Learned Friends, Friends of the Legal Profession, Ladies and Gentlemen.
As a person who supports, represents, and is committed to the welfare of refugees, I am very pleased to be given the opportunity to share some stories and experiences of this marginalized community with this distinguished gathering. It`s also a privilege for me to share the podium with a distinguished legal giant who has inspired me to take up the cause of refugees from 2004. I can still remember when Mr. Mark Daly addressed the launching of Hong Kong Refugee Aid Network; he spoke about his refugee activism in Hong Kong. Hong Kong is not a signatory to the 1951 Refugee Convention and its Protocol but in this day there has been interesting developments that have occurred for refugee activism, in particularly the legal arena. The things Mark said about a refugee’s right to work I would often hear from Sri Lankan refugees that I used to work with in Hong Kong. Whenever I met Mark, he inspired me and shaped my thinking and inspired my activism. There were instances when we went together to meet the minors in prisons. I accompanied him simply as an interpreter, as I had no license to practice in Hong Kong.
What can we do as legal professionals for the refugee crisis is the theme of this workshop, and I wish to share my experiences in this regard. Generally, I am outspoken but, when it comes to refugees, we need to be extraordinarily outspoken. Often, it is nobody’s issue. Only a few, if at all, are concerned about it despite the gravity of the problem. Working with refugees requires special skills and I learned this art from people like Mark and Raquel Amador and other great personalities like Barbara Harold Bond and Asia Pacific Refugee Rights Network. I would also like to take this opportunity to invite all of you to join Asia pacific Refugee Rights Network either as individual member or as an organization if you are really keen to work for refugee where nearly 200 organizations and 150 individuals are members from all over the Asia and Pacific. We do gigantic work for the Asian and pacific refugee community in the Asia and Pacific region through our membership.
Who are Refugees? – The Definition
Persons forced to flee their homes due to persecution, whether on an individual basis or as part of a mass exodus, due to political, religious, military or other problems, are known as refugees.
The definition of a refugee varies according to time and place, but increased international concern for the plight of refugees has led to a general consensus. As defined in the 1951 United Nations’ Convention Relating to the Status of Refugees (the Refugee Convention), a refugee is defined as a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country or return there because there is a fear of persecution.
According to a 2015 report from the United Nations’ High Commissioner for Refugees (UNHCR), as of the end of 2014, 19.5 million people around the world had been driven from their homes by armed conflict, persecution, natural disasters or other causes. Indeed, the current overall number of displaced persons globally represents a crisis of historic proportions, as the “number of refugees, asylum-seekers and internally displaced people worldwide has, for the first time in the post-World War II era, exceeded 50 million people,” UNHCR has noted.
Asia Pacific Realities
In the Asia Pacific region, various countries are attempting to address this issue in their own way even though international laws exist with necessary models and examples. In my view, some countries are going backwards in relation to refugee protection and law, while others are more sympathetic towards the crisis and the plight of the refugees. Unfortunately, the economic health of a country does not appear to play any significant role as some relatively more affluent countries are backtracking while other less affluent countries are more receptive to the needs of refugees.
It shows the selfishness of some nations that have conveniently forgotten that their own origins stem from large-scale influx of immigrants from other countries and their commitment to the betterment of humankind. In certain countries, the attitude towards refugees is influenced by religion. As you may know, both Lord Jesus and Lord Krishna are known to have been refugees at some stage of their lives. Islam and Buddhism are also compassionate towards refugees. Therefore, the followers of these great religions are required by their religious faiths to welcome and protect refugees.
It is worth investigating why some Asia Pacific countries failed to respond to the refugee crises despite having rich religious and cultural traditions. Statistically, the Asia Pacific Region is one of the most densely populated regions in the world, with millions of displaced people and urban refugees. South Asia has the largest refugee population within the region. The vast majority of people in live in pathetic living conditions where human rights violations are rampant. Despite having such large populations, the countries in the Indian subcontinent are the ones offering scant legal protection to displaced persons and urban refugees. None of the South Asian countries are a signatory to the 1951 Refugee Convention which is the guiding principle for the protection of refugees everywhere. Nor do these countries subscribe to the customary international principles of non refoulement. Sri Lanka, India, Pakistan, Afghanistan and Bangladesh are the largest receivers or propagators of refugees in the sub region, Pakistan and Sri Lanka are responsible for both.
