MALAYSIA is not a state party to the 1951 Refugee Convention and its 1967 Protocol, and so it does not recognise refugee status or provide rights for refugees, including employment rights.
Despite that, refugees have been working in the informal sector all this while to survive, and Malaysian authorities turn a blind eye. They are mostly unskilled labourers who work in 3D sectors. There are also refugees with professional qualifications.
Without employment rights, refugees are often exploited and abused. The issue of employment rights for refugees also affects employers who hire them.
In 2013, the Malaysian Government announced that it would issue work permits and provide training for refugees living in Malaysia, but this plan did not materialise.
Recently, the Home Minister again announced that thousands of Rohingya who have been granted refugee status by UNHCR would be able to take up employment opportunities in sectors that are “appropriate, safe and easily monitored by the authorities” through a pilot project.
There are articles and sections in existing Malaysian laws, and the international conventions and declarations that Malaysia signed, that are supposed to make it legal for refugees to gain employment rights.
Both citizens and non-citizens are entitled to rights enshrined in the Federal Constitution. This includes the right to be engaged in lawful and gainful employment.
Article 8 (1) of the Federal Constitution says that “All persons are equal before the law and entitled to the equal protection of the law”.
The Industrial Court also agreed in Ali Salih Khalaf v. Taj Mahal Hotel that the equality of UNHCR-registered refugees under the law is also reflected in the Employment Act 1955 and Industrial Relations Act 1967.
Malaysia had temporary residence permits called IMM13, permissible under section 55(1) of its Immigration Act, which states that the Minister can exempt “any person or group of persons from the provisions of the Act”.
Acehnese, Rohingya and Moro refugees were issued with these permits that allowed them to remain legally in Malaysia and engage in lawful employment.
In an amendment of Section 516 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act in December 2015, the Council of Anti-Trafficking in Persons and Anti-Smuggling of Migrants may give permission to any trafficked person who has been granted a Protection Order to move freely or to be employed, engaged or contracted in any occupation.
As some of the refugees, especially Rohingya, were victims of human trafficking, they should be protected and allowed to work under this Act.
Two important aspects mentioned in the Universal Declaration of Human Rights are in Article 14, which is the right to seek asylum from persecution, and Article 23, which outlines the rights to employment without discrimination to everyone. As a member of the United Nations Security Council, Malaysia is supposed to uphold the human rights principles enshrined in this Declaration.
Article 16 in the ASEAN Human Rights Declaration states that “Every person has the right to seek and receive asylum in another State..” while Article 27 (1) states that “Every person has the right to work, to the free choice of employment, to enjoy just, decent and favourable conditions of work and to have access to assistance schemes for the unemployed”.
Malaysia is also a signatory to the Cairo Declaration on Human Rights in Islam Declaration, adopted by the Organisation of Islamic Cooperation, which views human rights issues from the Islamic perspective within the Syariah framework.
Article 12 mentions that “Every man... if persecuted, is entitled to seek asylum in another country”. Article 13 states that “Work is a right guaranteed by the State and Society for each person able to work”.
Being a Muslim world champion, Malaysia needs to show its compassion for human rights by complying with this declaration.
The existing national laws and international instruments in place already provide legal obligations for Malaysia to grant employment rights for all refugees in Malaysia.
The right to work should be extended to all refugees in Malaysia because no one should ever be discriminated against, based on their ethnicity, nationality or religion.
ASLAM ABD JALIL
Master of Public Policy student
International Institute of Public Policy and Management