Saturday, June 20, 2015

Recognise the rights and dignity of asylum seekers and refugees, and eliminate human trafficking



JUNE 20 — The Malaysian Bar acknowledges the indomitable spirit and courage of all refugees on World Refugee Day 2015.

The United Nations High Commissioner for Refugees ("UNHCR") in Malaysia reported that as at July 2014 there were 47,352 asylum seekers (pending cases), 98,207 refugees, 40,000 stateless persons, and 80,000 individuals who do not fall into any of these other categories, residing in Malaysia. This brings the population of concern to a staggering total of 265,559.[1]

Unlike economic migrants, asylum seekers and refugees in Malaysia are often victims of various forms of persecution, oppression and deprivation. They are subjected to harassment, extortion, physical abuse or assault and ill treatment. These persons live in an environment of fear, and insecurity.

Our laws do not accord asylum seekers and refugees due recognition, care and protection. They are treated as "illegal immigrants" under the Immigration Act 1959/1963.[2] Thus, they are exposed to arrest, detention, whipping and deportation. This unacceptable state of affairs is compounded by Malaysia's obdurate reticence to ratify the 1951 Convention Relating to the Status of Refugees ("the 1951 Convention") and the 1967 Protocol Relating (“the 1967 Protocol”) to the Status of Refugees, both which are instruments encapsulating customary international law in relation to the recognition of the socio-economic rights of refugees and the provision of humanitarian assistance and social integration.

Thus, asylum seekers and refugees are prohibited from seeking lawful employment. They are therefore forced to support themselves on a casual engagement basis without any lawfully binding employment contract. This makes them vulnerable to exploitation and discrimination as regards the non-payment of wages, long working hours, and harsh working conditions.

The Malaysian Bar renews its call to the Government to ratify the 1951 Convention and the 1967 Protocol; to put in place a suitable legal and administrative framework for dealing with refugees and asylum seekers; and to work closely with stakeholders such as UNHCR Malaysia, civil society organisations, and the Bar towards achieving holistic and humane solutions for them.

The Malaysian Bar also calls on the government to ensure that a proper recruitment and monitoring system under the Ministry of Human Resources is put in place to ensure that asylum seekers and refugees are accorded basic employment rights in respect of wages, fair working hours, off-days, medical benefits, and workplace health and safety protection. In this regard, the various measures and recommendations contained in the proposal entitled "Developing a Comprehensive Policy Framework for Refugees and Asylum Seekers", which was prepared by the Malaysian Bar in 2011, should be immediately implemented.[3] This will lead to an overall improvement in the treatment of asylum seekers and refugees.

The Malaysian Bar also wishes to highlight the importance of a regional approach in dealing with concerns regarding asylum seekers and refugees. In this connection, a deeply worrying aspect of the problem is that of human trafficking and migrant smuggling. All nations in this region share a common responsibility to confront and deal with this scourge. The recent reported allegation that the Government of Australia paid human traffickers to return 65 asylum seekers to Indonesia is very shocking.[4] Such irresponsible conduct, if proven, deserves condemnation and must attract criminal prosecution. It certainly militates against the fight to eradicate human trafficking and migrant smuggling in this region.

World Refugee Day assumes particular significance to Malaysia this year due to the recent boat-people saga off our shores and the discovery of mass graves as well as “death camps” at the Perlis-Thailand border.[5] This was an unmitigated tragedy of human suffering and loss of lives. It has brought into sharp focus Malaysia’s approach towards asylum seekers, refugees, as well as the perpetrators and victims of human trafficking and migrant smuggling. It is a timely reminder to the Government to respect the rights and dignity of asylum seekers and refugees.

[1] “2015 UNHCR subregional operations profile – South-East Asia”, UNHCR: The UN Refugee Agency (accessed at http://www.unhcr.org/pages/49e4884c6.html# on 17 June 2015)

[2] Immigration Act 1959/1963 [Act 155] section 55E(7)

[3] Bar Council Malaysia Memorandum on “Developing a Comprehensive Policy Framework for Refugees and Asylum-Seekers in Malaysia” dated 20 June 2011, developed at the Roundtable on Developing a Comprehensive Policy Framework for Refugees and Asylum-Seekers organised by the Bar Council on 23 June 2009.

[4] “Prime Minister Tony Abbott dodges questions on people-smuggler payment claims”, Sydney Morning Herald, 14 June 2015 (accessed at http://www.smh.com.au/federal-politics/political-news/prime-minister-tony-abbott-dodges-questions-on-peoplesmuggler-payment-claims-20150614-ghnger on 18 June 2015); “People smuggler cash: Stacks police say were paid to send asylum seekers on a ‘suicide mission’”,Sydney Morning Herald, 16 June 2015 (accessed athttp://www.smh.com.au/world/people-smuggler-cash-stacks-police-say-were-paid-to-send-asylum-seekers-on-a-suicide-mission-20150616-ghpa36 on 19 June 2015).

[5] “Rohingya and Bangladeshi Boat People Humanitarian Crisis: Prompt and Concrete Measures Needed”, Malaysian Bar, 19 May 2015 (accessed at http://www.malaysianbar.org.my/press_statements/press_release_%7C_rohingya_and_bangladeshi_boat_people_humanitarian_crisis_prompt_and_concrete_measures_needed.html on 15 June 2015); “Malaysian Government Must Bring the “Death Camps” Human Traffickers and Migrant Smugglers to Justice”, Malaysian Bar, 28 May 2015 (accessed at http://www.malaysianbar.org.my/press_statements/press_release_%7C_malaysian_government_must_bring_the_death_camps_human_traffickers_and_migrant_smugglers_to_justice.html on 15 June 2015); “Eradicate Rampant Corruption, and Stem the Loss of Lives”, Malaysian Bar, 8 June 2015 (accessed at http://www.malaysianbar.org.my/press_statements/press_release_%7C_eradicate_rampant_corruption_and_stem_the_loss_of_lives.html on 15 June 2015).

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