India and the Myanmar crisis: Death of Justice, Death of Morality

That memory confronts me with a disturbing question. Am I morally liable for the ill treatment and death of Rohingya refugees who were sent back by our country’s government to Myanmar, where they’re likely to be tortured, raped and killed? I’m concerned because it’s not just a verdict of the ruling Hindu right Bharatiya Janata Party (BJP), guided by their ideological mentor, the Rashtriya Swayam Sevak (RSS), which is guiding this. Today the forcible deportation of the Rohingya refugee has been endorsed by the highest judiciary, the Supreme Court of India. As a citizen, I feel that I’m as guilty as those that took this inhuman decision.

Refugees fleeing their country are a transparent sign of continuous human rights violations. Currently there are approximately 7 million refugees across the planet. Amongst them, the Rohingya community from Myanmar is one among the foremost endangered. Over 1,000,000 Rohingya people have been forced to flee Myanmar. People who remain in Myanmar are internally displaced persons, without citizenship and protection. They been called by the international community as the world’s “most persecuted people”.

The Supreme Court’s Order on “Rohingyas” is flawed.

Here are the reasons:

1. Rohingyas aren’t citizens of Myanmar. They aren’t listed as a “national race” in Myanmar’s 1982 Citizenship Act, and are therefore stateless folk that no state has committed to providing permanent protection for.

2. The Supreme Court disallowed the United Nations Human Rights Council (UNHRC) Special Rapporteur, Senior Counsel C.U. Singh  from “making submissions”. The Court said there have been “serious objections” raised to his intervention. The Court did not disclose who raised these objections and whether these objections were justifiable or not.  Apparently, the court felt it necessary to guard the identity of the objectors.

3. The Supreme Court also ruled out the applicability of the principle of non-refoulement*. This principle is a norm that the Indian judiciary has embraced since the birth of independent India. In several judgments of the Supreme Court and High Courts have upheld that forcible return of refugees to a rustic where they’re susceptible to be subjected to persecution can clearly be read into Article 21 (Right to Life and Personal Liberty) of the Indian Constitution. (The Leaflet, April 12, 2021)

In the judgment on the case of Gramophone Company of India Ltd vs Birendra Bahadur Pandey & Others, 1984 SCR (2) 664, the Supreme Court held that rules of the law of nations, i.e., international law, could even be accommodated into municipal law, even without express legislative sanction, provided they do not run into conflict with Acts of Parliament.
In 1997 in its judgment in Vishaka & Others vs State Of Rajasthan, (1997) 6 SCC 241, the Supreme Court stated: “The international conventions and norms are to be read into [fundamental rights guaranteed within the Constitution of India] within the absence of enacted domestic law occupying the fields, when there’s no inconsistency between them. (SUPREME COURT 3011:1997 AIR SCW 3043 , https://www.aironline.in/legal-judgements/1997+(7)+JT+384)

It is now an accepted rule of judicial construction that regard must be had of international conventions and norms for construing domestic law when there’s no inconsistency between them and there is a void within the domestic law.” (The Oxford Handbook of law of countries in Asia and thus the Pacific, edited by Simon Chesterman, Hisashi Owada, Ben Saul; B. S.Chimni, Pp 586;Oxford 2020)

Double-speak on non-refoulement

The chief justice of India (CJI) and his two brother judges surmised that since India wasn’t a signatory to the Refugee Convention, it had been not clear whether Article 51(c) of the Indian Constitution might be pressed into service. Article 51(c) requires the govt. to foster respect for law of nations and treaty obligations within the dealings of organised peoples with one another. Strangely, the Supreme Court did not deem it fit to ask the government whether it had been obliged to respect the principle of non-refoulement under the other international treaty or convention which it has signed or ratified. Compounding its double speak, the government did not mention that India may be a member of the chief Committee of the High Commissioner’s Programme (Excom). Membership of the Excom is indicative of the country striving for greater commitments to refugee jurisprudence.