There is massive opposition to asylum seekers entering Australia and New Zealand via boats. Yet both of these countries are signatories to the 1951 Refugee Convention. The reports we hear about Australia are terrifying, including the recent Guardian newspaper report revealing the poor treatment of refugees at Nauru island refugee facilities and the mistreatment of Sri Lankan asylum seekers by the Australian border security and immigration. Such reports regularly make headlines. The efforts taken by countries like Australia to evade the laws that they once agreed to abide by raises questions about the sincerity and commitment of these countries to uphold international conventions.
The Nation state and National Security
Have religious and cultural traditions and values in the Asian and Pacific region lost their meaning? And if so where is the legal community in this situation? These are some of the questions that we need to ask. Human rights standards that we always dreamt of are fading away while strong border security and nation state building laws are emerging in our systems. Those who operate within the jurisdictions of parochial or provincial law will be unaware of the relevance of these issues but those who are concerned with developments in international law understand how difficult it is for us even to move an inch in this direction. Our public interest laws and judicial activism in the region are threatened by border security laws and national security laws. The Asia Pacific region refuses to accept refugees, asylum seekers and migrant workers as legal migrants and they are often deemed illegal immigrants. The region hastens to build detention facilities for refugees. This week in Sri Lanka, the Cabinet approved a proposal to spend 327 Million Sri Lankan Rupees to build an immigration detention facility to house those in violation of immigration laws as well as possibly refugees and asylum seekers. We have a history of deporting urban Refugees.
It`s unfortunate that we are not able to spend our time and energy to find ways and means to accommodate refugees and asylum seekers with legal status instead of branding them as aliens and dangerous people. Xenophobia that clouds our minds in Asia and the Pacific region is intensified to a degree whereby some countries use hate speeches against refugees. In Myanmar, respected personalities like Aung San Suu Kyi choose to remain silent and deny the existence of Rohingyas. Certain countries are turning back refugee boats forcing them to perish at sea. Similar stories have horrified the refugee rights community.
In the summer of 2004, I was fortunate to enroll as a student at the University of Hong Kong (HKU) Summer School. One of my colleagues invited me to join a meeting to create a refugee network among the legal community on refugees in Hong Kong. It was there that I met the person who inspired me. He spoke about a Sri Lankan Tamil asylum seeker case which turned out to be a landmark decision on refugees in Hong Kong. Since then, it has been my dream to create an opening for the Pakistani and Afghan refugees in Sri Lanka. My dream remains unfulfilled since ours is a dualist country in international law. It does not accept laws followed by the international community. By a Supreme Court judgment, Sri Lanka has reaffirmed that it is a dualist country. Therefore we do not abide by international law unless those treaties and conventions are enacted by the Sri Lankan parliament. The famous Singarasa Case where a young Tamil person challenged his court decision at the UN Human Rights Committee was given a negative decision against Sri Lanka, and the Sri Lankan Judiciary decided as above. Even though the Sri Lanka Supreme Court looked at the dualism as an important point, India’s Supreme Court thought otherwise; The Indian Supreme Court decided that provisions of international conventions, even if not ratified by India, can be read into domestic laws unless they are patently inconsistent, and the Courts have drawn from international instruments to flesh out a number of fundamental and constitutional rights. MaganbhaiIshwarlal Patel v. Union of India (1970) 3 SCC 400; Gramophone Company of India Ltd vs. Birendra Bahadur Pandey & Ors (1984) 2 SCC 534; Vishaka & Others v. State of Rajasthan & Ors. (1997) 6 SCC 241.Article 51 of the Constitution of India, Fundamental Duties states: “51.Promotion of international peace and security. The State shall endeavour to (a) promote international peace and security;(b) maintain just and honorable relations between nations;(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration”. In Louis De Raedt v. Union of India, the Supreme Court of India held that the principle of audi alteram partem applies to all persons, and therefore a refugee would have a right to be heard before he is deported, although it also observed that there is no hard and fast rule regarding the manner in which this right to be heard is provided. The Court also held that Article 21 of the Constitution of India guarantees the protection of personal liberty to citizens and foreigners alike, and that no person can be deprived of his personal liberty except according to the procedure established by law. The Court further relied upon the decision in Maneka Gandhi vs. Union of India which established the principle that such procedure must be reasonable and free of arbitrariness. Therefore the principle of natural justice has to be read into Section 3 (2) (c) of the Foreigners Act, 1946, the arbitrary exercise of power is not permissible, and a reasonable opportunity of being heard must be provided. The extent of opportunity to be heard has to depend on the facts and circumstances of each case
This principle has been followed in numerous subsequent decisions. In Mohammad Sediq vs. Union of India, the Delhi High Court rejected the Government of India’s argument that the petitioner, as a foreigner, has no right to stay in India. The Indian Government had sought to deport the petitioner to Afghanistan. The question regarding protection of refugees or foreigners under the fundamental rights chapter of the Constitution of India came up in the case relating to Chakma refugees in the Supreme Court. In National Human Rights Commission vs. State of Arunachal Pradesh & Anr. the Supreme Court examined the long line of preceding decisions where it has been held that foreigners are entitled to the protection of Article 21 of the Constitution. The Court observed:
“We are a country governed by the Rule of Law. Our Constitution confers contains rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise.
