We all lose when governments trash the law

| by Andrew Hamilton

( January 4, 2012, Melbourne, Sri Lanka Guardian) In recent months more than 400 Sri Lankans have been summarily repatriated. After arriving by boat, they were screened out by Immigration officials. This action has received little attention, as public attention has been focused on the brutalities of Nauru and on the five year sentence to bare survival that awaits other recently arrived asylum seekers. But it is deeply disturbing nonetheless.
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It is also arguably unjust and illegal — ‘arguably’ not because the evidence for the claim is lacking or weak, but because the screening-out is so totally lacking in transparency. There is no way of knowing whether in fact those repatriated did not wish to claim asylum, or whether they would have been found to be fleeing persecution. We rely on the arbitrary and unreviewable judgment of officials.

Doubts about this process are intensified because, together with the new Pacific Solution, the deprivation of work rights and prolonged delay in processing claims, it forms part of a desperate and ad hoc attempt by the Government to be seen to be serious about stopping the boats. 
The introduction of summary repatriation was accompanied by extensive publicity by Sri Lankan and Australian ministers and officials. They declared that the growing number of Sri Lankans arriving by boat were not asylum seekers but were deluded by people smugglers into seeking a better life in Australia. Both Governments agreed that Tamils could return with impunity to Sri Lanka. This publicity implied that repatriation would not be unjust.
In the last week, however, evidence that summary repatriation is neither just nor legal has mounted. Bishop Rayappu Joseph of Mannar in northern Sri Lanka has added weight to widespread reports from within Sri Lanka by warning that asylum seekers returned to Sri Lanka face harassment, restriction on their freedom and other penalties. He has begged Australia not to return asylum seekers.
These continuing reports of serious human rights abuses in Sri Lanka raise serious questions about the cooperation between Australia and the Sri Lankan Government on asylum seekers. This is the Government against which asylum seekers claim persecution.
Evidence about the persecution of returned asylum seekers calls into question the justice of summary repatriation. At the same time the actions of the Australian Government itself have thrown doubt on its legality.
Lawyers for 56 Sri Lankans screened out and facing repatriation brought a High Court case against their treatment. But before the case could be heard, the Government agreed to process the people affected as it would other asylum seekers. The case was therefore discontinued.
It is reasonable to presume that the Government feared that the Court would find its actions illegal. But it has not renounced the practice of screening out and repatriating asylum seekers.
This move confirms the extent to which bad and makeshift asylum seeker policy has corrupted respect for the rule of law. Bad policies encourage the demand for unconfined power. For a government to treat people brutally is bad enough; to do so in ways that are not transparently legal is worse; to abort a legal process to avoid having illegality discovered is sneaky; subsequently to keep open the possibility of acting in the same way is contemptuous of law.
The attachment to summary repatriation is the current high-point of a history of hostility to the law in asylum seeker policy. The placement of the first remote detention centre at Port Hedland was driven largely by the desire to restrict asylum seekers’ access to lawyers.
The excision of Australian territory from the immigration zone and the Pacific Solution were more sophisticated attempts to prevent asylum seekers from appealing to Australian courts. This exclusion was eventually found by the courts to be illegal but not until it, like the remote detention centres, damaged lastingly the minds and spirits of so many asylum seekers.
The rule of law in society is a delicate spider web of relationships that protects the weak from the tyranny of the great. It is handed on in trust to all of us, and especially to governments, to respect and strengthen. We are all the weaker when it is torn.
That is why the Government’s lack of care for legality and justice in its treatment of the deported asylum seekers is so concerning. It hacks down the hedge that protects us all.
Andrew Hamilton is consulting editor of Eureka Street, where this piece originally was appeared.

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Author: Sri Lanka Guardian

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