By Waruni Karunarathne Picture by Asoka Fernando
The Supreme Court of Sri Lanka recently dismissed a plea against the deportation of the Pakistan and Afghanistan asylum seekers in Sri Lanka, shadowing the small degree of hope that had been harboured by those who had tried to escape prosecution in their country.
A young Pakistan activist, Sadia Khan, who had been writing about abuses carried out by fundamentalists and members of the government in her country, had fled Pakistan in 2012, along with her mother and sister, in fear of their lives. She told The Sunday Leader that, hiding in two states had been a nightmare which she continues to experience. She also said they had spent millions of rupees and had sold their belongings including gold jewellery to support their stay in Sri Lanka. The Sri Lankan government had confiscated their passports when they were sent to the detention centre. To compound the issue, since the time they had fled the detention centre, they had been often been paying much more than what was usually charged for accommodation to stay in a relatively safe place.
“Right now we are lucky to have a British resettlement officer from the United Nations High Commissioner for Refugees (UNHRC) to assist us with our plea. Our resettlement case will be processed in Canada. They want me undergo a medical test but I am too scared to go for one due to fear of being identified by the International Organization for Migration (IOM),” she explained. Even though she is being granted refugee status, she said she was living in fear that she may be caught and sent back to Pakistan where she is wanted for having written articles against the abuses that take place in her country. She stated that even though the UNHCR had requested the government to handover their passports, the government had not as yet responded to the request.
Khan went on to say that the UNHCR had done very little to overcome this situation. “They are moving very slowly to process the application, and receiving countries too take much time to work out the resettlement process. They do not help with the repatriation of asylum seekers who are rejected,” she added.
She said an asylum seeker named Anila Imran, who had petitioned the High Court against the arrest and deportation of asylum seekers, is being held in a detention camp. “Even though she and her family had been recognized as refugees, the Sri Lankan authorities have kept her under detention, and this is worrying us even more. Every day, as I plan to go for the medical test, I also keep putting it off due to fear of being found out,” Khan said.
Refugees self supporting
She stressed that Pakistani asylum seekers had brought sufficient money from Pakistan to meet their day to day expenses. “Most of them had sold their properties and had brought all the money in their possession to Sri Lanka. No one is a burden here. No one has committed a crime. Were there reports in any Sri Lankan newspaper about a Pakistani asylum seeker committing a crime?” she questioned.
“We are now at the mercy of God,” sighed a Christian doctor from Pakistan who did not want to be named. He had fled Pakistan with his son, daughter and his wife who is paralysed when he had heard that he was going to be persecuted under blasphemy laws, simply because he was from a religious minority. “We left all our relatives and property behind. We cannot go back,” he lamented. According to him, their applications had not been processed as yet and they are waiting to be called by the UNHCR for an interview.
“We came in May this year. The UNHCR is still processing applications of those who had come in 2013. It will take some time. We want the Sri Lankan government to have some patience and give the UNHCR sufficient time to process our applications to resettle us in another country,” he said, and added, “The UNHCR is doing all they can at this point in time, but it is up to the Sri Lankan government to have some concern over the matter.”
Another Pakistan asylum seeker, Haris Javed, said he several others along with his wife are in hiding in a church as they fear another surge of deportation after the Supreme Court had dismissed the case against deportation. “Things have not been easy in Pakistan. We fled that country to find consolation somewhere in the world,” he added. He made a plea to the Sri Lankan government to consider their situation and think twice before sending them back to the hands of the perpetrators in Pakistan.
Human rights lawyer, Lakshan Dias, who had appeared in Court in support of the plea against deportation, told The Sunday Leader that, they had argued on the grounds of International Customary Law to stop the repatriation of asylum seekers. According to him, the government had argued, stating that Sri Lanka is not a signatory to the 1951 UN Refugee Convention, and therefore has no obligation towards any asylum seeker.
