Episode 9: Refugees in Malaysia: Between Humanity and Legality

A group of Myanmar refugees were deported back to their country by the Malaysian government despite an interim order from the court.

The issue of refugees has been an unsettled debate ever since. In this episode, we will be discussing the legal position of refugees, and providing our insights towards the issue.

INTRODUCTION

According to Article 1 of the 1951 Convention Relating to the Status of Refugee (1951 Refugee Convention), refugees are those who are unable or unwilling to return to their country of origin due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Also, the United Nations High Commissioner for Refugees (UNHCR) is a United Nations’ agency initiated to aid and protect refugees. As of January 2021, there is a staggering number of 178,710 refugees registered with UNHCR in Malaysia. They comprise mostly Rohingyas who fled persecution in Myanmar due to their ethnicity (UNHCR, 2021). Others include Pakistanis, Somalis, Syrians, and Yemenis.

Recently on 1st February 2021, the Malaysian government had openly disregarded the interim court order by deporting a total of 1086 Myanmar refugees back to their country. This very action is heavily lambasted as inhumane by human rights groups and it raises grave concern on the violation of human rights. However, the High Court decision on 9th March which allows the challenge by two Non-Governmental Organisations (NGOs) to overturn the government’s decision is said to have restored some faith amongst this pandemonium. Hence, the writers wish to enlighten the readers on the issues of refugees in Malaysia to shed light on their predicament at this very crucial time.

LEGAL POSITION

Internationally, refugees are protected by the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees (1967 Protocol). These Conventions are drafted by the United Nations (UN) General Assembly in the form of a contract open for ratification by countries. The 1951 Refugee Convention and 1967 Protocol list down the rights and obligations of both the refugees and the contracting countries (Chia, 2018). Upon becoming a contracting party, it becomes an obligation to treat the refugees differently from illegal immigrants and provide them with sufficient aid and education to survive in the new asylum country. However, it is rather unfortunate that Malaysia has yet to be a party to the treaty despite repeated urges from various NGOs to ratify the 1951 Convention and 1976 Protocol.

What exacerbates this matter is that there are no domestic laws which govern refugees concerning their status, protection and identification in Malaysia. Although the interpretation of ‘person’ under the Federal Constitution is broad enough to extend certain fundamental rights (Part II) such as the right to equality before the law (Article 8) and the right to legal representation (Article 5) to refugees, its actual application is very limited to date. Nevertheless, Malaysia is still legally bound by the non-refoulement principle that prohibits the repatriation of refugees to their countries of origin as part of the customary rule of international law. To recapitulate, there is no law that recognizes the status of refugees as resident in Malaysia but in general, they are secured from facing deportation.

Women and children refugees are entitled to the additional protection under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and section 22 of the Convention on the Rights of the Child (CRC) that obligates the sheltering of refugee children. Nonetheless, the reality is that Malaysia fails to fulfil its legal obligation under CEDAW and CRC to provide rights including legal status, safety and lawful employment, formal education and equal protection of the law. As for the unlucky few who fail to be identified by the UNHCR, they are constantly at risk of being arrested, detained, exploited and deported (Hector, Madpet, 2019).

THE UNHCR AND NGOs

Leading the effort to aid the refugees despite the limited resources, UNHCR Malaysia always overwatch the Malaysian government in term of their compliance towards the international humanitarian law, especially the non-refoulement principle in treating the refugees; as well as liaising with them through several proposals with hopes to aid the refugees, eventually ratifying the 1951 Refugee Convention and 1967 Protocol (UNHCR, 2013). Significantly, they are immensely active in the refugee status determination (RSD), a process to trace and determine the refugees scattered in the States of Malaysia, issuing identities and providing asylum for them. Not only that, UNHCR Malaysia is always keen on monitoring detention facilities accompanied by works to secure the release of refugees. At the same time, they will provide supporting health, education, community self-reliance programmes, and promoting durable solutions for refugees and asylum-seekers (UNHCR, 2018).

