Malaysia wanted to seal file on accused diplomat
HAMISH RUTHERFORD, SHANE COWLISHAW AND AIMEE GULLIVER
Should diplomats be able to invoke immunity when they are accused of committing crime?
The Malaysian Government asked for the police file of a diplomat accused of attempted rape to be sealed and for all charges to be dropped before he quietly fled the country.
The details emerged yesterday amid a deepening diplomatic crisis, with the foreign affairs ministers of New Zealand and Malaysia giving directly conflicting accounts of why Muhammad Rizalman bin Ismail, a diplomat accused of attacking a woman, 21, in the Wellington suburb of Brooklyn in May, escaped charges.
Last night New Zealand Foreign Affairs Minister Murray McCully issued correspondence between the Malaysian high commission, where Rizalman worked, and the Ministry of Foreign Affairs and Trade (Mfat), in which New Zealand officials requested Rizalman waive diplomatic immunity and face charges.
The request was rebuffed.
But after a late evening phone call with his Malaysian counterpart McCully admitted New Zealand officials had given conflicting signals in subsequent discussions.
‘‘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 New Zealand government.’’
Malaysian authorities had acted in ‘‘good faith’’ believing a judicial process in Malaysia was acceptable to New Zealand. The admission will stoke Opposition accusations the Government was involved in a cover up.
The charges, including burglary and assault with the intent to commit rape, both carry a maximum penalty of 10 years in prison. They relate to an attack in the woman's home on May 9.
After invoking diplomatic immunity, Rizalman, 38, his wife and three children left New Zealand on May 22. While he could face a military court at home, he has been subjected to psychiatric tests.
Since the incident became public during the weekend, New Zealand has insisted that the Government wanted Rizalman tried here.
"We sent a very strong message that we didn't want him sent home," Prime Minister John Key said. But the Malaysian Government painted a different picture, insisting it never wanted to "sweep the matter under the carpet".
Malaysian Foreign Affairs Minister Anifah Aman told a press conference in Kuala Lumpur that it was New Zealand that had proposed allowing the man to leave the country.
"The Ministry of Foreign Affairs of Malaysia was prepared to waive diplomatic immunity of the accused to enable prosecution under New Zealand law against him to proceed," Anifah said yesterday.
"The New Zealand side had offered an alternative for the accused to be brought back to Malaysia. It was never our intention to treat the matter lightly."
Anifah indicated that Malaysia was prepared to allow the man to return to New Zealand if it was "absolutely necessary".
His statements prompted McCully's office to issue letters showing that the Malaysian high commissioner not only warned that it would not be waiving diplomatic immunity - a request made by Mfat on behalf of police - but that it wanted assistance in having Ismail's police file sealed.
Refusing to waive diplomatic immunity, the letter requested that Rizalman be allowed to "be repatriated to Malaysia as soon as possible".
The statements came only hours after Fairfax Media, the publisher of stuff.co.nz, successfully overturned a suppression order on the case which had prevented Rizalman's identity, or that of the country he worked for, being identified.
Robert Stewart, lawyer for Fairfax Media, said it was a win for free speech because New Zealand would have been in a vacuum until Malaysia's foreign affairs ministry made a statement.
"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."
Earlier, McCully had signalled that the case could harm New Zealand-Malaysia relations, advising that the way the matter was handled would affect the relationship of the two countries.
New Zealand and Malaysia signed a free trade agreement in 2009 and according to New Zealand Trade and Enterprise, two-way trade was worth $2.6 billion in 2012, making Malaysia our eighth largest trading partner.
The Malaysian high commission, in the Wellington suburb of Brooklyn, was not returning telephone calls yesterday.
MILITARY MAY DEAL WITH DIPLOMAT
The Malaysian diplomat accused of a sex attack in Wellington is unlikely to face charges directly relating to the offence unless he is sent back to New Zealand by his government, experts say.
Muhammad Rizalman Bin Ismail, 38, who fled to Malaysia with his wife and three children after claiming diplomatic immunity, is accused of following a 21-year-old woman to her Brooklyn home on May 9, where an alleged assault occurred. He appeared in court in Wellington on May 30, but left the country soon after.
Police believed they had sufficient evidence to charge him with burglary, and assault with the intent to commit rape.
They also wanted to lay a charge of refusing to leave the property.
Auckland University law professor Warren Brookbanks said it would be highly unlikely that Rizalman would face the same charges in Malaysia that he would in New Zealand.
The logistics of a trial, gathering evidence and getting witnesses to appear would make it difficult. "I have no doubt the young woman involved would not want to go to a foreign country and face the man who allegedly tried to rape her."
It was more likely Rizalman, as a member of the defence force, would be disciplined under the military's code of conduct, and could also be stripped of his diplomatic status.
Apart from applying diplomatic pressure, there was nothing further New Zealand could do to force charges to be laid by another country.
Malaysian Foreign Affairs Minister Datuk Seri Anifah Aman said Rizalman was being investigated under a board of inquiry and might be tried at a court martial.
Community leader Selva Ramasami said Malaysians in New Zealand were embarrassed and shocked by the events.
"I'm quite disappointed with the approach," he said. "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.
"It's quite embarrassing for the community because, after the MH370 [missing plane] saga, we constantly seem to be someone who can't handle the situation."
He said Rizalman should return to New Zealand to face the charges laid against him, and should not be allowed to remain in Malaysia.
Brookbanks said immunity was essential for diplomats to do their job, and he did not think it was generally being abused.
- The Dominion Post
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