(1.0) Introduction
In Malaysia, we do not accede to the Convention Relating to the Status of Refugees 1951 (the 1951 Convention). Therefore, refugees entering our country are not safeguarded with fundamental rights (to a certain extent).
(1.1)
Historical Context
As between 1975 to 1996, Malaysia received 250,000 Vietnamese
refugees. 50,000 Filipino Muslims from Mindanao also came between the 1970s to
1980s. Moreover, Bosnians also came to Malaysia in the 1990s.
Last year, Malaysia was startled by the Al-Jazeera incident of news report related to ill-treatment of refugees and migrant workers. Some of them included the Rohingyas. The Rohingyas came to Malaysia from Myanmar as early as the 1990s from the Arakan region.
By mid-2009, the UNHCR states that there were 16,000 Rohingyas in Malaysia, registered with UNHCR. Probing the issue of refugees, influx of refugees are from the aftermath of wars and conflict from their country of origins.
(1.2)
International Refugee law and definition of refugee
The creation of 1951 Convention applies
geographically everywhere. The extension was made by the 1967 Protocol
Relating to Status of Refugees. The body supervising those two
treaties are the United Nations High Commissioner for Refugees (UNHCR),
established in 1949 as under article 35 of the 1951
Convention.
UNHCR also has to report state compliance under paragraph 8 of the UNHCR statute, including Malaysia. However, they cannot compel Malaysia as we do not sign the mentioned treaties. Therefore, they only monitor and report our refugee activities only.
We have UNHCR Malaysia situated in Kuala Lumpur and they have been here for around 35 years. Unfortunately, UNHCR Malaysia carries out their power to register refugees in Malaysia without legal recognition, but from oral policies and courtesy from the government.
Currently, article 1A(2) of the 1951 Convention defines ‘three ingredients’ for refugees;
(i)
Refugees
to be persons outside his country of nationality or habitual residence for
those without nationality.
(ii)
They
are also those who fear persecution on grounds of race, religion, nationality,
social group or political opinion.
(iii)
Additionally,
persons who are unable or unwilling to obtain protection from his country of
nationality.
Those are the three ingredients of article 1A(2) of the 1951
Convention to constitute who is a refugee.
Rohingyas are refugees, since they fulfil the three ingredients. They are ‘persons’ outside his country or habitual residence, they are ‘persecuted’ for their race and religion. They also ‘could not obtain protection’ from their own country, since their country is the oppressor.
(1.2.1) International Human Rights of Refugees
The 1951 Convention provides for a compendium of rights for refugees as between articles 13-34, among them including the following; right to engage in wage earning, industrial property and artistic rights…
…rights to association, access to courts, right to wage earning, self-employment, exercise of liberal professions, right to rations, right to housing and education, public elementary education, social security, administrative assistance, exempted from penalty upon illegal entry, will not be sent back from the persecuting state (refoulment) and facilitate assimilation and naturalization.
(2.0) Malaysia’s perspective on to the 1951 Convention?
According to Davies (2006), there are several theories proposed. When the 1951 Convention was created, Malaysia have not reached independence and not part of the drafting process in the Conference of Plenipotentiaries.
Generally, Asian countries are not prepared to embrace laws for refugees. There would also be political, economic and social constraints for rejection by Asian countries. This is apparent as xenophobia and limited financial resources to cater thousands of refugees are pervasive.
(2.1)
Malaysian law on the refugee issue
In Malaysia, there are two types of migrants. They are (i) documented
and (ii) undocumented migrants. Hence, refugees are deprived of basic
human rights as enumerated under the 1951 Convention.
Refugees would usually be prosecuted and are considered to be illegal migrants instead, unless registered with a UNHCR card and become documented migrants. Refugees only depend on efforts by UNHCR Malaysia and non-governmental efforts, for legal aid to eschew criminal conviction under Malaysian law.
In Iskandar v PP, a 17-year old boy was acquitted as he was represented by the UNHCR in trial. The prosecutor retracted the charge when the boy was mandated under the protection of the UNHCR.
