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Jailed, whipped by Malaysian authorities despite UNHCR asylum seeker status – but there may be a faint light at the end of this tunnel.

Having expectations of peace and safety, 176 Myanmar Christians of Chin and Zomi ethnic groups had fled the Chin State in Myanmar and made an arduous journey by boat into Thailand and then through the jungle into Malaysia with the aid of independent trafficking agents at the Malaysia-Thai border.

They then set up a colony in an abandoned orchard in Kampung Sungai Merab, Dengkil, Selangor. During their stay in Malaysia, some succeeded in obtaining appointments with UNHCR for registration as asylum seekers by reason of the fact that they had escaped Myanmar due to religious persecution, threats to their liberty, forced labour and extortion, among an assortment of other reasons.

A few who had applied earlier were fortunate enough to obtain refugee status, which is the next step in the process immediately prior to resettlement.

It was during this time that Minister of Home Affairs Datuk Seri Radzi Sheikh Ahmad was reported in the mainstream media to have reiterated that Malaysia does not recognise and accept UNHCR-hosted refugees. His stand was that although Malaysia accepts their presence – and only because Malaysia is a member of the United Nations along with other countries - the UNHCR’s powers are not recognised. He was also reported to have said that the UNHCR was getting in the way of enforcement by seeking the release of refugees who were under the protection of the High Commissioner.

On January 28, 2007, Volunteer Corps (RELA) raided , who included women, senior citizens and minors their colony and detained the 176 refugees. Upon their arrest, notwithstanding their status as asylum seekers, 77 of them were charged under section 6(1) (c) of the Immigration Act 1959/1963 before the Sessions Court at Semenyih – an Immigration court specially set up for illegal immigrants. The status and wherabouts of the remaining refugees [99 persons] are unknown.

Section 6(1) ( c) provides that the failure to possess a valid pass lawfully issued for the purpose of entering Malaysia, would invite punishment under section 6 (3) of the same Act. Due to not having legal representation, the matter was postponed twice until, a member of the Malaysian Bar, Renuka T. Balasubramaniam was informed and agreed to represent the detainees. The decision was part of the Bar's follow-up action pursuant to its passing a resolution seeking the abolition of all corporal punishment.

On 24th April 2007, forty-five of the detainees pleaded guilty to the charge. Of these 13 were liable to be whipped, the remainder being senior citizens, women and children. Their counsel implored the court not to impose the sentence of whipping on account of the fact that it was discretionary and that corporal punishment would only add to the hardship already endured by the asylum seekers.

However, Sessions Judge Azimah Omar gave thirteen men two strokes of the whip and four months imprisonment from the date of arrest. The senior citizens, women and children were sentenced to between four to five months imprisonment.

An appeal by the thirteen was filed in Court on 3rd May 2007 but during the long wait for an appeal date to be set, five appellants had taken ill and could no longer bear detention and so withdrew their appeal. They have since been whipped and there are reasonable grounds to believe they have been deported although UNHCR was able to register most of them as asylum seekers.

29 men and three minors claimed trial, which commenced on 24th April 2007. Due to discrepancies in the prosecution’s chain of evidence and other administrative delays, their case was postponed on four occasions.

While awaiting their oft-postponed trial, the detainees were also successfully registered as asylum seekers by UNHCR to aid them with their resettlement to countries which have ratified the Refugee Convention and who are prepared to receive them.

Their case was finally heard on 17 August 2007. Due to their having been in detention for eight months, the detainees, unable to bear another day of uncertainty, changed their plea to guilty. In mitigation, counsel for the detainees appealed to the Court to consider the Parliamentary debate on the Anti-Trafficking Bill where the de facto Minister for Law, Nazri Aziz had explained that whipping had not been included as punishment in the Bill because Malaysia had aspirations of being a “good UN citizen”.

Further, counsel submitted that according to the Act, whipping was not mandatory especially since the status of the detainees as asylum seekers was a strong mitigating factor.

The newly appointed Sessions Judge Sabariah Othman spared the 29 men the whip but imposed eight months imprisonment from the date of arrest. As such, their sentences had already been served by virtue of their time in remand.

It has not yet been established if these 29 Myanmar refugees with their UNHCR papers, would be repatriated by the UN or deported back to their country by the Malaysian government.

The hearing of the matter as regards the three minors has been fixed for 7 September 2007.

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