In the span of 10 years between 2010 and 2020, more human rights-based NGOs such as A Call To Serve (ACTS), Buddhist Tzu Chi Foundation, Malaysian Social Research Institute (MSRI), The Asia Pacific Refugee Rights Network (APRRN), International Detention Coalition (IDC) and many more decided to join forces with UNHCR Malaysia, ensuring the protection of refugees and asylum seekers in this country (Chia, 2018). However, due to the absence of any domestic law and non-obligation to comply with international human rights law, there are no clear guidelines or laws with regard to the refugees in this country. Hence, its enforcement is often inconsistent and arbitrary.

ISSUES

Due to the lack of specific domestic law, the refugees are mainly governed under section 6 of the Immigration Act 1959/63 which does not distinguish between refugees and illegal immigrants. Consequently, the refugees are very vulnerable to arrest by the public authority (UNHCR, 2011). Thousands of refugees and migrants were detained during a series of raids last year in Enhanced Movement Control (EMCO) areas. Despite Immigration Detention Centres (IDCs) being categorised as “high-risk areas” for the transmission of the virus, the arrests of refugees continued and led to the outbreak of COVID-19 in various IDCs (HRW, 2020). Although the government reassured that no refugees and undocumented migrants would be detained to encourage COVID-19 screening among them, more than 8,000 refugees and migrants were arrested between May and November last year, with 281 of them deported while the rest remaining in IDCs (Albian, 2020).

Since there is no relevant administrative framework, UNHCR takes up the tasks to conduct "all activities related to the reception, registration, documentation and status determination of asylum-seekers and refugees''. However, UNHCR faces critical underfunding all around the world, with a funding gap of 51% in 2020 (UNHCR, 2020). Except the funding shortfall, UNHCR Malaysia also faces obstruction from the government. Among 1,086 Myanmar nationals who were deported despite court order, three of them are UNHCR document holders and 17 minors have at least one parent still in Malaysia (FMT, 2021). Since the Pakatan Harapan era, none of the officials from UNHCR are allowed to approach the detainees (Amnesty, 2021).

Currently, there are 25,499 refugees under the age of 18, with 23,823 of them at school-going age. The right of children to education is recognised by Malaysia through Article 28 of Convention on the Rights of the Child, which covers free primary education, accessible secondary and higher education. Regrettably, only 30% of them are receiving education in 133 community learning centers. The main issues identified in those learning centers are (i) wages for refugee teachers, (ii) transportation for refugee children, (iii) payment of utilities and rent of school premises, (iv) school meals, (v) paperwork and (vi) teaching equipment (Suzarika, 2020). Even if all these issues are resolved and a parallel education system is constructed, the system is left without relevant accreditation and certification from the government (Rajaendram, 2015).All these factors contribute to a high dropout rate among the refugees and low willingness for the teachers to be involved in the programme.

The refugees, even if verified with UNHCR ID cards, are unable to work legally in the formal sector with fixed salary (UNHCR, 2021). The discussion in the Cabinet continues since the Pakatan Harapan's era and no decision has been made on whether the refugees can work in the formal sector (NST, 2020). With no protection of workers' rights, the refugees may be exploited for working overtime without receiving minimum wage. Many of them operate ‘hazardous equipment or handle dangerous chemicals’ without protection or sufficient knowledge of how to protect themselves. When facing physical or verbal abuse by the employer, the refugees are reluctant in seeking help due to the lack of legal status (Amnesty, 2010).

Furthermore, the existence of refugees may be regarded by some as a burden to the nation, especially amid the pandemic where the unemployment rate increases and economic growth halts. The negative attitudes are directed toward the refugees or even the legal immigrants, as what is happening in Europe in the last 10 years. Politically, the issues of refugees might become the stepping stones for the rise of far-right populism and xenophobic sentiment. The politics of fear stirs a sense of dissatisfaction among locals. For instance, the largest wholesale market under Kuala Lumpur City Hall (DBKL) has barred the refugees from entering to prevent the perception of the public where the market is ‘unclean’ (The Star, 2020).

