©The Star (Used by permission)
By ASTON PHILIP PAIVA
The public must strive to make themselves aware of the plight of refugees and endeavour to assist where possible.
WE have refugees in Malay–sia. This is a fact. As Malay–sians, we cannot turn a blind eye. But who exactly is a refugee?
Article 1 of the 1951 United Nations Convention relating to the Status of Refugees (“the Convention”) defines a refugee, inter alia, as a person who “owing to a well–founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
A refugee is not an economic
migrant. An economic migrant is a person who has left his country
seeking a better life and can always return to live peacefully.
If
caught without travel documents here, he would be subject to Malaysia’s
immigration laws and be considered an illegal immigrant.
A
refugee, on the other hand, will be faced with the threat of
persecution upon return. In other words, refugees are here in Malaysia
not out of choice but out of necessity. As refugees have fled their
country, they lack the necessary travel documents.
The
Convention also outlines the rights of a refugee and as at 2008, it has
been signed by 144 countries. However, Malaysia is not a signatory.
In
Malaysia, our immigration laws, particularly the Immigration Act
1959/63 (Act 155), do not make a distinction between a refugee and an
illegal immigrant (whether economic or otherwise).
It is in this regard that Malaysia continues to arrest, and deport, refugees in the country.
From
an international platform, such action/punishment by the Malaysian
authorities for someone who is running away from threats of persecution
appears draconian.
In any event, penalties afforded by the law
should, in fact, serve to rehabilitate the offender, not add further
psychological and physical trauma.
It should be noted that
Article 33 of the Convention stipulates that a refugee is not to be
returned (non–refoulement) to his country of origin, as his life or
freedom would be threatened.
In Malaysia, the Office of the
United Nations High Commissioner for Refugees (UNHCR, set up to
primarily safeguard the rights and well–being of refugees) began its
operations in the 1970s with the arrival of the Vietnamese refugees.
The
UNHCR interviews refugees to assess their circumstance before
registering them and providing them with documentation i.e. an identity
card.
This interview, as well as an investigative process,
thoroughly assess all refugee applications to ensure the validity of
the claims.
It is through this that UNHCR ensures a person has a valid claim for refugee status.
To
date, the UNHCR has registered more than 45,000 persons of concern
consisting of Myanmars, Sri Lankans, Iraqis, Somalis and Palestinians.
Myanmars tally the highest owing to the presence of the repressive military junta in Myanmar.
Unfortunately,
as Malaysia is yet a signatory to the Convention, the identity cards
issued by UNHCR remain unrecognised by our authorities, resulting in
arrests, detention and deportation under Malaysia’s immigration laws.
Aside from evading arrests, refugees have various other afflictions. Fifty Refugees (http://fiftyrefugees.
Being refugees, they have no legal
standing in this country, and therefore, have no alternatives in their
situation – no recourse to the law.
In fact, the Government has
recently enacted the Anti–Trafficking in Persons Act 2007 to provide
for the offence of trafficking in persons as well as protection and
support for trafficked persons.
However, the implementation to
date has been rather pathetic as prosecution is slim and there is still
no recognition for refugees.
In 2007, the then Foreign Minister
Datuk Seri Syed Hamid Albar was reported to have said: “If we recognise
refugees, we could open the floodgates and encourage them to come here
just to escape economic hardship in their own country.”
As
explained, a refugee is different from an economic immigrant. This
statement shows ignorance on the part of our authorities. I certainly
hope this isn’t a reflection of the Malaysian conscience.
The
Government aside, the Malaysian public must strive to make themselves
aware of the plight of refugees domestically and internationally while
endeavouring to assist where possible.
We cannot disregard the curtailment of human rights and democracy in Malaysia or foreign lands.
We are fortunate to be Malaysians and have a Constitution that guarantees everyone freedom of speech and equality.
We know what it feels like to be treated with dignity. We understand truth, justice and freedom.
We must now afford that privilege to everyone else, live by our conscience and use our liberty to promote democracy.
The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column — a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc.