KUALA LUMPUR, Wed: “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.
Despite little giggles that echoed Amer Hamzah Arshad, the
young and spirited human right lawyer from Messrs Zain & Co when he quoted
Malcolm X at the end of his talk, the audience was brought to a very unpleasant
reality throughout this session four of the last day, entitled “The Invisible
Communities in Malaysia”.
The three speakers talked about three types of ‘invisible communities’, i.e. refugees, migrant workers and stateless persons. The reason why they are described as such is because although we do not have refugee camps, for instance, these people exist in our country without any proper identification given to them. This was clarified by the moderator for the session, Ms. Latheefa Koya from Messrs Daim & Gamany.
The facts and figures on refugees presented by Dr. Volker Turk, Representative from United Nations High Commission for Refugees (UNHCR) were alarming. He explained that UNHCR is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that every one can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country.
The refuge situation in Malaysia is not to be taken lightly. There are currently more than 30,000 refugees largely composed by Myanmar refugees in Malaysia and these people are not afforded the necessary protection or even enough recognition by the Malaysian government. This is a social issue, Dr. Turk explained. Therefore Malaysian and especially lawyers must look at this issue in the eyes of international law, he added.
Malaysia is the largest receiving country of migrant labour in Asia. Dr. Irene Fernandez, Executive Director of Tenaganita, a renowned human right activist informed that we have about 3 million migrant workers ad 1.8 million are undocumented and this figure is expected to increase to 5 million by 2015.
Migration is now a business of human being in Malaysia. The outsourcing strategy introduced by the Ministry of Home Affairs, wherein workers from Bangladesh can only be recruited and employed through outsourcing companies which, based on investigation by Tenaganita are all UMNO linked or politically connected, is the proof to her claim. Each of these workers pays about RM12,000-00 to these ‘outsourcing companies’. It is a multi billion dollar industry.
Some of these migrant workers are not paid their salaries and even abused. Their passports are kept by employers. They have no recourse to redress. The Employment Act and the Industrial relations Act only apply to ‘citizens’. So if they leave the employer, they become illegal in this country. Instead of giving these migrant workers proper protection under the law, the government tackled this issue by declaring a security issue. The use of RELA, untrained vigilante cops with wide powers to arrest, enter premises without warrant and not being made accountable for their actions has only increased unjust arrest and detention, extortion of money and violence.
Article 8 of our Federal Constitution provides that “All persons are equal before the law and is entitled to equal protection of the law”. The use of the word ‘person’ and not ‘citizen’ makes it most clear that our constitution guarantees protection to these migrant workers. There is much need for new labour policy and a comprehensive framework regarding migrant labour. Dr. Irene ended her talk by calling on the lawyers and the Malaysian Bar to challenge the massive oppression of migrant labour.
The stateless community in Malaysia, the citizens of nowhere, is a massive problem locally and internationally, according to Amer. According to the 1954 Convention Relating to the Status of Stateless Persons, stateless person is defined as “a person who is not considered as a national by any state under the operation of law”.
The stateless persons situation in Malaysia fall under two categories: first, persons who are born in Malaysia but not registered with the National Registration Department, a problem mainly caused by illiteracy, ignorance, poverty or social pressure or stigma when a child is born out of wedlock; second, the persons who are victims of discriminatory practices by virtue of their ethnicity, religion or race through legislations governing nationality issues, which refers principally to aliens who have migrated to Malaysia due to human rights violations in their country such as the Ronghiya community from Burma.
Malaysia has ratified the treaties under the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discriminations Against Women (CEDAW). However, contrary to the Vienna Convention on the Law of Treaties, which set out the principles of interpretation of an international instrument that state parties should not frustrate the achievement of the object and purpose of the treaty, in the case of Mohamad Ezam v Inspector General of Police, Siti Norma Yaakob CJM treated them as merely ‘declaratory’ and not having the force of law.
Amer concluded his talk by suggesting pre-emptive measures that can be adopted to prevent individuals from becoming stateless, which includes, Malaysia upholding its commitments under CRC and CEDAW and the National Registration Department should make efforts to ensure that all children who are born in Malaysia, regardless of their nationality, are registered upon birth and provided with birth registration documents.
During the question and answer session, when asked on the awareness of relevant government bodies about these rights, Dr. Irene answered that the government is very much aware of the situation; there is just lack of political will due to political patronage and corruption surrounding the outsourcing policy.
Amer added that even among the lawyers these issues are relatively new, which started with the Acheh issue in 2003.