Refugees and Refugee Policy in Malaysia

Transcription

1 Refugees and Refugee Policy in Malaysia Amarjit Kaur School of Economics University of New England Armidale NSW 2351 Australia During the last three decades, Malaysia has increasingly relied on the employment of a cheaper and more readily available less-skilled foreign labour force from within the Asian region. Officially-regulated recruitment exchanges have been accompanied by unwanted irregular movements that include refugee flows provoked by political and economic instability within the region. Since migration is entwined with the matter of citizenship and the construal of rights to an individual by the government of a state, irregular movements have become a major domestic and international political issue in the region. This has resulted in evolving border control policies and more stringent immigration controls. Moreover, while less-skilled migrant workers have largely been reduced to a marginal and semi-marginal existence in the country, official policy towards irregular migrants and refugees has been tempered by issues of ethnicity and racism and has been both brutal and harsh. Apart from the Philippines and Cambodia, Malaysia and the other Southeast Asian states do not have legislation that provides for the granting of asylum or refugee status in accordance with the 1951 UN Convention relating to the Status of Refugees and its 1967 protocol; nor have they established a system for providing protection to refugees. Malaysia does not provide protection against refoulement either but generally does not deport individuals recognised as persons of concern by the Office of the United Nations High Commissioner for Refugees (UNHCR). Nevertheless, while the government continues to cooperate with UNHCR and normally does not impede other humanitarian organisations from assisting refugees and asylum seekers, human rights concerns are not central to the politics and policies of the state s refugee policy. The future is thus bleak for refugees in Malaysia. Introduction: The construction of borders in Southeast Asia In the late nineteenth and early twentieth centuries, during the age of imperial-led globalisation, European colonial activity resulted in the establishment of six major states in Southeast Asia: Burma, Indonesia, Indochina, Malaya 1, the Philippines and Thailand. Although these new states had legally-bounded borders, the colonial powers kept their borders open to trade, investment and labour flows, in keeping with the region s demographics, the burgeoning of capitalism and global intensification. Subsequently, in the post-world War Two period, the decolonisation process and the dissolution of empires resulted in the emergence of independent nation states in the region (see Map 1). In some states this occurred peacefully, but in others the struggle for independence brought old rivalries and ethnic conflicts into the open, culminating in violence and upheaval. These processes produced strains and stresses, particularly in Indonesia, Burma and the Philippines. These countries also found it difficult to maintain democratic political systems in the face of global economic pressures and political change and the Cold War. In the 1960s the army seized political power in Burma (1962) and Indonesia (1965). The military regimes, which replaced the democratic governments, not only suppressed political parties but also subjugated certain regions and ethnic 1 Malaya refers to the Malay peninsula and Singapore prior to In 1963 Malaya merged with Singapore, Sabah and Sarawak to form Malaysia. Singapore left the Malaysian Federation in Amarjit Kaur 77

2 minorities. This in turn led to new migratory movements provoked essentially by political and economic instability in Southeast Asia. These irregular movements have been dominated by Refugees and Displaced Persons. This paper sets the context for the history of refugee affairs in Malaysia since the mid-1970s and examines the Malaysian government s refugee policy against the backdrop of the reconstruction of economic, political and cultural borders after independence. Malaysia s commitment to refugees must also be viewed in the context of its citizenship policy, the construal of rights to migrants, and its constitutional provision for the special position of the Muslim Malays and the indigenous peoples of Sabah and Sarawak. Map 1. Southeast Asia Malaysia : Framing historical and contemporary migration processes The drawing of Malaysia s national frontiers and the legislative frameworks governing migration and citizenship are in fact recent creations. Prior to the 1930s immigration was unrestricted and the country s population grew, consistent with global connectivity. In the 1930s, the global economic downturn led to restrictions on labour migration and, after independence in 1957, immigration virtually ceased. The new Malayan state, which embraced economic globalisation, commenced the process of reconstructing its national, racial, cultural and economic borders and initiated further restrictions on immigration. Henceforth, only skilled migrants were to be allowed entry into Malaya (Kaur 2006a). In the 1970s Malaysia embarked on an export-oriented industrialisation strategy, consistent with the reorganisation and relocation of labour-intensive manufacturing systems and the emergence of the global factory. The industrialisation programme and the country s land settlement and other development projects, and its strong economic growth made UNEAC Asia Papers No

3 Malaysia an attractive destination for migrants seeking escape from poverty or political unrest in neighbouring states. Concurrently, the labour shortages in the country made the recruitment of a foreign workforce indispensable to the success of its development strategy (Kaur 2004a: ch. 9). As the Malaysian economy underwent changes in the 1980s, the reach of globalisation became even broader and the decade marked the second phase of large-scale international labour migration (ILM) into Malaysia and the evolution of new border control regimes (Kaur 2006a). An important characteristic of the new ILM has been the mobility of both skilled and unskilled labour. While the origins of skilled migrants were varied, the mainly less-skilled workers were sourced initially from Indonesia and reflected the geographical, cultural and religious affinities between Malaysia and Indonesia. Notwithstanding this, the key issues of sovereignty and domestic security remained central to Malaysia s survival in a highly competitive environment and impacted on its commitment to refugees and its refugee policy. The Making of Refugee Policy in Malaysia Four factors seem to be at play in explaining the politics and direction of refugee policy in Malaysia. First, the historical legacy of the country s demographic and ethnic background helped produce a political culture that guided the initial policy towards refugees in the 1970s. Second, the geopolitical and economic situation in Southeast Asia informed Malaysia s foreign and refugee policies. Third, both of these factors assisted in the development of Malaysia s border control regime and its immigration policy, particularly in the context of the migration-refugee nexus. Fourth, despite the work of international organisations such as UNHCR and non-governmental organisations (NGOs), Malaysia s refugee policy making takes place outside a human rights framework. The connections between these factors are discussed in the following sections. Demographic and ethnic background In the late nineteenth and early twentieth centuries, Southeast Asia could be divided into labour-surplus and labour-scarce countries and this situation had major implications for labour recruitment in the region. Malaya had vast quantities of mineral resources and land suitable for largescale plantation agriculture, but only a small population. The global connecting of Malaya with industrialised Britain and the West through imperialism, technological change and modern capital investment led to the development of the tin and rubber industries and saw the entry of thousands of migrant workers, primarily from China, India and Java to work in these industries. For all three groups, migration was unrestricted (Kaur 2004a: chs. 3&4). Although some restrictions were introduced in the 1930s, the ethnic background of the population had undergone major changes through settlement and population growth. More significantly, by 1947, the Chinese and Indians had outnumbered the Malaysians as shown in Table 1 below. Table 1: Malaya: Population by Racial Group, (Numbers in Thousands, Percentages as a Proportion of Total Population) Malaysians 1 Chinese Indians 2 Year No. % No. % No. % Notes: 1. Malaysians include Malays and Indonesians. 2. Includes Pakistanis after The Table excludes other Races. Source: Malaya: Census Reports Amarjit Kaur 79

4 This demographic change informed Malay political culture and influenced subsequent immigration policy. Upon independence, the independent Malayan state devised a new border control regime and introduced internal enforcement measures mainly to differentiate between the indigenous inhabitants and the resident aliens, particularly with regard to their economic and political rights. This policy was articulated along ethnic categorisations and identity and thus in the 1960s, only lessskilled Indonesian migrant workers (deemed to have a common racial and cultural heritage) were permitted to be recruited for employment by Malayan firms (Kaur 2004b). Subsequently, in the wake of the 13 May 1969 racial riots, the government adopted a developmentalist policy that subsumed an affirmative action policy and gave preference to ethnic Malays and other indigenous groups in many spheres. The government also reaffirmed its racial and ethnic borders in order to strengthen and maintain the racial balance in the country. Undoubtedly, this policy weighed heavily not only upon the new migrant labour intakes but also informed policy on the Moro refugees from the Philippines and Indochinese refugees in the 1970s (see below). Four distinct phases may be identified in the evolution of Malaysian immigration policy since the 1970s and these corresponded with the state s officially-regulated migrant labour intakes, regularisation drives for irregular migrants and its commitment to refugees. During the first phase, , the government followed a liberal policy towards foreign (mainly Indonesian) labour recruitment. In the second phase, , foreign labour recruitment was legalised, an official channel was created for labour recruitment and bilateral agreements signed with neighbouring governments for officially-regulated exchanges of labour. In the third phase, , a legalisation programme was commenced to halt the increasing movement of illegal migrants. Growing public disquiet against the more pronounced visibility of Indonesian migrant workers prompted the state to implement this programme, which had its origins in the economic recession of Thus public sentiment and societal borders led to a change of policy and in 1989 the further importation of foreign labour was frozen. Concurrently, the state implemented a programme to legalise/regularise the status of Indonesian migrants already in the country. The fourth phase, since 1997, was marked by three important developments. First, the financial and economic crisis of signalled a turning point in state policy towards foreign labour recruitment, and resulted in a rearticulation of official policies on ILM that focussed on questions relating to ethnicity and race. Hence new measures were framed to control unauthorised migratory movements and an amnesty programme was introduced that permitted illegal migrants to depart without penalty. Second, a work-permit system based solely on offshore recruitment was enforced, resulting in workers activities being touched by categorisation more rigidly than before. Crucially, employment permits became both location- and employment- specific, and official policies and police action were strengthened to combat irregular movements. Third, the government enacted new legislation which