By Kirsty Anantharajah,
When liberties are taken away and when democratic institutions die, is it even worse than human beings dying? …when institutions die, people end up living as if they were dead.
In 2014, a boat carrying 157 Sri Lankan asylum seekers who had been living in limbo in India was intercepted near the coast of Christmas Island, Australia. The asylum seekers were transferred to an Australian customs boat where they were detained at sea for a month. Their location was not disclosed to the Australian public. They were held against their will, in windowless rooms. Australia attempted to return the asylum seekers to India which refused to accept them. Finally, they were transferred to Nauru, the site of one of Australia’s offshore detention centers.
The cruel irony is that the breakdown of the rule of law that originally pushed them from their homes in Sri Lanka confronted them again in Australia and its offshore camp. The lived experience in both cases is eerily similar.
The rule of law has great power to determine whether life proceeds with security and hope or if uncertainty and insecurity will be the norm. Sri Lanka’s rule of law crisis is characterised by a climate of arbitrariness, in part created by corrupt institutions and abhorrent security legislation. This breakdown is felt by Sri Lankan citizens in their experience of disappearances, torture and sexual violence. This has motivated some to leave the country and begin their journey as irregular migrants.
The conditions in the detention centres funded and managed by Australia on Nauru and on Manus Island in PNG, coupled with the mental anguish caused by the arbitrary and enduring nature of detention, has been deemed to constitute torture. UN Special Rapporteur Juan Mendez, has reported that Australia’s offshore processing policy contravenes its obligations under the Convention Against Torture.
Provision of services in the detention centres has been privatised and accountability is obscured. Daily life for detainees is shrouded in secrecy; NGOs, the media and the Australian public are prevented from even bearing witness to the atrocities that occur.
Documents leaked to The Guardian in 2016 revealed abuse, sexual violence, suicide attempts and extreme hopelessness. Whilst security personnel who have been implicated in serious abuses are contracted by the Australian government, they have not been held accountable for their actions.
Through its ‘Operation Sovereign Borders’, Australia has militarised its response to asylum seekers. It intercepts and ‘pushes back’ boats carrying asylum seekers, sometimes to the country they fled. In May 2016, after having their refugee protection claims cursorily considered while they were held on board a boat at sea, a group of asylum seekers were returned to Sri Lanka. The Australian public is not informed about these ‘on sea’ operations. The Australian people do not know how many Sri Lankans have been prevented from reaching the country’s shores.
Meanwhile, thousands of Sri Lankans are part of a large group of asylum seekers who were released some years ago from Australian immigration detention. They have been forced to wait, often for years, to be ‘invited’ to apply for temporary protection visas. They reside in Australia on bridging visas that frequently expire before the asylum seekers have the opportunity – or the legal assistance necessary – to apply for temporary protection visas when they finally become eligible to do so. The implications of this visa system are that peoples’ access to health care and education may be restricted, some have only limited rights to work, and others are denied work rights altogether. Those who left behind families are unable to sponsor them to come to Australia.
Many have spent years doing their best to survive and to become a part of Australian society, only to be denied permanent protection and to face a return to detention and eventual deportation. The self-immolation of 29-year-old Sri Lankan man Leo Seemanpillai in Geelong, trapped in this cycle of uncertainty, illustrates this pain. A friend of the young man gave voice to the precariousness of Leo’s position:
‘He went through so much in his life, and when he came to Australia he was given a visa that [was] filled with plenty of uncertainty, he couldn’t accept that.’
The rule of law does not govern Australia’s refugee and asylum seeker policies. The tragedy is that in leaving Sri Lanka, people have been forced to relive the nightmares of perpetual uncertainty, and of arbitrary detention and torture hidden from the public gaze. Australia is in the throes of a rule of law crisis, and the full burden of this falls on those who dare to seek asylum. The true horror is that this is intentional. The people languishing and suffering as a result of Australian policies are suffering by design; their bodies are a message to deter their countrymen and women who may, one day, seek safety in the same way.
Sri Lankan asylum seekers, from their origin to their destination, are forced to remain in the shadowy margins of the law; they are forced to endure a living death. We must do more than give voice to this unique form of suffering. Broken institutions, at both ends of the journey, must be rebuilt.
 This post is an edited version of an article that appeared in the Colombo Telegraph under the title, ‘The Space Between the Laws: Insights into Sri Lankans’ Irregular Migration Into Australian Waters’. The original article can be viewed here.
 See Kumari Jayawardena & Kishali Pinto-Jayawardena (eds), The Search for Justice: The Sri Lanka Papers (New Delhi, India: Zubaan, 2016); my previous Regarding Rights post, ‘The Role of Civil Society in Sri Lanka’s Universal Periodic Review’, and Jacinta Mulder’s post, ‘Two Approaches to Human Rights Review in Post-War Sri Lanka’.