COMMENT | Choose humanity over vitriol in managing refugees

COMMENT | The Malaysian Bar stands in solidarity with refugees and Suhakam in condemning the harmful rhetoric and dehumanising attacks towards refugees.

The principles of the rule of law and justice must extend to all human beings within our borders, regardless of status.

In a powerful June 3 statement issued by Suhakam, which is echoed by the Malaysian Bar, the human rights commission said that “at a time when the world continues to witness grave atrocities against civilian populations, Suhakam reiterates that human suffering must not be measured selectively.”

“Genocide is genocide, regardless of where it occurs. The international community has rightly expressed outrage over the devastation and loss of civilian lives in Gaza.

“That same commitment to human dignity and justice must extend to all peoples facing persecution, including the Rohingya, who have endured decades of systemic discrimination, statelessness, forced displacement, and mass atrocities in Myanmar”.

The Rohingya are victims of genocide and are a persecuted and stateless people who fled Myanmar under desperate circumstances following decades of violence, displacement, and grave human rights violations.

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They do not come to Malaysia by choice in the ordinary sense; they come because they have nowhere else to go, seeking temporary safety while durable solutions are pursued.

Principle of non-refoulement

As recognised by the courts of all civilised nations, including our Federal Court, the principle of non-refoulement - the absolute prohibition on returning any person to a territory where they face a real risk to life, freedom or safety - has evolved into customary international law, binding upon every state without exception, irrespective of treaty ratification.

Therefore, Malaysia is exercising its state responsibility, and not doing charity, when it complies with this principle of customary international law.

Article 33(1) of the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”) states the following:

“No contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

The Supreme Court of the United Kingdom affirmed that non-refoulement is not merely a treaty obligation but has evolved into a substantive standard, ie, customary international law, and governments cannot simply accept diplomatic assurances of safety without rigorous scrutiny.

The Malaysian Federal Court has acknowledged and accepted that the principle of non-refoulement constitutes customary international law binding upon Malaysia.

Indeed, the foregoing principle has evolved into one of “jus cogens”, as in a peremptory norm of general international law, which is a norm acknowledged and accepted by all states within the international community that cannot be departed from or set aside under any circumstances, as defined under Article 53 of the Vienna Convention on the Law of Treaties (1969).

As such, deporting the Rohingya to Myanmar is neither a humane nor a viable option. No person should be returned to a place where they face persecution, violence, genocide, torture, or other serious harm.

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The principle of non-refoulement must be upheld. The government must address these concerns responsibly: through law and policy, not hate; through facts, not fear.

Questionable initiative

In this regard, the government’s Refugee Registration Document (DPP) initiative raises concerns.

While formal documentation is welcome, the government has stated that the DPP does not guarantee permanent residence and that stated outcomes include deportation.

Deportation would be contrary and incompatible with the customary international law obligations binding upon Malaysia, ie, the principle of non-refoulement.

The Malaysian Bar, therefore, calls upon the government to:

• Fully comply with the “jus cogens” principle of non-refoulement, and sign and accede to the other articles of the 1951 Refugee Convention and its 1967 Protocol, with no reservations. This is not just to cover the Rohingya but all refugees who come to our shores.

• Clarify and entrench the principles of the 1951 Refugee Convention, including non-refoulement in domestic law, and establish a fair and transparent asylum process with a right of access to legal counsel for all refugees.

• Ensure the DPP registration system is administered as a humanitarian mechanism with full United Nations High Commissioner for Refugees cooperation and partnership, governed by and subject to robust data protection safeguards, and not used as a tool of surveillance or deportation, and to include all appropriate humanitarian guardrails.

• Take immediate steps to eliminate arbitrary and indefinite detention of all refugees - including women, children and families - in immigration detention centres, consistent with the repeated calls by international human rights bodies.

The actions of a desperate few living in distressed and depressed circumstances should not be used as an excuse to tar an entire vulnerable community.

A more compassionate and humanitarian approach is required.

Finally, no one and no quarter should seek to profit from the misfortune of refugees. Anyone, whether for personal or political mileage, who purports to do so only demonstrates a lack of class and compassion.

Malaysia must choose humanity over vitriol, law and justice over mob sentiment, and conscience and principle over convenience.

ANAND RAJ is the president of Malaysian Bar.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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