Government Action Against Human Trafficking Must Be Grounded In Rule Of Law

By Lim Chee Wee, Malaysian Bar President

The Malaysian Government has responded to the decision of the High Court of Australia to declare invalid the so-called “refugee swap deal” by insisting that the arrangement was, “the best way to tackle the menace of people traffickers in a way that protects the interests of Australia, Malaysia and, above all, the immigrants involved”.

If protecting the interests of the immigrants involved is indeed the goal, the Malaysian Bar then questions the decision of the Malaysian Government to deport 11 Chinese nationals of Uighur ethnicity back to China on 18 August 2011. According to Minister of Home Affairs Hishammuddin Tun Hussein, these 11 Uighurs were involved in human trafficking and were wanted by the Chinese Government.

This action is questionable, given that we have an Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 that is capable of dealing with foreign nationals allegedly involved in people trafficking or migrant smuggling. There was no pressing need for the Malaysian Government to deport the 11 Uighurs back to China if it genuinely wanted to address the issue of people trafficking or migrant smuggling. They should have been prosecuted here instead, and their victims of human trafficking safeguarded in Malaysia. However, they have been deported to China, and nothing has been heard about protecting their human trafficking victims. There is also no information about the whereabouts of the 11 Uighurs, what has happened to them, or indeed whether or not they are still alive. One of the 11 is married to a Malaysian.

In the Australian situation, the Malaysian Government wanted to have an arrangement with the Australian Government even though Malaysia did not have the requisite legal regime. In the Chinese situation, even though the necessary legislation is in place, the Malaysian Government chose instead to relinquish legal jurisdiction over the 11 Uighurs and hand them back to China. The inconsistent actions raise questions about the purpose and motive of the act of deportation.

The Uighurs, who are predominantly Muslim, rebelled against Chinese Government rule in their native Xinjiang Province in July 2009. From that perspective, the deportation of the 11 Uighurs back to China raises grave concerns whether the Malaysian Government refouled potential refugees or asylum seekers in violation of international law. We are given to understand that the Office of the United Nations High Commissioner for Refugees in Kuala Lumpur was denied access to these 11 Uighurs and was therefore unable to ascertain whether they were in a position to make an asylum claim.

This follows the decision by the Malaysian Government to release eight immigration officials who were said to have been involved in a human trafficking ring. These officers were arrested under the Internal Security Act 1960 in October 2010 and then subsequently released in August 2011 without charge. Again, nothing has been mentioned about protecting their human trafficking victims. By its very failure to take further legal action, the Malaysian Government is placing in jeopardy its integrity in respect of human trafficking.

The public is left with little choice than to view the Malaysian Government’s dithering action in respect of human trafficking as being dictated more by foreign and domestic political considerations rather than a sincere desire to do what is right.