Understanding Malaysia's Stand On Refugees

( Headlines of Refugees Issue in Malaysia | Credit : Malaysiakini, Berita Harian, Aljazeera)

---

Headlines of how cruel is the Malaysian government deporting the Rohingyan refugees, the act of bombing a ship full of Rohingyan women and children, and the discrimination on mosques denying refugees to pray, has been through if not most of us, at least my timeline quite often recently. I believe it is important as a citizen of Malaysia to understand this matter, as it concerns the dignity of other human being and welfare of civilisation. In this article, I will touch on several matters to enlighten your understanding of Malaysia's stand on refugees which are the 1951 Convention, principles of international refugee law, Malaysia's policy and recommendations.

BACKGROUND

What does the term refugee mean? According to Article 1 (A) (2) of the Convention Relating to the Status of Refugees (1951 Convention), it is stipulated that a person must fulfil several characteristics to be considered as a refugee which are :

1. Currently living outside of his/her origin country;

2. Established a very high level of fear to be oppressed or prosecuted for reasons such as religion, nationality, race, affiliation to a certain organization or political view;

3. Unable to get protection from his/her country with similar reasons stated in (2).

Although primarily the definition stated in the convention was only applicable before 1/1/1951 which means protection is granted for European refugees after World War II, the Protocol Relating to the Status of Refugees (1967 Protocol) is made to include geographical and time barriers to ensure the adaption of the Convention is applicable for all instances¹.

But before one can seek refuge and called themselves a refugee, they are known to be as an asylum seeker. According to the United Nations Higher Commissioner of Refugees (UNHCR), a person that is said to be a refugee but were not officially validated. This means their application is in the process to be granted to seek refuge from a country’s government. Several differences between refugee and asylum seekers can be distinguished by this infographic.

( Differences between refugee and asylum seekers in Africa | Credit : Nokuthula Zwane )

PRINCIPLES OF INTERNATIONAL REFUGEE LAW Roughly around 148 countries are the state parties to the 1951 Convention and 1967 Protocol or either one. On the other hand, Malaysia does not ratify the stated convention and protocol which makes Malaysia, a non-state party to the convention. Hence, there is no legal obligation for us to safeguard and entitled any rights towards the refugees. However, there are specific ergaomnes¹, which in Latin means towards all, for us to follow. This refers to the obligations that the international community must fulfil as Malaysia is one of the member states of the United Nations, thus this country is responsible to adhere to the United Nations Charter (rights to profess religion, right not to be discriminated in terms of race etc.) and the ban of refoulement (sending the refugees back to the home country if danger still is imposed towards them). In contrast, they are a few exceptions to this legal basis, and in which any of those exceptions is shown, the refugee will be deported from the host country :

1. The refugee impose danger to the host country;

2. The refugee’s behaviour causes threats to the public.

The second principle of international refugee law is on the minimum standards of treatment. According to the 1951 Convention, the minimum standards or rights granted to a refugee are rights to rave, professing the favoured religion, be entitled with the origin nationality and membership or affiliation towards a group or political institution. If the refugee is able to request Malaysian citizenship - presuming he/she was granted for it, he/she will then become a citizen of Malaysia via the naturalisation and assimilation process under Article 19 of the Federal Constitution. If this occurs, he/she then will be granted the same liberties as other Malaysians granted under Article 5 to 13 in the Federal Constitution.

( Rohingya Refugees Stranded In The Ocean Near Malaysia | Credit : AFP/Januar )

MALAYSIA'S POLICY ON REFUGEE

As not a state member of the 1951 Convention and the 1967 Protocol, refugees and asylum seekers are often considered as unlawful immigrants under the law which governs this issue - Immigration Law of 1959/1963. Despite having a UNHCR card to prove the validity of stay in Malaysia, the majority of refugees in Malaysia are still viewed as illegal residents. Hence, the probability to be deported to the origin country is most likely to happen.

Let us go back in time and have a historical journey. Malaysia does have few records in hosting refugees from Indonesia, Bosnia and Myanmar throughout the 1970s to 1980s. In 1991, the Malaysian government had started implementing ‘pass card’ and IMM13 permits which grants Rohingyans the stay up to six months before they arrived in 1992. However, this policy changes when many illegal immigrants involved themselves in criminal activities and border threats. Hence, Malaysia reformed its foreign worker policy by taking away their permission to work and deport them back to their country of origin after the Asian financial crisis in 1997. With thousands of Rohingyans coming to Malaysia, the government imposed a ‘zero tolerance policy’ in 2002 which lead to refugees, asylum seekers, migrant workers or illegal immigrants to be imprisoned up to 6 months. Consequently, in 2005, the government carried out an operation under the Immigration Act of 1959/1963. The punishments and circumstances allowed got stricter which allows Malaysian security taskforces such as police, army and immigration officers to constantly checked passports on the streets to deport any illegal Rohingyans by arresting them if they do not have any valid travel document. Later on, the government granted more permits up to 2006 in which the registration process involved of few Rohingyan representatives performing it rather than UNHCR. This cause the suspension of thousands of applications in 17 days for the allegation of corruption and fraud. However, 11000 Rohingya refugees are granted temporary protection with the aid of UNHCR in Kuala Lumpur. This indicates that the government is willing to provide certain temporary protection, work permission and smooth deportation process up until 2008. As stated earlier, Malaysia has yet to recognise nor have any legal framework to protect refugees. However, Malaysia has been very vocal in expressing their concerns over the persecution of Muslim Rohingya refugees made by the violence in Myanmar. For short, Malaysia’s policy on refugees are more liberal in the 1970s to 1980s but changed gradually due to socioeconomic problems brought by illegal Rohingya immigrants. After the Rakhine crisis in 2012, Malaysia looks forward to a realist policy towards this community by adopting several rejectionist policies against them².