officially articulated a diversified recruitment policy designed to reduce Malaysia s dependence on any one racial group (Kaur 2006a and 2006b). Against this backdrop, the Malaysian government s approach to managing all migratory movements, including refugee flows, has been reactive, rather than being proactive. Regional geopolitical and economic situation In 1967 the five newly-industrialising countries of Southeast Asia, namely, Singapore, Malaysia, Thailand, the Philippines and Indonesia, formed the Association of Southeast Asian Nations (ASEAN) to promote regional cooperation that would be conducive to peace, progress and prosperity and further their common political interests without the threat of external interference. They also signed a declaration (the Kuala Lumpur Declaration) in 1971 to secure recognition of, and respect for, Southeast Asia as a Zone of Peace, Freedom, and Neutrality free from any form or manner of interference by outside powers (ASEAN 1971). The Communist victories in Indochina in 1975 led to increased cooperation and regional resilience and the first ASEAN Summit in Bali in The Summit laid the foundations for stronger political and economic collaboration within ASEAN and was followed by further co-operation on the creation of growth triangles, or sub-regional economic zones, to facilitate the emergence of a regional economy. UNEAC Asia Papers No

5 ASEAN offered membership to all states in Southeast Asia that would subscribe to its aims and purposes and this was realised in 1999 when an all-southeast Asian-inclusive ASEAN became a reality (Brunei joined in 1984, followed by the former Indochinese states and Myanmar in the 1990s). ASEAN s major achievement has been the promotion of a regional political order based on the principle of the individual states support for each other s sovereignty and territorial integrity (Broinowski, 1982, 1990; Narine 2002). These regional initiatives helped in the development of political and ideological alliances in Southeast Asia and served the larger agenda of non-interference in territorial disputes within nations. Thus, while Malaysia was viewed as a sympathetic refuge by Acehnese refugees, particularly after 2000, the Malaysian government has been criticised by NGOs for not giving primacy to human rights concerns (see below Acehnese refugees). The evolving border control regime, immigration frameworks and the migration-refugee nexus Malaysia has become the largest labour-importing country in Southeast Asia. Official, NGO and media reports variously state that migrant workers from all over Asia currently (2007) constitute between 2.6 to 2.8 million of the 10.5 million to 12 million labour force (Malaysiakini, 2 March 2007; 23 February 2007). Malaysian law distinguishes only two main categories of migrants, namely, documented or legal migrants and undocumented or illegal migrants. The first category includes people who enter (and are allowed to stay) in Malaysia and who hold passports, visas, work permits and other valid documents, as required by the immigration legislation. The largest group included here comprises contract migrant workers in possession of a work permit and the necessary documents issued by the Malaysian authorities. The second category includes all people who enter Malaysia without documents or who subsequently become undocumented after arrival. The number of undocumented migrants in the country is estimated to range from 800,000 to over one million people (Agence France-Presse, 14 July 2006; Kanapathy 2006; Malaysiakini, 2 March 2007). It is estimated that over 150,000 people in this category of migrants are from refugee and asylum seeker communities (See Table 2 below). The usage and governance of foreign labour is regulated by three key legislative instruments: the Immigration Act; the Employment Act 1955/1998; and the Penal Code. The Immigration Department oversees, and the Immigration Act 1959/1963 provides the basis for, immigration regulations and procedures in the country. The Department comes under the authority of the Ministry of Home Affairs. Following the establishment of an official foreign labour recruitment policy in the 1980s, the Home Ministry (through the Immigration Department) formulated new structures to control the entry of people and establish forms of permission to enter and stay in the country through the issuance of visit passes for temporary employment or work permits. Work permits for this category of (unskilled) migrant workers are governed by strict criteria to restrict and regulate the migrant workers entry, residence and employment. The key features currently in place for the recruitment of less-skilled foreign workers on work permits are: a guest-worker rotation system; off-shore recruitment procedures; the provision of assisted passage for a large number of workers; repayment of advances through salary deductions; employment with a specified employer; fixed term employment and the obligatory return to the country of origin upon completion of the contract (Kaur 2006b). The work permits for workers may only be applied for, and obtained by, employers who hold the responsibility to obtain and renew work permits of their foreign workers. A migrant worker s continued stay in the country is thus determined by the employer when, and if, the employer renews the worker s work permit. In the enforcement of the Immigration Act, two special articles, Section 6 and Section 51, are used to detain and charge illegal migrants. Article 6 of the Act states the grounds for legal entry. Consequently, any person who enters the country illegally will be severely punished. Article 15 defines the offence as unlawful entry or presence in the country or overstaying in the country. Briefly therefore, since the legal status of a migrant worker rests solely with the employer, migrant workers do not have any right to determine their stay in the country and are effectively bonded to Amarjit Kaur 81

