| [ SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes on the process of reclaiming the many facets of independence.] |
Home Minister Radzi Sheikh Ahmad should be commended for his ministry's attempt to develop guidelines to "handle refugees protected by the United Nations High Commissioner for Refugees (UNHCR)". (Bernama, Feb 1)
This is quite a leap from his predecessor's relationship with this UN body. Azmi Khalid, the former home minister, had accused the UNHCR in March 2005 of "helping illegal migrants" by granting refugee status to too many immigrants to escape the crackdown, Operation Tegas. (AP, Mar 4, 2005). This was refuted by UNHCR spokesperson Ron Redmond.
However, the explanation for the ministry's guidelines is a cause of some concern. Radzi was quoted in Bernama as saying, "When we arrest them (refugees) the UNHCR will come and say they are under it's care. We don't recognise the UNHCR's action but on humanitarian grounds, we release them." "We do not recognise and accept the UNHCR-hosted refugees."
It would seem that the home minister has no qualms at all in refusing recognition to the protection work of the UNHCR. Thus the handling of refugees in the proposed guidelines may for all intents and purposes, be a reversal of all the processes and protocols painstakingly developed by the UNHCR in Kuala Lumpur for refugee protection.
The fact that Malaysia has not ratified the 1951 Refugee Convention is no longer a good reason as there is a growing body of human rights standards that the state no longer has an absolute right to turn individuals away from its borders.
Malaysia in good faith and in protection of her international image as a member of the UN had hosted the UNHCR in Kuala Lumpur. And now, Malaysia is turning its back on all that, by undermining the UNHCR and its work with relevant authorities, human rights groups and the judiciary in Malaysia.
Acting illegally
At present, Malaysia is treating refugees under its immigration laws. There is nothing in this law on refugee protection as this law did not conceive of this category of people at the time of its making. When such is the case, then the use of such a law over refugees, is not legitimate and is unconscionable. As a matter of argument, it can be said that the home minister has acted illegally by using this law over refugees.
 Under the immigration law, "illegals" can be jailed up to five years, face a RM10,000 fine and six strokes of caning. About 18,000 "illegals" were whipped in 2003. The terms, "illegal migrant", "illegal immigrant" are problematic because they criminalise the person. Using these terms have the effect of pre-judging the person's status.
When a person is forced to flee from persecution, international humanitarian law recognizes that they may need to enter a country without authorization. It would thus be misleading to describe them as "illegals". A person may also be brought into the country through trafficking, in which case such a person should be recognized as a victim of a crime and not a wrong-doer.
Refugees here face a terrible humanitarian situation. They are not afforded refugee status, where they can receive protection under the Convention rules. This includes the right of work.
The UNHCR and Malaysian human rights campaigners had welcomed the ministry's proposal to allow refugees to work. In Feb 2005, the former home minister announced that the refugee community of Rohingyas (recognised as refugees), would be permitted to work. That experiment was abandoned due to glitches but that proposal was not reviewed for this refugee community nor for any other refugee community in Malaysia since then.
Humanitarian disaster
We have a humanitarian disaster where refugees cannot work and then persecuted when they do work as they need to, to keep body and soul together. In keeping refugees in a limbo, we are implicated in the humanitarian problem that we may have inadvertently set for them on our shores.
According to UNHCR sources, the number of migrants in the world has reached an estimated 200 million. The important distinctions between migrants, asylum seekers and refugees have been blurred. With it has come a growing degree of "asylum fatigue" which has threatened refugee protection. Control policies should distinguish between migrants seeking better economic opportunities and those people who are in need of international refugee protection.
Our present laws and policies are incoherent. Asylum seekers are not portrayed as refugees fleeing persecution and entitled to sanctuary. It is often overlooked that asylum seekers and refugees comprise only a small proportion of the tens of thousands of international migrants. It is with stronger reason that we need to safeguard the principle of asylum when we blur or confuse categories and distinctions.
Our control policies should recognise refugee protection which has also a history in the idea of safe passage or aman in the Islamic Law of Nations (precursor of a public international law). It should establish a status determination process for people fleeing human rights abuses. It should follow internationally accepted principles of non-refoulement. It should provide for humanitarian assistance to refugees in Malaysia.
The ministry should work closely with the UNHCR. The UNHCR has invaluable experience over issues of protection both under the 1951 Convention and outside of that. It has more than half a century of protection work. It does seem rather silly to ignore that body of work. We can and must learn from the UNHCR in developing the proposed guidelines.
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