The Malaysian Bar today called on the government to disclose the key terms of its reported arrangement with Myanmar to repatriate 5,000 refugees, including the screening process and safeguards governing the proposed returns.
It also urged Putrajaya to ensure any repatriation was voluntary, informed, safe, and dignified, and that no one was returned to a situation where they faced a real risk of persecution, torture, genocide or other serious harm.
Bar president Anand Raj cited a 2023 ruling by the UK Supreme Court on repatriating Rwanda asylum-seekers, noting that diplomatic assurances from a receiving country cannot override concerns about its human rights record and history of non-compliance with international obligations.
The court also found substantial grounds to believe asylum-seekers transferred to the nation would face a real risk of refoulement.
"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.
"As the principle of non-refoulement is increasingly recognised as a rule of jus cogens (compelling law) which is binding upon Malaysia, it is only a matter of time before our courts would be called upon to apply non-refoulement as a binding principle of international law," Anand said in a statement.
Repatriating Myanmar refugees
The Bar's call comes after Foreign Minister Mohamad Hasan said today that Myanmar had expressed its readiness to take back 5,000 refugees, including transporting them home by ship, following Prime Minister Anwar Ibrahim's announcement in July.
Mohamad said the proposal was still being examined by the Home Ministry, while the Foreign Ministry would facilitate discussions between the two countries.
"But the issue is the safety of these 5,000 people. When we send them back, will they be safe and what will happen to them? That must also be considered," New Straits Times reported him as saying after the 59th Asean Day celebration at the Foreign Ministry.
Mohamad also said no timeframe had been fixed for the repatriation but added the process should be carried out as soon as possible once the necessary screening was completed.
The minister also clarified that the group comprised refugees from Myanmar of various ethnicities and was not limited to the Rohingya community.
On Aug 5, government spokesperson Fahmi Fadzil said Malaysia will not repatriate any of the 5,000 Myanmar refugees earmarked for return if they face persecution or threats to their lives.
Recently, Putrajaya instructed the Immigration Department and the police to begin collecting data on Myanmar nationals in Malaysia, as part of efforts to determine who among them has refugee status and who may be undocumented migrants who have committed offences under the Immigration Act, said Home Minister Saifuddin Nasution Ismail.
In a press conference, Saifuddin said that the data collection process was already underway, with the first set of data expected in the fourth quarter of this year.
He said that about 4,000 Myanmar nationals had so far been identified in immigration detention centres, but stressed that they could not yet be classified as refugees because their status still needed screening.
"If it is confirmed that they have refugee status, then we will arrange for their return. That will be handled by the Foreign Ministry. I cannot speak on its behalf," Saifuddin said.
Last month, Saifuddin reportedly said that Malaysia had begun documenting and screening Myanmar nationals held at immigration detention depots as part of the exercise.
Myanmar’s Asean Affairs Department director-general Han Win Aung, however, said on July 31 that the arrangement did not involve Rohingya but Myanmar citizens detained in Malaysia whose nationality could be verified, according to the Associated Press.
In response, the United Nations High Commissioner for Refugees (UNHCR) warned that conditions in Myanmar remain unsafe for refugee returns amid the ongoing conflict, and that returns should be voluntary and take place under conditions of safety and dignity.
Amnesty International Malaysia similarly called for a halt to forced returns of Rohingya and other Myanmar nationals, citing the continuing conflict and human rights crisis.
Absence of domestic asylum framework
Meanwhile, Anand said that Malaysia's continued reliance on UNHCR for refugee registration and status determination also reflects the absence of a domestic asylum framework.
"The UNHCR documentation, while significant, does not confer lawful immigration status under local laws.
"Any transition to the government's proposed Refugee Registration Document (DPP) system must be transparent, undertaken in close cooperation with UNHCR and subject to appropriate legal safeguards.
On July 23, Deputy Foreign Minister Lukanisman Awang Sauni told the Dewan Negara that Putrajaya has directed UNHCR to temporarily halt all refugee registrations pending a restructuring of the government’s management system via the DPP programme.
According to The Star, he said the decision was made to ensure that refugee management and registration are implemented in a more orderly manner under government supervision. - Mkini
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