At the Abu Shouk refugee camp near El Fasher, in
Homeless Palestinian children play cards while staying at a temporary makeshift refugee center at a United Nations school after being made homeless in an ongoing Israeli Army operation in the Rafah refugee camp on May 23, 2004 in the southern Gaza Strip.
The statement below, endorsed by 14 organisations, outlines Malaysia’s international obligations towards asylum seekers, refugees and stateless persons.
JOINT PRESS STATEMENT
by 14 organisations in conjunction with
World Refugee Day, 20th June 2007
Observe International Obligations for the Protection of Asylum Seekers and Refugees
Today is World Refugee Day, a day in which the international community remembers those who seek refuge from persecution and war. Malaysia is host to an estimated 90,000 asylum seekers and refugees, who come from Southeast Asia, South Asia, the Middle East and Africa. We, Malaysian civil society groups, are extremely concerned about the way they are treated in Malaysia. For most part, they are punished as illegal immigrants rather than recognized as a vulnerable population in need of our protection and assistance.
Despite having awareness of their precarious position, the Malaysian government has yet to develop clear policies concerning these vulnerable groups
Current Treatment of Asylum Seekers, Refugees and Stateless Persons
In Malaysia, asylum seekers, refugees and stateless persons:
1. Continue to be arrested, detained, and sentenced for immigration offences – including those who have UNHCR documentation.
An average of 700-800 asylum seekers and refugees remain in detention every month. About 100 of these are children.
While the Immigration Department was previously amenable to releasing vulnerable cases on humanitarian grounds (such as pregnant women, babies, as well as the physically and the mentally ill) this has become increasingly difficult to arrange.
We maintain that asylum seekers and refugees should not be detained. Alternatives to detention are possible in Malaysia, and these should be explored immediately.
2. Are sometimes sentenced to whipping, including children.
Since amendments to the Immigration Act were made in 2002, whipping has been introduced for breaches for immigration offences.
Children – those below 18 years of age – have also been charged for immigration offences and whipped. We are aware of the case of a 15 year-old boy, unaccompanied by guardians in Malaysia, who was arrested in September 2006 and sentenced to 4 months imprisonment and 1 stroke of the cane. While detained, he was also slapped multiple times on several occasions. He was then deported to the Thai-Malaysia border.
We maintain that whipping constitutes cruel, inhuman and degrading punishment, and that it should be abolished. Children, in particular, should be protected from whipping.
3. Are forced to opt for voluntary deportation in order to escape prolonged and indefinite detention, making them vulnerable to either refoulement or to human trafficking
The refusal of the Immigration Department to release them mean that asylum seekers and refugees either have to wait for prolonged periods (up to two years or more) in detention, or opt for ‘voluntary’ deportation.
‘Voluntary’ deportation under such adverse circumstances, either results in them being deported to the home countries, which makes them vulnerable to refoulement (return to a country where their life or liberty is threatened), or falling into the hands of smugglers and gangsters at the border, making them vulnerable to trafficking.
We maintain that asylum seekers and refugees should be formally documented and released in Malaysia, while they await durable solutions.
4. Do not have fair and full access to status determination procedures to verify that they are in need of international protection.
Immigration Department officers do not conduct status-determination procedures. The UNHCR only has access to detainees on a case-by-case basis rather than free and full access.
5. Asylum seekers and refugees do not have their right to work protected, which make them vulnerable to exploitation and abuse by employers.
Asylum seekers and refugees, by definition, are unable to return home because of threats to their life and liberty. In order to sustain themselves, they have to work under irregular conditions. We know of many cases of exploitation, unpaid wages, accidents and violence in the workplace.
We maintain that asylum seekers and refugees should be formally documented and given the rights to work while they await durable solutions.
6. Asylum-seeking and refugee children do not have access to school.
Asylum-seeking and refugee children, along with other children of migrants, are barred from public education.
We maintain that all children should be given free access to primary education, with opportunities for secondary and other forms of education.
Malaysia’s Existing International Obligations
We maintain that Malaysia is obligated to protect and assist asylum seekers and refugees, despite the fact that it has not acceded to international conventions directly relevant to them.
As a member of the United Nations, and as a member of the Human Rights Council, the Malaysian government in obligated to:
1. Uphold rights of every person as set out in the 1948 Universal Declaration of Human Rights, which is international customary law and therefore binding on Malaysia.
2. Take measures necessary to fully respect the international customary law of non-refoulement.
3. Act immediately on the recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) to Malaysia as stated in their Concluding Comments of May 2006, which includes:
• Adopting laws and regulations concerning the status of asylum seekers and refugees, in line with international standards to ensure their protection, in particular for women and their children
• Integrating a gender-sensitive approach while granting asylum/refugee status in close cooperation with international agencies such as the UNHCR
4. Act immediately on the recommendations of the Committee on the Rights of the Child (CRC) to Malaysia as stated in their Concluding Comments of February 2007, which includes:
• Allocating resources for the protection of asylum-seeking and refugee children as a vulnerable group, evaluating, preventing and combating discriminatory disparities in their enjoyment of rights as children in Malaysia, particularly in terms of access to social and health services and education, and the registration of their births
• Abolishing caning and other forms of corporal punishment for those under 18 years of age, as these constitute cruel, inhuman and degrading punishment
• Taking urgent measures not to detain children for immigration proceedings, unless necessary for their best interests, and then for the shortest time possible
• Establishing a screening process to identify asylum-seeking and refugee children
• Developing legislation for the protection of asylum-seeking and refugee children, particularly of unaccompanied children, in line with international standards
• Using Section 55 of the Immigration Act 1959/63 (Act 155) to exempt asylum seekers and refugees from punishment under this Act, and to amend this Act in order to legalize their status
• Providing asylum-seeking and refugee children with access to free and formal primary, secondary and other forms of education, and access to official exams for those in informal education
• Strengthening collaboration with the UNHCR and other agencies to address humanitarian concerns to asylum-seeking and refugee children, including providing access to persons of concern in detention
We further urge the Malaysian government to fulfill its promises made in October 2004 to issue IMM13 work permits to the Rohingya population. We are concerned that this process has stalled, which leaves the Rohingyas in great vulnerability.
We urge the Malaysian government to hold dialogues at the regional level to explore durable solutions for asylum seekers and refugees.
Last but not least, we urge the Malaysian government to accede to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, as well as to the 1954 Convention Relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness.
We, the undersigned
1. Women’s Aid Organisation
2. CARAM Asia
3. Parti Keadilan Rakyat
4. Labour Resource Centre
5. Gerakan Mansuhkan ISA
6. Migrant Care
7. Suara Rakyat Malaysia (SUARAM)
8. Democratic Action Party ( DAP)
9. Sisters in Islam
10. Health Equity Initiative
11. Women’s Centre for Change, Penang
12. Kumpulan A.C.T.S.
13. All Women Action Society (AWAM)
14. National Human Rights Society (HAKAM)
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