NZ and Malaysia offer differing views on diplomat's treatment

09:52, Jul 01 2014

The Government has released documents which say Malaysia refused to waive diplomatic privilege in the case of a diplomat accused of a sexual assault in Wellington.

The Malaysian government also sought to have the man's police file sealed and all charges withdrawn.

This appears to be at odds with statements reported to have been made by Malaysia's foreign minister today.

Earlier, Malaysia's Foreign Minister Anifah Aman said New Zealand allowed the diplomat to invoke diplomatic immunity and return to Malaysia.

The NZ documents, obtained by Fairfax Media under the Official Information Act, show the Ministry of Foreign Affairs wrote to the Malaysian high commission in Wellington asking it to waive diplomatic immunity for Muhammad Rizalman bin Ismail.

The documents also show that the high commission refused to waive immunity and sought to seal the police file on the case.


The high commission also informed the New Zealand Ministry of Foreign Affairs that it had "decided that he should be repatriated to Malaysia as soon as possible".

Anifah said at a press conference today that New Zealand authorities offered Rizalman the "alternative" to go home.

Malaysia was willing to waive the diplomat's immunity but decided to take up New Zealand's offer to invoke diplomatic immunity and bring him back home, Anifah said.

The Malaysian High Commissioner had a meeting in Wellington with the deputy chief of protocol at the Ministry of Foreign Affairs and Trade and police officers on May 12 to address the matter.

Malaysia's foreign ministry was prepared to waive diplomatic immunity to enable prosecution under New Zealand law to proceed, Anifah said.

During the discussion on May 12, "the New Zealand side had offered an alternative for the accused to be brought back to Malaysia."

Rizalman and his family returned to Malaysia on May 22, with the agreement of the New Zealand authorities, Anifah said.

Foreign Affairs Minister Murray McCully sought to defuse the tension tonight, saying the way NZ officials engaged in discussions ‘‘would have been ambiguous’’ to the Malaysian Government.

He said he had spoken to Anifah tonight to clarify any misunderstanding.

“It is clear to me from my conversation with Minister Anifah that his Government’s decision to decline New Zealand’s request for immunity to be lifted was driven by his Chief of Defence’s desire to put in place a robust judicial process to deal with this matter and his officials’ belief that this would be an outcome acceptable to New Zealand.

The Ministry of Foreign Affairs and Trade has this evening provided me with the correspondence between New Zealand and Malaysian officials on this matter. While the formal request is absolutely unambiguous in seeking the lifting of immunity, it is now clear to me that officials engaged in informal communications over what is a complex case, in a manner that would have been ambiguous to the Malaysian Government.''

McCully said Anifah was committed to a proper judicial process and had assured him that any material provided by New Zealand Police would be placed before Malaysia’s board of inquiry.

“Due to the nature of the proceedings that lie ahead, I am unable to be more forthcoming on the matter at this stage. However, I can say that the Malaysian side have acted entirely in good faith.’’

Prime Minister John Key said before a suppression hearing in the case that he wanted Rizalman tried here.

"We sent a very strong message that we didn't want him sent home."

Anifah said Rizalman would be extradited if New Zealand authorities requested it, or if New Zealand thought the Malaysian investigation was not being conducted properly.

A Defence Ministry panel would investigate and Rizalman would face a military court in Malaysia, where he would face "stern action" if found guilty.

Anifah said Malaysia never intended to treat the matter lightly.

"The Malaysian government acknowledges that the incident is a serious matter and we do not have any intention to sweep the matter under the carpet."


A High Court judge today lifted the suppression order shielding Rizalman's identity.

Rizalman holds the military rank of warrant officer and was a staff assistant with a defence portfolio at the Malaysian high commission.

The commission is located on the corner of Mills Rd and Brooklyn Rd in the Wellington suburb of Brooklyn.

Rizalman was arrested in Brooklyn on the night of May 9. He appeared in court on May 30 but left the country soon after.

He was reportedly arrested after an attack on a 21-year-old woman in her home last month. Police had sufficient evidence to charge him with assault with intent to rape, as well as refusing to leave the property, but had to release him because of his diplomatic immunity.

It is understood Rizalman may face a military board of inquiry in Malaysia.


Malaysian community leader Selva Ramasami said Malaysians in New Zealand were embarrassed and shocked by what had happened.

It was also disappointing that it had taken the Malaysian government so long to front up.

