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Interpol risks breaching its own constitution if it issues Malaysia’s request against U.S. comedian

Malaysian police have remarkably asked Interpol to help track down a U.S. comedian after she made a joke about the disappearance of Malaysia Airlines flight MH370. The Malaysian authorities have reportedly begun an investigation under incitement and offensive online content laws.

Comedian Jocelyn Chia, who has both Singaporean and American citizenship, originally shrugged off the news as ‘ridiculous’. However, this week she told TMZ that she is genuinely concerned about law enforcement snatching her overseas and dragging her to Malaysia[1]. It is no wonder, given all the news about politically motivated extradition requests coming through via Interpol.

According to CNN, Chia’s joke centred on the uneasy past between Singapore and Malaysia:

“She led off with a suggestion that since the two had separated in 1965, Singapore had risen to become a first-world country while Malaysia had allegedly remained a “developing” one. She then went on to take aim at Malaysian airplanes by suggesting they “can’t fly,” before making what many have taken as a reference to Malaysia Airlines flight MH370, the Beijing-bound flight which went missing along with 239 passengers and crew after taking off from Kuala Lumpur on March 8, 2014.”[2]

In Malaysia 100 or so protesters from the youth wing of the United Malays National Organization (UMNO) – one of the biggest political parties in the country – marched to the US embassy in Kuala Lumpur to protest what they see as an insult. Singapore has distanced itself from Chia and has publicly apologised to Malaysia.[3]

Chia is being investigated under public mischief laws that carry a jail term of up to two years, as well as communications legislation under which offenders face up to a year in prison, according to CBS News.[4]

There are two big legal problems with Malaysian police asking Interpol to help locate her and to request more information about her from international police forces.

Firstly, Interpol is strictly bound by its Rules on the Processing of Data, Article 82 of which states that the sole purpose of a Red Notice is to “seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action.” A Red Notice must not therefore be issued if the location of the individual is known to authorities.

The founding purpose of Interpol is to assist domestic police forces in locating wanted persons outside their jurisdiction. Usually Interpol facilitates transnational cooperation between police forces when the whereabouts of a wanted individual is unknown. Depending on the kind of assistance required by a police force, they will utilise different means of transnational cooperation.

For example, an Interpol Diffusion is a request for cooperation and information-sharing between Interpol member countries. An Interpol Red Notice is issued only where there is a compliant arrest warrant for a fugitive. Interpol is far from the only means of international cooperation on matters of security and crime. Most countries have treaties for the purpose of information sharing between police, security, governmental bodies. Which brings us to the second problem with Malaysia’s request to Interpol.

Interpol is bound by its Constitution which clearly states at Article 3 that:

“It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.”

Therefore, Interpol must not issue a request from a member state, be it a Red Notice or a Diffusion, when the request is of a political nature. Malaysia’s public mischief law 505 states that:

“Whoever makes, publishes or circulates any statement, rumour or report […] with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public where by any person may be induced to commit an offence against the State or against the public tranquillity […] shall be punished with imprisonment which may extend to two years or with fine or with both.”

The legislation provides a reasonable excuse defence where that person has ”reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid.”

Given that Chia’s comedy sketch centres around a historic diplomatic tension, it is likely that any arrest warrant and extradition request is of a political nature.

Therefore, Malaysia’s request falls at both hurdles. Chia’s location is known by anyone with a twitter account and to issue an arrest warrant against Chia for mocking the Malaysian authorities would be to issue an arrest warrant for a political crime. With these protections in place, Chia should be safe from any Interpol Red Notice. But protections put in place by Interpol do not always protect against misuse of its databases.

The reaction from Malaysian police to Chia's comedy routine signals the oppressive scrutiny comedians in some parts of Asia endure from the authorities. It is often these sorts of regimes that abuse Interpol’s databases. The attempt to use INTERPOL for this purpose has a chilling effect on free speech.



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