Tommy Thomas’ recent article appearing on the Malaysian Bar website on the topic of the highly vexed refugee exchange and processing programme proposed by Australia (and agreed to by Malaysia) is both misleading and inaccurate.

In the first place it should be noted that the Malaysian government was not a party to the High Court of Australia (HCA) proceedings initiated by NGO’s acting on behalf the plaintifs two Afghan nationals (refugee plaintiffs). The Australian government and others were joined as parties to the proceedings but not the Malaysian government.

Secondly the matters at issue in the HCA proceedings were not about whether or not Malaysia is a morally fit place or a humane jurisdiction to which Australia could or ought to send for processing, claimants for refugee status (not refugees which is a misnomer) .

For the record Australia processes such applicants for refugee status in places as Afghanistan, Pakistan and Iraq. These facts are conveniently overlooked by Thomas and Australia’s pro refugee NGO movements. The Human Rights record of each of these countries is on the record for Thomas and the Malaysian Bar to absorb themselves in and inform themselves better.

There are other issues in Thomas’s two- part article one of which is Thomas’ misleading claim that the HCA’s decision in this matter has tarnished Malaysia’s reputation abroad. Quite the contrary.

The Australian government’s attempts to farm out its processing obligations to Malaysia, is tacit proof of its view that Malaysia is a fit and proper place with standards consistent with those of Australia’s own capable of discharging its obligations responsibly under international law. Just because the Malaysian bar and certain other organizations in Malaysia sensationalise isolated incidents as being the rule does not mean they ought to be believed.

Clearly the so called Malaysian solution is not understood by refugee advocates nor by Human Rights activist advocates as Thomas would like us to believe he is one. If Thomas and his mates did their homework they would be advocating FOR the Malaysian solution and not against it.

Clearly none of Thomas or his mates have weighed the benefits the Malaysian solution would result in for those they claim are being ill treated under Malaysia’s immigration and refugee laws. A second and more important reason Thomas lobbies against support for the solution in his bile against the Malaysian government is because Malaysia not a signatory to the International Convention on Human Rights (ICHR).

Under the proposed Malaysian solution, Australia would send 800 asylum seekers to Malaysia for processing and detention and in return, receive 4000 people already assessed to be refugees over the next four years. Even though the HCA has canned the deal, Australia must still accept the extra 4000, making it a nothing for 4000 swap.

Since July 2008 there have been 650 applications for special leave to the HCA to review decisions relating to migration law in Australia. Of these about 60% of related to failed visa applications. Of the same 650, a total of a mere 17 were successful in obtaining special leave to be heard by the HCA. Of that 17, a little over 50% related to unsuccessful visa applications and only a handful of those were decided in favour of the asylum seekers applicants.

Cosmetic Human rights arguments do not help the situation faced by countries as Australia and Malaysia. Malaysia is home to a very large number of economic refugees who are people seeking better economic prospects. Undoubtedly it is acknowledged that in the midst of genuine applicants for refugee status are an equally large number of economic refugees and opportunists  whose presence poses a greater moral and political dilemma for countries such as Malaysia and Australia both caught in a no win situation in such circumstances.

Now consider this. Malaysia is not a signatory to the ICHR. Thomas says it ought to be. Australia a country so highly critical of all its neighbours and their standard’s on human rights including Malaysia is a signatory to the convention. As a signatory it nominates Malaysia as a suitable place for the purpose of offshore detention and processing. That’s not tarnishing Malaysia’s image nor is it evidence of the need for Malaysia to adopt the convention. It clearly is a feather in the cap of Malaysia in respect of how it is viewed by a prominent signatory nation. It is an endorsement of Malaysia’s improved standards on Human Rights, sufficient for a prominent signatory member to the ICHR to nominate it as a destination for processing and detention of illegals making claims to refugee status.

Applicants for refugee status from Myanmar, Iraq and Afghanistan appear to endorse Malaysia as a place far better, safer, and more humane than India, Sri Lanka and a host of other countries through which they pass. . That honour is not even bestowed upon Singapore, that so-called bastion of everything good and proper in the region.

What difference does the signing or acceptance of the ICHR or subscription to its charter make for a country as Malaysia? This is a question that Thomas does not address. It is a political point he adumbrates presumably based on his own personal perceptions of morality. Nothing wrong with that except that to pursue morality in preference to the law is a parlous game to play in international politics.

Membership or subscription to the charter of the ICHR does not of itself make a country more humane or moral as Thomas appears to suggest . Australia, we now know, deliberately stood by and watched as several families en route to their shores drowned mid ocean in the Sieve X incident. That ill -fated un-seaworthy craft heading for Australia got into difficulties. It , was being tracked on naval radar but apparently orders came from the top not to intervene. Australia, it is believed, under the Howard government, wanted to make a lesson of what they termed ‘queue jumpers’.

There are other instances like the Tampa and children overboard affair that demonstrate that subscription or adoption of the ICHR does not make for a better or morally superior government or people. Much of what Malaysia has achieved thus far in being selected as a preferred destination by the moral policeman of the region is creditworthy. The Gillard government has a better standing in the international community for its record on human rights. Mr. Thomas appears to adopt the position of the Howard government discredited in every respect on the question of human rights.

Thomas appears to struggle to balance his argument and his claim that Malaysia’s image had been tarnished by the HCA decision on offshore processing of refugee applications. His lack of balance is supportive of a lack of credibility in his position in this respect. Instead he indulges in hypotheticals to make some obscure point irrelevant to make the scurrilous unfounded allegation, Malaysia’s reputation has been tarnished by the HCA decision.

It may be worth noting especially for Thomas that Justice French the HCA judge in delivering the leading judgment on the matter in question (the Malaysia solution) appears to have contradicted an earlier position he held on the same subject of offshore processing of refugee applicants when as a judge of the Federal Court of Australia. At the time of the Federal Court of Australian judgment of his, French J delivered a different decision in favour of the Howard government’s decisions doing the exact same thing then as Gillard attempts to now in processing refugee applicants offshore and outside Australia’s migration zones. Perhaps French J did not have the benefit of the operation of section 198A of the Migration Act then ?.

There is such a thing as the sovereign right of governments to do whatever they deem fit in the exercise of their lawful functions as a government. The doctrine of sovereignty exists at international law and Thomas would do well to try to understand it in the context of the decision of the government of Malaysia and Australia to enter into agreements regarding the processing of refugee applicants.

Closer to home Thomas remains silent on the matter of Waythamurthi, Hindraf’s leader currently exiled in London having been stripped of his Malaysian passport and by that arguably his citizenship. By his deafening silent on the Waythamurthi issue Thomas appears to lend further credence that both he and Ambiga Sreenivasan may have been complicit in advising the government of Badawi in exiling Waythamurthi. Perhaps Thomas ought to be reminded of the old saying “Charity begins at home”.

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