"It's quite embarrassing for the community because after the MH370 saga we constantly seem to be someone who can't handle the situation, it's critical to the image of the nation and I don't think this is going to help the situation.

"I'm quite disappointed with the approach. I believe the immunity gained by the defendant is not meant to be for this sort of personal crime, it's more for political or other reasons why we have the immunity."

Ramasami said Rizalman should return to New Zealand to face the charges against him and should not be allowed to remain in Malaysia.


Robert Stewart, lawyer for Fairfax Media, which appealed Rizalman's name suppression, said it was a win for free speech.

He said the judge's decision made sense because New Zealand would have been in a vacuum until Malaysia's foreign ministry made a statement at 4pm.

"It would mean media here would be at risk of prosecution for breaching the interim suppression order if it had been allowed to stand so I think it's a sensible recognition of the fact that we don't live in a goldfish bowl."

"It would have put the media in an impossible position and the temptation would have been too great."

"There is a need for suppression orders from time to time to ensure that justice is administered fairly but when events conspire to mean that those suppression orders are really useless or don't make any sense or are not having the effect that they're intended to have then they should be revoked and that's what's happened today."

Suppression was originally given to assist the defendant make sense of what was happening. Hence, it was understandable on an interim basis but later events meant the basis for that order no longer existed and the judge recognised that, Stewart said.

It showed that diplomats were treated the same as anyone else in New Zealand.


Justice Collins heard the hastily convened appeal against a suppression order made in the Wellington District Court.

Rizalman, aged in his 30s, was not represented at the hearing but lawyer Barbara Hunt has been appointed by the court to assist if necessary.

Justice Collins confirmed the understanding that the man had first appeared in the District Court on May 10 where two justices of the peace granted suppression. A court registrar continued the suppression on May 15 when police said issues of diplomatic immunity were being looked into.

The case was before District Court judge Bruce Davidson on May 30 when the order was continued.

For the police, Wellington Crown solicitor Grant Burston said the appeal was not opposed.

Burston said there was no connection between the defendant and the alleged victim so there was no risk of her being identified if the defendant was named.

There was no risk to a fair trial given diplomatic immunity was claimed and the defendant was not in New Zealand in any event.

There did not appear to have been an evidential basis for the suppression order being continued on May 30. Police had not opposed it then because the case was still at a very early stage and there was a statutory obligation to treat diplomats with consideration.

Hunt said she had been the duty lawyer who had appeared for the man when he first appeared in court on a Saturday morning. Diplomatic immunity was not mentioned at that stage.

Hunt had earlier told the court that her instructions at that first court appearance had been to get a remand without plea, make an application for legal aid, and ask for name suppression.

Rizalman's employer and others were in court to support him but at that stage he had no information about the nature of the charges against him.

She said she was concerned that suppression was being decided without him having the opportunity to be heard.

Suppression had been sought for Rizalman to tell his family of the charges and because of the serious nature of the charges.


Earlier today reports in the Malaysian news media said Rizalman's foreign minister said he could be returned if he was promised a fair trial and his life was not in danger.

Prime Minister John Key said before the suppression hearing that he wanted Rizalman tried here.

"We sent a very strong message that we didn't want him sent home."

Key said Rizalman would get a fair trial in New Zealand and his life would not be in danger.

"We don't have the death penalty in New Zealand and he'll absolutely get a free and fair trial in New Zealand. One thing that we can pride ourselves in is having a judicial system that's completely fair."

New Zealand's Foreign Minister Murray McCully said he had seen the media reports. His officials in the Malaysia's capital were "making inquiries" in an attempt to clarify the situation.

McCully said having Rizalman returned would require a process but "I'm sure that would be one course that would be followed up by the authorities".

It was possible that the man could be extradited to New Zealand; however this would require Malaysia to effectively reverse its previous position that it wanted the man to invoke diplomatic immunity. It would be a matter for other authorities to act on this possibility once the situation was clarified, McCully said.

"These are things that are not decided by Ministers but by prosecutorial authorities, so this matter would be a matter for them to consider and I'm sure they'd be watching this quite closely." 

Earlier today McCully warned that if the diplomat did not face the charges, it would affect relations between the two countries.


Labour foreign affairs spokesman David Shearer said the Government's sudden outrage was "disgraceful" given the length of time since the incident took place.

"It's clear that if this incident had not hit the headlines the Government would have been content for it to slide without mention," Shearer said.

"It is only because of media attention we have now learned the name of the diplomat and the country he is from."