On February 24th 2021, 1,086 Myanmar nationals seeking asylum in Malaysia was abruptly, and perhaps brazenly, repatriated back to their home country on three naval vessels sent by the Myanmar military who weeks ago have declared the results of the national election the past November fraudulently and initiated a brutal takeover of the country. This once again ripped the power of governance from the civilian leaders such as Aung San Suu Kyi, as well as members of the National League of Democracy (NLD). While many would feel happy to return to their homeland, these Myanmar citizens, however, mostly felt sorrow and fear. This is due to the military being extremely notorious in its treatment of asylum-seekers.
It is highly likely that they would be facing persecution and even detained once they enter Myanmar. Despite the volatile state of affairs in their home country that was rocked with pro-democracy protests, once the coup had seen the light of day the Malaysian Immigration Department proceeded with the planned deportation of these asylum-seekers and repatriated them in a joint effort with the Myanmar military to bring them home. Since the coup became widely known in the days following the arrest of Aung San Suu Kyi and fellow civilian leaders, the Malaysian foreign ministry, in conjunction with other ASEAN (Association of SouthEast Asian Nations) states’ foreign ministries, as well as the international community, condemned the military takeover and urged all parties to resolve the conflict peacefully.
Additionally, human rights groups and several NGOs also expressed concern towards the deteriorating human rights situation in Myanmar, which eventually resulted in the Kuala Lumpur High Court granting all 1,200 nationals temporary permission to remain in the country until they could ascertain that it is indeed safe to repatriate all Myanmar citizens in question back to their country.
Unfortunately, only hours later the Immigration Department ignored the court order and carried out the repatriation as planned. 1,086 of the 1,200 total seeking asylum were sent back to their home country to an unknown fate. For the 114 that remain, the court immediately extended their stay order, thus barring their deportation before the next hearing could take place.
Does this amount to contempt of court?
As aforementioned, the Immigration Department received a court order issued by the Kuala Lumpur High Court to grant a stay of the 1,200 Myanmar citizens in question while waiting for the pending application by renown human rights groups like the Amnesty International and Asylum Access to suspend the plan as the military coup posed threats to the safety of those at risk of being repatriated. Despite this, the court order was blatantly defied since the deportation was allowed to proceed as planned. The governing laws regarding contempt involving High Court and superior courts (such as the Federal Court) include Section 13 of the Courts of Judicature Act 1964 & Article 126 of the Federal Constitution. Basically, these sections stated in our legislation are usually cited to charge those that have committed an offence where a court of law is involved. Meanwhile, according to a New Straits Times report, the authorities’ claim that none of those deported was seeking asylum can be ascertained since the UNHCR was not granted access to these individuals. To conclude, the act of defying the High Court order to delay the deportation does amount to contempt of court, but the Immigration Department will not be held liable unless the court is involved, namely the Kuala Lumpur High Court, to take action against those responsible for this controversial move.
What exactly occurred in Myanmar before the deportation took place?
Myanmar has and always had been faced with the dilemma of pursuing civilian governance in a country where the Tatmadaw, as their armed forces were formally known, had a significant presence in governance since 1948. It needs to be noted that this is not the first, nor second, but the third time that Myanmar as a whole was forced to undergo extreme destabilisation, mass protests and even international sanctions as a result of a military takeover, with the first in 1962 and the second in 1988. If the current military leaders, such as Senior General Min Aung Hlaing, decides to rule Myanmar by force for a prolonged period, the consequence of which will be the reversal of all economic and societal developments to pre-2011 levels when the military first allowed a democratically elected civilian government to rule alongside the Tatmadaw themselves.
As the decade went on, however, the Tatmadaw began to realise when truly democratic elections were held, the party they supported had lost consecutively in the 2015 and 2020 elections, and the latter gave the NLD over 83% of the seats in Parliament. The military gave multiple warnings before eventually launching the coup to regain power and weaken the pro-democracy movement spearheaded by the NLD before it got out of hand. In recent weeks, the situation has only gradually worsened as the military’s brutal crackdown resulted in the deaths of 18 protesters while the United States reimposed pre-2011 sanctions, and the ASEAN convened an online conference to determine their response. But as of the time of writing, no decision has yet been reached.
In a surprising demonstration of courage and willingness for the restoration of democracy in Myanmar, the UN Ambassador of Myanmar Kyaw Moe Tun deviated from his script and gave a compassionate speech to persuade the international community to recognize the plight of the people of Myanmar and resist the military regime.
“We need further, stronger possible action from the international community to immediately end the military coup,” pleaded Kyaw Moe Tun during the General Assembly.
