Written by: Averroes
(1.0) Introduction
Multi-millionaire, cosmetic tycoon Nur Sajat, 36 or controversially known as Muhammad Sajjad Kamaruz Zaman, was previously in pursuits by Malaysian authorities or the Royal Malaysian Police. However now, she is arrested by Thai authorities for not possessing a valid passport and only provided a smartphone picture of it.
Her passport was invalid, because the Thai authorities found that it was terminated by the Malaysian government.
She was arrested at a sumptuous condominium in the middle of Bangkok with another Thai transgender colleague. She was brought to the Thai court on 9th September 2021 on an immigration offence and was convicted for a fine. She was freed the next day, after Misha a local Thai paid her bail of RM8,343 (a close acquaintance of Sajat).
Even if she is freed, she would have to report to the Thai immigration office every 14 days.
Due to this, Malaysia is seeking for extradition to bring Sajat back, while in negotiations with the Thais. However, bilateral communications between countries, especially on an international stage would be quite complicated as it depends on diplomatic success and compromises.
(1.1) Sajat is seeking refuge in Australia?
Thai investigations reveals that, Sajat is holding a United Nations High Commissioner for Refugees (UNHCR) card from a headquarters in Bangkok and she informed them that she is a refugee. They also explained that she is further planning to seek refuge in Australia.
If you're interested to more about the UNHCR card, you may read an article here.
While in stages of seeking refuge to Australia, she is assisted by a Thai lawyer and with cooperation with a representative from the Australian embassy in Bangkok. This was all connected to rancid pressure from Malaysian Islamic extremists with death threats, while being hunted by 100 personnel from the Jabatan Agama Islam Selangor (JAIS) an Islamic religious department.
(2.0) The drama back in Malaysia
Malaysian authorities cited several laws to prosecute her, in civil law jurisdiction, she committed the offences under section 186 (obstruction of public servant) and section 353 (assaults or uses criminal force to any person being a public servant) of the Penal Code.
Apart from that, the Shah Alam High Court also issued an arrest warrant against her, for failing to attend her case mention again without any reasons. It involved her alleged offence of cross-dressing as baju kurung during a religious Yassin recital ceremony in 2018, which a detailed article could be read here.
(3.0) Extradition Law in Malaysia and Thailand
In order for there to be an extradition law, both Malaysia and Thailand must sign an international treaty or agreement that allows for extradition for either sides of the borders.
(3.1) Laws Governing Extradition
UK and Siam Treaty, 10th November 1911 (UK-Siam Treaty)
Historically, Malaysia and Thailand did sign an extradition agreement, well in way. However, this agreement was signed by the Federated Malay States, on behalf of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Siam.
It was enforced under the Extradition Acts and fully in place in the year 1915, through Government Gazette Notification No. 1023 of the 24th March 1916.
Even though, the Federated Malay States no longer exists and we have become Malaysia and Siam is not Thailand with a constitutional monarchy (both countries), the Thai-Malaysian Exchange of Notes Regarding Extradition Treaty in 1959 states that;
"Monsieur le Ministre, in accordance with instructions from the Government, I have the honour to propose that Extradition between the Federation of Malaya and the Kingdom of Thailand shall continue to be governed by the Treaty of Extradition between Thailand and Great Britain signed at Bangkok on 4th March 1911, pending conclusion of an Extradition Treaty between the Federation of Malaya and the Kingdom of Thailand."
Article 1 of the Treaty states that;
"The High Contracting Parties engage to deliver up to each other persons over whom they respectively exercise jurisdiction who, being accused or convicted of a crime or offence committed in the territory of the one Party, shall be found within the territory of the other party, under the circumstances and conditions stated in the present Treaty."
The Treaty provides specific offences that Siam should return a citizen of the Federated Malay States, but extends to any other offences as well.
Article 3 of the Treaty states that;
"Either Government may, at its absolute discretion, refuse to deliver up its own subject to the other Government."
Therefore, Thailand may refuse to surrender or deport Sajat back to Malaysia.
Thai Extradition Act B.E. 2472 (Act B.E. 2472)
Even with an international treaty between Malaysia and Thailand, both countries must legislate their own domestic law to give effect to the international treaty.
Since Thailand legislated Act B.E. 2472, article 3 of the statute states that the Thai domestic law applies and enforces the international treaty between Malaysia-Thailand, which is the historical Treaty signed by the UK and Siam.
Malaysian Extradition Act 1992 (the Act)
Malaysia also gives effect and enforces the old historical UK-Siam Treaty. Even though the treaty only applied to the Federated Malay States, such as Perak, Selangor, Negeri Sembilan and Pahang only, section 1 of the Act states that it 'now applies throughout Malaysia'.
However, the UK-Siam Treaty is only binding when the Minister issues an order. The minister here must refer to the Minister of Foreign Affairs. Section 2(1) of the Act states that;
"Where a binding arrangement has been entered into between Malaysia and any country for the extradition of fugitive criminals, the Minister may, by border to be published in the Gazette reciting or embodying the terms of such arrangement,...
