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To leave or not to leave
The Refugee dilemma

by Amer Hamzah Arshad
Aliran Monthly 2003:11

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refugees (7K)
The Malaysian govt must ratify the UN Refugees' Covenant
The United Nations Convention Relating to the Status of Refugees 1951

The United Nations Convention Relating to the Status of Refugees 1951 was the first international treatise that defined the duties of member countries to a refugee as well as the refugee’s rights in these countries. The Convention sets out that the basic human rights to be accorded to the refugees should, at least, be the equivalent to the rights enjoyed by foreign nationals living legally in a given country. In many developed countries, the rights accorded to a refugee are similar to that of a citizen of that State. The Convention also recognized the international scope of refugee crises and the necessity of international cooperation, including burden-sharing among states, in tackling the problem.

The Convention sets out the basic human rights of a refugee. Among others:

Prohibition of expulsion or refoulement

When a person is compelled to flee his country of origin due to a well-founded fear of being persecuted, his immediate concern is protection against expulsion or refoulement. Such protection is necessary for preventing further human rights violations. This is because his forcible return to his country of origin may endanger his life and safety.

Due to this, the international community has recognized the principle of non-refoulement, which prohibits both rejection of a refugee at the frontier and expulsion after entry. This rule derives its existence and validity from twin concepts of ‘international community’ and ‘common humanity’ and must be seen as an integral part of that foundation of freedom, justice and peace that is human rights.

This principle of non-refoulement can be found in Article 33 of the Convention and also in the law relating to the prohibition of torture and cruel or inhuman treatment.

Can a country that has not signed the convention refuse to admit a person seeking protection?

A refugee seeking protection must not be prevented from entering a country. Nor can a refugee be forcibly returned to his/her home country or any other country where s/he could face persecution. The principle of non-refoulement – barring the return of a refugee to a territory where his/her life or freedom is threatened - is considered by a number of scholars as a rule of customary international law. It is thus binding on all states without exception and regardless of whether they have ratified the Refugee Convention or Protocol.

Exemption from penalties for illegal entry into the territory of a contracting state

Since a refugee is a person who flees his country of origin to avoid persecution, it would be akin to rubbing salt into an open wound if s/he is prosecuted and punished on account of his/her illegal entry or presence into the country where s/he is seeking refuge.

It is for this reason that Article 31 of the Convention has prohibited the Contracting States to impose penalties on refugees merely on account of their illegal entry or presence into a country. This prohibition, however, is subject to the refugees presenting themselves without delay to the authorities and show good cause for their illegal entry or presence.

Right to seek asylum

Once a person fleeing persecution enters another State, what s/he needs most is asylum. Asylum is the protection which a State grants on its territory or in some other place under the control of certain of its organs, to a person who comes to seek it. Asylum is necessary not only for safeguarding his/her rights to life, security and integrity but also preventing other human rights violations. Therefore, the granting of asylum in the case of refugees is an important aspect of human rights protection.

Socio-economic rights

In addition to the basic rights mentioned earlier, there are other rights which are no less important to the refugee who is granted asylum which should not be overlooked. These rights include the right to work, the right to housing, the right to education, the right to public relief and assistance, free access to courts, freedom of movement within the territory and the right to be issued identity and travel documents.

Human rights of refugees in Malaysia

Malaysia is one of the few remaining countries that has not ratified the Convention and all the other major UN human rights instruments that are relevant to asylum seekers and refugees. Malaysia has also failed to enact any legislation for the protection of refugees. Refugees in Malaysia are therefore deemed “illegal immigrants” and would shoulder the full brunt of the harsh and arbitrary penalties enacted in the Immigration Act 1959/63.
In the 1990s, the Indonesian army abducted Ahmad Adnan’s father due to his brother’s involvement with GAM (the Free Aceh Movement). His brother, Shamsul Bhari, had been on the wanted list of the Indonesian army for quite some time.

Since the abduction, Ahmad Adnan has never seen his father. Ahmad Adnan imself was beaten up by the Indonesian army on several occasions. So was his other brother, who subsequently became insane and eventually died.

