Monthly Archives: September 2011

Deep-sea Port, Pipelines Have ‘Devastating Impact’: Shwe Gas

sourc e from Irrawaddy news, 6 Sept 2011


BANGKOK—The construction of China’s deep-sea port off the Arakan coast, and the laying of gas and oil pipelines across Burma is having a devastating impact on thousands of people and the environment, according to a report released on Tuesday.

The report by the Shwe Gas Movement, titled “Sold Out,” said the ongoing projects, which involve Chinese, Korean and Burmese cooperation, have directly affected 80,000 people displaced along the 800-km (500 mi) pipeline route.
The dual pipelines will pump Burma’s natural gas reserves as well as oil transported from the Middle East and Africa across the country to feed China’s energy needs.

“The regime is selling our economic future to China,” said Wong Aung of the Shwe Gas Movement at a press conference in Bangkok on Tuesday.

While China takes energy from Burma, some 79 percent of Burmese people live without electricity, said Wong Aung, quoting regional energy research.

The report stated that widespread land confiscation—to make way for the pipeline corridor—is leaving farmers jobless while fishing grounds are now off limits, contributing to rising migration.

Local people are able to secure only low-wage, temporary and unsafe jobs on the project. They are banned from demanding fair wages. To date, 60 workers at the onshore Gas Terminal site alone have been fired for demanding fair wages, said the report.

Wong Aung said that 33 Burmese army battalions are currently deployed along the pipeline corridor in Arakan and Shan states. Naval patrols guard offshore construction, and a missile complex is also being built next to the deep-sea port. 

The Burmese government has ordered its troops to launch offensives to clear ethnic armed groups out of resource-rich areas in northern Kachin and Shan States since March 2011, leaving thousands of people displaced, according to the report.

Wong Aung said that lands have been confiscated along the pipeline route and 80,000 people in 21 townships have been directly affected.

From a human rights perspective, Lway Aye Nang of the Palaung Women’s Organization said that local villagers have already experienced forced labor, forced relocation and land confiscations in the Palaung area of Shan State.

“Some plantations were seized even though the owners didn’t know,” said Lway Aye Nang, adding that the new government takes no responsibility for the affected people.

The report also tackled environmental issues. The clearing of forest areas and animal corridors for the pipeline route and the potential for explosions and leaks could impact areas across the country, it said.

Shwe Gas Movement said oil spills and refuse disposal off the coast endanger the entire catchment area of the Bay of Bengal, while fuel discharge as well as oil leaks and spills from the tankers offloading at the deep-sea port would have devastating impacts on the coastal ecosystem, particularly mangrove forests.

The development of large-scale petrochemical facilities on Remree and Maday islands increases the likelihood of deadly spills or the outright dumping of toxic materials into the sea and local waterways.

The construction project incorporating the deep-sea port, the gas terminal and oil transfers involves the China National Petroleum Corporation and companies from South Korea and Burma. Despite the outbreak of armed conflicts, the companies, however, have speeded up the construction.

The report said the natural gas, if used domestically, would transform Burma’s failing economy, addressing chronic energy shortages and unaffordable petrol prices that led to uprisings in 2007. The gas will instead be exported and revenues from the sale of gas—estimated at US $29 billion—will be swallowed up by a fiscal black hole that omits gas revenues from the national budget.

“The investors should pull out now before the project blows up in their faces,” said Wong Aung


WikiLeaks Cables Show China’s Support for UWSA

source from Irrawaddy news, 5 Sept 2011

Burma’s strongest ethnic armed group of the United Wa State Army (UWSA) is confident of the “upper hand” in any battle with government troops after being equipped with more than 30 US-manufactured surface-to-air missiles, according to a recent dispatch by WikiLeaks.

Rangoon-based United States Embassy Charge d’Affaires Larry Dinger sent the cable in January 2010 after talking with UWSA’s Deputy Liaison Officer Soe Than.

In the cable, Soe Than also predicted that Burmese troops would face serious logistical challenges and numerous potential casualties if they were to attack the group.

The UWSA also received financial and moral support from China, said Soe Than.

He said the Chinese thought the State Peace and Development Council (SPDC) was angling for new allies—specifically the US, North Korea and Russia—so China was beefing up its financial and military support for the UWSA in response.

