At the first ever online AGM on 13/3/2020, the Malaysian Bar adopted a resolution condemning the repatriation in breach of explicit court order, etc ..the motion received the support of about 84% of those present and voting. The final attendance recorded was 1,286 lawyers (quorum requirement now 500)
A. That the Malaysian Bar condemns the actions of the Malaysian government, including the Immigration Department, for acting in violation of a court order when they repatriated 1,086 back to Myanmar;
B. That the Malaysian Bar calls for contempt proceedings to be commenced against the Malaysian Government, including the Immigration Department, for the violation of an explicit court order, which will also accord the alleged contemnor/s the right to be heard and a fair trial, and for the court to pronounce a clear judgment;
C. That the Malaysian Bar calls for Malaysia to monitor and ensure the safety of the 1,086 repatriated to Myanmar despite a court order, and provide a report to Parliament and Malaysians soon as to whether those repatriated are safe;
D. That the Malaysian Bar calls for the enactment of a Refugee and Asylum Seeker Act or laws that will recognize refugees and asylum seekers, and determine their rights and stipulate proper just procedures;
E. The Malaysian Bar calls for a review of Immigration laws, to ensure that victims of injustices and/or crimes, and possibly relevant witnesses, are not send out the jurisdiction of Malaysia, hence defeating one’s right to justice; and
Read the full RESOLUTION below -
RESOLUTION CONDEMNING REPATRIATION IN VIOLATION OF COURT ORDER, AND ENACTMENT OF REFUGEE/ASYLUM SEEKER LAW
Whereas:-
1. When Malaysia on 23/2/2021, reportedly repatriated 1,086 Myanmar citizens whom it described as “illegal immigrants” to Myanmar despite an existing court order preventing the sending back of 1,200, it raised several issues including the obligation of State and government departments to respect and obey court orders. The order was issued in a case was filed, amongst others, to ensure that all the said 1,200 persons are duly vetted and determined to be not refugees and/or asylum seekers, whereby a repatriation of any such persons would be a violation of the universally recognized principle of non-refoulement that guarantees that no one should be re-turned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.
2. Refugees are people who have fled war, violence, conflict or persecution and have crossed an international border to find safety in another country....The 1951 Refugee Convention is a key legal document and defines a refugee as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
3. It is totally unacceptable and unjust for Malaysia to return back to countries from where refugees and/or asylum seekers have fled from, simply because these persons were simply considered ‘illegal’(or undocumented), for not entering Malaysia with the proper documentation, or simply because their passport( work permit, passes..) had expired making their remaining in Malaysia ‘illegal’.
4. Malaysia to date still do not have a Refugee and Asylum Seeker law, which defines ‘refugee’ and ‘asylum seeker’, set out rights and obligation of those seeking refuge or asylum, the procedures of determination whether said person is a refugee or asylum seeker, and the manner in which they will be dealt with after they have been determined to be a refugee/asylum seeker or not.
5. Many countries that have specific laws, or have included in other laws like immigration laws, on how to deals with refugees/asylum seekers. The United States, for example, have the Refugee Act of 1980.
5. In Australia, the Migration Act 1958 has section 1A(2) which gives effect to Australia’s obligation of non-refoulement—not to return a person in any manner whatsoever to the frontiers of territories where the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.[3] Section 36(2) provides for the grant of a protection visa to a ‘non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.
6. Besides the UN Conventions, Article 12 of the Cairo Declaration on Human Rights in Islam, 1990 also states ‘Every man shall have the right, within the framework of the Shari'ah, to free movement and to select his place of residence whether within or outside his country and if persecuted, is entitled to seek asylum in another country. The country of refuge shall be obliged to provide protection to the asylum-seeker until his safety has been attained, unless asylum is motivated by committing an act regarded by the Shari'ah as a crime.
7. Malaysia, to date, has not signed and/or ratified the UN Convention Relating to the Status of Refugees 1951, and the 1967 Protocol. That is not a major problem if Malaysia has its very own law to deal with refugees and asylum seekers.
8. In other countries like in India, who has not ratified/signed the said UN Convention or have their own domestic laws on refugees and/or asylum seekers, the Courts have created law on the dealing of refugees/asylum seekers. Like India, Malaysia too acknowledged in our Federal Constitution the equality of persons (not just citizens), and all persons are accorded rights in many different laws of the land.