SOLUTIONS

The previous government under Pakatan Harapan had promised to ratify the 1951 Refugee Convention. Sadly, the promise remains in the manifesto. Given the opposing forces exerted on Pakatan Harapan’s intention to ratify other international treaties and conventions, especially the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the government might be reluctant to sign other conventions as promised at the moment (Saqib, 2019). Back in 1993 till 1998, Malaysia was a member of UNHCR and was even elected as Chair of the 52nd session of UNHCR (Aslam, 2014). Considering the fact that our country is a strong advocate of the Palestinian and Syrian cause at the international level, the refugees on our own land should not be forgotten as well.

With the political and social restraints, the recognition of the convention and its protocol is impossible at this particular period. However, the government may undertake the plan of the former Home Affairs Minister in July 2013, which allows the UNHCR card holders to remain temporarily in the country without facing risks of being arrested, imprisoned or deported for purposes of immigration (Suzarika, 2020). The functions of the UNHCR card can be further extended to allow the holder to be employed in formal work entitled to workers’ rights. In Malaysia, working in the building and manufacturing sectors are not favourable and businesses are heavily dependent on labours from foreign countries. Establishing this solution will not only solve the lack of manpower in Malaysia’s labour markets, but also provide economic benefits to the government, and to businesses in the form of taxes and money transfers, respectively. This is further supported by the report from the Institute for Democracy and Economic Affairs in 2019 that refugees have the potential to increase over RM3 billion to the Malaysian Gross Domestic Product (GDP) through tax revenue in the next five years. Not only that, the securing of formal jobs will also prevent the refugees from resorting to crimes for a living (Lokman, 2016).

Next, Malaysia is obligated under Article 28 of the CRC to provide free primary education to all child refugees. The education opportunity to secondary and tertiary education must also be made available and accessible. This means that the children should be allowed to attend public schools funded by the government. As a transitional period, the government may cooperate with the local community schools such as Sekolah Alternatif, CFF Children’s Home, Matakana Learning Centre Beaufort that are managed by the NGOs to re-enhance the wellbeing of the refugee children. As of now, UNHCR Malaysia has signed the Memorandum of Understanding (MoU) with six private universities and colleges. Currently, there are 48 refugees pursuing their higher education in the country (UNHCR, 2021). We believe that this initiative shall be broadened to include more private universities as well as government-linked universities.

Ultimately, the public’s perception towards refugees has to be changed, especially in times where refugees are being viewed negatively by the media. The media, be it mainstream or independent, printed or digital, is the component of our society that may determine the perspective of the whole society. The tone used and the content reported influence the view of the public. For instance, the British press are more inclined to shape the refugees as ‘potential threats to culture, welfare, security and the health system’ in contrast with Sweden and Germany (Helen & Karen, 2017). Thus, it is important for the media to create awareness among the members of the public towards the refugees. The civil society organisations (CSOs) on the other hand may play their role by assisting UNHCR in identifying the refugees within the country, as well as providing legal assistance to the refugees when needed. Research shows that 70% of people ranked ‘talking with friends and family’ as their main influence on refugee and migration issues (Helen & Karen, 2017). Constructing a bridge between the local community and the refugees through public events may facilitate the communication between both parties, as well as assisting the integration of refugees into the Malaysian society.

CONCLUSION

It would be rather unfair to say that the government has contributed nothing in aiding the refugees. Since the pre 2010's era, the government has cooperated with UNHCR to identify the issues of refugees, giving the status of Malaysia as a transit country (UNHCR, 2013). However, over 10 years had lapsed and such governmental efforts were often criticized as inconsistent and inefficient because the refugees are constantly at the risk of being deported notwithstanding the existence of non-refoulement principle (Human Rights Watch, 2021). In our humble opinion, the refugees shall be given access to formal education and working opportunities. Education is vital as their community will be able to improve themselves and become better individuals; and on the other hand, decent job opportunities will enable them to raise their family with their own capabilities and minimise the chance of them causing social problems, which is an issue the locals are most concerned with upon receiving the refugees.

