Non-refoulement: Not all roads lead (safely) home

Just less than two months ago, on World Refugee Day, the Malaysian Bar called upon Malaysia to choose humanity over vitriol, and conscience and principle over convenience.

Action taken against evicted Rohingya

The Malaysian Bar is deeply concerned by reports that more than 100 Rohingya asylum seekers, including women and children, were detained and taken away from outside the United Nations High Commissioner for Refugees (UNHCR) office in the city centre, where they were seeking shelter after being evicted from their homes.

Although the police claim the group was taken to police headquarters for verification rather than being detained, the Malaysian Bar asserts that all persons are equal before the law¹ and any person who is deprived of their life or personal liberty,² regardless of their immigration or citizenship status, is entitled to fundamental constitutional protections. [Article 8(1), Federal Constitution: “All persons are equal before the law and entitled to the equal protection of the law.” And Article 5(1), Federal Constitution: “no person shall be deprived of his life or personal liberty save in accordance with law”]

Under section 15(1) of the Criminal Procedure Code, an arrest requires the police officer to “touch or confine the body of the person to be arrested unless there is a submission to custody by word or action”. As such, the police action to compel the refugees to move to the police headquarters amounts to a confinement which constitutes an arrest.

Compounding these concerns is the recent announcement by Prime Minister Anwar Ibrahim that Malaysia reached an agreement with Myanmar to repatriate 5,000 Rohingya refugees.

While the Ministry of Home Affairs has begun screening those who will be repatriated, the Malaysian Bar emphasises that those subject to this process must be given a genuine, informed choice of return as they face an existential threat to their lives and safety if they are forcibly returned in dangerous circumstances.

The announcement comes against the backdrop of continuing, if not rising, hostility towards the Rohingya community, including dehumanising rhetoric, misinformation and attempts to portray an entire persecuted community as a security or social threat based on isolated incidents.

Principle of non-refoulement

The principle of non-refoulement, which prohibits returning individuals to territories where their life, liberty or physical safety is threatened, is not only globally recognised as a rule of customary international law but is increasingly affirmed as a peremptory norm of general international law (jus cogens) accepted and recognised by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. [Article 53 of the Vienna Convention on the Law of Treaties (1969) and Sir Elihu Lauterpacht and Sir Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’, in E Feller et al (eds), Refugee Protection in International Law (Cambridge University Press, 2003), paras 216–218]

Elements of this principle are embedded in our domestic statutes, such as section 4(4) of the Human Rights Commission of Malaysia Act 1999, which requires that regard shall be had to the Universal Declaration of Human Rights 1948.

Article 14 of the UDHR states that: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

This is also reflected in Articles 6, 7 and 13 of the International Covenant on Civil and Political Rights (ICCPR), which prohibit arbitrary deprivation of life, forbid the return (refoulement) of persons to face torture or serious harm, guarantee individual procedural protections against arbitrary or collective expulsion together with Articles 2 and 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protecting vulnerable families and children from non-discriminatory harm.

[Article 4 of the ICCPR: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”]

[United Nations, general comment no 31 (2004) on Article 7: “Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant…”]

[Article 13: “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”]

[Article 2 of the ICESCR:  “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”]

[Article 10: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.”]

It does not matter that Malaysia is not a State Party to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol (Refugee Convention and Protocol); the government of Malaysia has acknowledged and accepted the principle of non-refoulement since 2015.

The Hansard records the following assurance by the then-minister in the Prime Minister’s Department, Shahidan Kassim (emphasis added in bold):

Pada dasarnya, pelarian di Malaysia tidak dinafikan kebebasan bergerak dan tidak ditahan melainkan terlibat dengan aktiviti yang melanggar undang-undang negara.

Tidak akan dihantar kembali ke negara asal selari dengan prinsip non-refoulement ataupun penghantaran balik ke negara asal tanpa dipaksa melainkan secara sukarela, volunteer return.

Given the significance of the proposed repatriation, the government should disclose the key terms of the reported arrangement, including the screening process and the safeguards that will govern its implementation.

In AAA v Secretary of State for the Home Department [R (on the application of AAA and ors) v The Secretary of State for the Home Department (UNHCR Intervening) (2023)], the UK Supreme Court unanimously struck down an arrangement to transfer asylum seekers, finding that diplomatic assurances cannot override the receiving state’s (Rwanda, in that case) poor human rights record and its history of non-compliance with international obligations, concluding that there were substantial grounds to believe asylum seekers transferred would face a real risk of refoulement.

UNHCR documentation

Malaysia’s continued reliance on the UNHCR for refugee registration and status determination reflects the absence of a domestic asylum framework.

The UNHCR documentation, while significant, does not confer lawful immigration status under Malaysian law.

Any transition to the government’s proposed “Dokumen Pendaftaran Pelarian” (Refugee Registration Documentation) system must be transparent, undertaken in close cooperation with the UNHCR and subject to appropriate legal safeguards.

The Malaysian Bar calls upon the government to:

• uphold the jus cogens principle of non-refoulement and ensure that no individual is returned to a situation where they face a real risk of persecution, torture, genocide or other serious harm
• disclose the key terms of the reported repatriation arrangement with Myanmar, including the screening process, the safeguards in place and confirmation that any returns will be voluntary
• ensure that any proposal to return the 5,000 Rohingya refugees is based upon individual risk assessment to guarantee that any returns are voluntary, informed, safe and dignified, while establishing a rights-respecting refugee protection framework through meaningful consultations with refugee communities, the UNHCR and civil society
• ensure there is no interruption to the UNHCR’s refugee status determination process during the transition to any new framework and
• ratify the Refugee Convention and Protocol and align domestic legislation, policies and practice with international human rights standards and the ICCPR and the ICESCR

As the principle of non-refoulement is increasingly recognised as a rule of jus cogens which is binding upon Malaysia, it is only a matter of time before the Malaysian courts would be called upon to apply non-refoulement as a binding principle of international law. – Bar

Anand Raj is the president of the Malaysian Bar.

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