6 their employers (S r ee n ev as an 2006). Moreover, since there is no provision for refugee protection, refugees also come under Malaysia s immigration legislation. The absence of guidelines on refugees means that refugees who are apprehended are criminalised and detained in the ever-increasing detention centres. In 1995 the Malaysian NGO Tenaganita published an expose on the horrific conditions in the then 11 Immigration detention camps, including details on deaths and corruption in the camps (Tenaganita 1995). Subsequently, the government disbanded the Cabinet Committee on Foreign Workers and immigration matters and recruitment were transferred to the Home Affairs Ministry. The recruitment of labour no longer came under the jurisdiction of the Human Resources Ministry or with the Cabinet. This move has had major implications not only for governance of migration, but also for the use of the Immigration Act to silence migrant workers and increase exploitation and violence against all migrants. In comparing the marginalisation of migrant workers, domestic workers have been left to the employer s free will and have been excluded from any protections by the state (Kaur 2007, in press). The Immigration Act was further amended in 1997 and 2002, leading to the establishment of harsh penalties for immigration violations. The Act allows the indefinite detention of illegal migrants pending deportation. Thus undocumented persons in Malaysia, irrespective of whether they are alleged illegal migrant workers or asylum seekers, can face up to a five-year jail sentence, a MYR10,000 (US$2,600) fine and six strokes of the cane under the Immigration Act (Kaur 2006b). In 2002 and 2005, Malaysia had crackdowns on hundreds of thousands of such undocumented migrants in the country. Almost 400,000 Indonesians were deported in 2002, causing a humanitarian crisis which became a critical point in the management of Indonesia s migration flows to Malaysia (Ford 2006:249-50). At the same time, an estimated 8,000 Filipinos were deported, while 30,000 Filipinos languished in detention centres (Migrant Watch 2005: 2). Thus, as the impact of global migration continues to be experienced, debated and contested in Malaysia, the state has moved away from the conventional geographical vision of the border as a dividing line between one national territory and the next, to a more complex sense of the border as a social reality. The border may now be experienced in a variety of places: at conventionally defined international boundaries, at seaports and airports, at the perimeters of migrant-processing hubs and detention centres (Kaur 2006a). Border controls have also become diffused and a shortage of staff to patrol the territory (as distinct from frontier controls) has resulted in the Malaysian state authorising voluntary security associations (Rela) to conduct immigration raids and arrest illegal immigrants. These civilian neighbourhood security members receive minimal training and are given cash rewards (MYR 80 or US$21) for each illegal immigrant apprehended. Despite the fact that possession of firearms by civilians is a criminal offence (and carries the death penalty), senior Rela members are provided with shotguns. They move around as a group (accompanied by immigration officials) at night or in the early hours of the morning when the illegal migrants/refugees are at home (in the squatter areas or in makeshift living quarters in the jungle), acting on information provided by the Immigration Department. They are empowered to break down doors to make citizen arrests. These undocumented migrants/refugees are then transported to the many detention centres in the country. In the 2005 crackdown on irregular migrants, an estimated 500,000 officials and civilians were deployed to round up irregular migrants, including involuntary migrants (Migrant Watch 2005: 2). Thus, in the reconstruction of its cultural and economic borders, the Malaysian state makes no distinction between undocumented migrants and workers fleeing abusive employers or refugees. There are now 47 detention centres in Malaysia, including 28 dedicated prisons. In 2005, following widespread allegation of abuse by immigration department officials, the Prisons Department took over the management of the centres from the Immigration Department (US State Department, Malaysia Country Report on Human Rights Practices, 2006). These are overcrowded, by an average of 25 per cent over capacity (Malaysiakini, 19 March 2007). In February 2007 the government estimated that UNEAC Asia Papers No

7 there were between 500,000 to 800,000 undocumented workers in the country and that a new crackdown would be implemented in the near future ( Malaysiakini, 12 February 2007). UNHCR, Human Rights and Refugees UNHCR s role in migration, which deals with involuntary migration, comes into play after refugees have entered Malaysia. Since UNHCR is mandated to ensure that refugees receive international protection in place of the national protection they have lost, the organisation s main task is to seek a durable solution to the refugees plight. It also cooperates with other international organisations and NGOs to develop a comprehensive approach to refugee issues in Malaysia. There is, nevertheless, an expectation that the refugees will return to their country of origin, and this has led to the organisation facing many difficulties in Malaysia. As noted earlier, Malaysia has not ratified the 1951 UN Convention relating to the Status of Refugees or its 1967 Protocol, nor has it established a system for providing protection to refugees. Additionally, it does not provide protection against refoulement, but generally does not deport such individuals recognised as persons of concern by UNHCR. While the state does not grant refugee status or asylum, it has cooperated with UNHCR and generally does not impede other humanitarian organisations from assisting refugees (US Committee for Refugees and Immigrants (USCRI) 2006). But Malaysia signed and ratified the Convention on the Rights of the Child (CRC) in February Article 22 of the CRC clearly and specifically requires member states to provide appropriate protection and humanitarian