However, he added that, refugees are not a new concept in the world – even though countries initially did not accept non-refoulement laws, later these laws had become part of the International Customary Law as many states came to accept laws against the rendering of true victims of persecution, back to their perpetrator. “Sri Lanka as a state is bound by the customary law, whether we accept it or not,” Dias noted.
Lack of laws in Sri Lanka
According to him, the Court had stated that there was a lack of laws in the country regarding asylum seekers, and therefore the government was not bound to take any responsibility. “The Sri Lanka government had signed the United Nations Convention Against Torture and had enacted it in Parliament in 1994 but without Article 3 which includes a section prohibiting parties from returning, extraditing or refouling any person to a state where there are substantial grounds for believing that he/she would be in danger of being subjected to torture,” he further noted. He also said Sri Lanka had signed the International Covenant on Civil and Political Rights (ICCPR) but the country had enacted a diluted version of the same, and it had omitted some sections including sections on refugees, and therefore Sri Lanka is not bound by non-refoulement laws.
He marked that none of the South Asian counties had signed the UN treaty on refugee; nonetheless, South Asia had contributed to the population of refugees in the world in large numbers. He pointed out that refugees are a burning issue in South Asia – there are about two million Afghan refugees in Pakistan, over 100,000 Sri Lankans in Tamil Nadu, 300,000 Talibans in India, nearly 50,000 Bangladesh refugees in India and about 75,000 Bhutanese refugees in Nepal. Dias also noted that Sri Lanka, being a country that had over one million of its citizens living as refugees all over the world during 30 years of the war as well as the political insurgencies that had beset the country, should therefore be seen as a country that was sympathetic towards the democratic rights of asylum seekers.
Most of those who had fled Afghanistan and Pakistan represent groups of religious minorities such as Christians, Ahmedis or Shias who are subjected to persecution, discrimination and violence in their own country, Dias explained. He also said that once the asylum seekers submit their application to the UNHCR in Colombo, that office would process the application and schedule a hearing.
He added that from 2005 onwards, the UNHCR had started accepting applications from asylum seekers in Sri Lanka under a written MOU with the government, so as to settle them in a third country if their applications are accepted after the hearing.
“If they can prove their case through written and oral statements, based on that, the UNHCR would accept their case and they will be granted refugee status. Until such time, nothing will be provided to them by the UNHCR. UNHCR only produces a recognition paper. Once the UNHCR recognizes them as refugees, they would be given an allowance for food, housing, and schooling for the children until they are resettled in another country. The process might take about two years. Till then, they would be at the mercy of the Sri Lankan government.” Dias explained. According to him, since June this year, the Sri Lankan government has been arresting asylum seekers and sending them back to their respective countries.
He went on to say that what asylum seekers ask of the Sri Lankan government is that they be granted a proper hearing and fair trial, and if they (the asylum seekers) fail in the process, they could be sent back to their country. On the other hand, if such a process is not followed, and decisions are taken arbitrarily, it would be a violation of their democratic rights.
Durable solution being sought
Meanwhile, a spokesperson of the UNHCR in Colombo told The Sunday Leader that, the UNHCR has on numerous occasions, in different fora, both at national and international levels, advocated for the cessation of ongoing arrests, detention and deportations by the Department of Immigration and Emigration. “UNHCR has requested access to those in detention, and firmly believe they should be given a chance to have their asylum claims heard and assessed,” she added.
The spokesperson added that the UNHCR is not aware of any refugees being deported to date. “However, the records we maintain indicate that the Government of Sri Lanka had deported 312 asylum seekers, including 274 to Pakistan and 38 to Afghanistan since 1 August 2104. As of 7 October, the UNHCR is aware of 61 asylum seekers (21 Pakistanis and 40 Afghans) who continue to remain in detention at the Mirihana Detention Centre as well as in a private house in Negombo, under the care of the Department of Immigration and Emigration. The total number arrested by the department between 6 June to 7 October 2014, stands at 426,” she noted.
According to the UNHCR spokesperson, under the prevailing context, UNHCR had taken steps to increase its own physical and human resource capacity to process more asylum applications, as well as to find a durable solution for the refugees.