“The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights, Constitutional and statutory, to be considered for being registered as citizens of India.”
The Constitution of Bangladesh contains provisions which require adherence to basic international principles, such as Article 25 which requires that “the State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter. The applicability of International covenant law as well as customs and their interface with municipal laws. In Bangladesh vs. Unimarine S.A. Panama and Others the court declared that customary international law is binding on the State, and generally gives effect to the rules and norms of the customary international law. The court cited the rule of immunity of foreign missions, envoys, etc, as good examples of the customary international law which would be binding on the State.
Sri Lankan Experience
In Sri Lanka, we have a tradition of protecting life of all beings as well as the concept of offering sanctuary which was also well known in Europe and the Middle East. In the Sri Lankan historic narrative titled “Dalada Siritha” it is clearly mentioned that people can find refuge and escape death if they seek refuge in the residence of chief prelates of Buddhism, namely the Sangaraja. Unfortunately our legal system today does not recognize such legal applications which were part of our laws in the past. The same practice could also be found in the European states and some of these countries still do offer refuge to immigrants. I understand that this practice can still be found in South Korea as well as in other countries in the Asia Pacific region.
The applicability of customary international law is the other option left with us where in many of our countries light of customary international laws when it comes to the shipping and the international trade laws, an area where the world is more concerned today. In many of our countries, principles of customary international laws are being used to support their cases where the laws of the countries are not sufficient to substantiate such legal dilemmas. It is my opinion that we can take the light of the customary international laws and argue in our courts that if they can apply customary International laws in shipping and trade, why not in refugee protection?
There is a significant move forward in Sri Lankan case law, in The British High Commission V. Ricardo Wilhelm Michael Jansen case, Chief Justice, Mohan Peiris, in his Judgment stated that “it has to be noted that there is no domestic legislation specifically dealing with the question of state or Sovereign immunity in Sri Lanka and we have to look for guidance from customary International law or other jurisdictions whenever a plea of immunity is raised before us. “This gives a light to our struggle over the application of customary international law principle of non refoulement.
Secondly, in many of the constitutions in Asia and the Pacific region there are articles where people are being mentioned as people with Rights and those articles of the constitutions can argue as entry points to safeguard the refugee rights. Stories from Japan, Korea and Taiwan are also worth discussing where lawyers and the refugee community have gone a long way with legal space as they continue to challenge on behalf of aliens and try their best to create new legal precedents to safeguard refugees in their countries. We must also appreciate the work of the Japanese Refugee Council, the public interest lawyers of Korea, Justice Centre of Hong Kong, refugee lawyers in Taiwan. In many of the countries refugees are quite helpless as they are not covered by the laws of the land and there is no legal aid or other means to respond to their plight. Therefore it is important to do everything possible to protect their rights and safeguard their dignity as human beings.
Less affluent countries such as Cambodia and Philippines are signatories to the 1951 Refugee Convention and they are presenting more creative ways of addressing the refugee crisis. We hope that, with recent democratic changes, Indonesia too will follow in their example. .