The UNHCR is of the view that the principle of non-refoulment constitutes an integral part of the customary law of nations and thus is binding on all states, regardless of their accession to the 1951 Convention or its 1967 Protocol. Article 38(1) (b) of the Statute of the International Court of Justice (ICJ), illustrates that, international custom is general practice accepted as law and must be considered one among the sources of law of countries by the ICJ. The ICJ within the landmark Northern Sea ocean bottom Cases, held that, the provisions of a treaty in conjunction with the opinion juris, end within the creation of a binding custom governing all states, not limited to parties to the first treaty. (Statelessness in India – Seeking Solutions in International Law; http://cilj.co.uk › 2020/02/11)

Let me also point out that India had voted affirmatively to adopt the UN Declaration on Territorial Asylum in 1967. Article 3 of ‘Declaration on Territorial Asylum’ states that any person who fulfils the conditions of article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, “shall [not be] be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.” (Declaration on Territorial Asylum. refworld.org/docid/3b00f05a2c.html)

Also, as a member of Asian African Legal Consultative Organisation, in 1966, India upheld the principle of non- refoulement as envisaged in the Bangkok Principles on ‘Status and Treatment of Refugees’ 1966, by acknowledging the principle of non- refoulement as jus cogens. From the foregoing, it is clear that Government of India, knowingly violated its obligations under Article 51 (c) of Indian Constitution. (Constitition of India, Part IV, Article 51; Page 24, https://www.mea.gov.in/Images/pdf1/Part4.pdf ) & (Statelessness in India – Seeking Solutions in International Law; http://cilj.co.uk › 2020/02/11).

Ignoring the International Court of Justice

It appears that the Honourable judges of our Supreme Court not only forgot its past tradition, but also ignored the fact that in November 2019, The Gambia had lodged an application with the ICJ against Myanmar, initiating the case on the basis of the erga omnes character of the obligations enshrined in the Genocide Convention. In 2020 the ICJ held that Myanmar must take steps to prevent further genocidal acts by its own forces or by groups or forces acting within its territory over which it has any “control, direction, or influence.” It also held that Myanmar must take steps to preserve any evidence of wrongdoing under the Genocide Convention. The Court required Myanmar to submit a report to the ICJ within four months on the steps it is taking to comply with these orders. (The Gambia vs. Myanmar Summary: https://new.tat.ac.in/quantum-computing-jybpfz/61b2b2-the-gambia-v-myanmar-summary Jan. 23, 2020).

Before issuing the provisional order, the ICJ had determined that it had “prima facie jurisdiction,” meaning that The Gambia had presented sufficient materials to satisfy the Court that it called for application of the Convention on the Prevention and Punishment of the Crime of Genocide (https://reliefweb.int/report/myanmar/application-convention-prevention-and-punishment-crime-genocide-gambia-v-myanmar). The decision was widely covered in global media.

BJP government and Myanmar’s military junta

Myanmar is a refugee making country. It has been making hundreds of thousands of its own people stateless and forcing them to seek asylum since the eighties. It is a classic example of a repressive and a rogue state. The military rulers of Myanmar have denied fundamental human rights and civil liberties and made mockery of its quasi-democratic interregnum 2011-2021. They have scrapped the rule of law, assassinated opponents, taken thousands as political prisoners and used lethal force against civilian protesters. Collective punitive action has been imposed on families and communities, particularly against the Muslim minority Rohingyas and other recognised ‘national minorities’, the Chins, Karens, Shans and Kachins.

Myanmar’s military-owned conglomerates control businesses and investments in sectors ranging from beer, tobacco and consumables to mines, mills, tourism, property development and telecommunications. From SIM cards to beer, from skydiving to jade mining, there are few areas of Myanmar’s economy that escape the long arm of the country’s military, the Tatmadaw. The United Nations Fact-Finding Mission in a 2019 report laid bare the extent of the armed forces’ involvement in the economy – exposing the Myanmar Economic Holding Ltd (MEHL) and Myanmar Economic Corporation (MEC)-owned businesses as well as 27 close affiliates to the military. The Tatmadaw’s web of commercial interests enabled it to “insulate itself from accountability and oversight,” the UN Report said. “Through controlling its own business empire, the Tatmadaw is able to evade the accountability and oversight that normally arise from civilian oversight of military budgets.” (Business interests of Myanmar’s rogue army…; https://www.nationalheraldindia.com/opinion/business-interests-of-myanmars-rogue-army-are-why-it-is-loath-to-allow-civilian-control-and-democracy)

The United Nations Security Council (UNSC) in February condemned Myanmar’s coup d’état and expressed support for the country’s “democratic transition.” India, the world’s largest democracy and Myanmar’s neighbour, was nuanced in its response, presumably to protect its own security interests in the North-East and its economic interests in Myanmar.

