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“I’m for truth, no matter who tells it. I’m for justice, no matter who it is for or against. I’m a human being first and foremost, and as such I’m for whoever and whatever benefits humanity as a whole.”  Malcolm X

Introduction¹

The United Nations Convention Relating to the Status of Refugees 1951 (hereinafter referred to as the “1951 Convention”) was the first international treaty approved by the United Nations that dealt with issues concerning refugees. The 1951 Convention clearly defines a refugee and sets out the kind of legal protection and the minimum assistance, social and basic human rights to be accorded to them by state parties to the Convention. The 1951 Convention emphasises that the rights to be accorded to refugees should, at the very least, be equivalent to the rights enjoyed by foreign nationals living legally in a given country. More developed countries could go further and even bestow rights upon a refugee that are similar to that of a citizen of a State.

Initially, the 1951 Convention was limited to protecting mainly European refugees in the aftermath of World War II, but in 1967 a Protocol was introduced (“the 1967 Protocol”) that expanded the scope of the Convention as the problem of displacement spread around the world. The 1967 Protocol removes the geographical and time limitations written into the 1951 Convention.

To date the 1951 Convention and the 1967 Protocol are the two main international instruments that regulate the treatment of those compelled to leave their homes due to persecution in their country of origin. These two instruments are the bedrock of and guiding light for the office of the United Nations High Commissioner for Refugees (hereinafter referred to as the “UNHCR”) in its efforts to help and protect more than 17 million²   ‘people of concern’³   to the UNHCR.

Refugees in Malaysia

There are 145 countries that are parties to the 1951 Convention and/or the 1967 Protocol.⁴   Unfortunately, Malaysia is one of the few remaining countries that has ratified neither the 1951 Refugee Convention nor the 1967 Protocol, even though there are approximately 27,000 refugees in Malaysia (excluding asylum seekers), 4,600 of whom are children.⁵  

Malaysia has also failed to enact any legislation for the protection of refugees. As such refugees (adults and children) in Malaysia are treated as “illegal immigrants” by the authorities and are subjected to harsh penalties⁶   , detention⁷   and deportation⁸   under the Immigration Act 1959/63 (hereinafter referred to as “the Immigration Act”). The Immigration Act does not recognise refugees and due to the lack of such recognition in the Malaysian context, refugees have been placed in a state of uncertainty, inevitably resulting in human rights violations.

Since Malaysia is neither a state party to the 1951 Convention nor the 1967 Protocol, and does not provide for the protection of refugee children under the Immigration Act, one wonders what protection exists for refugee children.

Over the years, apart from the 1951 Convention and the 1967 Protocol, other international or regional treaties which directly or indirectly deal with the protection of refugees and those who seek asylum have been developed. One of the more relevant and noteworthy ones is the Convention on the Rights of the Child (“the CRC”), primarily because Malaysia has ratified it.

This paper will therefore look into the basic protection that should be accorded to refugee children under the CRC as well as its application in Malaysia in general.

Convention on the Rights of the Child

The CRC is important to children in general because it sets comprehensive standards for almost all aspects of a child’s life – from health and education to social and political rights. The CRC was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, and came into force on 2 September 1989. Malaysia signed and ratified the CRC on 17 February 1995.

What may be of particular interest to refugee children is Article 22 of the CRC. This is because Article 22 of the CRC specifically endorses the rights of refugee and asylum seeking children to appropriate protection and humanitarian assistance. Article 22 of the CRC states as follows:

“Article 22

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.

Initially, when Malaysia became a state party to the CRC, Malaysia had 12 reservations, one of which was this particular article. However, in March 1999, the reservation on Article 22 was removed.⁹   The removal of the reservation on Article 22 of the CRC can be seen as a conscious act and a positive assertion of the Malaysian government to the world at large that Malaysia does recognise the need to protect and render humanitarian assistance to refugee children.

The CRC has gained importance because of the near-universal ratification of the treaty.¹⁰   The CRC standards have been agreed to by almost every region and most countries of the world that represent every type of political system and religious tradition. The widespread ratification is also important for another reason; when a state is a party to the CRC but not to any refugee treaty, the CRC may be used as the primary basis for protecting refugee children.

Article 22, in particular clause (1) makes it clear that all state parties must provide appropriate protection and assistance to recognised refugee children as well as those who are seeking asylum. However, Article 22 of the CRC does not embark further to spell out what protection and assistance should be given to refugee children. Reference therefore has to be made to the Vienna Convention on the Law of Treaties¹¹   (“Vienna Convention”) which provides for interpretational principles to be used when interpreting an international instrument. The Vienna Convention, inter alia, states that:

1. a treaty, shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in the context and in the light of its object and purpose;¹²   and

2. the norms or the principles enunciated in the said treaty should be applied and performed in good faith and State parties should not frustrate the achievement of the object and purpose of the treaty.¹³  

Read together, these rules call for good faith in the interpretation and performance of the CRC. Clearly, it follows that Article 22(1) of the CRC must be interpreted with reference to the object and purpose of extending international protection to refugee children and state parties must not interpret the Article in a manner that would frustrate or defeat the object and purpose of the CRC as a whole, in particular Article 22(1).

The purpose of the CRC is to ensure that special care, assistance and necessary protection are accorded to children because they are vulnerable and dependent in nature. Article 22(1) of the CRC, in particular seeks to ensure that refugee children will receive the same care and assistance as well as the appropriate protection accorded to refugees.

In the refugee context, the main “protection” and “assistance” envisaged under Article 22 of the CRC, would inter alia, include:

i) The prevention of the return of refugees to the country or territory in which their life or liberty may be endangered;

When a child is compelled to flee his country of origin due to a well-founded fear of being persecuted, his immediate concern is protection against expulsion or refoulement. Such protection is necessary for preventing further human rights violations. This is because a forcible return to his country of origin may endanger his life and safety.

Due to this, the international community has recognised the principle of non-refoulement, which prohibits states from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.¹⁴   .

This principle of non-refoulement can be found in Article 33 of the 1951 Convention and has also been considered by a number of scholars as a rule of customary international law¹⁵   . It is thus binding on all states without exception and regardless of whether they have ratified the 1951 Convention or the 1967 Protocol.

ii) To prevent them from penalties for entering into the country of refuge without any documents.

Since a refugee is person who flees his country of origin to avoid persecution, it would be akin to rubbing salt into an open wound if he is prosecuted and punished on account of his illegal entry into or presence in the country where he is seeking refuge.

It must be emphasised that the situation of a refugee differs from that of an ordinary alien, who holds a national passport and enjoys the protection of the authorities of his country, to which he may return if he so desires. This is not so in the case of a refugee. Having entered the country in an irregular manner, a refugee is immediately at odds with the authorities of the country of reception. A refugee does not enjoy the luxury of immigration through normal customary channels, and thus find himself compelled to seek asylum by irregular entry to a safe country.¹⁶   It is for these reasons that Article 31 was incorporated in the 1951 Convention.

iii) To reunite unaccompanied refugee children with their families.

In cases of unaccompanied refugee children, Article 22(2) of the CRC requires the state parties to assist such children to trace their parents and/or family members and to reunite them.

This Article must be read in conjunction with Article 9¹⁷   , Article 10¹⁸   and Article 20¹⁹   of the CRC.

iv) Right to education.

Education is vital to the development of children and will contribute enormously to their well-being. The right to education is a recognised universal human right and Article 28²⁰   of the CRC binds state parties to fulfill their obligation in providing it. The mere fact that refugee children are being uprooted does not negate their rights to education nor does it negate the state’s responsibility to provide it.

In reality, refugee children in Malaysia are deprived of their right to education. Even though there is a provision which enables non-citizen children to be enrolled and admitted in local schools, such provisions do not include refugee children.²¹  

Effects of the ratification on the Convention on the Rights of the Child

Ratification of international conventions should not be considered as a mere public relations exercise. It requires the state parties to take pro-active steps and actions in order to promote the principles of the conventions in the domestic context. The ratification of the CRC and the operation of Article 22 of the CRC (read together with Article 3 and 4 of the CRC), require state parties to legislate laws or amend existing laws to incorporate the fundamentals vis-à-vis the protection of refugee children into the realm of their respective domestic laws.

In the Malaysian context, the existing immigration laws at least must be amended to incorporate the principles pertaining to refugees in statutory form.

Be that as it may, no specific law has been legislated nor any amendment been made to the existing immigration laws vis-à-vis refugees in general, and refugee children in particular. This pathetic state of affairs begs the question as to what would then be the effects of ratifying the CRC from the domestic jurisprudential point of view.

Malaysia has generally taken the conservative approach in dealing with international law and instruments. This conservative approach is that the rights or principles in a convention or treaty have no application and cannot be incorporated into the local jurisprudence until an Act of Parliament decrees it so.²²   If at all, such instruments are only persuasive in nature as long as they do not contradict any express statutory provisions.²³   This approach is illustrated in the recent Federal Court decision of Mohamad Ezam v Inspector General of Police²⁴   . In Ezam’s case, Siti Norma Yaakob FCJ delivering one of the judgments of the apex court, and referring to the Universal Declaration of Human Rights 1948, said:

“In my opinion, the status and the weight to be given to the 1948 Declaration by our courts have not changed. It must be borne in mind that the 1948 Declaration is a resolution of the General Assembly of the United Nations and not a convention subject to the usual ratification and accession requirements for treaties. By its very title it is an instrument which declares or sets out statement of principles of conduct with a view to promoting universal respect for and observance of human rights and fundamental freedoms. Since such principles are declaratory in nature, they do not, I consider, have the force of law or binding on member states.”²⁵  

Force of Law?

Even though the above quoted passage appears to disapprove of the application of international documents in the domestic context; interestingly, Siti Norma FCJ in the same case went one step further to suggest a way for the incorporation of international instruments into the local jurisprudence. Her Ladyship said that:

“If the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which member states can ratify or accede to and those principles will then have the force of law”.

[emphasis added]

This approach is heartening because it appears to suggest that the Malaysian courts are willing to consider evolving its jurisprudence away from the conservative approach that has been dominating the Malaysian Judiciary’s approach in dealing with international instruments.

Legitimate Expectation and substantive relief?

The approach seems to suggest that since Malaysia has ratified the CRC, it would have the force of law and thus bind the Malaysian government in its dealings with refugee children. It is also apparent that by the same token, the ratification of the CRC would be the basis for a legitimate expectation of the protection offered and rights bestowed where refugee children are concerned. More importantly, it would enable the courts to provide relief to refugee children who have not been accorded such protection and rights.

In fact this is the position in Australia where in the case of Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh²⁶   the following was held:

“Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act (see Minister for Foreign Affairs and Trade v Magno [1992] 37 FCR 298 at 343; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266), particularly when the instrument evidences internationally accepted standards to be applied by Courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf. Simsek v Macphee [1982] 148 CLR at 644) and treat the best interests of the children as "a primary consideration".²⁷  

[emphasis added]

Therefore by ratifying the CRC, the Malaysian government has effectively made a positive statement to the world at large that the executive government and its agencies will act in accordance with the Convention and thus render the appropriate protection to refugee children.

The English courts have seen it fit to take the Australian position a step further. The Court of Appeal in England in the decision of R v Secretary of State for Home Department ex-parte Mohammed Hussain Ahmed and others²⁸   has since moved to interpret Teoh to say that not only does the concept of legitimate expectation demand that the state take into account the best interests of an aggrieved party, a breach of the same gives a right to relief to the aggrieved party. This case held as follows:

“I will accept that the entering into a treaty by the Secretary of State could give rise to a legitimate expectation on which the public in general are entitled to rely. Subject to any indication to the contrary, it could be a representation that the Secretary of State would act in accordance with any obligations which he accepted under the Treaty. This legitimate expectation could give rise to a right to relief, as well as additional obligations of fairness, if the Secretary of State, without reason, acted inconsistently with the obligations which this country had undertaken. This is very much the approach adopted by the High Court of Australia in the immigration case of Minister of State for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273. The case was concerned with art 3 of the UN Convention on the Rights of the Child.”

[emphasis added]

Further to the English position, it could be argued further that the principle pacta sunt servanda, as enunciated in Article 26 of the Vienna Convention, which requires that a treaty in force should be performed by the parties to it in good faith, as creating an obligation on the parties to the convention.²⁹   In the present context, this, among others, would require the state party to refrain from actions incompatible with the object and purpose of the CRC, in particular Article 22(1) of the CRC, and that the state party must exercise its rights consistently with its other obligations under international law i.e. to protect refugee children. Consequentially, it is possible to argue that Article 22(1) of the CRC does create an obligation the breach of which may give rise to some kind of substantive relief as discussed in the case of Muhammed Hussain Ahmed.

Since the Malaysian government had made a representation to the world that it will act in accordance with any obligations which had been accepted under the CRC, it is the writer’s contention that such a representation creates a legitimate expectation on the part of refugee children. This in turn gives a right to relief against the Malaysian government or any of its agencies in situations where they have acted, without reason, in a manner inconsistent with their obligations under the CRC.

As such, it may well be argued that if any refugee child is prosecuted in court for entering into Malaysia without a valid pass under Section 6(1)(c) of the Immigration Act, a challenge may be made to such criminal proceedings. The refugee child may commence appropriate proceedings by motion to a High Court to quash the charge and the proceedings by producing evidence to satisfy the court that the charge has been preferred without any basis or jurisdiction.³⁰   It is patently unacceptable for the Malaysian government to ratify the CRC and then act in a manner clearly contradictory, inconsistent and incompatible with the CRC, for example, by prosecuting refugee children as illegal immigrants.

Such conduct does not sit well with the legitimate expectation and/or obligation that had been created by virtue of Articles 3³¹, 4³²   and 22³³   of the CRC (read together with the article 31 of the 1951 Convention, and Articles 26 and 31 of the Vienna Convention), and any such breach could therefore give rise to a right of relief.

External Aid to Interpretation?

Sadly, the local jurisprudence is stagnant and the courts appear very reluctant to develop interpretational principles that would allow the importation of the international instruments without an Act of Parliament. There is, however, an approach that should be considered and that has been long used in more developed legal jurisdictions to circumvent the conservative approach.

It has been widely accepted in other jurisdictions that the principles or norms of international instruments may also be incorporated through the process of common law. This involves the exercise of the interpretative jurisdiction of the courts. Courts may, through the interpretation of municipal law introduce and adopt principles of international human rights law into the domestic system. In Ahmad v Inner London Education Authority [1978] QB 36, Lord Scarman held that:

“Today, therefore, we have to construe and apply section 30 not against the background of the law and society of 1944 but in a multi-racial society which has accepted international obligations and enacted statutes designed to eliminate discrimination on grounds of race, religion, colour or sex. Further, it is no longer possible to argue that because the international treaty obligations of the United Kingdom do not become law unless enacted by Parliament our courts pay no regard to our international obligations. They pay very serious regard to them: in particular, they will interpret statutory language and apply common law principles, wherever possible, so as to reach conclusion consistent with our international obligations”.

[emphasis added]

Similarly, in Australia, the Teoh’s case has recognised that international instruments can be referred to as an aid to interpretation. It was said that:

“But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the Courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party [Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 381], at least in those cases in which the legislation is enacted after, or, in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.

It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law [Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81].”

[emphasis added]

The principles in Teoh’s case have been followed and applied in two Indian Supreme Court cases; viz, People’s Union for Civil Liberties v Union of India & Anor³⁴   and Vishaka & Ors v State of Rajasthan and Ors³⁵   In the Vishaka case, it was held that:

“It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of gender equality, right to work with human dignity in Articles 14, 15, 1991)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and the content thereof, to promote the object of the constitutional guarantees.”

