not simple. Firstly Malaysia does not appear to have an extradition treaty with New Zealand. The only countries that it has treaties with are Thailand, Indonesia, the United States, Australia, Hong Kong and India. This is not the end of the matter as Malaysia does have an Extradition Act that allows New Zealand to request that Malaysia extradites the diplomat.
I am no expert on Malaysian law but this paper suggests that the requirements are similar to New Zealand law. Firstly the Minister of Home Affairs has a discretion on whether or not to allow the extradition request. A warrant for the diplomat’s arrest has to be issued in the country that is applying. Following Ministerial permission a prima facie case has to then be established to the satisfaction of the Malaysian judicial system. Following committal the Minister may order that the fugitive be handed over to the requesting country. There are other restrictions. Citizens cannot be extradited for some offences of a political character. The Minister has a wide discretion to refuse to allow an extradition if he thinks it would be unjust or inexpedient to do so for reasons such as the application for extradition was not made in good faith or in the interest of justice or it was made for political reasons or for any other undefined reason.
As you can see there are many hurdles to be navigated. And the possibility of Judicial Review means that a Minister must be careful to approach the matter with an open mind.
If Key was assured by Malaysian Prime Minister Najib Razak during Key’s holiday in Hawaii that the diplomat would be sent back to New Zealand he should be careful about expressing it publicly. Because such a statement could be used as evidence of predetermination.
And Murray McCully continues to display ineptitude in his handling of the matter. The Herald reported this morning that he had not read the email concerning the invocation of diplomatic immunity for weeks because he was in New York at the time. Apparently New York does not have the interweb over there. As if.
If you wanted evidence of glaring incompetence in the handling of an international matter you need go no further than to consider McCully’s handling of the matter. And do not be surprised if Mr is not returned soon.
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