assistance to refugees. It is also a member of the UN Human Rights Council and a signatory to the UN Conventions. The basis for UNHCR s operations in Malaysia dates from the organisation s work with Vietnamese refugees who fled to Malaysia in the 1970s and 1980s. It also comes from the 1989 Comprehensive Plan of Action (CPA), an international agreement that provided for the screening of these refugees for refugee status and their resettlement or repatriation. The first Vietnamese boat people landed on the east coast of Peninsular Malaysia in May In the same year, the Malaysian government sought UNHCR help to deal with the Vietnamese boat people. According to USCRI, Malaysia was perhaps the most resolute of the Southeast Asian first-asylum countries in pursuing the repatriation of Vietnamese boat people (USCRI Country Report Malaysia, 1997:1; UNHCR 2000: ch. 4; Viviani 1984). Of the nearly 255,000 Vietnamese boat people who were given temporary asylum in Malaysia in eight camps, a total of 248,410 were resettled in Western countries, while over 9,000 returned to Vietnam. The last camp was closed in 2001, five days before the end of the CPA (UNHCR Press Releases, 25 June 2001). The last Vietnamese boat refugee left Malaysia on 30 August 2005 (UNHCR Press Releases, 30 August 2005), signalling the end to an era of voluntary Malaysian cooperation with the UNHCR. The Malaysian government also sought UNHCR assistance with Filipino Muslim refugees who fled to Sabah and were given protection by the Sabah government in the 1970s and 1980s. UNHCR assisted with the Filipino refugees from 1977 to 1987, and phased out its programme in Sabah in The Sabah state government subsequently assumed responsibility for the refugees (USCRI Country Report Malaysia 1999: 3). Since the phasing out of the Sabah programme and the ending of the CPA in 2001, the UNHCR has had no formal written agreement with the Malaysian government to handle refugee status determinations. It maintains a liaison office in Kuala Lumpur and Malaysia continues to formally accredit UNHCR representatives in the country. According to Human Rights Watch (HRW), the absence of a formal agreement has meant that UNHCR s interventions with the government on behalf of refugees are ad hoc (HRW 2000: pt.5). Of late, the Malaysian Home Affairs Minister has been quoted as saying that UNHCR gets in the way of Malaysian enforcement agencies (the Immigration Department and Rela) and that Malaysia does not recognise and accept the UNHCR-hosted refugees (Malaysiakini, 8 February 2007). Thus the Malaysian state s broader context of dealing with irregular migratory movements and refugee flows continues to take place outside a human rights framework and means that refugees form a particularly vulnerable group of people in Malaysia. Amarjit Kaur 83

8 Refugees in Malaysia: Refuge or Refugee Warehousing 2 As stated above, Malaysia has no formal mechanism for granting asylum or registering refugee populations. UNHCR continues to handle all refugee status determinations (albeit in an unfriendly environment) and issues plastic, tamper-proof cards to those recognised as refugees. How then are we to assess Malaysia s openness to refugees or even supporting human rights principles? This is a daunting task since there are no simple comparable measures with other countries. The following five indicators may have some validity: whether Malaysia is a signatory to the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol; the refugee population per capita ; the state s contributions to UNHCR whether the state has an independent Commission to look into human rights abuses Malaysia s Refugee Inventory or Country Report card (from USCRI) These indicators are discussed below in the context of Malaysia s commitment to refugees and refugee policy. Signatory to the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol Malaysia has not ratified the 1951 UN Convention relating to the Status of Refugees or its 1967 Protocol. It is currently not represented on the UNHCR Executive Committee either. In April 2007 the Foreign Ministry s parliamentary secretary told the Dewan Rakyat that Malaysia would not officially recognise refugees since the government is of the opinion that if Malaysia becomes party to the Convention, considering its strategic geographical location in the region, it would be a drawing factor for refugees to come to Malaysia (Malaysiakini, 17 April 2007). He also stated that several cultural factors, alluding to the special rights of the Malays, slows the process of ratifying all the conventions (Malaysiakini, 17 April 2007). The refugee population per capita in the country Malaysia has a population of about 26.1 million and is ranked as a highly developed country (#61) on the United Nations Development Programme (UNDP) 2006 Human Development Index (UNDP 2006). The country s Gross National Income amounts to US$112.6 billion, while the Gross National Income per capita is US$4,500 (USCRI Malaysia 2006). Interestingly, Malaysia has the largest income disparity between the rich and the poor in the Southeast Asian region. The top 10 per cent of the population is 22.1 times richer than the bottom 10 per cent (Hector 2006: 161). Hence, in Malaysia s drive to become more competitive, the country s poor and less-skilled migrant workers are largely excluded from the benefits of development. This in turn has implications for Malaysia s contributions to UNHCR and its treatment of refugees in the country. The number of refugees and asylum seekers in Malaysia is listed below in Table 2. As shown below, the largest refugee populations originate from Malaysia s poorer neighbours the Philippines, Myanmar and Indonesia. 2 Warehousing is a term used by USCRI and others to describe the denial of human rights found in the 1951 Convention relating to the Status of Refugees and other instruments to live lives as normal as possible while in exile, especially the right to earn a livelihood and freedom of movement. Warehoused refugees are typically, but not always confined to camps virtually dependent on humanitarian assistance (Smith 2004). UNEAC Asia Papers No