Chinese government representatives attend all UWSA ceremonies and five representatives from the Chinese Embassy in Rangoon attended a Wa anniversary celebration in December 2009, he added.
A separate 2009 cable concerning the UWSA also claimed that the group was well-armed with US-manufactured grenade launchers, as well as shoulder-mounted surface-to-air missiles and launchers provided by Russia.

The cable claims that there were 30,000 active-duty Wa troops with an additional 10,000 youth and auxiliary forces, many of whom are enrolled in training or engaged in agriculture.

“The only threat the UWSA is not prepared to face is major airstrikes by the Burma Army,” Soe Than was quoted in the cable.

The Wa group found it easy to purchase arms from Thailand, China (including Hong Kong), and Singapore, according to leaked documents. But the UWSA denied manufacturing armaments or purchasing shoulder-mounted surface-to-air missiles and launchers from Russia in 2005 or 2006.

Hong Pang Company, based in Tachilek, is the parent company for many Wa investments, said Soe Than.

He also claimed the UWSA has over US $2billion invested in “transportation (including Yangon Airway), hotels (including Yangon City Hotel), restaurants, gems, mining, teak, road/building construction, property development, manufacturing (including of the ubiquitous plastic rice bags), wood processing (including a facility at the Mingaladon Industrial Estate near Rangoon’s airport), massage parlors, and music recording studios (including “NASA” Studio—NFI).”

For the Wa, retention of the UWSA is non-negotiable and leaders are prepared to abandon all legitimate economic interests throughout the country—estimated by the Wa as over US $2 billion—if necessary to preserve their right to arms.

Since last year, the Burmese regime has been pressuring 17 ceasefire armies to accept the Border Guard Force (BGF) plan, but only a few have joined. The others, including the UWSA and the Kachin Independence Army, have refused.

Comparing Military Security Affairs Chief Lieutenant General Ye Myint with former Prime Minister and Military Intelligence Chief Khin Nyunt, UWSA Commander Bao Youxiang said he respected Khin Nyunt.

In 2009, Bao Youxiang met with Ye Myint for 30 minutes but no solution regarding the BGF was reached. The UWSA did not accept the Burmese government’s BGF proposal but opted to “not answer” rather than reply no.

Soe Than said, “You can never trust the SPDC. They always negotiate while holding a sword behind their back.”

Burma’s ethnic Wa population is estimated at nearly one million and strives to maintain its army and autonomy over its own ethnic region, but has expressed no desire leave the federal system and secede from Burma.


What the Malaysian refugee High Court decision says

source from onlineopinion, 2 Sept 2011

All of Australia is buzzing with the news that the High Court has overturned the Gillard Government’s "Malaysian Solution". Julia Gillard has criticised the decision and Chief Justice French, saying, among other things:

The High Court’s decision, basically, turns on its head the understanding of the law in this country prior to yesterday’s decision. … A missed opportunity to send a message to asylum seekers not to risk their lives at sea and get into boats. And we tragically saw at Christmas Island around Christmas time what that can lead to, with the loss of life of men and women and children.

In this post, I shall first consider the judgment in detail. I will then give a brief analysis of the criticisms of both the government and the Court, and canvass some possibilities of what may happen now.


1. The judgment:

The decision was not based on Constitutional law principles, but on administrative law (which governs how the excutive can make decisions and what their powers are under statute), as well as principles of statutory interpretation. A majority of the High Court found that the Minister had fallen into jurisdictional error, and he did not have the power to make the declaration that asylum seekers could be sent to Malaysia. Heydon J dissented.

(a) Declaration that persons could be removed to Malaysia pursuant to s 198A

In order to for the government to be empowered to remove an "offshore entry person" to another jurisdiction pursuant to s 198(1) of the Migration Act 1958 (Cth) (‘the Act’), the Minister had to make a declaration pursuant to s 198A(3) of the Act that the country to which the detainees were being removed satisfied certain criteria. Section 198A(3)(a)(i) – (iv) outlines the following criteria:

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; …

As Kiefel J said in her judgment at [240], this section ‘has the effect of shifting some of the responsibilities undertaken by Australia under the Convention to another country. Its evident concern is that Australia’s obligations under the Convention are not breached in that process. Its terms contemplate that a country specified in the declaration will provide some of that which Australia would have provided had the asylum-seeker remained in its territory.’ Thus, the purpose is to ensure that, even if "offshore entry persons" are removed to another country, Australia still complies with its obligations under the Convention Relating to the Status of Refugees (the Refugee Convention) to which Australia is a party by ensuring that these people are treated in accordance with the Refugee Convention. It was in that context that s 198A of the Migration Act was interpreted, as the Migration Act generally incorporates certain aspects of the Refugee Convention into Australia domestic law.


