Legally, Rohingyas can’t be evicted

Pallavi Sareen. Dated: 6/8/2018 10:40:35 AM

JAMMU, June 7: Despite the euphoria created by media and certain political groups over evicting Rohingyas from Jammu and rest of the country, as of now the stateless community should not have a reason to worry as legally their right to stay is protected.
The matter is sub-judice before the courts in several cases and until the time these petitions seeking the extradition of Rohingyas are not disposed off, they cannot be thrown out. Of particular importance is a writ petition pending before the Supreme Court.
In a case pending before the Supreme Court of India, the Ministry of Home Affairs (MHA) has expressed reservations on their prolonged stay, citing the involvement of Rohingya refugees in terror activities. The MHA maintained in an affidavit before the court that they (Rohingyas) could potentially become threat to the state in the future. However, the court is yet to give a ruling on these reservations of MHA.
Hunar Gupta, the lawyer who filed the Public Interest Litigation in the J&K High Court praying for shifting the Rohingyas out of Jammu & Kashmir because of Article 370 that grants special status to the state, opines, “State government still has the power to do it.”
In the PIL by Advocate Hunar Gupta in High court, he refers to the Rohingyas as ‘illegal immigrants’ but according to Article14 (1) of Universal Declaration of Human Rights, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
In the 1970s, the Myanmar military began a campaign of brutal crackdowns in Rohingya Villages, forcing the Rohingya population to flee Myanmar. But in 2012, groups of Buddhist nationals burned Rohingya Homes and Killed more than 280 people, displacing tens of thousands of people. Human Rights Watch described the anti-Rohingya violence as amounting to crimes against humanity carried out as a “Campaign of Ethnic Cleansing”. State security forces not only failed to intervene and stop the violence rather in some cases participated in the violence against Rohingyas.
This threat of persecution in Myanmar that forced the Rohingya population to flee the country and take asylum in a different country makes them fall under the dictionary definition of Refugee.
In striking contrast to Hunar’s argument, Shah Faisal, the advocate who filed the impleadment application before the High Court on behalf of the Rohingyas said, “On the previous date of hearing in High Court, the High Court decided that they would not pass an order since the matter is pending in Supreme Court. So, it would be wrong if they were at this point removed by the government or any other agency. Right now the possibility of that is very little. Now, the Supreme Court has to decide whether they can stay in India or not.”
The other advocate who filed the impleadment application on behalf of the Rohingyas, Fidel Sebastian said, “They cannot be extradited unless they are personally convicted in a criminal case in India.”
An advocate associated with Human Rights Law Network regarding the Rohingyas case in Supreme Court, in conversation with Kashmir Times, said, “With the court case pending in Supreme Court and the impleading application filed by Rohingyas, it is not in anyone’s power to remove them from the state or the country until the verdict is out. Moreover, there can be no forced repatriation. It can only be voluntary.”
Upon being asked if the situation is the same for the Rohingyas who do not have the UNHCR card recognizing them as refugees, he said “The people who have run from their country from the fear of being persecuted and have taken sanctuary in another country are considered to be refugees. Even without the UNHCR card, they are potential refugees. And until we can say that their return would not pose a security threat to their lives, according to International Human Right law, they cannot be deported.”
Talking about the case pending in the High Court in Jammu & Kashmir he said, “Again, the matter is sub-judice. In early stages, we moved an application saying that at least Rohingyas should be made a party in the petition. Till the time that impleadment application was accepted, the matter in Supreme Court was taken up. If the matter is sub-judice in the apex court of India, the High court order will not prevail. So the High Court deferred the matter till the time Supreme Court gives its final judgement. The only thing that will over-ride the High Court order would be the Supreme Court, not the government.”
The next hearing in Supreme Court is on August 23, 2018 and until then, the fear of extradition in the minds of Rohingyas is unfounded. This comes as a relief from the constant tension as the legal fraternity involved in this case believes that until the next hearing which is more than two months away, no actions can be taken to shift or remove the Rohingyas from their present state of residence.



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