THE Malaysian government can consider exercising its rights under Article 9 of the Vienna Convention on Diplomatic Relations 1961 of “Persona Non Grata” against any foreign individual, including those who are enjoying diplomatic immunity, if there is a clear violation of our laws committed by those individual.
Article 9 of the Convention clearly states “a receiving State may at any time and without having to explain its decision declare any member of a diplomatic staff persona non grata”. A person so declared is considered unacceptable and is usually recalled to his or her home nation. If not recalled, the receiving State “may refuse” to recognize the person concerned as a member of the mission.
It’s crucial for us to note that both Malaysia and the Democratic People's Republic of Korea, often known by the world community as North Korea, are parties to the said Convention. On record, our ambassador was also once expelled under a similar declaration by the Serbian government when we recognised Kosovo's independence way back in 2008.
This proposal comes after a series of allegations from the North Korean ambassador to Malaysia, pertaining to the ongoing investigation into the assassination of an individual believe to be Kim Jong-nam, the elder brother of North Korean leader, Kim Jong-un, on Feb 13 at our Kuala Lumpur International Airport 2 (KLIA2).
Under diplomatic rules, a persona non grata (an unwelcome person) is exercised when a foreign person entering or remaining in a particular country is prohibited by that country's government. Such measures are considered by many as the most serious form of censure a country can apply to foreign diplomats, who are otherwise protected by diplomatic immunity from arrest and other normal kinds of prosecution by the host country.
There have been many counter-productive statements released by the North Korean ambassador lately, which can be seen by many as challenging our country's rules and regulations as well as our sovereignty.
So far, the only drastic response which taken by the Malaysian government has been to recall our ambassador to North Korea and issuing strong statements against all baseless allegations pertaining to the death of the man.
Recently, the North Korean ambassador, Kang Chol, had reportedly claimed that the Malaysian government had a hidden agenda and that it had colluded with external powers in handling the death of the victim. Such accusations have also reached an international audience and could jeopardise Malaysia's name among the international community.
It would be much better if the North Korean government along with its officials were to cooperate with our local authorities to investigate the incident instead of continuing to produce baseless remarks and allegations which can tarnish the diplomatic relationship.
However, everything has its limits, and if things get uglier, Malaysia can consider invoking Article 9 of the Vienna Convention on Diplomatic Relations 1961 for a drastic action. With the protection given to the mission staff from being prosecuted for violating civil and criminal laws, depending on rank, Articles 41 and 42 of the Vienna Convention further state that they are bound to respect national laws and regulations.
Under a similar article, they also have a duty not to interfere with the internal matter of the state that they are in. Breaches of these articles can lead to a persona non grata declaration.
Dr. Muzaffar Syah Mallow is Senior Lecturer at Faculty of Syariah & Law, Universiti Sains Islam Malaysia (USIM)