Basically, the plaintiffs had two submissions with regard to s 198A(3):

  • That the requirements of s 198A(3) were "jurisdictional facts". This required the Minister to determine that certain facts existed as a precondition to the exercise of his discretion under the section. If the facts were not established, then the Minister had no jurisdiction to make the determination which he did;
  • That even if the requirements of s 198A(3) were not jurisdictional facts, in exercising his discretion the Minister asked the wrong questions (among other things, he only satisfied himself in relation to the treatment of the 800 asylum seekers, not in relation to the treatment of all asylum seekers; he did not focus on the present treatment of asylum seekers and refugees in Malaysia, only on the potential future treatment; and he did not turn his mind to the lack of legal protections for such persons under Malaysian law)

The plurality (Gummow, Hayne, Crennan and Bell JJ) accepted the submission that the requirements of s 189(3) were "jurisdictional facts" which had to be present on the facts before the Minister could declare Malaysia to be a country to which officials could remove "offshore entry persons". They said at [106] – [107]:

Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister’s forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics. The plaintiffs submitted that the criteria in sub-pars (i) to (iv) of s 198A(3)(a) are jurisdictional facts. They submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.

French CJ rejected the plaintiffs’ "jurisdictional fact" submission (as, apparently, did Kiefel J in a separate judgment). It is unsurprising that French CJ did so, as he had rejected a "jurisdictional fact" submission in 2003 when he was a Federal Court judge and an Afghan refugee sought to challenge removal to Nauru pursuant to s 198(1): see P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029. This perhaps explains why the Federal Government was confident that the legality of its scheme would be upheld. However, in P1, the court was not called upon to ask whether the Minister had asked the right questions when declaring Nauru to be a country to which refugees could be removed.

Both French CJ and Kiefel J found that the Minister did not ask the correct questions when determining whether Malaysia was a country to which refugees could be sent. First, the Minister was required to make a judgment as to the provision of access, protection and the meeting of human rights standards in providing protection which was more than merely transient: it had to describe a present and continuing circumstance. At [62], French CJ said:

It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is "keen to improve its treatment of refugees and asylum seekers". Nor could a declaration rest upon a belief that the government of the specified country has "made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers" or that it had "begun the process of improving the protection offered to such persons". Yet the Minister’s affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.

Further, the Minister erred because he did not focus upon the laws in effect in Malaysia and rather looked to what Malaysian practice was. French CJ continued at [66]:

…The questions the Minister must ask himself, about whether the relevant "access" and "protection" are provided and "human rights standards" are met, are questions which cannot be answered without reference to the domestic laws of the specified country, including its Constitution and statute laws, and the international legal obligations to which it has bound itself. The use of the terms "provides access … to effective procedures", "protection" and "relevant human rights standards" are all indicative of enduring legal frameworks. Having regard to the Minister’s concession and what appears, in any event, from the submissions upon which the Minister acted and his affidavit, it is clear that he did not look to, and did not find, any basis for his declaration in Malaysia’s international obligations or relevant domestic laws. There is no indication that the apparent legal fragility of the exemption order under the Malaysian Immigration Act and the associated risks to transferees were drawn to his attention. Important elements of his decision were the non-binding Arrangement, conversations he had undertaken with his ministerial counterpart in Malaysia, and observations by DFAT about contemporary practices with respect to asylum seekers in that country. (emphasis added)

The focus of the Minister was on the wrong issue: not the actual law in Malaysia or the way in which its domestic law operated in respect of asylum seekers and refugees. It is clear that his Honour was unimpressed with the lack of attention to the fact that Malaysia does not recognise the status of refugees in either international or domestic law.

Furthermore, as Kiefel J noted in her judgment at [242] – [244], it was not enough that an non-government agency in Malaysia assessed refugee status (namely the UNHCR). Instead, the section contemplated that the declared country itself should determine refugee status, because this would mean that the country was bound by its determination, and thereby recognised refugee status, and protected those who had such a status. She noted at [244] that it was not actually necessary for Malaysia to be a party to the Refugee Convention as long as it recognises and protects refugees under its domestic law, although naturally it was more likely that a country who was a party to the Convention would have domestic laws providing for recognition and protection if they were a party to the Convention.

