COMMENT | M'sia repatriates Myanmar refugees as junta draws global scrutiny

COMMENT | A recent media report claimed that the Malaysian government’s decision to repatriate about 5,000 Myanmar asylum seekers was part of an agreement with military junta leader Min Aung Hlaing.

This highlights a complex intersection of domestic policy and international law.

Although the government maintains that these returns are voluntary, the exclusion of the United Nations High Commissioner for Refugees (UNHCR) from screening detainees raises profound legal concerns regarding the principle of non-refoulement, a cornerstone of international human rights and refugee law.

In essence, the principle strictly prohibits states from returning individuals to a country where they would face a clear risk of persecution, torture, or other irreparable harm.

Though Malaysia is not a signatory to the 1951 Refugee Convention, legal scholars argue that non-refoulement has achieved the status of customary international law.

Binding requirement

Customary international law refers to international obligations derived from established state practice and opinio juris (the belief that a practice is legally required), rather than from formal written treaties.

It binds all nations, except for those that have consistently objected to the practice from its inception.

This status makes the obligation binding on all states, regardless of whether they have ratified specific treaty frameworks.

If it is true that UNHCR was barred from screening detainees, Malaysia’s actions would be seen to have limited the independent assessment of asylum claims, creating a significant legal vulnerability under international humanitarian standards.

Domestically, the administration frames this policy as a pragmatic response to escalating public hostility toward the country’s sizeable Muslim Rohingya population.

While socio-cultural friction and assimilation challenges are evident, human rights advocates argue that domestic political pressures cannot legally or morally justify the exposure of vulnerable populations to state-sponsored violence.

The Rohingya fled systemic atrocities, and forcing their return violates humanitarian norms.

Global eyes on junta

Concurrently, the international community continues to pursue accountability for the Myanmar regime.

The International Court of Justice has dismissed all preliminary objections raised by Myanmar in the genocide case brought by Gambia, clearing the path for a full merits trial under the Genocide Convention.

Malaysia’s deportation initiative stands in stark contrast to this international legal momentum.

Human rights organisations warn that returnees face immediate threats of arbitrary violence, persecution, and forced military conscription by the very junta being scrutinised by the world court.

MOHAMED HANIPA MAIDIN is a former deputy minister of law.

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

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