The principle of fundamental liberties should be practised by fellow Malaysians. Living totally different lives from Malaysians, it is not only inhumane but also cruel to deport the refugees to another war-torn destination or to their homeland, as this only further jeopardizes their life, which they have been fighting for courageously. Looking from a global perspective, first world countries like Canada, United States of America, Australia and the United Kingdom resettled the largest number of refugees in 2018. From the third world countries perspectives, Lebanon, Jordan, Turkey, Liberia and Uganda are top five countries that host most of the refugees as of 2020 respectively, where one in four people in Lebanon is a refugee (Christophersen, 2020). It is time for Malaysia to join the global train in providing resettlement for the refugees and asylum-seekers through recognising their refugee status as a legal status, by giving them access to formal education and job opportunities on the basis of human rights, as long as it is fit to do so.

There will never be an ideal policy that could satisfy all concerned parties, nor will there be complete positive support from the community upon the recognition of legal status of the refugees. However, the refugees, very much like us, should be treated fairly, equally and with dignity. As a very first step, domestic laws and strict regulations should be introduced upon receiving them as part of our community, minimising any possible negative influences on the people’s lives.

REFERENCES

Legislation

Federal Constitution

Immigration Act 1959/63 (Act 155)

Cases

The Gambia v Myanmar, ICJ

Conference Papers

Renuka, T.B. Protection in Malaysia and The Rule of Law. Conference on Refugee and Forced Migration Research, hosted in October 2017 at The University of Melbourne. Retrieved from, https://refugeeresearchonline.org/protection-in-malaysia-and-the-rule-of-law/

Convention

1951 Refugee Convention

1967 Protocol Relating to the Status of Refugees

Journal Articles

Hamdan, A. (2012). Refugee Issues in Malaysia: The Need for a Proactive, Human Rights Based Solution. Malaysian Journal on Human Rights. 6. 24-41. Retrieved from http://www.suhakam.org.my/wp-content/uploads/2013/11/Binder1.pdf

Suzarika, S, Rohaida N. & Ma K.I. (2020). The plight of refugees in Malaysia: Malaysia as a transit country in protecting refugees’ rights. Journal of Nusantara Studies, 5(1), 378-394. Retrieved from https://journal.unisza.edu.my/jonus/index.php/jonus/article/view/507/260

Online Articles

Christophersen, E. (2020). These 10 countries receive the most refugees. Norwegian Refugee Council. Retrieved from https://www.nrc.no/perspectives/2020/the-10-countries-that-receive-the-most-refugees/

Chia, S.W. (2018, September 18). Refugee Law in Malaysia. Chia, Lee & Associates. Retrieved from https://chialee.com.my/knowledge-hub/refugee-law-in-malaysia

Daniel, T., & Yasmin, P. N. A. (2020). The Impact of Covid-19 on Refugees and Asylum Seekers in Malaysia. The London School of Economics and Political Science. Retrieved from https://blogs.lse.ac.uk/seac/2020/10/08/the-impact-of-covid-19-on-refugees-and-asylum-seekers-in-malaysia/

Kim C.H. (2020). Challenges to the Rohingya Population in Malaysia. Center for Strategic and International Study. Retrieved from https://www.csis.org/blogs/new-perspectives-asia/challenges-rohingya-population-malaysia

Loiacono, F., & Vargas, M. S. (2019, July 18). Improving Access To Labour Markets for Refugees: Evidence from Uganda. International Growth Centre. Retrieved from https://www.theigc.org/wp-content/uploads/2019/10/LoiaconoSilvaVargas-Final-Report5.pdf

Online Newspaper Articles

Al Jazeera. (2020, May 1). Malaysia ‘detains migrants, refugees’ amid coronavirus lockdown. Retrieved from https://www.aljazeera.com/news/2020/5/1/malaysia-detains-migrants-refugees-amid-coronavirus-lockdown

