People are starting to demand someone's - anyone's! - head over the Muhammad Rizalman bin Ismail diplomatic immunity escapade. What's the rush?, I say.

Everyone just needs to calm down a bit about the whole Muhammad Rizalman bin Ismail saga. Because some people who ought to know better, as well as some people who never will, are starting to make some pretty silly statements about the matter.

John Key, who is one of those who really ought to know better by now, has effectively told the MFAT official(s) responsible for letting Malaysia think it would be acceptable to New Zealand for Rizalman bin Ismail to be tried in Malaysia that they should quit their job(s). This before the "independent inquiry" that is going to be held into the division of MFAT that handled the issue has even been established, let alone announced any findings on what happened. It isn't the first time I've had cause to suggest to Key that he temper his publicly expressed views on matters that are of current interest, so let me once again remind him of the basic principle of natural justice and to wait for all the facts to be known before rushing to judgment. Just because you are the PM doesn't mean you always get to call it like you see it; in fact, it increases the need for you to sometimes just bite your tongue and let the process play out.

The Dominion-Post is even worse, thundering that:

This is either wilful disobedience or extreme incompetence. It is hard to believe that any diplomat would knowingly subvert the Government's expressed wishes and policy. Sacking would be the only possible punishment. But the incompetence is just as serious, and on the face of it should also lead to dismissal. Either way, the ministry is twisting in the wind.

Disobedience or incompetence! The only possible explanations for what happened!! Someone's head must be presented on a pike before the people, so that their thirst for vengence is assuaged!!! We, the mighty power of the press, demand it!!!!

Except, here's the thing. Rizalman bin Ismail's case just doesn't seem to be that unusual. Indeed, what happened with him - an accused person with diplomatic immunity leaving New Zealand without facing our courts for her or his alleged wrongdoing - appears to be just as likely an outcome as its opposite.

According to MFAT figures, diplomatic immunity has been claimed on eight occasions in the past four years. In four of these cases, individuals facing criminal charges were able to leave New Zealand after their governments refused to waive immunity. So, in half of all the recent criminal cases where diplomatic immunity was invoked, pretty much the same thing happened as did with Rizalman bin Ismail (albeit that we 're not told if those individuals even faced the threat of being tried by their own domestic regime).

Now, I'm willing to bet that in each of these eight previous cases New Zealand's "official" line was that we wanted immunity waived so that these people could stand trial in New Zealand. We'd have sent the relevant diplomatic missions stern letters to that effect. But here's the thing. We can strongly request a waiver of immunity, but the relevant governments always can say "no". And if they say "no", then we've three choices. We can shrug and say "whatevs". Or, we can get bolshie and escalate matters by threatening consequences for their refusal. Or, we can try and negotiate some sort of compromise position whereby the foreign government feels its pride/reputation/dignity is being respected, whilst we feel satisfied that the individual accused of wrongdoing will face some measure of justice (even if not in our courts).

You may well argue that ideally the second option should be the default one. We shouldn't ever let these errant diplomats or their family members escape New Zealand justice. We should fight tooth and nail to make them pay the price for their wrongdoing here. But taking such strong principled stances carries costs. Punishing other countries for refusing to let our courts try their diplomats invites reciprocal measures. And in the real world of carefully calibrated diplomatic niceties, reciprocal measures can escalate. Which can then put other national objectives in jeopardy ... because did anyone notice that New Zealand is presently trying to sew up a sprawling free trade agreement with lots of different nations, as well as frantically lobbying lots of different nations to support our bid for a seat on the UN Security Council?

In which case, option three is one that, in the real world of compromise and grey shades that we inhabit, I'm pretty sure will be turned to on a regular basis. Once a government indicates it is intending to refuse New Zealand's request for a waiver of immunity, our diplomats investigate whether there is a way that conflict can be avoided and some sort of mutually acceptable solution reached on the QT. 

And that is what I'm also pretty sure will have happened in the case of Rizalman bin Ismail. Mary Oliver, the Deputy Chief of Protocol at MFAT (who seems to getting set up as the fall woman for this politically charged event), won't have gone into the meeting at Malaysia's High Commission unprepared. I know enough people with history at MFAT to know that nothing happens in that organisation without several pairs of eyes going over it and the chain of command clearing it. So there just is no way that one mid-level employee will have "gone rogue" and off her own bat decided to reverse what "the government" wanted to see happen to Rizalman bin Ismail. Instead, applying what is probably established (if informal) precedent, the relevant bit of MFAT will have softened "the government's" position so as to try and avoid what it saw as an escalating diplomatic incident that could damage our relations with Malaysia. Just as has happened, I am fairly sure, a number of times in the past.

The difference with Rizalman bin Ismail's case is, of course, that the charges were reasonably serious, there is a young woman who was quite seriously affected by his actions, and the media got hold of the story. At which point, the proverbial hit the revolving blade, and frantic arse covering commenced.

I have no idea how much Murray McCully (or his office) actually knew and when he knew (or should have known) it. But there's two things about McCully. First, he is (in the words of one who ought to know) a notorious micro-manager. Second, I'm told that his restructuring of MFAT has so scared the hell out of its employees that they will inform his office of the time they spend in the bathroom, let alone something as important as the fate of Rizalman bin Ismail. It may well be that this has created such a gush of information into his office that it can no longer tell the important from the trivial. Because according to McCully:

[O]ne member of his staff did receive an email about the matter "and did not open it. She was apparently travelling in a place where there was no communication capability at the time."

