The discussion on the plight of Acehnese fleeing to Malaysia post the May 19 military offensive in Aceh appears to have degenerated into an exercise in legalism and semantics of the status of Acehnese here.

The government takes the stand that Acehnese fleeing to Malaysia are illegal immigrants. The government also insisted that it does not recognise political refugees. Further the Malaysian government prefers its domestic immigration laws as the definitive mechanism in the situation.

State practice in privileging freedom of state action have avoided the use of refugee terminology by using terms including, "displaced persons", "economic migrants", Quasi-refugees", "aliens", "departees", "boat-people" or "stowaways".

There is one empowering implication in these attempts by states and that is the clear recognition (circuitous though it might seem), that refugees are protected by international law and, as a matter of law, entitled to a better and higher standard of treatment.

The United Nations High Commissioner for Refugees (UNHCR) with public interest groups in Malaysia like Solidarity Aceh and the Aceh Peace Initiative have consistently referred to the Acehnese as asylum seekers and refugees. These actors refer to international law and custom and /or humanitarian principles as providing the mechanism for addressing and resolving the situation.

An observer might venture to say that the recourse to definitions becomes an unworthy exercise when it obstructs a ready response to the needs of a people in distress.

Legal definitions are arguably not free from inherent deficiencies as states at the international (treaties) and local level (domestic law) opt for the most restrictive criteria for identifying the beneficiaries to refugee status, asylum or legal protection.

Vienna 1993

The recourse by groups in Malaysia to Suhakam has been met with lukewarm support. Suhakam ( Malaysiakini, Aug 25, Suhakam to query police ops against Acehnese ) appears to avoid these tensions by preferring to seek clarification to police action in sealing entry points to the UNHCR office and why Acehnese with UN documents are detained.

In taking this approach, Suhakam may be altogether avoiding an assessment of the government's human rights obligations.

National human rights institutions like Suhakam grew out of the lobby of human rights NGOs in the 1993 UN World Conference on Human Rights which brought forth the Vienna Declaration and Programme of Action. The lobby arose from the realisation that governments violate human rights and continue to pass domestic laws that fail to meet human rights standards.

National human rights institutions are conceived as the mechanism by which human rights standards can be applied at the national level in the remedying of human rights violations.

A robust national human rights commission becomes necessary where other institutions of democracy like the judiciary are paralysed by an interfering executive or where the country's legal system requires further formalities through Parliament, in the application of international treaties in domestic law, even if there has been ratification by the government.

Obligations

The Malaysian government's ability to avoid its human rights obligations internationally and domestically may be said to lie in its failure to ratify the 1951 Convention on the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. However, this is not the whole story.

Suhakam is mandated to have resort to the 1948 Universal Declaration of Human Rights (UDHR) in its deliberations under the Human Rights Commission of Malaysia Act, 1999. Article 14(1) UDHR provides that everyone has a right to seek and to enjoy in other countries asylum from prosecution.

Malaysia was one of 171 countries to adopt the Vienna Declaration and Programme of Action (VDPA) on June 25, 1993.

The VDPA echoes Article 14 of the UDHR. States under the VDPA, acknowledge the need to strengthen emergency prepardness to response mechanisms, to provide effective protection and assistance, bearing in mind the special needs of women and children as well as the achievement of durable solutions, primarily through the preferred solution of dignified and safe voluntary repatriation.

Under the VDPA, national human rights institutions like Suhakam "should reinforce human rights standards as contained in international human rights instruments and their protection".

There is little reason for Suhakam to continue to be vague in working its response and in its advice to the government in the refugee issue.

Non-refoulement

The principle of non-refoulement is the foundation stone of international protection and applies across a broad class of peoples. The principle prescribes, broadly, that no refugee should be returned to any country where he or she is likely to face persecution or torture.

Recent global developments in state practice show that while states are conscious of the potential threat to their own security that a massive influx can pose, none claims an absolute right to return a refugee to persecution.

Refugee law writers dates this principle as emerging in the early to mid-nineteenth century reflecting the popular sentiment that those fleeing their despotic governments were worthy of protection. It was a period of political turmoil in Europe and South America. There were also mass movements of populations of Jewish and Christian minorities in Russia and the Ottomon empire at this time.

By state practice and affirmation through numerous consensus seeking conferences, the principle of non-refoulement is not predicated upon formal recognition of refugee status. (UN doc. A/AC.96/INF.158 at 9).

The principle of non-refoulement has been crystallised as a rule of customary international law. There is no requirement of a judicial pronouncement of its applicability at the domestic level.

It is worth noting that Muslim scholars in recent writings show that the principle of non-refoulement is recognised in Islamic law in its law of nations (siyar). The origins of a similar principle can be found in the Islamic principle of aman , that is, a pledge of security or safe conduct of persons in the Muslim country (dar al-Islam).* This principle was at its conception developed for the protection (asylum) of non-Muslim aliens in Muslim lands.

Even if Malaysia has not legislated for the principle of non-refoulement as its positive Islamic law, the principle has been accorded international customary law status.

The principle of non-refoulement applies in Malaysia as part of Islamic law and international custom. It must inform government, judicial and quasi-judicial decisions relating to refugees. Any claim of voluntary repatriation of Acehnese or other refugees is to be properly investigated in that repatriatees must be secure from persecution, torture and disappearances in their country of origin.

Goodwill

The office of the High Commissioner on Refugees is entirely non-political in nature. The work is humanitarian and social and to relate as a rule, to groups and categories of refugees. The High Commissioner's work is not restricted to the confines of international treaties (if any) and is broadened by deliberations in the General Assembly, the Economic and Social Council and the Executive Committee of the High Commissioner's Programme. The latter, established in 1957 has a current membership of 50 states.

Much of the work of the UNHCR depends upon goodwill of the country in transit which is effectively the country to offer temporary asylum until the UNHCR processes the papers for repatriation/asylum.

The fact that the UNCHR has an office in Malaysia shows a recognition of the country's standing in the international community. The first Suhakam chief, Musa Hitam has held the chair of the UN Human Rights Commission. Two other notables to hold special offices with the UN are Param Cumaraswamy and Razali Ismail. These special appointments add to Malaysia's credibility internationally.

It would not be in Malaysia's interest to thwart the humanitarian work of the High Commissioner at this point. The shock and awe tactics outside the office of the UNCHR and raids of refugees in temporary communities who are waiting to be processed by the UN does nothing incremental to her human rights record.

The writer is currently a visiting scholar and fellow with the Islam and Human Rights project of the Law and Religion program of the Emory Law School in Atlanta, GA, USA.

Notes

* See Khadduri, Majid et.al, International Law in Law in the Middle East.

The Middle East Institute, Washington. Amis Press Inc. 1955 and Hamidullah, Muhammad, The Muslim Conduct of State. Lahore. Sh. Muhammad Ashraf .1977. See also, Stenberg, G, Non-Expulsion and Non-Refoulement.Uppasala 1989.