Protect Asylum Seekers, Refugees and Stateless Persons from Burma (Myanmar)
22 May 2008
Distinguished Members of Parliament,
Twenty days ago, on 2nd May 2008, Cyclone Nargis ravaged the land of Burma. An estimated 78,000 people are dead, while 56,000 remain missing. Around 2.5 million survivors are at threat of disease, exposure and starvation.
What continues to cause international outrage is not the extent of the destruction left by the cyclone, but the stubborn response of the junta military government who continue to restrict vital international assistance and to neglect their populations in desperate circumstances. They remain lackadaisical to calls by the United Nations and the international community to assume their responsibilities.
These events have had a direct impact on the peoples of Burma presently seeking refuge in Malaysia. They comprise between 80-90 percent of an estimated 100,000 asylum seekers, refugees and stateless persons. They have either fled persecution on account of their political beliefs, ethnicity, and/or religion, or to escape torture, rape, violence, mistreatment and insecurity in their homeland.
The Migration Working Group appeals to all Members of Parliament (MPs) to recognize the appalling realities faced by asylum seekers, refugees and stateless persons in our country. In view of Malaysia's international obligations to protect and assist these populations, we ask all MPs to support our recommendations to the Malaysian Government, as stated below.
Realities faced by Asylum Seekers, Refugees and Stateless Persons
As Malaysia has not yet enacted domestic laws that recognize, protect and assist asylum seekers, refugees and stateless persons, they are treated as non-documented migrants, and are subjected to arrest, prolonged detention under difficult conditions, whipping, imprisonment, and deportation to the Malaysia-Thai border.
We have heard numerous horrifying accounts where asylum seekers and refugees from Burma are handed over to human smugglers/traffickers at the Malaysia-Thai border, who demand payment for their release. Those who are unable to pay the monies required (typically ranging from RM1,400 to RM2,500) are sold - to fishing boats, brothels or 'private owners' - for sex or as bonded laborers.
Even those issued with identity documents by the United Nations High Commissioner for Refugees (UNHCR) are vulnerable to arrest, as Ikatan Relawan Rakyat (RELA) volunteers and Immigration officers often do not recognise the validity of these documents.
An average of 700-800 UNHCR-recognised refugees remain under detention every month. About 100 of these are children. The UNHCR is not allowed to visit asylum seekers in detention centres and prisons, which directly jeopardizes their right to seek asylum, a universal right in international customary law. They are detained indefinitely - sometimes for more than 2 years - suffering violence, poor access to health care, and poor conditions of detention.
The unnecessary arrest, detention, whipping and deportation of asylum seekers, refugees and stateless persons do not only perpetuate violence and vulnerability, it constitutes the abuse of human rights and wastes limited law enforcement resources which are desperately needed for the prevention of real crime.
Malaysia's International Obligations
Malaysia's international obligations include the following:
1. Upholding the rights of every person as set out in the 1948 Universal Declaration of Human Rights, which is international customary law and therefore binding on Malaysia. These include the right to life, liberty and security of person, the right to freedom from arbitrary arrest and detention, as well as the right to seek asylum.
2. Taking measures necessary to fully respect the international customary law of non-refoulement, which prohibits the return of people to places where they may face persecution or threat to their life or freedom.
3. Acting on the recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) to Malaysia as stated in their Concluding Comments of May 2006, which include adopting laws and regulations concerning the status of asylum seekers and refugees, in line with international standards, to ensure their protection.
4. Acting on the recommendations of the Committee on the Rights of the Child (CRC) to Malaysia as stated in their Concluding Comments of February 2007, which include abolishing caning and other forms of corporal punishment for those under 18 years of age, taking urgent measures not to detain children for immigration proceedings, establishing a screening process to identify asylum-seeking and refugee children, developing legislation for the protection of asylum-seeking and refugee children, and strengthening collaboration with the UNHCR and other agencies, including providing access to persons of concern in detention.
Immediate Recommendations to Members of Parliament
In line with the above, we seek the commitment of MPs to ensure that:
1. All law enforcement agencies (in particular RELA and Immigration) respect UNHCR documents and refrain from arresting holders of these documents
2. The UNHCR is given free and full access to asylum seekers, refugees and stateless persons in all Immigration Detention Depots and Prisons so that they can verify if asylum claims are genuine and take measures to assist refugees. Recognized refugees should be released into the official care of the UNHCR while durable solutions are found.
3. Lawyers are given full access to refugees, asylum seekers and stateless persons to ensure that their right to representation is upheld for any form of court proceedings.
4. Asylum seekers, refugees, and stateless persons are exempted from punishment under the Immigration Act 1959/63 (Act 155), using Section 55 of the Act. This is in line with recommendations of the Committee on the Rights of the Child.
In the longer term:
5. The Malaysian Government must institute refugee status determination procedures, as recommended by the CRC and CEDAW Committees, and provide protection and assistance to these vulnerable groups. The Malaysian Government should also ratify the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.
We also urge the Malaysian Government to fulfill its promises made in October 2004 to issue IMM13 work permits to the Rohingya population. We are concerned that this process has stalled, leaving the Rohingya community in great vulnerability to unjust arrest and detention.
We, the undersigned members of the Migration Working Group,
Aliran Kesedaran Negara (ALIRAN)
All Women's Action Society (AWAM)
Amnesty International Malaysia (AIM)
Building & Wood Workers International, Asia-Pacific Region
Coordination of Action Research on AIDS and Mobility, Asia (CARAM Asia)
Council of Churches, Malaysia
Health Equity Initiatives (HEI)
Labour Resource Centre (LRC)
Legal Aid Centre, Kuala Lumpur
Malaysian Social Research Institute (MSRI)
Malaysian Trade Union Congress (MTUC)
Migrant Desk, Melaka-Johor Catholic Diocese
Penang Office for Human Development (POHD)
Persatuan Kebangsaan Hak Asasi Manusia (HAKAM)
Pusat Komunikasi Masyarakat (KOMAS)
Suara Rakyat Malaysia (SUARAM)
Women's Aid Organisation (WAO)
The Secretariat for the MWG is Women's Aid Organisation
To contact the MWG c/o WAO:
P.O. Box 493, Jalan Sultan, 46760 Petaling Jaya, Selangor, Malaysia
Tel: +603 7957 5635, Fax: +603 7956 3237