Mr Lim, who is president of the 13,500-member Bar Council – Malaysia’s foremost legal profession body representing all practising Bar members in West Malaysia – added: “Ultimately Malaysia has to cease being a laggard when it comes to respect of human rights of both, its citizens and non-citizens.”
He was speaking following the recent Australian High Court decision, which scuttled the July 2011 arrangement between Australian and Malaysia under which Malaysia was identified as a country to which asylum seekers could be taken to for processing of their asylum claims.
In a 6:1 decision the High Court ruled that under Australia’s Migration Act 1958, the Immigration Minister could not validly declare a country as a processing destination unless that country was legally bound to meet certain criteria.
These criteria are that the country must be legally bound to provide access for asylum seekers to effective procedures for assessing their protection needs; provide protection for asylum seekers pending determination of their refugee status; provide protection for refugees pending their relocation; and the country concerned must meet certain human rights standards in providing that protection.
Mr Lim said the Malaysian Bar condemned the arrangement under which up to 800 asylum seekers arriving by sea in Australia would be transferred to Malaysia for processing.
In exchange Australia would take on a greater burden-sharing responsibility for resettling refugees currently in Malaysia, and committed to resettling 4000 refugees residing in Malaysia, over four years.
Mr Lim added that the deal created “preferential treatment for the 800 transferees”.
He said present asylum seekers in Malaysia lacked any protection, with no legislative or administrative provisions in place for dealing with refugees or asylum seekers.
In Malaysia, the UNHCR conducts all activities related to refugees and asylum seekers and works with the Malaysian Foreign Affairs and Home Affairs ministries and the Immigration Department.
“[Malaysia’s policy towards refugees and asylum seekers] has been ad hoc and inconsistent and in some cases has led to abuses for which the Malaysian Government has been severely criticised,” Mr Lim said.
“This non-law-based approach to protection of refugees and asylum seekers is immature, if not disturbing. It is time … for Malaysia to ‘grow up’, where respect for the rule of law and the right treatment of people (whether citizens or not) are concerned,” Mr Lim said.
He added that if Australia wished to continue with the so-called Malaysia solution, “it can only do so if Malaysia becomes a signatory to the Convention”.
He said the Malaysian Bar remained hopeful that the Malaysian Government would adopt international norms as it had done recently in declaring it's intention to be a signatory to the Rome Statute which recognises the International Criminal Court.
Meanwhile the Australian office of the UNHCR said it welcomed the High Court’s position on assessing the Malaysia deal.
Its external relations officer Ben Farrell told the Western Independent the decision had highlighted “some of the key protection issues that UNHCR had been promoting in discussions with the two states over their proposed transfer arrangement”.
While much commentary following the High Court’s decision has focused on Malaysia’s lack of legal protection for refugees, a High Court statement released to coincide with the judgment on 31 August said the Court’s decision “was based upon the criteria which the Minister must apply before he could make a declaration under section 198A” of the Migration Act 1958.
The statement said: “The Court emphasised that, in deciding whether the Minister’s declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately.”
Section 198A of the Migration Act, introduced by the Howard Government in 2001, requires the Immigration Minister to “declare” in writing that transferred asylum seekers will be granted access to human rights protections in any destination country.
Refugee joy at court decision
Refugees in Malaysia have responded with “joy and happiness” to the High Court-led sinking of the asylum seeker-refugee swap deal, according to the Malaysian Bar Council president Lim Chee Wee.
“This may now possibly mean that if they were to board a ship to arrive in Australia, they will be processed and examined as onshore asylum seekers and because in most cases these individuals are true refugees, they would be able to resettle in Australia,” Mr Lim told the Western Independent.
Asked whether he thought more boats might be headed to Australia as a result of the decision, Mr Lim said “certainly”.
He also said far from being offended by the High Court’s decision, many Malaysians felt the decision was a “timely reminder” about the country’s lack of legal provisions pertaining to the treatment of refugees and asylum seekers.
“In fact we admire the independence of the High Court of Australia and whilst the High Court said that it does not pass any judgment [on] the practical realities of the human rights record in Malaysia, the fact that it declared the obvious that our laws do not recognise and protect asylum seekers and refugees, is a timely reminder to our government that it needs to act urgently on this sad state of affairs.”
Mr Lim said without any legal rights, refugees in Malaysia were routinely exploited and abused.
“They have no choice but to seek out low-paying jobs and constantly risk being exploited by employers,” he said.
“Refugees and asylum-seekers who take up unofficial employment are excluded from legal remedies and social protection.
“They are exposed to hazardous and unhealthy work conditions, and have to endure sexual harassment and gender-based violence.”
He said women and children in particular were often at risk of arrest, prosecution, detention and deportation and in some cases were trafficked upon deportation.
“While UNHCR has worked out a number of ad hoc arrangements with individual law enforcement agencies and [government departments], these measures are by nature only temporary and do not provide for a sustainable and predictable basis for ensuring adequate protection to refugees and asylum seekers,” Mr Lim said.
The Australian Office of UNHCR said it hoped the Australian Federal Government would honour its agreement to accept 4000 Malaysian refugees despite the previous “swap” deal having been sunk by the High Court.
The UNHCR told the Western Independent it trusted the increased resettlement from Malaysia – as apparently agreed upon in the deal – would not be “offset by a decrease from other parts of the world”.
“UNHCR’s understanding was that this would be an additional humanitarian contribution by Australia, irrespective of its arrangement with Malaysia,” Canberra-based UNHCR spokesperson Ben Farrell said.
He said the UNHCR was “seeking clarification” on the Federal Government’s post-High Court decision intent concerning the plight of 4000 “most-in-need” Malaysian refugees now left in limbo.
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Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