How did the Tatmadaw come to secure such a significant amount of influence in national politics?
In order to understand how the Tatmadaw managed to secure the political clout that it has retained for decades, we will have to take a look back at when Burma, as Myanmar was formerly known before the military regime changed it in 1989, achieved independence from the United Kingdom in 1948. The Tatmadaw’s predecessor, Burma National Army was created by General Aung San, Aung San Suu Kyi’s father with the help from Japan, which was later credited with defending the country from colonial forces. Despite Aung San’s assassination a year before independence, the military’s legacy lived on. As mentioned above, they then launched two successive coups with the first aiming to squash opposition parties and the second in response to nationwide protests. Due to the simmering domestic tensions and international pressure to call for the Tatmadaw to hold elections, they finally relented in 2011 after an 18-year delay of their promise to hold elections and the drafting of a new constitution in 2008 that ensured the military would hold 25% of all seats in Parliament, as well as the control of most local industries, eventually providing the military with financial freedom and space to manoeuvre if hit by sanctions once again. Additionally, military-affiliated businesses such as Myanmar Economic Holdings Limited (MEHL) would commit all of their profits back to the military’s budget, thus indirectly supporting the regime.
Furthermore, as seen by Russia and China’s lack of enthusiasm as Permanent Security Council members to condemn the actions of the Tatmadaw, this would only serve to partially legitimise the regime that overthrew the civilian government, which was elected by the citizens of Myanmar. The latter also serves as a crucial trading partner in which Myanmar can turn to whenever international trade refuses to trade with Myanmar’s military-affiliated firms due to undemocratic actions, such as the coup they launched in early February. To conclude, it is unlikely that Myanmar would return to democracy any time soon as the one-year deadline to hold elections set by the regime is arbitrary, and the military has little cause to return governance back to the NLD-led civilian government anyway, especially since said government will always seek to limit their power as they had in the past.
What could have prompted the Malaysian government to repatriate these asylum seekers back to a country in peril?
While none actually sought to defend the Immigration Department’s decision, there must have been an underlying reason that would have prompted such an unthinkable, and rather inhumane decision, to deport over 1,000 vulnerable individuals back to a country. It is a place where they have to face not only persecution from the military forces, but the increasingly volatile protests also pose a significant risk to their lives. This is evident in the military’s lack of restraint in using force to contain the protesters. Vox reported that one of the protesters in Yangon reported told the Washington Post:
“First, they shot with real bullets, then tear gas. Later they used rubber bullets”.
Their utter disregard for human life simply puts these repatriated individuals in an extremely precarious position. Furthermore, some might claim that the economic strain and increased government spending in aid packages, as well as vaccine procurement, would have prompted them to proceed with the deportation. This could be easily rebutted as UNHCR, Amnesty International, and multiple local NGOs stood ready to assist the relocation of these individuals. This meant that the constraint of government budget simply could not justify the deportation as shown in the statement given by Katrina Jorene Maliamauv, executive director of Amnesty’s Malaysia office where she stated that: “These dangerous deportations have not been properly scrutinised and put individuals at grave risk,” As a result of the decision undertaken, however, Malaysia has been the subject of scrutiny by not only human rights groups and local opposition lawmakers, the US State Department also lodged concerns that the government went ahead with the deportation “in spite of a Malaysian court order barring their deportation and in light of ongoing unrest in Burma that of course has been taking place since the coup.” through spokesperson Ned Price’s statement.
What can be done to help?
While donations and aid operations undertaken by international agencies such as the United Nations International Children’s Emergency Fund (UNICEF) as well as NGOs are the most direct way to help Myanmar refugees and asylum seekers. The bottom line lies in the fact that these individuals have had to escape Myanmar in the first place. For example, the Rohingya refugees had to leave the country to flee violence undertaken by the military. This shows that if Myanmar itself could be stabilised and civilian governance restored, the stem of refugees will slowly decrease.
However, the Rohingya crisis did emerge during the period where the civilian government largely ran the country. The persecution and animosity against the Rohingya minority lies beneath politics and can only be resolved with a significant change in the traditional beliefs of the society of Myanmar. The current protests, should they collapse under the immense pressure exerted by the Tatmadaw will similarly result in refugees leaving the country. Which is why the international community, especially China and ASEAN member states, must formulate a solution to force the Tatmadaw to revert power into the hands of civilian leadership as Western sanctions might not be effective, as pointed out by the BBC. Addressing the immediate concern of the military takeover might be the most concrete way of allowing Myanmar to stabilise and develop, thus erasing the plight of possible refugees seeking to flee the country whenever it is in peril.
[Written by: Christopher Lim]