The author wrote a small piece to inform the public of the plight of refugees in Malaysia while referring to a few international reports, surveys and publications. The article was edited down owing to space constraints before being sent to the local press. It was published in the on July 23, 2009. This is the full article.
We have refugees in Malaysia. This is a fact. As Malaysians, we cannot turn a blind eye.
But what exactly is a refugee? The 1951 Convention Relating to the Status of Refugees (the Convention) is a body of international law approved by the United Nations which defines a refugee as a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, owing to such fear, to avail himself of the protection of that country (Article 1 of the Convention).
A “refugee” is not an “economic migrant”. An economic immigrant is a person who has left his country seeking a better life and could always return back to live peacefully. If caught without travel documents here, he would then be subjected to Malaysia’s immigration laws and would be an “illegal immigrant”.
A refugee on the other hand will be faced with the threat of persecution upon return. In other words, refugees are here in Malaysia not out of choice but out of necessity. As refugees have fled their country, they lack the necessary travel documents.
The 1951 Convention outlines the rights of a refugee and has been signed by 147 countries. Malaysia is not a signatory.
Section 6 of the Malaysian Immigration Act 1959/63 imposes a term of imprisonment not exceeding 5 years and whipping for anyone caught without an entry permit while Section 32 of the same Act allows for deportation of those convicted under Section 6.
It is in this regard that Malaysia continues to arrest refugees under its immigration laws and deport them back.
This is a draconian if not unnecessary punishment for someone escaping persecution. Penalties afforded by the law should serve to rehabilitate the offender not add further psychological and physical trauma.
It should be noted that Article 33 of the Convention stipulates that a refugee is not to be returned (non-refoulement) to his country of origin as his life or freedom would be threatened.
In Malaysia, the Office of the United Nations High Commissioner for Refugees (UNHCR) began it operations in the 1970’s during the arrival of the Vietnamese refugees who were escaping persecution in Vietnam.
UNHCR conducts all activities related to the registration, documentation and status determination of asylum-seekers and refugees in Malaysia. This entails an interview and investigative process that thoroughly assesses all refugee applications to ensure the validity of the claims. It is through this that UNHCR ensures a person has a valid claim for refugee status. A refugee is defined according to the Convention. It should be stressed that identity cards are not issued indiscriminately but all applications are subjected to a thorough investigative process.
To date, the UNHCR has registered more than 45,000 persons of concern consisting of Burmese, Sri Lankans, Iraqis, Somalis and Afghans. The Burmese tally the highest as most flee the repressive Burmese military junta (http://www.unhcr.org.my/cms/basic-facts/statistics).
Aside from evading arrests, refugees have various other afflictions. Fifty Refugees (http://fiftyrefugees.wordpress.com/) is a blog that provides real life accounts of the hardships suffered by refugees in Malaysia; refugees have to scrounge for jobs, they suffer abuse by employers, many are victims of robberies, men are beaten, women are raped and children displaced. They have no legal standing in this country and therefore no recourse to the law.
The Federal Court in Government Of Malaysia & Ors v. Loh Wai Kong [1979] 2 MLJ 33 held that Article 5(3) of the Federal Constitution does indeed apply to non-citizens when arrested – that they be informed of the grounds of arrest and be allowed to consult a lawyer – this is unfortunately never adhered to by arresting parties i.e. Immigration Department officials and RELA.
As reported by the Star (February 8, 2009), the US Senate Foreign Relations Committee highlighted early this year that Malaysian immigration officials are themselves complicit in the “sale” of people to traffickers.
A report submitted to the US Senate Foreign Relations Committee in April 2009 by US Senator Richard Lugar entitled “Trafficking and Extortion of Burmese Migrants in Malaysia and Southern Thailand” details human trafficking in Malaysia. Refugees are often arrested and detained even if they possess a UNHCR card and are later taken by Malaysian Government personnel from detention facilities to the Malaysia-Thailand border for deportation.
The report states that upon arrival in the border, traffickers seize deportees and issue ransom demands. Freedom is only possible upon the meeting of these demands. The report adds that those unable to pay are sold off to human peddlers in Thailand; enduring forced labour in fishing boats or brothels.
The 2009 World Refugee Survey lists Malaysia together with South Africa and Gaza as the “Worst Places for Refugees”. The Amnesty International Report 2009 on the State of the World’s Human Rights comments on the beatings succumbed by refugees and the deplorable conditions at our immigration centres.
These findings have brought Malaysia into significant disrepute. We cannot continue to label ourselves as “Malaysia, Truly Asia” while hypocritically engaging in vile and inhumane acts against our Asian neighbours.
Such disgusting behaviour is indeed highly unbecoming of a nation that wants to be a first world country in line with its “Vision 2020′” We have to put all the rhetoric aside and learn to radiate the humanness within our hearts.
The Government recently enacted the Anti-Trafficking in Persons Act 2007 to provide for the offence of trafficking in persons as well as protection and support for trafficked persons but implementation has been pathetic. Prosecution is slim and there is still no recognition for refugees. In fact, Section 54(3) of the said Act permits the immigration department to return trafficked persons to their country of origin, violating the principle of non-refoulement.
The Sabah Daily Express (March 12, 2007) reported the then Foreign Minister Syed Hamid Albar saying, “If we recognise refugees, we could open the floodgates and encourage them to come here just to escape economic hardship in their own country”. While being completely ignorant to who a refugee is, the Malaysian Government has yet again shown great apathy, immaturity and self-centeredness in dealing with humanitarian and international crises.
I certainly hope this isn’t a reflection of the Malaysian conscience.
Government aside, the Malaysian public must strive to make themselves aware of the plight of refugees domestically and internationally while endeavoring to assist where possible. We cannot disregard the curtailment of human rights and democracy in Malaysia or foreign lands.
“Transparency” is essential to raising awareness; the more Malaysians know how refugees are treated in detention centres and the courts, the louder our support for them will be. Media access to immigration courts must at all times be unhindered in line with Section 101 of the Subordinate Courts Act 1948 and Section 7 of the Criminal Procedure Code.
We must also be mindful and ethical in our dealings with foreign powers. The May 2008 edition of the New Internationalist magazine reports that Burmese generals have stashed their loot in Malaysia. This must be investigated immediately for if it were to be true then we, Malaysians, are complicit in the suffering of the Burmese people.
We are fortunate to be Malaysians and have a Constitution that guarantees all freedom of speech and equality. We know what it feels like to be treated with dignity. We understand truth, justice and freedom. We must now afford that privilege to everyone else, live by our conscience and use our liberty to promote democracy.
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