Thus any country about which a declaration is made must actually have legal mechanisms which allow for provision of the various protections, not simply practices that appear to provide the various protections. The majority rejected the proposition that the Minister must merely believe in a bona fide manner that the relevant criteria were met, as this was not consonant with the purpose, words and context of the section. The essence of the judgments seem to boil down to the fact that, as Malaysia ‘does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees … is not party to the Refugees Convention or the Refugees Protocol … and … has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments…’ and therefore ‘it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii)’: (see para [135]).

Fascinatingly, the plurality also cast some doubt on the Nauru "solution", saying at [126] – [128]:

A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. Not only did the Arrangement not oblige Malaysia to provide any of those rights, no provision was made in the Arrangement that (if carried out) would provide any of those rights.

The Minister and the Commonwealth also submitted that the circumstances in which s 198A was enacted pointed against the adoption of this construction of the section. They submitted that s 198A was enacted with a view to declaring that Nauru is a country specified for the purposes of s 198A and that it was known, before the enactment of s 198A, that Nauru was not a signatory to the Refugees Convention or the Refugees Protocol.

Two points may be made about this submission. First, it is by no means clear what use the Minister and the Commonwealth sought to make in the proper construction of the provision of what they asserted to be facts known to those who promoted the legislation. The facts asserted do not identify any mischief to which the provision was directed. Rather, it seemed that the facts were put forward as indicating what those who promoted the legislation hoped or intended might be achieved by it. But those hopes or intentions do not bear upon the curial determination of the question of construction of the legislative text. Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.

(b) Reliance on general power under s 198

The Commonwealth’s fall-back position, if it was not entitled to remove "offshore entry persons" from Australia pursuant to s 198A, was that it could alternatively rely on s 198(2) of the Act, which provides that an officer must remove an offshore entry person. However, the plaintiffs submitted that s 198 only applied to those "offshore entry persons" whose claims for asylums were assessed in Australia. Section 198A provided a separate and distinct set of provisions with respect to "offshore entry persons" whose claims for asylum were not to be assessed in Australia. Once an officer has decided that he or she will exercise the power given by s 198A(1) to take an offshore entry person from Australia, the conditions for the exercise of power under s 198(2) are no longer fulfilled. The conditions for the exercise of power under s 198(2) are not fulfilled because the offshore entry person (an unlawful non-citizen) is no longer covered by s 193(1)(c) because he or she is no longer detained under s 189(2), (3) or (4). In particular, the detention under s 189(3) that would have earlier existed has been brought to an end by operation of s 198A(4). Second, they submitted that whether s 198(2) and s 198A(1) should be construed as providing what can cumulative powers of removal was to be determined according to whether "the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, [59]). Shortly, the specific rule in s 198A trumped the general rule in s 198. The plurality explained at [95]:

When it is observed that s 198A is directed to taking persons to a country which provides the access and protections identified in s 198A(3), including "access, for persons seeking asylum, to effective procedures for assessing their need for protection", it becomes evident that s 198 should not be construed as requiring or permitting the removal from Australia of those described in s 198A as "persons seeking asylum" before there has been what the same section calls a "determination of their refugee status". Such persons can be taken to another country only in accordance with s 198A. The Act confers only one power to take that action: the power given by s 198A. Section 198A deals with a subset of those to whom it is said s 198 applies. The generality of the power apparently conferred by s 198 must be confined by reference to the restrictions set out in s 198A.

(c) The status of minor offshore entry persons

Finally, in relation to the second plaintiff, who was 16 years old, it was held that if the Minister proposed to remove a minor, he would be required to make a declaration consenting to the removal of the plaintiff pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) as was required by s 6A, as he was effectively the guardian of minor "offshore entry persons".

(d) Heydon J’s dissent

Heydon J dissented. His opinion was that the Minister did not need to be satisfied that the four requirements of s 198A(3)(a) were present as a matter of fact, or that Malaysian law actually provided those protections. Thus the power under s 198A(1) was validly exercised. In addition, he found that the requirements of s 6A did not apply to the second plaintiff.

The other notable matter in Heydon J’s judgment was that in the first paragraph, he appeared to criticise Catherine Branson, the President of the Australian Human Rights Commission. The AHRC intervened in the proceedings on behalf of the second plaintiff. Heydon J noted acidly, ‘In her affidavit she described the Commission as "Australia’s National Human Rights Institution" – an expression not appearing in the Australian Human Rights Commission Act 1986 (Cth),’ and then proceeded to reproduce certain judgments she had handed down when she was a Federal Court judge where she had said words to the effect that Australia is free to decide, as a matter of executive discretion, what non-citizens it allows to remain in Australia. As I have said before, I do not think judgments are appropriate vehicles for venting personal spleen, if that is what was occurring here.