The Immigration Act 1959/63 (the Act)
This law that regulates migrants entering into Malaysia. Non-Malaysians are able to enter if he has a valid Entry Permit, name endorsed upon valid Entry Permit and or is in possession of a valid Pass. (Section 6(1) of the Act)
Moreover, immigration officers could also arrest and detain refugees with the same powers as a police officer under section 39 of (the Act). The Minister has power to exclude persons being subjected to this statute under section 55 of (the Act), particularly application of section 6(1).
For instance, in 2006, Rohingyas holding the IMM 13 permit were exempted under the Act, but was later revoked due to abusive registrations.
For the penal offence, section 6(3) of (the Act) provides for illegal entry. They could be fined not exceeding RM10,000 or imprisonment not exceeding 5 years or both and also liable for whipping, not exceeding 6 strokes!
In the Subramaniyam Subakaran case, a Sri Lankan was charged under section 6(1) of (the Act). The Kulim Magistrates Court found him guilty. He was sentenced to four months imprisonment and one stroke of rattan.
The Bar Council Legal Aid Centre and Kedah/Perlis Bar Committee wrote to the High Court to revise section 323(1) of the Criminal Procedure Code that the accused was registered with UNHCR as an asylum seeker under the 1951 Convention and 1967 Protocol.
The High Court affirmed the decision in the Magistrate Court, that the 1951 Convention and 1967 Protocol are not binding on Malaysian Courts. Asylum seekers and refugees are strictly bound to follow Malaysian law as under section 6(1) and 6(3) of (the Act).
Contrasting with the Iskandar case, both decisions on UNHCR status contradicts. However, the argument for UNHCR refugee recognition is consistently accepted in our courts, while maintaining that international conventions are not binding.
Malaysia’s Commitment to CEDAW and CRC
Malaysia signed CEDAW and if no refugee law exists to help them, the government should assist them. Though, CEDAW has not been legislated into Malaysia, our country is encouraged to commit to it, as stated in the Norfadilla bt Ahmad Saikin case.
Female refugees are prone to harassment, extortion, refoulment, poor sanitation, inadequate food, water, medical care in detention and vulnerable to diseases and death. They should have the right to work too. It was reported that two dozen refugees and asylum-seekers died in detention.
Article 2(1) of the CRC (Malaysia signed) also ensure the rights of all children within its jurisdiction without discrimination of any kind. Malaysia reserved this article unfortunately. This leaves children and women exposed, which the burden is left to UNHCR Malaysia and NGOs.
(2.1.1) Malaysian Fundamental Rights for refugees
It is profound that, without a refugee law in Malaysia, we still protect their rights under our Federal Constitution to a certain degree.
Article 8 of the Federal Constitution (Equality)
In Ali Salih Khalaf v Taj Mahal Hotel,
the plaintiff was a receptionist at the Taj Mahal Hotel in 2010. He was registered
under UNHCR. He was assailed while on duty by a group of men, stabbing him. The
incident made the proprietor of the hotel terminate him.
The Industrial Court decided that, refugees and asylum seekers could work in Malaysia. He is protected under the Industrial Relations Act 1967. Furthermore, both documented and undocumented migrant workers are given the same status.
Prominently, court states, article 8 of the Federal Constitution applies equally to both types of migrants, which the Employment Act 1955 and Industrial Relations Act 1967 applies to them.
The receptionist was granted backwages, but not reinstatement. Undocumented refugees were able to rely on section 20 of the Industrial Relations Act 1967 to claim for dismissal without just cause or excuse and seek reinstatement, compensation and / or backwages.
If we referred to Pyu Pyu Ma v Dr Lim Soo How & Ors case, a Rohingya UNHCR card holder claimed for medical negligence for developing severe complications and injuries, even after being discharged from the hospital.
She claimed for special damages of RM33,000 and in deciding whether she was entitled or not, the High Court allowed it but at a 50% reduction. Refugees may claim for damages and enforce their rights, unless it was done under a lawful occupation.
Article 9 of the Federal Constitution (Freedom of Movement)
In a parliamentary debate on 4th April 2017, the government remarked that UNHCR card-holders enjoy freedom of movement in Malaysia as onn page 15 of the Hansard.