Indian government has been recalcitrant in criticizing the military. Its position has been that the political situation in Myanmar “needs to return to normalcy.” In the UNSC, India has leaned towards China, Russia and Vietnam which have blocked any call for strong action on Myanmar as proposed by other members. On March 10, the UNSC expressed its “deep concern” regarding events in Myanmar and condemned the violence against peaceful protestors. It asked the military to “exercise utmost restraint”. It failed to mention even the word ‘coup’. Myanmar’s pro-democracy protesters in the streets have begged for weeks for the international community to take more tangible action against the junta.

India sealed its border with Myanmar as the military junta’s brutal crackdown on pro-democracy activists intensified with more than 700 protestors killed so far. The Ministry of Home Affairs (MHA) instructed the Assam Rifles, the paramilitary force which guards the India-Myanmar border, bureaucrats and the police force of four north-eastern states – Arunachal Pradesh, Nagaland, Manipur, and Mizoram – to “check illegal influx from Myanmar into India.”

The Home Ministry sent two letters to the governments of the border states of Nagaland, Arunachal Pradesh, Manipur and Mizoram directing them to identify and deport people fleeing across the border from Myanmar. The instructions were precise. State governments have no powers to grant “refugee” status to any foreigner” as India is not a signatory to the United Nations Refugee Convention of 1951 and its 1967 Protocol.

New Delhi’s efforts to block the entry of refugees from Myanmar has not met with success in the North-East. The Manipur government had issued a letter on March 26 directing officials not to set up any camps for Myanmar nationals crossing the border into India and to “politely turn away” those seeking refuge. That letter was promptly withdrawn. Local media reported that the Manipur government was supporting those seeking refuge.

According to media reports, nearly 2,000 persons from Myanmar have entered the border state of Mizoram. They include members of Myanmar’s civilian police force. The Chief Minister of Mizoram, Zoramthanga and Mizo civil society actors have decided to defy New Delhi’s orders and give shelter, medical aid, food and other relief materials to the refugees. Members of The Zo Reunification Organisation (ZORO), have burnt copies of the MHA order in Mizoram capital Aizawl on Monday to protest the Centre’s discriminatory order. The Global Naga Forum has written to the Chief Minister of Nagaland and Manipur to extend protection to refugees escaping Myanmar junta’s violence. Manipur’s Civil Society Coalition for Human Rights in Manipur (CSCHR) in a recent statement has said that India has a moral, constitutional and human rights obligation to support the refugees from Myanmar. According to a report by NDTV, Myanmar’s (defected) Ambassador to the United Nations has appealed to the Indian government and various state government to provide shelter to those fleeing Myanmar.

What the BJP regime needs to understand is that deporting asylum seekers to Myanmar will undoubtedly be appreciated by the Tatmadaw. But it will come at a huge cost, not least to India’s battered image of being a democracy. Its more lasting consequence would be to damage relations with the protesting multitude of people in Myanmar. Already, India has alienated the common people of the border states of the NE (north east) making them feel that mainstream Indian does not care for its persecuted cross border ethnic kin across the borders, drawn by colonial powers. Peoples’ support is essential for India’s ambitious “Act East” policy. That support is being alienated.

Tapan Kumar Bose

Banner: NEW DELHI , INDIA 03-03-2021 – Myanmar Refugees stage a protest against china’s support to new military rule in Myanmar, at Jantar Mantar in Delhi. Photo Ayush Chopra Delhi / Shutterstock.com

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* the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.