9. In the past, even though refugees/asylum seekers are not recognized in Malaysian law, Malaysia has provided refuge to refugees/asylum seekers, and have respected the principle of non-refoulement in most cases. Malaysia recognized and treated differently, persons vetted and decided to be persons likely to be refugees/asylum seekers as determined by the United Nations High Commissioner for Refugees (UNHCR).
10. After the recent repatriation despite a clear court order, there is a need for the commencement of contempt proceedings, to enable also the alleged person/s or entities who ignored a court order a right to be heard and for the court to thereafter make a clear decision, which would determine whether that act amounts to a contempt of court or not. This would be most beneficial for the people of the land too.
11. In the past, the Malaysian government, vide the Immigration authorities, in several instances have simply caused the repatriation or even failed to stop ‘forced’ sending back of migrants by employers, by taking the simplistic position that those that are ‘illegal’ or those without proper documentation to remain in Malaysia shall be repatriated. This practice have impeded significantly the rights of many send away from Malaysia, and also the administration of justice.
12. Those with complaints and legitimate claims against employers and/or others simply cannot access avenues or complete their quest for justice until the end. Absence of claimants/complaints often result in the end of proceedings at the relevant departments like Labour Department, tribunals and courts. The fact that victims of crimes and relevant witnesses in Malaysia, and Malaysia’s lack of resources/capacity to bring them back for trial, results in alleged criminals getting off scot free – hence an impact to the criminal justice system. In some jurisdictions, such victims, especially workers having outstanding claims against employers, are allowed to stay until the complaint/claim is speedily disposed of. Allowing perpetrators of crime to escape justice must end, and the State must ensure justice – not facilitate the escape of violators or rights and/or law.
THEREFORE, IT IS HEREBY RESOLVED:-
A. That the Malaysian Bar condemns the actions of the Malaysian government, including the Immigration Department, for acting in violation of a court order when they repatriated 1,086 back to Myanmar;
B. That the Malaysian Bar calls for contempt proceedings to be commenced against the Malaysian Government, including the Immigration Department, for the violation of an explicit court order, which will also accord the alleged contemnor/s the right to be heard and a fair trial, and for the court to pronounce a clear judgment;
C. That the Malaysian Bar calls for Malaysia to monitor and ensure the safety of the 1,086 repatriated to Myanmar despite a court order, and provide a report to Parliament and Malaysians soon as to whether those repatriated are safe;
D. That the Malaysian Bar calls for the enactment of a Refugee and Asylum Seeker Act or laws that will recognize refugees and asylum seekers, and determine their rights and stipulate proper just procedures;
E. The Malaysian Bar calls for a review of Immigration laws, to ensure that victims of injustices and/or crimes, and possibly relevant witnesses, are not send out the jurisdiction of Malaysia, hence defeating one’s right to justice; and
F. That the Bar Council do all things necessary to give effect to the above Resolutions;
Motion proposed by Charles Hector Fernandez
Source: Malaysian Bar Website
Hold parties responsible for deporting Myanmar nationals, say NGOs
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PETALING JAYA: Non-governmental organisations (NGOs) have urged the judiciary to ensure that the Immigration Department and the home ministry are held responsible for defying a court order and deporting 1,086 Myanmar nationals yesterday.
In a joint statement, they said it was of utmost importance that the court upheld justice and held the authorities responsible for their actions which seemed to be in defiance of court orders.
“Going against the orders of the High Court is an action that is in contempt of court and an offence under Article 126 of the Federal Constitution. Defiance of court orders must be taken seriously to ensure justice and legal consistency across all sectors, not just in human rights.
“We urge the court and judiciary to take the necessary measures since this issue involves the safety of vulnerable communities as well as the integrity of the judiciary,” said the statement, signed by 37 groups and 10 individuals.
They also reminded the judiciary that it is under public scrutiny globally, following the contempt of court decision involving news portal Malaysiakini last week.
Human Rights Watch had yesterday called for immigration director-general Khairul Dzaimee Daud to be suspended and for an investigation opened into the repatriation of the Myanmar nationals.
While the Kuala Lumpur High Court granted an interim stay to stop the government from going ahead with the deportation of about 1,200 Myanmar refugees and asylum seekers back to their homeland yesterday morning, immigration allowed three Myanmar navy ships to repatriate them from the Lumut naval base in Perak hours later.
The Bar Council said the deportations may amount to contempt of court, with its Migrants, Refugees and Immigration Affairs Committee co-chairman M Ramachelvam saying the Immigration Department would have been aware of the stay order.
“The plaintiffs are now at liberty to commence further proceedings
pertaining to the non-compliance of the court order,” he said. - FMT News, 24/2/2021
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