Article 11 of the Federal Constitution (Freedom of Religion)
In Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama
& Ors,
the High Court exercising their power of interpretation found that refugees
inside Malaysia are permitted to share the same freedom to profess and practise
his or her religion.
(3.0) Remedying Malaysian law for refugees
In one instance, the case of Tun Naing Oo, attempted to define the term refugee. The court decided that the appellant was technically refugee and on humanitarian reasons, his sentencing of two strokes were set aside.
The court decided that on section 6(3) of (the Act) the punishment of whipping was excessive, illegal and improper under section 323 of the Criminal Procedure Code. Whipping is only reserved for crimes of violence and brutality. It is manifestly excessive if whipping continued.
The court also affirmed the decision in Subramaniyam that Malaysia does not conform to the 1951 Convention and 1967 Protocol. Hence, court concluded that to mitigate the punishment or aid their defence, refugees and asylum seekers have to produce evidence of proof.
These evidences of proof are their registration in Malaysia or with UNHCR officer to satisfy the subordinate courts that they indeed are refugees and asylum seekers. This seems to accept the position in the Iskandar case while respecting the Subramaniyam case.
(3.1) Solutions
(i)
Firstly, the judge should wield their discretion for sentencing sparingly
and impartially. This way, differing sentencings for punishment can be made
between refugees and illegal migrants. Though, this would have to be evaluated
on each facts and circumstances of a case.
The nature of offence is different,
as refugees may enter illegally into the country, they were coerced or had no
other choice. Clearly for illegal immigrants, they come with malicious intent.
This includes organized crime, trafficking, terrorism and other offences under
the Penal Code or other statutes.
(ii)
Secondly,
parliament should amend or tweak certain provisions within the Immigration
Act 1959/63. Malaysia does not necessarily have to accede to the 1951
Convention. We may adopt certain provisions from the 1951 Convention or create our
own version which tailors to the sensitivities of our rakyat.
(iii) Thirdly, there should be more awareness and stronger cooperation between parties. More NGOs should be established or that NGOs should expand their focus to be more refugee-inclusive. We have to distinguish between who are refugees and illegal migrants, as they both bring different connotations and intents.
The public should help provide food, shelter, schools and small jobs for the refugees while the conflict back their respective countries are resolved. Despite the lack of legal recognition, at least basic human mercy should be afforded to them.
(4.0) Conclusion
To conclude, there should be proactive measures to amend our existing laws and the enforcement of such laws to differentiate between refugees and migrants, while balancing between the concerns of the rakyat. Also, the public should change their perspectives on refuges and spread awareness about their ordeals.Statutes (local and international)
1967 Protocol Relating to Status of Refugees
Convention on the Elimination of Discrimination Against All Women
(CEDAW)
Convention on the Rights of Child (CRC)
Convention Relating to the Status of Refugees 1951 and
Criminal Procedure Code
Employment Act 1950
Immigration Act 1959/63
Industrial Relations Act 1967
United Nations High Commissioner for Refugees (UNHCR) Statute
Case laws;
(2005) 6 CLJ 205
[2007] 1 CLJ 470
[2009] 5 MLJ 680
[2012] 1 MLJ 832
[2014] 2 LNS 0245
[2019] 11 MLJ 628
[2019] 9 MLJ 596
Journal Articles;
Asylum Access Malaysia (n.d) Refugee and Asylum-Seeker Women. Contribution to the list of issues to be compiled by the Committee on the Convention on the Elimination of Discrimination Against All Women (CEDAW).
Duraisingam, T., & Nordin, R. (2013). Being doubly marginalised - The Plight of the Rohingya in Malaysia. Legal Network Services. [2013] 1 LNS(A) Lxix, 1–20.
Singh, P., & Singh, H. (2021). Case law development for refugees in Malaysia. Legal Network Series. [2021] 1 LNS(A) xix. 1-11
SUHAKAM. (2012). Malaysian Journal on Human Rights. Human Rights Commission of Malaysia, 6.
Supaat, D. (2014). The UNHCR in Malaysia: The Mandate and Challenges. South East Asia Journal of Contemporary Business, Economy and Law. 5(4), 1-7.
Comments
Post a Comment