Malaysia not fulfilling legal obligations in treatment of refugees

The Joint Action Group for Gender Equality (JAG) and the Coalition for Child Rights Malaysia (CRCM) are appalled by the arrest and detention of 269 Rohingya asylum seekers, including 49 children, who arrived in Malaysia on June 8 by boat. The Malaysian government should immediately release these individuals and cease the practice of detaining refugees.

Malaysia’s unwillingness to legally recognise refugees – who by definition have fled their countries without choice as a result of persecution and infringement on their most basic human rights, and are in need of international protection – is in violation of the norms of customary international law, including the right to seek asylum enshrined in the Universal Declaration of Human Rights and the principle of non-refoulement (ie, not forcing refugees to return to a country where they are liable to be persecuted).

Contradictory actions

The arrest and detention of 49 children is a direct violation of our treaty obligations under the UN Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw), as well as our obligations under our own Child Act 2001.

In January 2020, the UN International Court of Justice (ICJ) issued a preliminary decision in a case brought by Gambia against Myanmar under the UN Genocide Convention of 1948 for its treatment of the Rohingya: The court found that the Rohingya are a “protected group within the meaning of the Genocide Convention” and that “there is a real and imminent risk of irreparable prejudice to the rights [of the Rohingya].”

Notably, the Malaysian government has in the past acknowledged the Rohingya situation, including supporting Gambia’s action against Myanmar at the ICJ as a member of the Organisation of Islamic Cooperation. However, subsequently, Malaysia’s actions towards these refugees have been contradictory. From preventing boatloads of them from entering Malaysian waters in April to immediately arresting and detaining hundreds of them on arrival on June 8, the government has made no progress towards acknowledging the rights or internationally-recognised refugee status of the Rohingya. Those Rohingya who have remained in Malaysia face ongoing discrimination, harassment, and violence.

Allow access to asylum procedure

The principle of non-refoulement, to which Malaysia and every country is bound, is not strictly limited to a prohibition on directly returning refugees to a country in which they would be persecuted. Rather, this principle extends to the circumstances into which refugees are received.

According to the United Nations High Commissioner for Refugees (UNHCR), “In order to ensure that the principle of non-refoulement is respected and that those in need of international protection are identified and not forcibly returned to a situation of risk, they must have access to an asylum procedure, they must not be sent to a third country ... and finally, the procedure for determining if they are refugees in need of protection must include certain guarantees and follow certain practices.”

Arresting and detaining the Rohingya refugees upon their arrival and restricting their access to any asylum procedure, interpreters, or UNHCR or NGO support violates the principle of non-refoulement and the minimum standards required to uphold this principle.

Rights of the Child

The arrest and detention of 49 Rohingya children who arrived in Malaysia on June 8 is especially inhumane and a direct violation of our international obligations.

Under the Convention on the Rights of the Child, Malaysia is obligated to ensure that a child who is a refugee receives protection and humanitarian assistance. Article 37 of the convention states that arrest and detention of a child must be used only as a “measure of last resort and for the shortest appropriate period of time”. Additionally, Article 22 articulates the obligation to ensure that a child seeking refugee status or who is considered a refugee, whether unaccompanied or accompanied, receives appropriate protection and humanitarian assistance.

Community-based alternative care arrangements in place of immigration detention have been proposed since 2014, but have yet to be implemented despite Prime Minister (then Home Minister) Tan Sri Muhyiddin Yassin acknowledging that children should not be detained in immigration depots and confirming plans to release children from depots to implement this alternative-to-detention programme.

Protecting women and girls

Additionally, General Recommendation 32 of the Cedaw Committee requires a gender-sensitive approach to be implemented at every stage of the asylum process. This includes taking into account the specific needs of survivors of sexual and gender-based violence and vulnerable groups of women and girls, including safe facilities and access to basic hygiene and healthcare needs.

Based on information in Human Rights Commission of Malaysia (Suhakam) reports on refugees detained by the government, these standards are not being met and girls in detention are at serious risk of sexual and gender-based violence.

Recommendations to act

In its 2018 Concluding Observations to Malaysia, the Cedaw Committee recommended that the Malaysian government fully respect the principle of non-refoulement; adopt national asylum and refugee procedures conforming with international standards; and establish alternatives to detention for refugee- and asylum-seeking women and girls, while in the meantime taking measures to ensure their protection from gender-based violence. Two years since these recommendations were made, no concrete steps have been taken towards their implementation and fulfilling our obligations under Cedaw.

Similarly, the CRC Committee’s 2007 Concluding Observations to Malaysia included several measures related to refugee children, such as to take urgent measures not to detain children in connection with immigration proceedings unless it is necessary to protect their best interests, and to develop a legislative framework for the protection of refugee children.

On a national level, the Child Act 2001 domesticated our obligations under the CRC and put into place numerous provisions to uphold the rights of children. The CRC applies to all childrenits scope and protections are not limited to Malaysians.

Section 31 of the Child Act prohibits any person responsible for the care of a child from abusing or neglecting the child, or exposing the child to physical or emotional injury, making it an offence to do so. Despite this and other provisions intended to protect children and uphold their best interests, refugee children continue to be detained and subjected to emotional trauma, physical violence, and violations of their rights on multiple levels.

Fulfill our legal obligations

We urge the Malaysian government to immediately release the 269 detainees, including 49 children, and work towards adopting a comprehensive legal framework for refugees that upholds the best interests of refugee children.

Part of Malaysia’s obligation under the customary international law principle of non-refoulement is to have asylum procedures in place. The CRC Committee advised the government to ratify the 1954 and 1961 Conventions addressing stateless persons and the reduction of statelessness, while both the CRC and Cedaw Committees advised ratification of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. We urge the government to implement these recommendations.

Despite these obligations under international law, and past acknowledgment of the Rohingya’s situation, Malaysia has not taken any concrete action towards implementing a comprehensive framework with procedures to determine asylum claims. Furthermore, by failing to even take the step of legally recognising refugees, Malaysia continues to turn a blind eye to individuals – including children – most at risk and in dire need of protection, and instead subjects these individuals to continued persecution, violence, and discrimination.

Malaysia must step up and fulfill our legal obligations under international and domestic law, and stop the continued persecution of individuals in need of international protection.

Endorsed by the following Joint Action Group for Gender Equality (JAG) member organisations:

Women’s Aid Organisation (WAO), Association of Women Lawyers (AWL), Justice for Sisters, Women’s Centre for Change (WCC), Sisters in Islam, KRYSS Network, Sabah Women’s Action Resource (SAWO), All Women’s Action Society (AWAM), Persatuan Sahabat Wanita Selangor (PSWS)

Endorsed by the following Child Rights Coalition Malaysia (CRCM) members 2020:

Women’s Aid Organisation, MIRM, Vanguards4Change, PT Foundation, Health Equity Initaitives, Yayasan Chow Kit, Voice of the Children, SPOT, Advocates for Non-Discrimination and Access to Knowledge (ANAK), Childline Foundation, Toy Libraries Malaysia, Malaysian Council of Child Welfare (MKKM), Sabah Human Rights Centre (SHRC), Malaysian Social Research Institute, World Vision Malaysia, Malaysian CARE, Asylum Access Malaysia (AAM), National Early Childhood Intervention Council, PUAKPayong

Additionally endorsed by:

Datuk Dr Amar-Singh HSS, consultant paediatrician; Katrina Jorene Maliamauv; Beyond Borders Malaysia

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