... direct that the provisions of this Act shall apply to that country subject to any restriction, exception, modification, adaptation, condition or qualification contained in the order."
The Minister in fact did issue an order to enforce the UK-Siam Treaty. This is known as the Extradition (Thailand) Order 1992. The following provisions govern the order;
Section 2 of the Order states;
"Treaty means the Exchange of Notes in 1959, between the Federation of Malaya and the Kingdom of Thailand... in accordance with the provisions of the UK-Siam Treaty dated 4th March 1911."
Lastly, section 3 of the Order states;
"The Extradition Act 1992 shall, subject to conditions, exceptions and qualifications set out in the Treaty apply in relation to Thailand."
(4.0) Will Thailand return Sajat back to us?
(4.1) Thai Socio-Legal View
We know that both Malaysia and Thailand has the discretion to return back their nationals or those in legal action in their respective territories. However, the author believes it would be impossible for the Thais to return Sajat.
Perhaps, the most conspicuous reason is that, Thailand is a LGBT friendly country. There are numerous homosexual films on Netflix, depicting social acceptance of this phenomenon. They do not criminalise homosexuality or explicitly ban discrimination on the grounds of sexual orientation and gender identity.
Under section 30, paragraph 3 of the Constitution of Thailand B.E. 2550 (2007) it guarantees that;
"Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted."
The Administrative Court of Thailand also interpreted the above provision that the intention of the law, the word 'sex', also includes sexual identity, gender or sexual diversity. The court decision came, after they revoked an order by the Chiang Mai Governor to prohibit transgender participants from an annual flower festival in 2009.
However, the Thais may return Sajat, because she committed an offence for 'not attending court or case mentions' as under section 15 of the Syariah Criminal Offences (Selangor) Enactment 1995 (defying court orders) and not the offence of 'cross-dressing' under section 10 of the Enactment.
(4.2) Malaysia Socio-Legal View
In Malaysia, the LGBT groups won their rights for cross dressing in the Court of Appeal decision in Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 3 MLJ 513.
The court states that, section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 (the Enactment) was unconstitutional as it was against article 8(2) and 10 of the Federal Constitution for equality and freedom of speech. They had the right to express themselves, by wearing a female attire, despite biologically male.
However, on appeal to the Federal Court in State Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors [2015] 6 MLJ 736 court decided that;
Since the respondents 'did not apply for leave' to the Federal Court as under article 4(3) and (4) and 128 of the Federal Constitution. They challenged the constitutionality through a 'judicial review', which is a collateral attack. A declaration in proceeding must be borne by those provisions and with leave only.
Judicial Review is to challenge the 'decision' not the 'constitutionality' of an administrative action or decision.
Their action tantamount to breaching legislative powers of Negeri Sembilan, thus should have been dismissed, beginning from the High Court, that they have no jurisdiction to hear the matter. Therefore, section 66 of the Enactment remains constitutional and cross-dressing is still illegal.
(5.0) Conclusion
To conclude, it is unlikely that Sajat would be extradited back to Malaysia since Thailand is a LGBT friendly country, unless the extradition is for the offence of 'failing to attend court'. However, if both Malaysian and Thai authorities could diplomatically reach a summit of understanding, then it 'may' be possible.
For now, the LGBT community are still human beings. Despite their acts have contravened Islamic precepts and tenets, we should still respect and honour them with dignity. There are other methods to approach these individuals through compassion and tolerance, without resorting to prejudicial legal treatment and punishments.
Time and patience is of the essence. In turn, careful and careful assuages would allow them space and time to have a reevaluation and self-reflection. They have a choice, let them decide independently without pressure.
(6.0) References;
Faris Danial Razi. (September, 2021) Bukit Aman sahkan Nur Sajat ditahan Imigresen Thailand, sedang pohon ekstradisi. Retrieved from, https://www.astroawani.com/berita-malaysia/bukit-aman-sahkan-nur-sajat-ditahan-imigresen-thailand-sedang-pohon-ekstradisi-320796
Syed Mohd Hazique Syed Nor. (September, 2021) PDRM sahkan Nur Sajat ditangkap oleh Imigresen Thailand. Retrieved from, https://www.kosmo.com.my/2021/09/20/pdrm-sahkan-nur-sajat-ditangkap-oleh-imigresen-thailand/
Skuad Khas Harian Metro. (September, 2021) Sajat sudah ditahan. Retrieved from, https://www.hmetro.com.my/utama/2021/09/756934/sajat-sudah-ditahan
UK-Siam Treaty and local legislations of Malaysia and Thailand. Retrieved from, https://www.oecd.org/site/adboecdanti-corruptioninitiative/39804076.pdf
Asia-Pacific Decent Work Decade. (2015) Gender identity and sexual orientation in Thailand. Retrieved from, https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-bangkok/documents/publication/wcms_356950.pdf
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