[emphasis added]

What these cases clearly show is that international instruments are not to be disregarded as not having local relevance simply because no Act of Parliament has been enacted to import it into a country. To cling to the opposite view is not only disappointing because no attempt has been made to develop the local interpretational jurisprudence, it would also suggest that Malaysia’s ratification of the CRC is nothing more than a public relations exercise on an international level.

The writer contends that the Malaysian judiciary must, and not merely should, have regard to international conventions and norms for the purpose of interpreting domestic law; and that such interpretation must be made in “good faith” in accordance with the ordinary meaning to be given to the terms of the convention or treaty in their context and in the light of its objective and purpose.³⁶  

The cumulative effects of the operation of Articles 3, 4 and 22 of the CRC require that all three branches of the government consider the best interest of children in all of their actions, and to undertake all appropriate legislative, administrative and other measures for the implementation of the rights of the refugee children.

Therefore, in a situation where a refugee child is charged in court under Section 6(1)(c) of the Immigration Act; it is possible to argue that the Immigration Act is silent vis-à-vis its application on refugees, or, at the very least, that Section 6(1)(c) of the Immigration Act is ambiguous and obscure in its application to refugees, and to apply Section 6(1)(c) of the Immigration Act to refugees would result in absurdity. Hence, regard must be had to the CRC, in particular Article 22(1), as well as the Vienna Convention, in particular Articles 18 and 31(1) thereof.

To apply Section 6(1)(c) of the Immigration Act to refugee children would clearly be against the object and purpose of Article 22(1) of the CRC and the principle of “good faith” as espoused in Articles 18 and 31(1) of the Vienna Convention.

Reality

From the Malaysian government’s point of view, asylum seekers and refugees (whether adults or children) are nothing more than unwanted statistics or a modern-day version of the plague-rats who have the potential to cause social problems in the current capitalist society. Notwithstanding the ratification of the CRC, the actual protection and assistance given to refugee children is virtually non-existent. It is an undisputed fact that refugee children in Malaysia are vulnerable and suffer due to the lack of recognition of their status as refugees. There are cases where refugee children as young as 10 years have been arrested, are being detained³⁷   , have been charged in court or been subjected to penalties merely on account of entering into Malaysia without valid documentation.

The incarceration of refugee children in detention or remand centres may cause serious physical and psychological health problems to refugee children. Refugee children in immigration detention are denied anything remotely resembling a normal life. They are constantly exposed to an environment detrimental to their physical and psychological well-being³⁸   .

In Australia for instance, the Royal Australian and New Zealand College of Psychistrics (RANZCP) having conducted a study on refugee children detained in detention centres as asylum seekers found that 80% of the refugee children had attempted to harm themselves, and that all the children met the diagnostic criteria for major depression and post-traumatic stress disorder.³⁹   The combination of pre-migration trauma, the detention environment and parental depression was “damaging” the children.⁴⁰   Even though there has been no proper study undertaken by the Malaysian government or the medical fraternity vis-à-vis the impact of detention on refugee children yet, based on the interviews and psychological assessment conducted by UNHCR as well as interviews conducted by the writer, there is empirical evidence to prove that refugee children in Malaysian detention centres do suffer from fear, severe depression, and emotional and traumatic experiences whilst in detention.

Apart from the psychological issue, there are also cases where refugee children have been beaten up by other detainees.⁴¹   Must we wait until a death in custody occurs before the Malaysian government will seriously consider rectifying the appalling situation of refugee children in detention?

Refugee children who are not in detention are in no better position. They are deprived of basic needs which are available to other normal children. They are deprived of shelter, nutritious food, education and healthcare. The living conditions of the refugee children leave a lot to be desired. They live in uninhabitable huts and shacks, which are set up in secluded areas with no basic amenities or sanitary system.⁴²   Some of the more fortunate live in squatter houses. Food and clothing are scarce, and if they are lucky they may receive assistance from some non-governmental organisations, or from the UNHCR. At other times, they will just have to cook and eat the centre of a banana tree as their ‘main course’.⁴³  

Formal education is denied to refugee children due to the fact that they are considered illegal immigrants by the Malaysian government. The law as it stands does not allow them to be enrolled in public schools.⁴⁴   The only education they receive is from informal classes organised by non-governmental organisations.

