Wednesday, September 23, 2015

Do you give a damn about refugees and asylum seekers?

“Do you give a damn about the refugees and the asylum seekers?”

This question was directed to no one but myself. A question that surfaced three years ago when I was undergoing a training program by Tenaganita, a non-governmental organization that champions refugees’ rights.

The answer was, “No.”

I did not give a damn about the refugees and the asylum seekers.

While my answer to the titular question may disappoint many of my then trainers, this is, unfortunately, the cold hard truth.

I was randomly picked to participate in the program three years ago to fulfill one of the mandatory requirements to become a lawyer. I was trained to provide legal help to the refugees and the asylum seekers. I pushed myself to complete every task assigned to me to my level best out of pride, but not empathy. Even then, due to time constraints, the training program merely gave me rudimentary knowledge of the convoluted system in Malaysia in relation to the problem. I was as clueless back then as I am now.

I remember one of the first things that my then peers and I first learned was how to be politically correct in referring to the asylum seekers and refugees as documented and undocumented, depending on whether they were issued with an identity card by the United Nations High Commission for Refugees (UNHCR) for resettlement to third countries.

Ironically, it became an automatic mental relief to many of us then trainees when a refugee who came to Tenaganita’s centre for help was documented, as if there was some form of higher protection over them and that they would be well taken care of with whatever intangible inherent rights that came with such status.

A mild case of “political correctness gone mad”? Perhaps so, but whatever it was that I learned, it was certainly a sugar-coated version of what was already a harsh reality. The reality is, in fact, far harsher than the mirage created by the ideology of political correctness.

By no means am I saying that I am better at nomenclature. However, I would have called a spade a spade. Refugees and asylum seekers are, by all means, illegal immigrants.

A refugee, as defined by the UN’s Refugee Convention 1951, is someone who owes to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country. On the other hand, an asylum seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated.

Notwithstanding the clear distinction on definitions provided by the Refugee Convention 1951, they are the same in the eyes of the law of Malaysia. They are both “illegal immigrants” under Section 6(1) of the Immigration Act 1959/63.

At this juncture, I would like to emphasize that whether a refugee or an asylum seeker is documented or otherwise, no amount of political correctness can change the fact that the same legal rights, or the lack thereof, are accorded to them. They can be detained, arrested, and even whipped. They have no employment rights whatsoever. If at all there should be a change of definition on them, it should not be one that is sociological through political correctness, but one that is legal through legislation.

While it is acknowledged that, on record, there has been a reduction in immigration raids and detention over UNHCR card holders, these refugees are still subject to exploitation by employers due to the lack of employment rights. Since they are still illegal immigrants in the eyes of the law, there are also allegedly many UNHCR card holders who are exploited by the police by way of threat of arrest.

Perhaps, up to this point, there would be some empathetic readers who would hope that there was some sort of moral epiphany that overcame me, and that I should, in fact, give a damn about the refugees and the asylum seekers. Unfortunately, empathy is a rare gift, and is one that I do not profess to have. Altruism is an abstract concept that I can never comprehend.

Fortunately for me, I am blessed with brilliant friends—friends from diverse backgrounds, including refugees, many of whom I got the privilege to know from the very same training program by Tenaganita. I am even more fortunate that I live in a country that practices the principle of judicial precedent. I know that any one successful case in the court of law may serve my vested interest for the well-being of my friends well. I was not fighting for social justice. It was an incidental outcome of my selfish endeavour. I later came to know that this is what is known as “strategic litigation.”

In short, “strategic litigation” is a method that aims to bring about significant changes in the law, practice or public awareness through selected cases to court.

A relevant example of the subject matter would be the case of Tun Naing Oo v Public Prosecutor, which has set a precedent that refugees and asylum seekers who are found guilty under Section 6(1) of the Immigration Act 1959/63 should not be punished with whipping unless they have committed acts of violence or brutality, or are habitual offenders, or have threatened our public order.

I certainly do not stand on higher moral grounds to urge anyone to care for others, be it for the refugees, asylum seekers, or any other categories of people suffering from any issues on human rights or the lack thereof. However, with our current system, one man’s plight is another man’s problem. Likewise, one man’s salvation is another man’s solution.

Do I give a damn about my friends and family?

At least, for this last question, I can proudly say “yes.”

* The First Strategic Litigation Conference (SLC) in Malaysia will be co-hosted by the Bar Council Human Rights Committee (BCHRC) and the Malaysian Centre for Constitutionalism & Human Rights (MCCHR) on 3rd October 2015 at Parkroyal Kuala Lumpur. The one-day conference is aimed to connect the judiciary, the legal practitioners, the academicians and the law students to provide fresh impetus on the latest developments in the area of strategic litigation in Malaysia. For more information, kindly contact Mazni at or 03-2011 1454.