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It is alarming that on 19/8/03 the police had arrested more than 200 asylum seekers and refugees, including some women and children, in the vicinity of the office of the UNHCR (United Nations High Commissioner for Refugees) in Kuala Lumpur.

The Malaysian Government has, especially in recent times, acknowledged and emphasised the increasing importance of international law and cooperation. One area requiring such cooperation among the international community is in relation to refugees. Issues concerning refugees and asylum seekers should be looked at from the humanitarian point of view. Just as the injured in a war deserve medical attention no matter which side they are on, asylum seekers who flee from conflict situations deserve humanitarian treatment regardless of their political or other leanings.

Currently, Malaysia’s simplistic approach in equating asylum seekers with illegal migrants ignores the humanitarian crux of the global problem of refugees, as well as our international obligations. The UNHCR has a rigorous screening procedure for applicants of refugee status, but such process naturally takes time. In the interim, asylum seekers should not be prevented from even taking the first step of approaching UNHCR and seeking refuge, without their circumstances being appropriately examined and determined.

The Bar Council calls upon the Government to ensure that enforcement agencies give full respect and effect to all refugee status granted, and all Temporary Protection Letters issued, by the UNHCR to asylum seekers in Malaysia. Those arrested or detained should be forthwith released and be allowed unhindered access to the UNHCR. It should be pointed out that, where children are involved, such arrest and detention is in contravention of the Convention on the Rights of the Child (which Malaysia has ratified and is thus obliged to act accordingly). It needs also to be highlighted that asylum seekers and refugees must not be deported back to their homeland to face threat to their lives or liberty, as doing so will run foul of the Principle of Non-refoulement in customary international law.

The amendments in July 2002 to the Immigration Act have, among other things, introduced mandatory whipping on persons found guilty of having entered Malaysia illegally, which would include genuine asylum seekers. Whipping refugees and asylum seekers is an inhuman act that adds insult to injury, and is never the solution to the problem. Instead, Malaysia should give full accord to international laws and conventions, and cooperate with the UNHCR in addressing the situation in a humanitarian manner. In this regard the Government is urged to immediately ratify the 1951 Convention Relating to the Status of Refugees and its Protocol, and the 1987 Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Our Immigration Act must be amended to bring it fully in line with these international laws. A formal asylum system should be put in place, so that Malaysia can proudly discharge its international responsibility with regard to the treatment of refugees in a humane manner.

As an interim measure, the Bar Council also calls upon the Minister of Home Affairs to exercise his power under Section 55 of the Immigration Act to exempt refugees and asylum seekers from the application of Section 6(3) of that Act; on humanitarian grounds.

Suhakam, being the statutory watchdog of human rights observance in this country, cannot remain silent. It must take the lead in urging the Government to comply with human rights standards, whenever full observance is lacking, such as in this instance.

Dated 21st August 2003

Hj. Kuthubul Zaman Bukhari
Chairman
Bar Council