2. The ramifications: what happens next?

It is generally agreed that, particularly in the present precarious situation where the minority government is balanced on a knife’s edge, the government cannot easily legislate to remove the requirements of s 198A(3). The government has other possible places to which it could send asylum seekers, namely Nauru (the Howard Government’s ‘Pacific Solution’ revamped) or Manus Island. However, it has to be queried whether either venue would meet the criteria suggested by the High Court in M70.

There has been a fair amount of criticism of the government for ‘not knowing the law’. An example is Michelle Grattan in The Age the morning after the decision:

"The Commonwealth government is on very strong legal grounds," Immigration Minister Chris Bowen insisted last month.


Clearly, he didn’t know what he was talking about. The government was too gung-ho and, if the advice was convincing, it was also bad. If the Commonwealth’s legal experts can’t anticipate the High Court, they might need a refresher course in the law. While its impression initially was that the case would be won, later on the government became increasingly worried.

I would love to see the legal advice they were given (which is impossible, of course, because of the doctrine of legal professional privilege). To be fair to the government, the plaintiffs were arguing the "jurisdictional fact" point which had been rejected three times by the Federal Court, and on one of those occasions it was rejected by a judge who was now sitting in front on them as the Chief Justice of the High Court. They probably thought that they had a "lay-down mazere". This provides a context for why Julia Gillard lashed out at French CJ yesterday, saying, ‘His Honour Mr Justice French considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.’ This is unfair to French CJ, whose decision is entirely consistent with his previous decision (in that it continues to reject a "jurisdictional fact" analysis); his Honour made his decision on a basis which was not raised in P1

WWII Bomb Kills 7 in Arakan

source from Irrawady news, 1 Sept 2011

Photo of a World War II bomb. (Source:

An accidental bomb explosion killed seven people, including two children aged 10 and 12, in a village in Burma’s western Arakan State on Sunday afternoon.

Local witnesses said the bomb, which was believed to have been left behind from World War II, exploded when villagers in Thae Chaung village of Sittwe Township attempted to smash it open. 

During the Second World War, Arakan State saw fierce battles between Japanese and British forces. The coastal region along the Bay of Bengal was a strategic location for British forces to drive out the occupying Japanese troops from Burma.

China Hands KNU Leader over to Burma

source from Irrawaddy news, 31 Aug 2011

Mahn Nyein Maung, a leading member of the Karen National Union (KNU) who once escaped from Burma’s most notorious penal colony, is again in the hands of the Burmese authorities after being sent to Rangoon by Chinese officials, according to family members.

“The latest information we have is that our father was handed over to Burmese intelligence agents by officials in Kunming,” said his eldest son, who asked not to be identified by name.

The family said that Mahn Nyein Maung was arrested in the capital of China’s Yunnan Province in July after being sent back from Bangkok, where he was denied entry by Thai immigration officials.

Mahn Nyein Maung had earlier traveled to Yunnan from Thailand, where he lived, to observe the armed conflict between the Kachin Independence Army (KIA) and government troops near the Sino-Burmese border.

Mahn Nyein Maung made the trip in his capacity as a central committee member of the United Nationalities Federal Council (UNFC), an alliance of ethnic armed groups, said Nai Hang Thar, the UNFC secretary.

Aung Kyaw Zaw, a Burmese observer on the Sino-Burmese border, said he heard that Mahn Nyein Maung had been put on a passenger flight to Rangoon in late July.

However, KNU central committee member Saw Ah Toe said he could not confirm that Mahn Nyein Maung had been sent to Burma.

“If he has been sent back, there’s no doubt that he is being punished very severely,” said Saw Ah Toe.

Mahn Nyein Maung was a former underground activist inside Burma. In 1960, he was arrested and sent to the Coco Islands, an infamous detention center for political prisoners located about 300 km off the Burmese mainland in the Indian Ocean.

Mahn Nyein Maung and two other political prisoners, Mahn Aung Kyi and Aung Ngwe, managed to escape from the island by floating across the Indian Ocean clutching driftwood. However, they were rearrested when they reached the Burmese mainland.

It was the only known escape from the prison, known as “Burma’s Devils Island

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