In short, whilst the children in Malaysia are blessed and enjoy the basic needs and luxuries that any capitalist society can offer, refugee children in Malaysia on the other hand are unfortunate and are denied the basic needs which are rightly due to them. Refugee children, by virtue of the CRC, should receive the necessary protection and assistance from the Malaysian government. They should not be ignored and left uncared for. They should not be arrested and charged in court.⁴⁵   Neither should they be locked up in detention centres.⁴⁶   The lack of commitment and political will on the part of the Malaysian Government to acknowledge their moral responsibilities only serves to perpetuate the plight of refugee children.

Solutions

Even though the Malaysian Government has yet to ratify the 1951 Convention and/or the 1967 Protocol or any of the international conventions pertaining to refugees and human rights, the Malaysian Government, at the very least, can still ensure and provide the most basic protection to a refugee such as immunity from penalties under the Immigration Act merely due to the fact that they entered into Malaysia irregularly, and to also provide them with protection from refoulement.

For a start, the Malaysian Government is in a position to use the present laws to achieve this goal. The Immigration Act, particularly Section 55, states that the Minister may, by order, exempt any person or class or persons, either absolutely or conditionally, from all or any of the provisions of this Act and may in any such order provide for any presumptions necessary in order to give effect thereto.

The Malaysian enforcement agencies, including the Attorney General’s Chambers must adopt a policy which is reflective of, and in line with, the Malaysian Government’s international obligation, which is created as a result of the ratification of the CRC. There must be strict adherence to such policy.

The judiciary can also play an important role through the process of common law. As stated above, the judiciary may adopt the principles of international human rights law relating to refugees into our domestic system through the interpretative process. The authorities which have been discussed above have clearly paved the way for the judiciary to move forward; the only question that remains is whether they have the intellectual honesty to do so.

The Malaysian Government must also realise that the refugee problem is the social responsibility of the Malaysian Government itself. Hence, the Malaysian Government must consider establishing an inter-ministerial taskforce on the refugee situation in Malaysia in order to work out concrete measures and practical solution-oriented arrangements for all categories of persons of concern to UNHCR, in particular refugee children and asylum seekers.⁴⁷  

Ultimately, the Malaysian Government must sign and ratify the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, conduct comparative studies with other jurisdictions which are parties to the 1951 Convention and/or 1967 Protocol, and thereafter revise the relevant domestic laws, in particular the immigration laws to cater for the protection of refugees. Additionally, a proper mechanism for the determination of refugee status must be set up either within the existing Department of Immigration or through an independent tribunal.

Conclusion

Due to the growing refugee problem in the world today, some effective means must be adopted in order to solve this problem. The Malaysian government’s paranoia of the influx of asylum seekers and refugees in the event the government ratifies the Refugee Convention is an unfounded fear which the government must overcome. As far as the writer is concerned, the supposed justification for the government not ratifying the Refugee Convention is nothing more that an attempt to avoid dealing with pressing humanitarian problems that are beleaguering thousands of asylum seekers (adults and children alike) in and around Malaysia.

It must also be remembered that since the Malaysian Government has ratified the CRC, its action must not contravene the principles as laid out in the CRC. Otherwise, the Malaysian Government will be seen as being ignorant of its international obligation and blatantly disregarding the protection of human rights norms and values.

Furthermore, it is often said that the level of civility of a country is measured by how we treat our guests – and refugees are our guests. We must treat them with respect. There is much that the government can still do to ensure the treatment of refugees in a humane and civilised manner. The ratification of the CRC is a step in the right direction and, if a child refugee can be recognised, the next logical step is the recognition of adult refugees because in truth, what is difference between a child refugee and an adult refugee except their age? Lest we forget, the responsibility to protect and advocate the rights of refugee children is not the sole responsibility of the Malaysian government, non-governmental organisations or the UNHCR but the responsibility of each and every citizen in this country.