Updated: Aug 3
Courtesy: Daily Sabhah
The Rohingya in Myanmar fled to various countries, having been denied citizenship and persecuted in their home country. One of the countries that the Rohingya population was often found in is Malaysia, a country that is not a signatory to the 1951 Convention Relating to the Status of Refugees and its protocol. Apart from the inconsistencies present in international law, the Malaysian legal system also has certain lacunas in its legal system for the protection of refugees. The article further broaches the recent development in Southeast Asia that could lead to a positive contribution to the treatment of Rohingya refugees in these countries.
The Malaysian legal system has certain inconsistencies in meeting the standards set in international law for the treatment of refugees. Firstly, Malaysia’s Federal Constitution, which provides the main provisions relating to non-discrimination and equality is inadequate, as a non-citizen’s right to equality is protected but not their right to non-discrimination. To elaborate further, Article 5 of the Federal Constitution recognizes that all citizens would have the right to be brought before a magistrate without undue delay and within 24 hours of arrest but the same right does not extend to non-citizens as they can be detained up to 14 days. Articles 9 (banishment, prohibition, and freedom of movement) and 10 (freedom of expression, assembly and association) contain more discriminatory provisions against non-citizens. This differentiation between rights available to citizens and non-citizens that are inherent within the Constitution would negatively impact the rights of non-citizens. Malaysia’s lack of proper domestic legislation for the protection of refugees is another inconsistency within the legal system of the country.
Malaysia’s immigration law is the central law that deals with issues concerning the treatment of refugees. This law, while answering some very important questions regarding refugee treatment in Malaysia also does not have principles of international law embedded within it. For instance, the adoption of the principle of non-refoulement and asylum, both of which have a vast scope of application, within this domestic law could enhance the protection given to refugees to a substantial level. Section 6 of the Immigration Act 18959/63 (Act 155) iterates that a person shall not enter Malaysia without a valid permit, and Section 6(3) reiterates that whoever contravenes subsection 1 shall be guilty of an offence and receive due punishment including being liable to whipping of not more than six strokes. In this regard, caning as a punishment imposed on refugees, albeit the factor that only adult males under the age of fifty-five are subjected to caning, would amount to torture, and would also violate human rights. Apart from this, a vast amount of powers are conferred on authorities under the Immigration Act, which could lead to arbitrary actions, and since there is also a lack of opportunity to review or challenge the decisions of the court regarding the status of refugees, this must be addressed. Despite having relief to gain restitution via employment tribunals and civil law lawsuits, there are several impediments to accessing justice along with financial hardships that make it difficult to utilize.
Courtesy: Jakarta Globe
In recent years, the countries of Southeast Asia have attempted to enhance the protection given to Rohingyas. One such initiative which would impact this enhancement in the coming year would be “Protecting Rohingya Refugees in Asia” (PRRiA), which is a two-year initiative funded by the European Union’s Civil Protection & Humanitarian Aid Operations department (ECHO) launched in mid-2021. This project puts together evidence-based research, programmatic and advocacy skills to frame a better-suited, integrated, regional protection response for Rohingya refugees in Southeast Asia.
The project may contribute positively to the situation in Malaysia as well, considering that it is one of the countries that the project specifically focuses on. Regional protection policies such as encampment, temporary or proper detention areas and unconstrained urban settlement could be achieved through a systemized approach to the protection of refugees.
On an individual level, despite not having any international treaty or convention obligations imposed upon it at a formal level, Malaysia must take the initiative towards the protection of refugees and asylum seekers in the country. Ratifying either the Refugee Convention and the accompanying Protocol, or passing a law that governs refugee issues would contribute to the betterment of Rohingya refugees in Malaysia. Policy concerns about the control of undocumented workers could also be viewed keeping in mind the broader political and economic environment that would flourish in light of foreign labour.
Courtesy: The New York Times
In conclusion, for the protection of refugees and also improving certain factors that would develop a country, refugees must not be viewed as passive victims that do not have a right to defend themselves and are in need of security and should be considered as the receivers of proper policy conditions for their protection, as also a means to improve factors related to foreign labour countries.
By Harsh Mahaseth
Harsh Mahaseth is an Assistant Professor and Assistant Dean (Academic Affairs) at Jindal Global Law School, and the Assistant Director of the Nehginpao Kipgen Center for Southeast Asian Studies, O.P. Jindal Global University, India. Samyuktha Banusekar is a fourth year law student pursuing B.Com. LL.B. (Hons.) at School of Law, SASTRA Deemed University, India.
MAHASETH, H., & BANUSEKAR, S. (2022). Living in the Shadows: Rohingya Refugees in Malaysia. Asian Journal of International Law, 1-8. doi:10.1017/S2044251322000091