9 Table 2: Refugees and Asylum Seekers in Malaysia, 2006 Refugees and Asylum Seekers 152,700 Philippines 66,800 Myanmar 53,000 Indonesia 30,000 New Refugees & Asylum Seekers 10,900 Involuntary Departures 210-1,000 Voluntary Departures 700 Malaysia as Source 200 Source: U.S. Committee for Refugees and Immigrants - World Refugee Survey 2006 Country Report, Malaysia Malaysia s Contributions to UNHCR, Malaysia s contributions to the UNHCR during the period 1990 to 2004 are listed below in Table 3. Table 3: Government of Malaysia UNHCR donor profile and donor history (in US$) , , , , , , , , , , ,000 Source: UNHCR, Donor Information, Malaysia. [retrieved 13 April 2007]. The Malaysian government s donations to UNHCR must also be understood in the context of Malaysia s grandiose plans to be a regional leader in world affairs. In 1993 Malaysia was elected a member of UNHCR for by the United Nations Economic and Social Council. When the Malaysian leader of the delegation was elected Chair of the 52nd session of the UNHCR in 1995, this led to an increase in Malaysia s donation. Malaysia was then elected to serve a second term in UNHCR from In 2000 the government formed the Human Rights Commission of Malaysia (SUHAKAM), which also saw a major jump in Malaysia s contribution to UNHCR. Since then, it appears that the Malaysian government has stopped making donations to UNHCR. The existence of an Independent Commission to look into human rights abuses Suruhanjaya Hak Asasi Manusia Malaysia or SUHAKAM was established by the Malaysian Parliament under the Human Rights Commission of Malaysia Act 1999, Act 597 and its inaugural Amarjit Kaur 85

10 meeting was held in April A number of international and regional factors helped SUHAKAM s establishment. The first was global connectivity and the intensification of international focus on human rights arising from the success of the 1993 World Conference on Human Rights. Malaysia, in common with other governments, agreed that human rights were universal and indivisible, and acknowledged the importance of setting up national human rights institutions. Malaysia s involvement in UNHCR from was another contributory factor. In the mid-1990s Malaysia also had a more mature and politically-conscious electorate and growing civil society activism. Moreover, by the mid- 1990s, seven Asian countries, including two from ASEAN - Indonesia and the Philippines - had already established national human rights institutions, while Thailand was in the midst of setting up one. Thus Malaysia followed the world and regional trend and set up its own commission in SUHAKAM s main brief is to address and alleviate human rights problems in Malaysia, In order to carry out its duties and functions in an effective manner, specific working groups were formed to deal with education and promotions, law reform, treaties and international instruments, economic, social and cultural rights, and complaints and inquiries (SUHAKAM, 2007). However, SUHAKAM is viewed by many as a tool of government, to deflect attention from the government s responsibility for rights violations and to provide a sanitised version of the human rights situation in Malaysia (Suaram 2006:129). In 2004 SUHAKAM was placed under the jurisdiction of the Deputy Prime Minister, who has consistently endorsed security laws and preventative detention as necessary [measures in the interests of] national security (Suaram 2006:129). Malaysia : USCRI Annual World Refugee Survey Country Inventory or Report card The Annual World Refugee Survey conducted by USCRI highlights what is happening to refugees; how they are treated by the authorities in the countries they have fled to; and what their future holds. In its 2005 Survey (for events that occurred in 2004), USCRI introduced a new inventory format that rated countries according to refugees enjoyment of rights in the 1951 Convention and other instruments and also listed aggravating and extenuating factors (USCRI, World Refugee Survey 2005, Table 3). The rights of the least favoured groups were rated in four key categories since countries had differential treatment for refugees. The countries included in the survey hosted 93 per cent of the world s refugees. Malaysia was placed in the Worst category for its treatment of refugees and asylum seekers in 1995, scoring an F grade for all four performance indicators, on a scale of A Best to F Worst. These categories were the Practice of Refoulement/Asylum (deportation of refugees and asylumseekers to home countries) and thereby the denial of physical protection from parties from which refugees and asylum-seekers may suffer violence; Detention (the detention of refugees and asylumseekers in immigration detention centres on charges of illegal entry or stay in the country and did they have access to courts to enforce their rights); Right to earn a Livelihood (did the authorities allow refugees and asylum seekers to work); Freedom of Movement and Residence (did the authorities confine refugees or asylum seekers to camps or segregated settlements and could they travel freely). In the 2006 Survey (for events that occurred in 2005) Malaysia again performed very badly, although it showed an improvement in the performance indicator freedom of movement and residence for refugees, where it received a C grade (Average). In the other categories, however, Malaysia s position did not show any improvement. Moreover, despite having ratified the Convention on the Rights of the Child, Malaysia did not provide primary education or free health services to most refugee children or asylum seekers including those born in Malaysia (USCRI 2006). Case Studies The following case studies on Filipino Muslims in Sabah and Acehnese and Rohingya refugees in Malaysia exemplify Malaysia s record on refugees and show why human rights concerns are not central to government policies in this area. The Acehnese and Rohingyas, who are Muslims, have been given temporary protection as groups by the Malaysian government. Refugees with group UNEAC Asia Papers No

