Thursday, November 19, 2009

Hindraf chief in catch-22 situation over passport

Commentary by Joe Fernandez
INDIA-MALAYSIA/The apparent passport bungle-in-the-jungle involving Hindu Rights Action Front (Hindraf) Chief P. Waytha Moorthy,(pic) forced into exile in London since early last year, appears to have resulted in a clear stalemate. Not if viewed from the British and Malaysian Government positions, according to a senior Malaysian-Aussie lawyer in private practice in Brisbane .
“The onus, according to the Home Ministry’s thinking, is actually on Waytha Moorthy to collect his passport back from the Malaysian High Commission in London and move on,” noted senior lawyer Quintin Rozario, formerly from Klang, in an email exchange with Free Malaysia Today from Australia . “His family is waiting for him back home,” says the Malaysian Government.
In short, Waytha Moorthy should break the stalemate in the situation and hurry back as soon as possible, advocates Kuala Lumpur .
Rozario was giving his take on the confusing turn of events reported by the media on the handling of the Hindraf Chief’s passport issue by the Malaysian authorities.
The Malaysian’s Government’s position, an apparent half-truth, was that it was Waytha Moorthy’s lawyers who sent his passport to the Malaysian High Commission in London . That was in March this year.
“That’s not the whole story,” assured Waythamoorthy when contacted in London by telephone. “My lawyers sent back the passport which had earlier been put in an envelope by the Malaysian High Commission in London and sent to my solicitors at the end of February this year. I was lying in hospital at that time and it was in the news. There was no note or covering letter from the High Commission.”
Waythamoorthy stressed that the Malaysian High Commission in London returning his passport is not enough to end the stalemate. For starters, he wants an explanation from the Malaysian Government, through his lawyers, on why his passport was cancelled on March 14 last year by Kuala Lumpur .
Subsequently, Waytha Moorthy’s passport was reportedly seized by British Immigration at Gatwick Airport on April 19 last year upon his return from Geneva and never returned to him. Apparently, this action was taken on the grounds that a passport at all times belongs to the issuing authority and not to the holder.
“So, it’s a fairy tale that I returned my passport to the Malaysian High Commission in London . How can I return something that I didn’t have in the first place,” said Waythamoorthy. “I did not start the chain of events that has resulted in the present stalemate. It was Kuala Lumpur .”
Waytha Moorthy denies he’s spending his enforced exile in London “splitting hairs” over his passport while his family and loved ones are anxiously awaiting his return home.
Instead, he assures that he wants to move on as well with his life and is urgently seeking three remedies from the Malaysian Government viz.
(1) that what was taken from him dishonourably (his passport) be returned honourably;
(2) that a new passport be issued to him to replace his “cancelled” passport; and
(3) some form of suitable apology and related remedies that are seen to be mutually agreeable for the financial and material losses that he has incurred in the process and the damage to his reputation by IGP Musa Hassan linking him with the Tamil Tigers movement of Sri Lanka .
Waytha Moorthy stressed that he felt utterly humiliated and very small at Gatwick Airport when he was detained. He expressed disappointment that the word on protection that the Malaysian Government has guaranteed, on behalf of the King, in the very first page of passports issued by the country, were rendered meaningless at Gatwick Airport that day.
“It’s no use Home Minister Hishammudin (Tun Hussein), like his predecessor Syed Hamid Albar, mindlessly parroting that my passport has not been cancelled,” said Waytha Moorthy. “My passport has been entered in the computer system at British Immigration as cancelled. This follows the action initiated by the Malaysian authorities. Information on the cancellation has been duly communicated instantly across Europe to all the immigration systems and from there on to the Americas , Australia and New Zealand . In fact, the whole world.”
So, apparently, even if it’s returned to him, Waytha Moorthy’s existing passport is of no further use to him although it only expires on Oct 17 next year. However, the Home Minister has been quoted by local media as saying that “we can’t issue two passports to a person.”
From the British Government’s legal standpoint, its actions followed a sequence of events reportedly initiated by Malaysia. It began with someone in the Malaysian Government informing the British High Commission by letter on March 14 last year that Waythamoorthy’s passport had been cancelled. That’s according to a letter Ref: FOI 10154 from the UK Border Agency of the Home Office to Waythamoorthy’s lawyers in London , Imran Khan & Partners Solicitors, dated Sept 23 last year.
Who in the Malaysian Government communicated the cancellation to the British High Commission in Kuala Lumpur was not disclosed by the UK Border Agency.
Notwithstanding the Freedom of Information Act 2000, it pleaded exemption under Section 27 (2) of the same Act on the grounds that “such disclosure would jeopardise ties between the United Kingdom and Malaysia .”
The UK Border Agency told Waythamoorthy’s lawyers that based on the reason given by the Malaysian authorities for the cancellation of the passport, “The Malaysian authorities were seeking your client’s arrest to face criminal charges”.
(On Nov 26, 2007, Waythamoorthy was given a discharge, not amounting to an acquittal, on a sedition charge. This was a day after an estimated 100,000 Hindraf supporters took to the streets of Kuala Lumpur after not being allowed to converge at the British High Commission in Kuala Lumpur to present a letter to the Queen of England .)
(On July 15 last year, then Home Minister Syed Hamid Albar told the media in the lobby of Parliament House that an arrest warrant under the ISA (Internal Security Act) was issued for Waythamoorthy before he became Home Minister. Syed did not disclose any further details.)
On July 2, 2008, according to the UK Border Agency’s Sept 23 letter, the Malaysian authorities requested for the return of Waythamoorthy’s passport “without any reason given why they wanted the passport returned to them.”
Despite informing the British High Commission in Kuala Lumpur that the Malaysian Government was seeking Waythamoorthy’s arrest to face criminal charges, London granted him political asylum in the United Kingdom of Great Britain and Northern Ireland. They also provided him with travel papers under the Geneva Convention on Sept 9 last year. These papers, which expire on Sept 8, 2013, entitle him to visit all countries except Malaysia .
Waythamoorthy’s political asylum status in the United Kingdom is for an indefinite period. Still, when the ruling party in Malaysia is ousted from the Federal Government, the British Home Minister would write to Waythamoorthy on the status of the current threat to him in Malaysia . Should the Hindraf Chief inform the British Home Office that he would feel perfectly safe in Malaysia under the new Government, “he would be advised to return home.” However, threat or no threat, the British Government cannot force him to return home to Malaysia .
Political asylum was not something that he voluntarily sought, clarified Waytha Moorthy.
“After my passport was seized by British Immigration on April 19 last year at Gatwick Airport , I was detained for six hours and interrogated and my luggage turned upside down,” said Waytha Moorthy. “In the end, I was issued with a detained person advice and a temporary admission pass and advised to return two days later i.e. on a Monday.”
On April 21, 2008, Waytha Moorthy’s temporary admission was further renewed for a further three weeks. He was asked to report to the British Home Office in Croydon, London at the end of the three weeks.
In Croydon, he was told that he would have to be deported to Geneva , his last port of call before entering the UK . . . “unless he had other options in mind.” Waytha Moorthy knew that in Geneva , he would be deported back to the UK since he had no travel papers.
What the British Home Office was implying under other options was clear. Waytha Moorthy could either go to court and fight it out or apply for political asylum. “I chose political asylum only very reluctantly,” confessed Waytha Moorthy. “I had no choice under the circumstances. Little did I dream that I would become a political refugee.”
So, will the Malaysian Government issue the Hindraf Chief with a new passport to allow him to come home to his wife and seven-year-old daughter? Or will he be forced to stay in exile as a political refugee? The ball, it seems, is on the Home Ministry’s court!
Waytha Moorthy declines to say what his options would be in the event the Home Ministry refuses to issue him with a new passport. Rozario, meanwhile, says he can easily hazard a guess. However, he would prefer to do some solid legal research before sharing his findings with FreeMalaysiaToday.