Al Jazeera. (2021, March 9). Malaysia court allows challenge to Myanmar nationals’ deportation. Retrieved from https://www.aljazeera.com/news/2021/3/9/malaysia-court-allows-challenge-to-myanmar-nationals-deportation

Bernama. (2021, March 9). Myanmar refugees, Two NGOs obtain leave to proceed with legal action. Malay Mail. Retrieved from https://www.malaymail.com/news/malaysia/2021/03/09/myanmar-refugees-two-ngos-obtain-leave-to-proceed-with-legal-action/1956295

Fortify Rights. (2020, June 23). Malaysia: End Immigration Raids and Detention, Support Migrants and Refugees Amid COVID-19. Retrieved from https://www.fortifyrights.org/mly-inv-2020-06-23/

Hector, C., Madpet. (2019, June 21). Malaysia Needs a Law on Refugees, Asylum Seekers. Malaysiakini. Retrieved from https://www.malaysiakini.com/letters/480541

Malay Mail. (2020, August 4). Home minister says no idea how the UNHCR card works, documentation not recognised by Putrajaya. Retrieved from https://www.malaymail.com/news/malaysia/2020/08/04/home-minister-says-no-idea-how-unhcr-card-works-documentation-not-recognise/1891039

Malaysiakini. (2019, November 9). Cabinet will decide if refugees are allowed to work in Malaysia. Retrieved from https://www.malaysiakini.com/news/500354

The Star. (2020, April 30). Rohingya refugees have no right or basis to make demands, says Home Minister. Retrieved from https://www.thestar.com.my/news/nation/2020/04/30/rohingya-refugees-have-no-right-or-basis-to-make-demands-says-home-minister

The Star. (2020, June 14). Malaysia not fulfilling legal obligations in treatment of refugees. Retrieved from https://www.thestar.com.my/opinion/letters/2020/06/14/malaysia-not-fulfilling-legal-obligations-in-treatment-of-refugees

The Star. (2020, June 23). DBKL clears air over controversial notice barring refugees from wholesale market. Retrieved fromhttps://www.thestar.com.my/metro/metro-news/2020/06/23/dbkl-clears-air-over-controversial-notice-barring-refugees-from-wholesale-market

The Straits Time. (2021, February 18). Malaysia says undocumented migrants will not be arrested during mass Covid-19 vaccination programme. Retrieved fromhttps://www.straitstimes.com/asia/se-asia/malaysia-says-undocumented-migrants-will-not-be-arrested-during-mass-vaccination

Reports from Organizations

Human Rights Watch. (2021). Malaysia: Investigate return of 1,086 Myanmar nationals. Retrieved from https://www.hrw.org/news/2021/02/24/malaysia-investigate-return-1086-myanmar-nationals#:~:text=On%20February%2023%2C%202021%2C%20the,navy%20for%20return%20to%20Myanmar.

The Royal Institute of International Affairs. (2017). Understanding public attitudes towards refugees and migrants. Retrieved from https://euagenda.eu/upload/publications/untitled-92767-ea.pdf

UNHCR, the UN Refugee Agency. (2021). Figures at a glance in Malaysia. Retrieved fromhttps://www.unhcr.org/en-my/figures-at-a-glance-in-malaysia.html

UNHCR, the UN Refugee Agency. (2001). Frequently asked questions about the 1951 Refugee Convention.Retrieved from https://www.unhcr.org/news/stories/2001/6/3b4c06578/frequently-asked-questions-1951-refugee-convention.html#_Toc519482140

UNHCR, the UN Refugee Agency. (2013). Malaysia, UNHCR Global Appeal 2012-2013. Retrieved from https://www.unhcr.org/afr/4ec23106b.pdf

UNHCR, the UN Refugee Agency. (2018). Protection in Malaysia. Retrieved from https://www.unhcr.org/afr/4ec23106b.pdf

Websites

(n.d.). Introducing Asylum Access in Malaysia. Asylum Access Malaysia. Retrieved from https://asylumaccess.org/where-we-work/malaysia/