Guest post by Aslam Abd Jalil, PhD candidate, The University of Queensland (UQ) & Fellow, University of Malaya (UM).

malaysia

https://malaysiadateline.com/letter-of-concern-regarding-the-pushback-of-rohingya-boat-to-sea/

Globally, national borders have been sealed to prevent the spread of the coronavirus. Malaysia, too, tightened its border controls for all foreigners, including those who are fleeing from persecution. Amidst the increasing xenophobia towards refugees and migrants due to the perception that they do not observe lockdown measures and are taking advantage of Malaysian generosity, the Home Affairs Minister publicly reiterated on 30 April 2020 the state’s long-standing stance: “…based on humanitarian grounds, the government has allowed UNHCR cardholder illegal immigrants to live in this country temporarily before being resettled to third countries by UNHCR on case by case basis”.

Malaysia is not signatory to the Convention Relating to the Status of Refugees and its protocol despite hosting more than 179,000 refugees and asylum seekers registered with the United Nations High Commissioner for Refugees (UNHCR). According to the official narrative, Malaysia tolerates refugee presence based on compassionate ‘humanitarian grounds’ and the Attorney General’s Chambers issued a circular in 2005 that provides some immunity for UNHCR cardholders from being prosecuted based on their immigration status. This more tolerant stance is different to the strict immigration regime in place for ‘illegal migrants’, also known as Pendatang Asing Tanpa Izin, PATI (foreigners without permission).

In this post, I argue that Malaysia’s ‘humanitarian grounds’ narrative in hosting refugees provides political leverage for electoral votes and assuages international concerns about human rights violations without taking any responsibility. In Malaysia, the refugee plight is always framed from the Muslim ummah or Muslim solidarity lens to galvanise support from the conservative Malay-Muslim voters. This was exemplified by a big rally for Rohingya organized by two prominent racial and religious-based political parties where the former Prime Minister was trying to save his political career. The situation on the ground is, however, strikingly different. In reality, while compared to other countries in the region, Malaysia is considered a temporary safe haven, refugees in the country live in limbo as they are denied formal work and educational rights with very limited access to healthcare due to their ‘illegal status’.

There has been a series of maritime movements from Myanmar over the past decades notably in the past five years, which were met with a ‘human ping-pong’ of boat pushbacks by Malaysia, Thailand and Indonesia, also justified by the Australian Prime Minister. Beginning in 2001, Australia has stopped receiving asylum seekers who come by boat through cooperation with regional countries. Australia and Malaysia in fact signed a refugee swap deal in 2011 to implement this policy which was later declared invalid since Malaysia had not ratified the refugee convention. Only through an international agreement with the United States resettling the stranded refugees at sea during the Andaman crisis in 2015, did the authorities allow them to disembark in the country. The boat arrivals have continued as the persecution intensified. Those who were fortunate enough to reach Malaysia recently in February, were then prosecuted for illegal entry despite a court decision from last year overturning the punishment against Rohingya who arrived by boat citing the international protection accorded to them.

This is the paradox of seeking asylum. Under international law, a person cannot be recognised as a refugee unless they cross an international border while at the same time, there is no way to do so while authorities beef up border security to deter anyone without a valid visa, in willful  ignorance of their dire circumstances. This paradox reinforces human smuggling and trafficking syndicates as well as corrupt state officials. Malaysia’s ‘humanitarian grounds’ rhetoric is just a smokescreen of the state’s toleration or even active facilitation of such syndicates.

People who seek refuge in Malaysia make the perilous journeys possibly unaware of the dangers, including death, that await them.  In 2015, a total of 28 human-trafficking camps and 139 graves were discovered in Wang Kelian, situated in the most northern region near the Malaysia-Thailand border. The destruction of the camps the day after their discovery as instructed by a senior police officer was probably an attempt to cover up the involvement of state officials. To date, the findings of the Royal Commission of Inquiry (RCI) on the mass graves have not been made public and no action has been taken.

Moreover, despite that UNHCR cardholders should not be prosecuted for immigration offences, refugees often get extorted by the police. Refugees’ precarious status in Malaysia is affected by the shrinking yearly resettlement quotas to third countries through UNHCR arrangements with just 12,000 individuals being resettled worldwide in 2020. At present, there are up to four generations of Rohingya in Malaysia, residing without a formal legal status. Although they are tolerated, they are living on the margins of the society with no rights. In order to survive through harsh living conditions the Rohingya are forced to assimilate quickly and abandon their group identity; thus perpetuating the genocidal process that began in Myanmar.

Malaysia’s ‘humanitarian grounds’ was further contested on 23 February 2021, when the government deported 1,086 individuals including two unaccompanied children and nine asylum seekers to Myanmar, defying a court order that halted the operation and amidst the coup by junta. Since August 2019, UNHCR has been denied entry into detention centres and thus unable to provide protection to persons of concern. The overcrowded detention centres are in “torture-like” conditions that saw 151 deaths from 2016 until 2019. The turn to deportation could perhaps justify the contentious state of Emergency declaration by the Prime Minister recently. According to the PM, one of the justifications of suspending the parliament was to provide more power in securing national borders. Malaysia’s breach of non-refoulment by sending people to where they would face persecution is against the customary international law and inhumane.

In a nutshell, Malaysia’s narrative of ‘humanitarian grounds’ in hosting refugees needs to be challenged in order to recognise the violations of human rights in the country. Since Malaysia is yet to sign/ratify the refugee convention, existing instruments that Malaysia is a party to such as The Global Compact on Refugees (GCR) and the regional Bali Process can be a platform to implement comprehensive solutions. Malaysia, which is eyeing for a seat in the UN Human Rights Council, must immediately stop denying protection to people who are in need.

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How to cite this blog post (Harvard style) 

Abd Jalil, A. (2021). The Paradox of Malaysia’s ‘Humanitarian Grounds’. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/07/paradox-malaysias [date]