11 status are not eligible for resettlement, but are facilitated to return to their countries of origin. In 2004 the government announced that it would regularise the Rohingyas and give them work permits. Progress has been slow and the process was initiated only in In 2005 Acehnese refugees were given IMM13 work permits. It appears that Malaysia discriminates on the basis of the religion of the refugees, since the Christian Chins do not have the right to work. Generally, refugees in Malaysia live in makeshift camps in jungle fringes. The authorities, accompanied by Rela volunteers, attack these alien settlements from time to time, capture the helpless refugees, burn the makeshift settlements, and incarcerate them in detention camps (after whipping them) ( See, for example, Médecins Sans Frontières (MSF), My Life as a Refugee in Malaysia, 13 April 2007). Historically, the Malaysian government (specifically the Sabah state government) recognised only one group of refugees of its own accord, the Filipino Muslims from Mindanao. As noted earlier, the government worked in collaboration with UNHCR from to integrate them and funded housing, healthcare facilities and schooling for children of refugees. When the political situation in the Philippines changed in 1986, UNHCR assisted with the voluntary repatriation of some refugees. With the departure of the UNHCR, the Sabah government took over responsibility for those who stayed behind, then estimated at around 45,170 (USCRI World Refugee Survey Malaysia 1999). Although provided with basic rights and services, they were not considered permanent residents. During the Asian financial and economic crisis of , Malaysia clamped down on irregular migration, instituted a legalisation drive and made the Filipino refugees re-register as refugees. Malaysia also promised a return of the refugees following the 1996 peace agreement between the Philippine government and the MNLF although no major repatriation occurred. In 2000, guerrillas from a Moro separatist group known as Abu Sayyaf, kidnapped foreign tourists and Malaysians from a Malaysian resort, which strained relations and the authorities subsequently clamped down on the arrival of refugees and asylum-seekers. In 2001 the refugee status of the Filipinos was revoked, and their further stay became conditional upon them securing work permits (Asian Migration News, 30 April 2001). They were issued temporary residence permits known as IMM13 documents that allow them to gain lawful employment and access to education and health care. These permits are subject to renewal on an annual basis. However, the government quickly halted the registration process, following charges of corruption against intermediaries who were facilitating the registration process. The government has not resumed the IMM13 registration process in Sabah. According to the Malaysian NGO Suaram, currently, some 61,000 Moros hold work permits allowing them to reside and work in Sabah. However their wives and children do not hold these documents and are easy targets for arrest as illegals (Suaram 2006:125). Refugees from Myanmar : Chins and Rohingyas Refugees from Myanmar comprise mainly the Christian Chins and Muslim Rohingyas. The UNHCR conducts individual refugee status determination procedures for the Chins, leading to mandate refugee status. The Chin Refugee Centre estimates their numbers at 14,000 (Suaram 2006: 124). According to Suaram, Chins constitute the largest asylum seeker and refugee population held in detention in Malaysia. UNHCR reported processing about 1500 cases a month and had a backlog of 13,000 Chins in Chins asylum seekers also reported waiting for interviews for more than two years. The Chins are also not given the right to work (USCRI 2006:1). They thus fall in the category of being warehoused and reliant on humanitarian assistance. The Rohingyas, who were made stateless by the Myanmar government in the 1970s, initially fled to Bangladesh. In the 1980s they started arriving in Malaysia and were given temporary protection. After fleeing systematic discrimination, forced labour, and other abuses in Burma, Rohingyas faced a whole new set of abuses in Malaysia. These included beatings, extortion, and arbitrary detention. The refugees are forced to live in poverty and constant fear of expulsion from the country. Human Rights Watch s Report, Living in Limbo: Burmese Rohingyas in Malaysia (2000), details the treatment of Rohingyas in Malaysia. Denied legal recognition as refugees, Rohingya children are often not permitted to attend school, and many are denied health care. They are also at Amarjit Kaur 87

12 constant risk of arrest. Malaysian government officials detain and deport even those persons the UNHCR has recognized as refugees. Malaysia does not generally return refugees to Myanmar, but it continues to expel them to Thailand. It does this because Burma will not accept them back and because they generally enter Malaysia by way of the Thai border. However, Thailand has also not ratified the Refugee Convention and its Protocol either, and Burmese expelled to Thailand risk detention and deportation to Burma. According to USCRI, Malaysia handed others [Burmese] to agents or smugglers. These refugees either had to pay ransoms, or were smuggled back to Malaysia or were trafficked by the agents (USCRI Malaysia 2006:1). Rohingyas were estimated to be about 10,000 in 2006, and as stated above, the government has initiated the process of issuing them work permits. Refugees from Indonesia: Acehnese Acehnese comprise the largest caseload of asylum seekers and refugees in Malaysia. An understanding of the ethnic and religious insurgency confronted by the Indonesian government since the founding of the independent state of Indonesia, particularly Aceh, is crucial in reviewing the plight of the Acehnese. Aceh lies on the northern tip of the island of Sumatra, just west of Malaysia across the Malacca Strait. In 1959 Aceh was given the status of a special territory, but this did not satisfy the Acehnese. For them, the