A court in northern Malaysia’s Kedah state threw out a lower court’s ruling that 27 Rohingya be caned for entering country illegally, calling it inhumane to punish refugees with strokes from a rattan stick, their lawyer said Wednesday.
Alor Setar High Court Judge Arik Sanusi heard from a lawyer representing the Rohingya and a deputy public prosecutor before delivering his decision Wednesday, according to defense attorney Collin Andrew.
Andrew said Judge Arik based his decision on the Rohingyas’ status as refugees and noted the situation in Myanmar’s Rakhine state, the home of the stateless Muslim minority group.
“These persons are Rohingya refugees who are in need of international protection due to the persecution faced by them. … As a result and in line with the international principle of non-refoulement, they cannot be returned,” Andrew told BenarNews, an RFA-affiliated online news service, quoting from Judge Arik’s ruling.
The judge cited several other grounds including that the Rohingya were not habitual offenders nor were they violent, so it was inhumane to punish them this way, according to the lawyer.
“Judge Arik also said that these persons are registered with UNHCR as refugees, [and that] a sentence of whipping will only add to their sufferings,” Andrew said.
The judge also instructed that six 17-year-old Rohingya who are serving seven months for entering the country illegally be released to UNHCR – the United Nations refugee agency – upon completion of their sentences on July 27.
The Rohingya were charged on March 23 with illegal entry under the Immigration Act.
On June 23, 40 Rohingya pleaded guilty after the charges were read before Magistrate Mohd Ridzuan Salleh in Langkawi Magistrate court, the Malay daily newspaper Sinar Harian reported, basing its information on a statement from the Malaysia Maritime Enforcement Agency. Langkawi is a district of Kedah.
It reported that the magistrate had sentenced 31 men to seven months in jail and three lashes each and nine women to seven months in jail.
On Wednesday, Andrew said the number of men sentenced to be caned was just 27, adding they were not represented by an attorney when their case first went before the magistrate’s court.
“I applied for the court appeal on July 6 when I found out about the sentence,” he said.
The Immigration Act allows for fines, imprisonment of five years, and caning for those convicted of entering Malaysia illegally. According to Andrew, judges in previous decisions had said they reserved canings in cases where there were acts of violence, those sentenced were habitual offenders or had threatened public order. His 27 Rohingya clients did not meet any of those criteria, he said.
Jerald Joseph of the Malaysian Human Rights Commission (Suhakam) said the judge was right.
“This is definitely good news and the right direction to go when it comes to refugees. The judge also recognized that they are refugees and took note of their situation,” Joseph told BenarNews.
While applauding the ruling, Joseph questioned the authorities’ decision to address the matter judicially instead of the usual method for dealing with refugees. He said the normal action was to detain them in immigration depots pending documentation and registration with the UNHCR.
“That is the most logical thing to do since we cannot deport them, cannot send them back to Myanmar, and also cannot send them back to Bangladesh. So why not keep the same procedure?” asked Joseph.
Advocacy group Amnesty International (AI) welcomed the news but in a statement called on the government to release all Rohingya who are jailed, calling their detention “not justifiable” amid the COVID-19 pandemic.
“Even before the pandemic, detention solely for immigration purposes was only allowable in the most exceptional of circumstances. In the present global public health crisis, migration-related detention is not justifiable,” AI Malaysia Researcher Rachel Chhoa-Howard said.
Similarly, New York-based Human Rights Watch (HRW) – in a statement issued before the high court judge in Alor Setar ruled against the canings – called for authorities to stop prosecuting Rohingya refugees over illegal entry and ensure they are protected in accordance with international law.
Phil Robertson, HRW’s deputy Asia director, said the original punishment was brutal and would constitute torture under international human rights law.
“Malaysia is unlawfully treating as criminals people who fled atrocities in Myanmar. Rohingya arriving by boat should be considered as refugees who have a right to protection under international law,” he said.
Malaysia is not a party to the 1951 Refugee Convention or its Protocol and there is no legislative or administrative framework for dealing with refugees. Instead, everyone entering the country illegally are lumped together as illegal migrants.
Wednesday’s ruling came a day after the Malaysian coast guard arrested 25 undocumented Rohingya at a safe house controlled by a human trafficking syndicate on Langkawi Island, within hours of their arrival aboard a boat, officials said. Also arrested were two Rohingya smugglers.
The 25 were taken to immigration transit houses while the smugglers were detained under remand by the Malaysian Anti-Corruption Commission (MACC) for allegedly attempting to bribe enforcement authorities to release the migrants.
Officials from Malaysia’s new government had earlier indicated that the country would not take in more Rohingya refugees, and they were planning to send 269 who had landed in Langkawi in June back to the sea once their boat was fixed.
But Prime Minister Muhyiddin Yassin recently said that this was not the case.
“The government had never planned on sending the Rohingya illegal immigrants back out to the open sea,” he said in a written response to a parliamentary inquiry earlier this month.
Reported by BenarNews, an RFA-affiliated online news service.