(Seemingly this staff member who managed to find one of the few places on the planet where email doesn't work is unaware of how to put automatic "out of office - please direct urgent messages to someone else" reply notices on her email system. McCully's office might want to investigate an office-wide tutorial on IT pretty quickly.)

And even McCully was left completely out of the loop on this issue, just whose fault is this? He defended his apparently not knowing what was going on in the case thus:

"It's a good and proper process to leave these matters to the prosecutorial authorities, the police on one hand and the consular protocol authorities."

Yet McCully has been busy restructuring the rest of MFAT with gusto. So a decision to pretty much leave the protocol division alone to deal with misbehaving diplomats in this country is one he must consciously have taken. Because, as noted above, the need to decide what to do about diplomats (and their relatives) who behave badly is a recurring one. So if McCully didn't want to know what they were discussing, he can hardly complain when he doesn't like what deals they strike.

In the interests of fairness, I should note that the MFAT officials clearly did get this one wrong. Malaysia clearly was more amenable to waiving immunity than they thought, so a firmer stance at the outset would have resulted in them agreeing to waive it (although this is said with 20/20 hindsight - how could the officials know what was a bluff and what was really intended?). They clearly did prioritise the continuing good relations with Malaysia (an important broker in the Islamic world, I would note, whose votes we will want in the upcoming Security Council race) over thoughts about the young woman who Rizalman bin Ismail allegedly attacked. And worst of all, they allowed their Minister to be embarrased (even though the fault may still lie in his office's failure to clear its lines of communication).

But you know what? People stuff up. Past forms of behaviour get replicated in new situations where they are not appropriate. Individuals ensconced in institutional settings fail to recognise that their priorities have been bent out of shape by that institution's goals. All these things happen.

So let's wait and see the report on just what happened in MFAT's protocol division. They we can chop off people's heads and put them on pikes ... or not.

Comments (7)

by Bruce Thorpe on July 04, 2014
Bruce Thorpe

I was surprised with Key's attack on the Malaysian government, but it seems to have worked for him, and the accused will presumably be extradited.

It would be usual, I would imagine, for the suspect to be rushed back home and both governments to say as little as possible, which sort of happened this time, but weeks later the story surfaced at this end.

I guess assault on a woman is taken more seriously by this society than in the past.

 

Is it usual for the court to order suppression in these cases involving diplomatic immunity? 

by Antoine on July 05, 2014
Antoine

Hi

> the MFAT officials clearly did get this one wrong

AG, have you considered that you may be calling this too early?

I don't know the facts of the case and nor (I assume) do you, but if and when they become public, it may turn out that MFAT officials have in fact acted correctly.

A.

by Andrew Geddis on July 05, 2014
Andrew Geddis

Is it usual for the court to order suppression in these cases involving diplomatic immunity?

I don't know, Bruce. In fact, I don't know how I could know, given that the effect of suppression is to stop people finding out about the case!

I don't know the facts of the case and nor (I assume) do you, but if and when they become public, it may turn out that MFAT officials have in fact acted correctly.

I gave my reasons for why MFAT's approach to this was "wrong". It led to a diplomat leaving NZ without facing justice in front of a NZ court for comparatively serious criminal charges (thereby failing to fully consider the harm done to the young woman who was the target of the diplomat's actions), when it turns out that the Malaysian government actually would have accepted this outcome if pressed harder. That is, objectively, a "mistake".

Now, quite why this mistake occured, and whether there is any individual blame to be apportioned to anyone involved, is a different question that only an inquiry can answer.

by Antoine on July 05, 2014
Antoine

I think

"quite why this mistake occured, and whether there is any individual blame to be apportioned to anyone involved, is a different question that only an inquiry can answer"

is a reasonable statement, and fairer than your original

"the MFAT officials clearly did get this one wrong".

A.

by Andrew Geddis on July 05, 2014
Andrew Geddis

Antoine,

Given that my entire post was about the need to hold judgement on assigning blame for the Rizalman bin Ismail events, I think you're being a little unfair in picking out one particular sentence and putting a gloss on it that ignores everything else I wrote. However, for full clarity and to address any misconceptions:

(1) The initial resolution to the Rizalman bin Ismail case was "wrong", as it turns out with 20/20 hindsight;

(2) Therefore, with the benefit of 20/20 hindsight, some people in MFAT (possibly up to and including the Minister) "got it wrong" in how they handled the case;

(3) However, the reasons why they got it wrong are not yet clear, and so no blame should be apportioned until those reasons are more fully examined.

And that is all.

by Ross on July 06, 2014
Ross

It led to a diplomat leaving NZ without facing justice in front of a NZ court for comparatively serious criminal charges (thereby failing to fully consider the harm done to the young woman who was the target of the diplomat's actions), when it turns out that the Malaysian government actually would have accepted this outcome if pressed harder.

But as you point out, other diplomats have left NZ when faced with serious ciminal charges. How hard were their respective governments pressed? The conduct of MFAT in this case may be fairly standard (or not).

by Andrew Geddis on July 06, 2014
Andrew Geddis

But as you point out, other diplomats have left NZ when faced with serious ciminal charges.

Not "serious". Or, at least, not as serious as the immediate case. So the cases aren't exactly analagous. But it may be that the MFAT folks (including the Minister) treated this case as "like" the earlier ones, when they (with the benefit of 20/20 hindsight) should not have.

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