Javanese-dominated central government had replaced the Dutch as colonial rulers and had to be resisted. The war with Jakarta began in 1976 when Gerakan Aceh Merdeka GAM (Free Aceh Movement) was established as an armed resistance group. Building on a history of trade and travel across the Malacca Strait, many Acehnese fled to Malaysia and GAM maintained an operational headquarters for a number of years beginning in the 1980s. Many more fled to Malaysia during the height of counter-insurgency operations in Although Malaysia regarded all undocumented migrants from Indonesia as economic migrants, the government allowed them to stay, acknowledging that they could be persecuted if they were returned. The economic and financial crisis of and Malaysia s changing economic situation led to a reversal of this policy and the government s subsequent campaign to deport illegal migrants in 1998 included the Acehnese. The forcible removal of the Acehnese led to rioting in detention camps (where some Acehnese had been detained); there were at least 39 deaths and some Acehnese, who had escaped the dragnet, broke into four diplomatic compounds. Some were subsequently resettled but the rest were deported (Human Rights Watch, 2004). In 2002, Malaysia implemented a massive crackdown on illegal migrants, and among those deported were Acehnese who were UNHCR-recognised refugees. In 2003 the Indonesian Government started military operations in Aceh and thousands of Acehnese fled to Malaysia. Indonesia also worked through ASEAN to obtain declarations of support for Indonesia s national sovereignty. ASEAN Foreign Ministers reaffirmed their support for Indonesia s sovereignty and territorial integrity and backed its efforts to restore peace and order. ASEAN Foreign Ministers also pledged to deny GAM access to weaponry to prevent arms smuggling into Indonesia, fearing that Indonesia s destabilisation could encourage other separatist movements in the region. Following the cessation of hostilities in Aceh, a Memorandum of Understanding was signed between GAM and the Indonesian government in 2005, and conditions improved in Aceh. Some Acehnese returned home of their own accord. In 2005, the Malaysian government issued between 32,000 and 35,000 work permits to Acehnese migrants. These work permits are for two years and allow the Acehnese to reside and work in Malaysia (USCRI World Refugee Survey Malaysia, 2006:3; Suaram 2006: 124). Although many Acehnese would prefer to return to Aceh, most do not have travel documents, nor do they have the funds for the journey. UNHCR has also been considering initiating a voluntary repatriation program, but this has not yet been implemented. UNEAC Asia Papers No

13 Some closing remarks Malaysia is a key player in regional and global affairs and is in a strong position to initiate programmes for the inclusion of human rights concerns in refugee policy in the region. But it remains trapped in its immigrant last mentality time warp, racist and pro-islamic policies. Malaysia s admissions of refugees and its refugee protections are poor compared to its neighbour Thailand, which hosts refugee camps along its borders. Refugees in Malaysia live in makeshift camps in the jungle. These camps are frequently razed to the ground by Rela officials (MSF 2007). Similarly, Malaysia is hostile to human rights groups that work with refugees, compared to Thailand. Yet the debate on Malaysia s refugee policy should not obscure the fact that there has been some commitment to refugee protections in various periods. Nevertheless, so long as Malaysia continues to be dependent on lessskilled migrant labour and some cultural factors such as Malay rights, the situation remains bleak both for economic migrants and refugees. References Agence France-Presse (AFP), 14 July 2006, Malaysia: New crackdown on illegals. ASEAN Kuala Lumpur Declaration of a Zone of Peace, Freedom and Neutrality, Kuala Lumpur, Malaysia, 17 November [retrieved 2 January 2006]. Amnesty International Malaysia Human rights at risk in mass deportation of undocumented migrants ASA 28/008/2004 available at [ retrieved 5 January 2005] Broinowski, Alison. (ed) Understanding ASEAN (New York: St. Martin s Press) Broinowski, Alison. (ed) ASEAN into the 1990s (London: Macmillan). Ford, Michelle After Nunukan: The Regulation of Indonesian Migration to Malaysia in Kaur, A., and I. Metcalfe (eds), Mobility, Labour Migration and Border Controls in Asia (Basingstoke: Palgrave/Macmillan), pp Hector, Charles Migrants and Rights in Malaysia. More important than rights is the access to justice, INSAF (Journal of the Malaysian Bar), XXXV, 1: Human Rights Commission of Malaysia (SUHAKAM), History, available at [ retrieved 13 February 2007]. Human Rights Watch Malaysia/Burma. Living in Limbo. Burmese Rohingyas in Malaysia. Vol.12.No.4 (C). Available at [retrieved on 2 January 2006]. Human Rights Watch Aceh under Martal Law: Problems faced by Acehnese Refugees in Malaysia. Vol 16 No. 5 (C) April. Available at [retrieved on 4 January 2006]. Kanapathy, Vijayakumari Migrant workers in Malaysia: an overview, Country paper prepared for the Workshop on an East Asian Cooperation Framework for Migrant Labour, Kuala Lumpur, 6-7 December [retrieved on 10 April 2007]. Kaur, A. 2004a. Wage Labour in Southeast Asia since 1840: Globalisation, the International Division of Labour and Labour Transformations (Basingstoke: Palgrave/Macmillan). Kaur, A. 2004b. Crossing Borders: Race, Migration and Borders in Southeast Asia International Journal on Multicultural Societies (IJMS), Vol. 6. No. 2 (December): , Kaur, A. 2006a. Order (and disorder) at the Border: Mobility, International Labour Migration and Border Controls in Southeast Asia in Kaur, A., and I. Metcalfe (eds), Mobility, Labour Migration and Border Controls in Asia (Basingstoke: Palgrave/Macmillan), pp Kaur, A. 2006b. Managing the border: regulation of international labour migration and state policy responses to global governance in Southeast Asia. Asian Studies Association of Australia Biennial Conference, Wollongong, June Amarjit Kaur 89