Contributed by Andrew Khoo
This statement was presented by
Andrew Khoo, Chairperson of the Bar Council’s Human Rights Committee,
at the session entitled "New challenges and stronger partnerships in
the Asia–Pacific" during the 2010 UNHCR Annual Consultations with NGOs
in Geneva, Switzerland, on 30 June 2010.
Introduction
According to the United Nations High Commissioner for Refugees (UNHCR), as at the end of May 2010, there were approximately 88,200 refugees and asylum–seekers registered with the UNHCR in Malaysia.
81,600 or 92.5% of this number are from Burma: approximately 38,900 Chins, 18,900 Rohingyas, 6,400 Burmese Muslims, 3,800 Mons, 3,600 Kachins, and 10,000 from other ethnic minorities.
According to the United Nations High Commissioner for Refugees (UNHCR), as at the end of May 2010, there were approximately 88,200 refugees and asylum–seekers registered with the UNHCR in Malaysia.
81,600 or 92.5% of this number are from Burma: approximately 38,900 Chins, 18,900 Rohingyas, 6,400 Burmese Muslims, 3,800 Mons, 3,600 Kachins, and 10,000 from other ethnic minorities.
6,600 or 7.5% of this number are from other countries: approximately
3,500 Sri Lankans, 930 Somalis, 580 Iraqis, 530 Afghans, 200
Palestinians, and 860 from other countries.
70% of refugees and asylum–seekers are men, while 30% are women. Approximately 19,000 are children below the age of 18.
Refugee communities themselves estimate that the population of unregistered refugees and asylum seekers to be some 10,000 persons.
The situation with respect to refugees in Malaysia can be said to have 5 major characteristics.
1. Protecting refugees in the absence of specific refugee protection laws
Malaysia is quite typical of the countries in South–East Asia in that it is neither a signatory to the 1951 Convention Relating to the Status of Refugees nor its 1967 Protocol. Additionally, there is no Malaysian law on the recognition and treatment of refugees. The concept of refoulement is not entrenched in Malaysian law.
As such, attempts to engage with the Malaysian Government have concentrated on the possibility of exemptions being granted under the existing laws on immigration. However the Immigration Act 1959/1963 does not recognise the concept of refugees; it demarcates the situation as between regular and irregular entrants into the country. Engagement with the Malaysian Government therefore focuses on seeking exemptions for certain classes of irregular entrants into the country.
Malaysia is, however, a State Party to the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC), albeit with reservations. Accordingly, the Malaysian Government is more aware of its obligations towards the protection of refugee women and children, and the Ministry of Women, Family and Community Development is one of the more pro–active elements of the Malaysian Government.
2. Protecting refugees in a primarily urban setting
Most of the refugees in Malaysia find themselves in urban situations. They live in the midst of city/urban dwellers and exist in the hustle and bustle of modern city life. Whilst some do seek to live in secondary forests on the fringe of urban areas, there is little opportunity to undertake agricultural activity for self–sustenance. Refugees thus have to find money to maintain themselves. Most refugees are forced by necessity to connect with and operate in the informal economic sector in order to survive. This is fraught with the absence of any protection, and allows for abuse, harassment and exploitation.
Because refugees have no legal status in Malaysia, they have no right to identity papers. Regular employment is consequently not possible. The Malaysian Government floated the idea of issuing identification cards to refugees who were recognised by the UNHCR in January 2010. This would have been a welcomed precursor to refugees being allowed to undertake some limited form of legitimate work. However our understanding is that this is no longer being considered. No reasons have been provided. However it is likely that such an interim solution would interfere with the current system of recruitment and employment of migrant workers, and the vested interests attached to this system. Also, fluctuations in the current economic situation in Malaysia lead to periodic discussions on the need to reduce Malaysia’s dependence on foreign workers. Such views argue against allowing refugees to take up legitimate and formal work.
Fully 92.5% of refugees registered by the UNHCR are of Burmese origin. However Burma is also a significant source of documented migrant labour. Overall there are approximately 2 million documented migrant workers in Malaysia. Estimates of the number of undocumented migrant workers range anywhere from 1 million to 2 million. There is difficulty in sensitising both the Malaysian Government and the Malaysian public to appreciate the distinction between undocumented migrant workers from Burma and Burmese refugees; it is much easier to understand the latter as purely economic migrants rather than refugees.
The existence of refugees in an urban setting has led to the demonization of refugees as a contributor to urban problems. They have been blamed as the cause in the rise of rates of crime, and as carriers of communicable diseases. The government–controlled print media portrays refugees in a negative light, and contributed to the climate of xenophobia in Malaysia. A recent report in an English–language national newspaper highlighted refugees in the context of several generations of street beggars, and cast them as a blight on society.
In the National Report prepared by the Malaysian Government for its Universal Periodic Review (UPR) in February 2009, it said:
However such NGO–conducted informal classes through community–based schooling receive no government funding. Ministry of Education officials speak of limited resources in the education sector and the need to prioritise utilisation of these limited resources for Malaysian citizens first. As such, UNHCR, refugee communities and NGOs have established community–based schools. However these enjoy no special protection from law–enforcement authorities.
3. Protecting refugees amidst an inconsistent attitude by the Government
The Government can be said to display schizophrenic tendencies in its relations with domestic NGOs. On the one hand, both the Ministry of Education and the Ministry of Women, Family and Community Development recognise to a certain extent the role played by domestic NGOs in providing informal education to refugee children and some aspects of healthcare and medical services to refugees in general.
On the other hand, the Malaysian Government took a full 9 months to organise a briefing session for NGOs on the outcome of the UPR after June 2009. There is also a reluctance by the Malaysian Government to engage directly with NGOs on the issue of migrants, refugees and asylum–seekers. The Malaysian Government agencies would normally attend only if such meetings are organised or co–organised by UNHCR. There is a sense in which the issue of refugees is viewed as only between the Malaysian Government and UNHCR.
In response to recommendations from the international community as part of the UPR process in June 2009, the Malaysian Government stated:
It also stated that:
We understand that the UNHCR in Malaysia is unclear what, if any, “legislative framework to coordinate policy and enforcement measures” is being developed. Informal understandings are somewhat in place, for example generally attempting to exclude holders of UNHCR identity cards from being arrested during routine round–ups of allegedly undocumented migrants by the various law–enforcement authorities (although UNHCR identity card holders do still get arrested), and permitting UNHCR to have access to holders of UNHCR identity cards in immigration detention. But many of these informal understandings are ad–hoc and negotiated through inter–personal goodwill, and can and do change when there are personnel changes at various levels of law enforcement agencies and government. There is no substitute for a comprehensive legal and administrative framework to be put in place. The UNHCR and NGOs have developed such a framework for adoption by the Malaysian Government.
Whilst the Malaysian Government appears reticent in dealing with domestic NGOs, permission was recently given to allow representatives from Amnesty International access to immigration detention centres. The Working Group on Arbitrary Detention was also given access to, amongst other places, immigration detention centres, during their inaugural country visit to Malaysia from 7–18 June 2010.
4. Protecting refugees amidst a regional context
Malaysia is one of the 10 member states of the Association of South–East Asian Nations (ASEAN). So is Burma. It has been politically difficult to deal comprehensively with the issue of Burmese refugees within an ASEAN context. One reason is the refusal of the Burmese Government to acknowledge Rohingyas as originating from Burma. Secondly, to classify Burmese as refugees means to acknowledge that there are significant categories of Burmese nationals who have a “well–founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Such a recognition is detrimental to intra–ASEAN solidarity and would violate the golden rule of ASEAN, namely the non–interference in the domestic affairs of a member state. The political implications of granting refugee status to refugees from other South–East Asian nations cannot be overlooked.
Regional initiatives do exist, but often operate to the exclusion of NGOs, e.g. the Bali Process. Further, the terms of reference of the newly–established ASEAN Inter–Governmental Commission on Human Rights (AICHR) eschew consideration of individual situations of breaches of human rights, and focus more on acting as an advisory panel on the promotion of human rights to governments of ASEAN member states. It is unclear what approach AICHR will take to the situation of refugees located in ASEAN member states.
5. Protecting refugees and the wider international context
Briefly and in conclusion, there appears to be a lack of appreciation of the situation of refugees in Malaysia vis–à–vis the international context. The position of the Malaysian Government seems to be that all refugees will eventually be resettled, therefore there is no need to make any long–term provision for them. This fails to take into account the rate and pace of resettlement internationally. Even if the UNHCR is able to realise its optimistic target of finding durable solutions for between 10,000 to 15,000 refugees in Malaysia in 2010 and beyond, this will mean anywhere from 6–9 years of the continued presence of refugees in Malaysia, assuming no further increase in the refugee population. If the current figure of approximately 8,000 a year is used, the period lengthens to between 11–12 years.
It is imperative that the Malaysian Government re–think their overall position with respect to refugees given this scenario. This should include: (1) real and meaningful engagement and consultation with NGOs, both at a domestic and regional level, with respect to law and policy reform; and (2) positive recognition of NGOs as full partners in addressing the issue of refugees in Malaysia, and protection and possibly funding for their work especially in areas of livelihood support, education and healthcare for refugees and their families.
