AS Malaysia finalises its plans for the first phase of a voluntary repatriation programme involving eligible Myanmar nationals, the Malaysian Bar Council reminds that “not all roads lead safely home”.
Bar president Anand Raj says the agreement between Putrajaya and the Myanmar government to repatriate some 5,000 Myanmar nationals should provide an informed choice to those subject to the process.
“While the Home Ministry 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,” says Anand.
He urges the government to reveal the key terms of the repatriation arrangement with Myanmar, including the screening process and the safeguards that will govern its implementation.
The government recently said the first phase of the voluntary repatriation programme will involve 1,476 individuals expected to return to Myanmar on Sept 29.
Anand stresses that this sort of repatriation should take into consideration the principle of non-refoulement, a globally recognised rule of customary international law.
The principle of non-refoulement, he says, prohibits returning individuals to territories where their life, liberty or physical safety is threatened – a principle which the Malaysian government has acknowledged and accepted since 2015.
Malaysian law already has elements of this principle, he says, such as in the Human Rights Commission of Malaysia Act 1999.
Anand also points to a 2023 landmark case in the United Kingdom, where its Supreme Court unanimously struck down an arrangement to transfer asylum-seekers, finding that diplomatic assurances cannot override the receiving state’s poor human rights record and its history of non-compliance with international obligations.
In tandem with the repatriation programme, Malaysia is also implementing a Refugee Registration Document (DPP) programme which will onboard 4,008 individuals, primarily of Rohingya ethnicity, for biometric and identity verification.
Previously, Malaysia relied on the United Nations High Commissioner for Refugees (UNHCR) for refugee registration and status determination.
Anand notes that the UNHCR documentation, while significant, did not confer lawful immigration status under Malaysian law.
Yet, he adds, any transition to the DPP system must be “transparent, undertaken in close cooperation with UNHCR and subject to appropriate legal safeguards”.
As of Aug 15, there are 10,388 Myanmar nationals being held at Immigration detention depots, where the Immigration Department and police are verifying their identity, citizenship, immigration status, refugee claims and security background.
The Home Ministry has said this programme will be expanded to all undocumented immigrants outside Immigration detention depots, including the UNHCR cardholders and self-identified refugees.