It is my belief that the situation of refugees is not all that bleak even though there are many negative anecdotes. There are positive things happening around us. Hong Kong Refugee Aid, now known as Justice Centre, is engaging with the law firms in Hong Kong to receive pro-bono handling of refugee cases, while the Hong Kong Government also offers legal aid with a lawyer of the refugee`s choice, paid for by the government. This I see as a very positive development and I wish other countries too will follow suit.
While some Asian countries are doing everything to prevent refugees coming from troubled Nations , countries like Iran and India, on the other hand, look after the refugees in their midst as much as they can. I have visited Iranian refugee settlements where the Government provides schooling, sports facilities for kids and other assistance to the best of their ability. Iran once provided assistance for nearly 2 million refugees from Afghanistan.
While saluting Chancellor Angela Merkel of Germany for her bravery in accepting more than a million refugees into Germany from Syria and Iraq, it must also be pointed out that some countries in Asia have provided greater assistance over the past three decades. The photos of the dead child on the shores of Greece broke the hearts of the world. It also brought new insights for refugee support in Europe and elsewhere. Many Asian countries are also coping with huge influxes of refugees: Pakistan with nearly 2 million Afghan refugees, India with Tibetan, Sri Lankan, and Chin refugees, Nepal with Bhutanese refugees, Bangladesh with Rohingiyas, and Indonesia, Malaysia and Thailand.
Most countries in South-East Asia do not have national asylum systems and generally consider asylum seekers and refugees to be illegal immigrants. The quintessential outsiders, refugees are routinely denied fundamental rights including legal status, freedom from detention and deportation, access to safe and lawful employment, and equal protection of the law.
Even though we Asians have shown a great deal of tolerance in relation to overseas refugees and urban refugees, we have failed to develop a refugee rights perspective compared to Europe or North America or at least on par with Africa. In many Asian nations that accepted refugees have not sufficiently grappled with the issues of working rights for the refugees. It’s a basic requirement for refugees to have their working rights as they provide sustainability for them and their families. Many countries offered “3D” jobs, namely Dirty, Dangerous and Degrading jobs, to refugees where refugees have no other option but to accept it. When I was in Hong Kong some of the Sri Lankan refugees used to quote Mark Daly whenever they came across employment issues. According to them, Mark had told them if the Hong Kong Government does not provide assistance to live in Hong Kong then the refugees have a right to work. Whether Mark actually said it or not, it was an expression of the Sri Lankan asylum Seekers who had no option other than to work in 3D Jobs. Their over-riding concern was to survive. Thus, the right to work is a primary survival issue for many refugees when Governments don’t provide assistance for living.
As Lawyers, we have forgotten these communities and their right to work. If at all, only a few cases are available in Asia for the working rights of the refugees. India has a few cases where they allow some groups of urban refugees to work and some protected communities such as Sri Lankan and Tibetan refugees, while others do not enjoy the same rights. Malaysia, with their refugee protection policy, is more tolerant, but there are also crack downs. Thailand accepted Myanmar refugees but most had to be satisfied with 3D jobs. Even though millions of Sri Lankan refugees enjoyed working rights in Europe and elsewhere, Sri Lanka does not allow asylum Seekers from Pakistan and Afghanistan or anywhere else to work in Sri Lanka where the number of refugee is not more than 3,000. Japan, Korea, Hong Kong, China and many other countries have the same no-jobs policy. Asian lawyers have to engage with this serious violation of refugee rights and try our best to create an opportunity for their right to work.
Even though most lawyers have engaged with immigration law, they seem to be least involved in mitigating discrimination against refugees by using Citizenship Acts, national security laws or immigration laws. It is very unfortunate that a large number of urban refugees are facing severe survival threats due to immigration laws, prolonged detention and deportation. The plight of the refugee communities often goes unnoticed by the legal fraternity.
In conclusion, I would like to invite my fellow lawyers to be more compassionate towards these helpless and vulnerable communities who live in our neighbourhood. We need to overcome our prejudices and stereotypes and find ways and means of helping them legally, especially to protect their rights.
G S Lakshan J. S. Dias
Attorney At Law ,
Chairman Transparency International Sri Lankan Chapter ,
Chairman SANRIM ,
Bureau member South Asians for human Rights (SAHR).