70% of refugees and asylum–seekers are men, while 30% are women. Approximately 19,000 are children below the age of 18.
Refugee communities themselves estimate that the population of unregistered refugees and asylum seekers to be some 10,000 persons.
The situation with respect to refugees in Malaysia can be said to have 5 major characteristics.
1. Protecting refugees in the absence of specific refugee protection laws
Malaysia is quite typical of the countries in South–East Asia in that it is neither a signatory to the 1951 Convention Relating to the Status of Refugees nor its 1967 Protocol. Additionally, there is no Malaysian law on the recognition and treatment of refugees. The concept of refoulement is not entrenched in Malaysian law.
As such, attempts to engage with the Malaysian Government have concentrated on the possibility of exemptions being granted under the existing laws on immigration. However the Immigration Act 1959/1963 does not recognise the concept of refugees; it demarcates the situation as between regular and irregular entrants into the country. Engagement with the Malaysian Government therefore focuses on seeking exemptions for certain classes of irregular entrants into the country.
Malaysia is, however, a State Party to the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC), albeit with reservations. Accordingly, the Malaysian Government is more aware of its obligations towards the protection of refugee women and children, and the Ministry of Women, Family and Community Development is one of the more pro–active elements of the Malaysian Government.
2. Protecting refugees in a primarily urban setting
Most of the refugees in Malaysia find themselves in urban situations. They live in the midst of city/urban dwellers and exist in the hustle and bustle of modern city life. Whilst some do seek to live in secondary forests on the fringe of urban areas, there is little opportunity to undertake agricultural activity for self–sustenance. Refugees thus have to find money to maintain themselves. Most refugees are forced by necessity to connect with and operate in the informal economic sector in order to survive. This is fraught with the absence of any protection, and allows for abuse, harassment and exploitation.
Because refugees have no legal status in Malaysia, they have no right to identity papers. Regular employment is consequently not possible. The Malaysian Government floated the idea of issuing identification cards to refugees who were recognised by the UNHCR in January 2010. This would have been a welcomed precursor to refugees being allowed to undertake some limited form of legitimate work. However our understanding is that this is no longer being considered. No reasons have been provided. However it is likely that such an interim solution would interfere with the current system of recruitment and employment of migrant workers, and the vested interests attached to this system. Also, fluctuations in the current economic situation in Malaysia lead to periodic discussions on the need to reduce Malaysia’s dependence on foreign workers. Such views argue against allowing refugees to take up legitimate and formal work.
Fully 92.5% of refugees registered by the UNHCR are of Burmese origin. However Burma is also a significant source of documented migrant labour. Overall there are approximately 2 million documented migrant workers in Malaysia. Estimates of the number of undocumented migrant workers range anywhere from 1 million to 2 million. There is difficulty in sensitising both the Malaysian Government and the Malaysian public to appreciate the distinction between undocumented migrant workers from Burma and Burmese refugees; it is much easier to understand the latter as purely economic migrants rather than refugees.
The existence of refugees in an urban setting has led to the demonization of refugees as a contributor to urban problems. They have been blamed as the cause in the rise of rates of crime, and as carriers of communicable diseases. The government–controlled print media portrays refugees in a negative light, and contributed to the climate of xenophobia in Malaysia. A recent report in an English–language national newspaper highlighted refugees in the context of several generations of street beggars, and cast them as a blight on society.
In the National Report prepared by the Malaysian Government for its Universal Periodic Review (UPR) in February 2009, it said:
“In full compliance with its treaty obligation under the CRC, all children in Malaysia are not denied access to education. The Government also constantly engages with various international organisations such as the United Nations Children's Fund (UNICEF) and the Office of the United Nations High Commissioner for Refugees (UNHCR), and civil societies, to ensure that children of illegal immigrants attend informal classes to be conducted by NGOs, such as, through community–based schooling.”
However such NGO–conducted informal classes through community–based schooling receive no government funding. Ministry of Education officials speak of limited resources in the education sector and the need to prioritise utilisation of these limited resources for Malaysian citizens first. As such, UNHCR, refugee communities and NGOs have established community–based schools. However these enjoy no special protection from law–enforcement authorities.
3. Protecting refugees amidst an inconsistent attitude by the Government
The Government can be said to display schizophrenic tendencies in its relations with domestic NGOs. On the one hand, both the Ministry of Education and the Ministry of Women, Family and Community Development recognise to a certain extent the role played by domestic NGOs in providing informal education to refugee children and some aspects of healthcare and medical services to refugees in general.
