Bar Council: Merdeka Means Maturity Of Rule Of Law And Rights Of Humanity

We have just celebrated the 54th anniversary of Merdeka, and in a few days’ time we will celebrate the 48th anniversary of the formation of Malaysia.

Both events serve to remind us of the time we assumed responsibility for our own future and destiny. We became a sovereign country, and took our rightful place amongst the family of nations.

Sovereignty, however, is not simply the right to do things our way. As we live in a global village, sovereignty involves not just rights, but responsibilities.

In particular, it encompasses the responsibility to conduct our nation’s affairs in consonance with internationally-acceptable standards and norms. As we play our role internationally as a sovereign nation, this nonetheless means playing by the rules of the comity of sovereign nations.

A sharp reminder of this was provided on 31 August 2011 by the High Court of Australia, which ruled in a 6-1 majority decision that the so-called “Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement”, more commonly referred to as the “refugee swap deal”, was invalid.

Under this refugee swap arrangement, Australia was to transfer to Malaysia up to 800 irregular maritime arrivals, intercepted on the high seas by the Australian authorities, for processing of their refugee claims in Malaysia. In return, Australia would accept 4,000 refugees already registered by the Office of the United Nations High Commission for Refugees (“UNHCR”) in Kuala Lumpur for resettlement in Australia.

In interpreting the provisions in the Australian Migration Act 1958 that authorised the Minister for Immigration and Citizenship to remove asylum seekers to a third country to process their asylum claims, the High Court of Australia held the Minister could only do so if that country were legally bound by international law or its own domestic law to: “provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country”.

In addition to these criteria, the Migration Act required that the country “meet certain human rights standards in providing that protection”.

The High Court of Australia found that Malaysia is not legally bound to provide the access and protections that the Migration Act required in order for Malaysia to be validly declared as a country to which asylum seekers could be sent for processing of their asylum claims. Malaysia is not a party to the 1951 Convention on the Status of Refugees (that just celebrated its 60th anniversary) or its 1967 Protocol.

The arrangement that the Australian Minister for Immigration and Citizenship, Christopher Bowen, signed with our Minister for Home Affairs, Dato’ Seri Hishammuddin Tun Hussein, on 25 July 2011, expressly stated it was not to be legally binding. Malaysia is not legally bound to, and does not, recognise the status of refugees in its domestic law.

Malaysia does not undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Instead, it permits UNHCR to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while it does so.

This non-law-based approach to protection of refugees and asylum seekers is immature, if not disturbing. It is time (some would say overdue) for Malaysia to “grow up”, where respect for the rule of law and the right treatment of people (whether citizens or not) are concerned. It is not enough that we celebrate one national birthday after another, patting ourselves on our backs, congratulating ourselves on how we have done well as a country and not rent ourselves asunder through racial and religious intolerance and civil unrest.

Merdeka must also mean maturing in our profession and practice of the rule of law and the protection and promotion of the rights of humanity. In these respects it is clear that much more can, and needs, to be done.

As a start, Malaysia must, at the very least, enact municipal laws that recognise the status of refugees and that accord refugees and asylum seekers internationally-accepted minimum standards of protection. The next stage would then be to accede to the 1951 Convention and the 1967 Protocol.

Ultimately Malaysia has to cease being a laggard when it comes to respect of human rights of both its citizens and non-citizens. If not, other attempts at international cooperation may well suffer the same embarrassing fate.

It would be a great birthday present to ourselves if by this time next year we were to have passed the necessary implementing domestic legislation to accede to the numerous international human rights conventions to which we are yet a party. Then we would indeed be able to stand tall, with our heads held high, in the community of sovereign nations.