This situation can be explained further with a relevant case law that I am able to find - Tun Naing Oo v. Public Prosecutor [2009] 5 MLJ 680³. The applicant was Tun, an asylum-seeker from Myanmar. He fled to Malaysia and registered with his own community group which is the Alliance of Chin Refugees. However, during the Ops Belanja operation, Tun was arrested when he was selling computers and accessories. He was charged under s 6(1)(c) of the Immigration Act 1959/1963 for entering Malaysia illegally. The session court sentenced him to 100 days imprisonment and 2 strokes of whipping. Hence, he appealed to the court with the argument that the strokes were unnecessary and cause more damage to him. The court held to set aside the sentence of 2 strokes of whipping on the premise that it is not justified as he did not commit a crime when he was arrested. The judge clarified that it is inhumane for us to give an asylum-seeker or refugee such whipping punishment as it is going against the humanitarian principles. The punishment was of no use and only add more suffering to him as he was to avoid pressure and persecution in the origin country. After the punishment, he will be deported to a third country with the help of UNHCR.

RECOMMENDATION

I believe there are several solutions to address this issue, as after all refugees and asylum seekers are still a human being. Firstly, if it is in the interest of the nation and with available resources, it is best for the government to ratify both, the 1951 Convention and 1967 Protocol. Although calling out Myanmar for its action is not permissible due to the doctrine of sovereign immunity ( an action being done by the government cannot be condemned or call out by other country’s government due to respect in the concept of sovereignty) and the principles lied under ASEAN Charter, Malaysia can discuss among the delegate representatives in the council to form pragmatic measures so that the refugee which is currently floating around the South China Sea can have better welfare treatment. In addition, Malaysia has to tighten the borders of the country and detect such activities happening in our sea territories so action can be taken by the government or UNHCR. However, if it is not permissible to do so, several amendments on our current legislation will help to improve the community better. Firstly, using the power granted under Section 55 of the Immigration Act, the Minister of Home Affairs should legalise their presence in Malaysia. With this, they are able to get more liberties that can be beneficial to our society too. For example, in the time of such pandemic, they can have access to the local government clinics to get medicine. If such action will be taken for, illegal immigrants (PATI) issues can be eliminated easily. Secondly, ensure NGOs and humanitarian bodies assist in helping the welfare of the refugees to ensure their rights are protected⁴. This is stated as issues on legal counsels being represented for this community is very prevalent and not many lawyers are willing to pro bono on a case as such. Hence, these bodies can become a backbone for these communities to not be discriminated further in the host country i.e Malaysia. Lastly, it is best to create a joint committee between the Ministry of Home Affairs, Ministry of Women, Family and Community Development and Minister of Human Resources to facilitate the issue on welfare and work for refugees better. Thus, this can combat issues such as illegal immigrants and criminal cases ie raping and theft by this community. As a conclusion, refugees, illegal immigrants, asylum seekers or economic migrants stems in one group - human beings which are similar to us. As a human being, we have a moral duty to take care of this community. However, there is no legal duty for us to do so due to the country not ratifying the 1951 Convention and 1967 Protocol. Acts such as discriminating the refugees for not being able to go to mosques during the PKPP, I believe was atrocious to do so as it undermines the community. Calling such actions is encouraged to check and also balance the government's policy. For instance, on this occasion, it is stated that it was an act of national security. I supposed, for me, it is a reasonable answer but words must also be exemplified by actions. Hopefully, the welfare of the refugees will get better not only physically but mentally. This means the negative stereotype towards them should also gradually eliminated in our society. After all, their fights are strong - if not, stronger than us; to survive and not get prosecuted is not an easy task especially when you take into accordance their journey. I will finish this article with an essence by Pope Francis for you to ponder on, 'migrants and refugees are not pawns on the chessboard of humanity; they are children, women and men who leave or who are forced to leave their homes for various reasons - who share a legitimate desire for knowing and having but above all for being more'.

REFERENCES CITED

[1] Jan, M. N. I., Mohamed, A. A. A. & Ahmad, M. H. (2018). Recognition and Protection of Refugees in Malaysia. Eurasian Journal of Analytical Chemistry; 13(6), p. 249-258.

[2] Yesmin, S. (2016). Policy Towards Rohingya Refugees: A Comparative Analysis of Bangladesh, Malaysia and Thailand. Journal of the Asiatic Society of Bangladesh (Hum.); 61 (1), p. 71-100.

[3] Tun Naing Oo v. Public Prosecutor [2009] 5 MLJ 680

[4] Nasir, S. M. B. Y. @ M., Salleh, M. A., & Haque, M. M. (2019). Malaysian Policy towards Refugees and Asylum Seekers: A Case Study of Rohingya Refugees. International Journal of Academic Research in Progressive Education and Development; 8(3), p. 110–117.

Elisa Shafiqah is a Foundation in Law KPTM of UiTM Centre of Foundation Studies, Dengkil graduate and author of From Elisa's Desk. The views expressed here are entirely the author’s own opinions and it does not purport to reflect the views of any institution.