COMMENT The Malaysian police have announced that an arrest warrant has been obtained for Clare Rewcastle-Brown, the London-based founder of Sarawak Report who has been publishing exposes on the 1MDB scandal. Rewcastle-Brown has been accused of colluding with others in a conspiracy to unseat Prime Minister Najib Abdul Razak. Her whistleblower site has published numerous incriminating documents on the troubled state investor.

CID director Mohmad Salleh has said the warrant, granted by a court here, is for offences under Sections 124B and 124I of the Penal Code and that that they will proceed with the applications to place her on the Aseanapol wanted list as well as the Interpol red notice.

This stunt is basically ‘syok sendiri’ (self gratification)  and an attempt to delude the public that Clare is somehow guilty of some heinous crime that Her Majesty’s Government would obligingly allow her extradition to be tried in a Malaysian court. I am sure the wigs of British judges must be jiggling with insuppressible mirth when they heard this news!

How feasible is it to extradite Clare?

Malaysia falls under Category 2 in the UK’s Extradition Act. Under this law, requests from Category 2 states need decisions by both the Secretary of State and the courts. First, an extradition request is made to the Secretary of State; the Secretary of State issues a certificate and sends a request to the court (if the request is valid!)

We don’t know the calibre of British Secretaries of State these days under Conservative rule but such a request to extradite an investigative journalist would be summarily dumped by any minister worth his or her salt.

An extradition request would be required to, among other things, produce a certificate of the conviction and sentence with details of the conviction; evidence or information that justifies the issue of a warrant for arrest in the UK.

When an extradition request is made to the Secretary of State if it’s ‘valid’, the Secretary of State will issue a certificate and send the request to the court. During the extradition hearing the judge must satisfy himself that the request meets the requirements of, among other things, dual criminality and prima facie evidence of guilt, and that the extradition is compatible with the Human Rights Act 1998.

‘Dual criminality’ means that for someone to be extradited, their alleged conduct has to be a criminal offence in both the surrendering and the requesting state. Does the UK have a law that allows such Mickey Mouse criminalisation of ‘activities detrimental to parliamentary democracy’?

If the court is satisfied that enough information has been supplied, an arrest warrant can be issued. After the extradition hearing and the Secretary of State’s decision, a requested person may appeal to the High Court, and if that is unsuccessful, to the Supreme Court.

Even if the case at the extradition hearing was proven, extradition would still be prohibited if (i) the person could face the death penalty; (ii) there are no speciality arrangements with the requesting country - ‘speciality’ requires that the person must be dealt with in the requesting state only for the offences for which they’re being extradited; (iii) the person had already been extradited to the UK.

The Penal Code law is an ass

The Malaysian police’s most recent tool of suppression, Section 124B of the Penal Code, which covers “activities detrimental to parliamentary democracy”, stipulates that those convicted under the law will be liable to a maximum prison term of 20 years. If anyone asked, “Which donkey passed such an absurd law?” would that be considered an activity detrimental to parliamentary democracy?

Section 124I, on the other hand, states that “any person who, by word of mouth or in writing or in any newspaper, periodical, book, circular, or other printed publication or by any other means including electronic means spreads false reports or makes false statements likely to cause public alarm, shall be punished with imprisonment for a term which may extend to five years.”

Now the Printing Presses & Publications Act already covers this other absurd law, so why the overlap? Clearly, any law that provides for arbitrary interpretation of any crime by the state is an ass. So who is the donkey is this mid-summer night’s dream?

KUA KIA SOONG is adviser to human rights movement Suara Rakyat Malaysia (Suaram).

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