On the other hand, the Malaysian Government took a full 9 months to organise a briefing session for NGOs on the outcome of the UPR after June 2009. There is also a reluctance by the Malaysian Government to engage directly with NGOs on the issue of migrants, refugees and asylum–seekers. The Malaysian Government agencies would normally attend only if such meetings are organised or co–organised by UNHCR. There is a sense in which the issue of refugees is viewed as only between the Malaysian Government and UNHCR.
In response to recommendations from the international community as part of the UPR process in June 2009, the Malaysian Government stated:
“Malaysia is not party to the 1951 United Nations Convention relating to the status of refugees and as such does not recognise persons claiming refugee status or asylum seekers. However, the Government has instituted administrative arrangements to provide assistance and protection to persons claiming refugee status and/or asylum seekers in possession of identification documents issued by UNHCR, based on humanitarian grounds on a case–by–case basis. Malaysia is improving its legislative framework to establish an appropriate mechanism for the treatment of such persons.”
It also stated that:
“Malaysia has established administrative arrangements to provide assistance and protection to such persons on humanitarian grounds on a case–by–case basis, which effectively distinguishes persons claiming such status from the irregular migrants. At present, the Government is engaged with UNHCR in developing a legislative framework to coordinate policy and enforcement measures.”
We understand that the UNHCR in Malaysia is unclear what, if any, “legislative framework to coordinate policy and enforcement measures” is being developed. Informal understandings are somewhat in place, for example generally attempting to exclude holders of UNHCR identity cards from being arrested during routine round–ups of allegedly undocumented migrants by the various law–enforcement authorities (although UNHCR identity card holders do still get arrested), and permitting UNHCR to have access to holders of UNHCR identity cards in immigration detention. But many of these informal understandings are ad–hoc and negotiated through inter–personal goodwill, and can and do change when there are personnel changes at various levels of law enforcement agencies and government. There is no substitute for a comprehensive legal and administrative framework to be put in place. The UNHCR and NGOs have developed such a framework for adoption by the Malaysian Government.
Whilst the Malaysian Government appears reticent in dealing with domestic NGOs, permission was recently given to allow representatives from Amnesty International access to immigration detention centres. The Working Group on Arbitrary Detention was also given access to, amongst other places, immigration detention centres, during their inaugural country visit to Malaysia from 7–18 June 2010.
4. Protecting refugees amidst a regional context
Malaysia is one of the 10 member states of the Association of South–East Asian Nations (ASEAN). So is Burma. It has been politically difficult to deal comprehensively with the issue of Burmese refugees within an ASEAN context. One reason is the refusal of the Burmese Government to acknowledge Rohingyas as originating from Burma. Secondly, to classify Burmese as refugees means to acknowledge that there are significant categories of Burmese nationals who have a “well–founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Such a recognition is detrimental to intra–ASEAN solidarity and would violate the golden rule of ASEAN, namely the non–interference in the domestic affairs of a member state. The political implications of granting refugee status to refugees from other South–East Asian nations cannot be overlooked.
Regional initiatives do exist, but often operate to the exclusion of NGOs, e.g. the Bali Process. Further, the terms of reference of the newly–established ASEAN Inter–Governmental Commission on Human Rights (AICHR) eschew consideration of individual situations of breaches of human rights, and focus more on acting as an advisory panel on the promotion of human rights to governments of ASEAN member states. It is unclear what approach AICHR will take to the situation of refugees located in ASEAN member states.
5. Protecting refugees and the wider international context
Briefly and in conclusion, there appears to be a lack of appreciation of the situation of refugees in Malaysia vis–à–vis the international context. The position of the Malaysian Government seems to be that all refugees will eventually be resettled, therefore there is no need to make any long–term provision for them. This fails to take into account the rate and pace of resettlement internationally. Even if the UNHCR is able to realise its optimistic target of finding durable solutions for between 10,000 to 15,000 refugees in Malaysia in 2010 and beyond, this will mean anywhere from 6–9 years of the continued presence of refugees in Malaysia, assuming no further increase in the refugee population. If the current figure of approximately 8,000 a year is used, the period lengthens to between 11–12 years.
It is imperative that the Malaysian Government re–think their overall position with respect to refugees given this scenario. This should include: (1) real and meaningful engagement and consultation with NGOs, both at a domestic and regional level, with respect to law and policy reform; and (2) positive recognition of NGOs as full partners in addressing the issue of refugees in Malaysia, and protection and possibly funding for their work especially in areas of livelihood support, education and healthcare for refugees and their families.