In 1998, the Indonesian army resumed their harassment of Ahmad Adnan by ransacking his house and beating him severely. In the first quarter of 2002, the Indonesian army visited him again to carry out their usual ransacking of his house. This time, however, they burned down his house. The Indonesian Army confiscated all of his personal belongings, and he was ordered to go to an Indonesian army camp.

Fearing for his life, Ahmad Adnan, with the assistance of his uncle, managed to escape from Aceh. Ahmad Adnan fled to Malaysia in May 2002 by ship from Tanjung Balai, Medan to Port Klang. Upon reaching the shores of Malaysia, he went to seek refuge at his countrymen’s abode. A few days later, Ahmad Adnan went to the United Nations High Commissioner for Refugees (UNHCR) office at Jalan Bukit Petaling. He was interviewed by UNHCR officers and was subsequently given refugee status by the UNHCR in July 2002.

On 2 April, 2003, Ahmad Adnan with a few other friends were stopped by several policemen. He was asked to show his documents. Ahmad Adnan promptly showed the policemen his UNHCR card and explained that he was a recognized UNHCR refugee. Despite his explanation, the policemen arrested him and detained him from 2 April 2003 until 10 April 2003.

Court ignores UNHCR refugee status

On 11 April 2003, Ahmad Adnan was brought to the Magistrates Court in a state of fear and confusion. Despite being a recognized refugee, he was charged under Section 6(1) of the Immigration Act. The charge for his arrest was read out to him. Ahmad Adnan, who was unrepresented, pleaded guilty to the charge. The Magistrate therefore convicted him for entering the country illegally. But what the Magistrate had refused to consider - despite his attempts to explain his position - was the crucial fact that Ahmad Adnan was a recognized UNHCR refugee and thus should have been accorded protection for his refugee status.

Denied a chance to explain his situation in Malaysia, Ahmad Adnan was then sentenced to 10 months’ imprisonment and two strokes of the rotan. He was then brought to the Kajang Prison on the same day. Although Ahmad Adnan had a chance to appeal against his conviction and sentence within ten days from the date he was sentenced, he was denied the opportunity of doing so due to the refusal of the prison authorities to file the Notice of Appeal on his behalf.

start_quote (1K) It has been said that how a country treats its prisoners reflects the level of its civilization. The same can be said of a country in respect of its treatment of refugees.end_quote (1K)
After enduring days of hopeless attempts to pursue his appeal, Ahmad Adnan finally wrote to the UNHCR explaining his predicament. Luckily for Ahmad, around 8 May 2003, a UNHCR official visited him in Kajang Prison and assisted him in obtaining legal representation.

An application for revision was quickly made and filed at the Shah Alam High Court. The revision was heard before Dato’ K N Segara J on 7 July 2003. The revision was allowed and the conviction (on the guilty plea) and sentence were set aside and the matter was remitted back to another Magistrate. The Attorney General’s Chambers subsequently withdrew the charges against Ahmad Adnan on 10 July 2003, and the Magistrate discharged Ahmad Adnan.

Technically, from that moment onwards Ahmad Adnan should have been released unconditionally. To the authorities, however, Ahmad Adnan was just another undocumented immigrant. Because of the present state of the immigration law, an order was issued by the Immigration Department for Ahmad Adnan to be detained at an immigration depot until an opportunity arose to return him to his place of embarkation or to the country of his birth or citizenship.

Luckily for Ahmad Adnan, at that material time, Denmark had agreed to accept him for the purpose of resettlement. His life and liberty was eventually spared, but not before enduring a series of human rights infringements in his country of origin as well as the country to which he had fled for refuge. Some refugees are not so lucky.

It is apparent from this case study that the local laws are inadequate to handle these kinds of situations. Ever since Ahmad Adnan set foot on the soil of Malaysia, he was not protected. What’s more, he was subjected to harassment and arrest by the police, prosecution by the Public Prosecutor, detention and deportation by the immigration authority.

An interim solution

In the present situation, even though the Malaysian Government has yet to ratify any of the international conventions pertaining to refugees and human rights, the Government, at the very least, could still ensure and provide the very basic protection to a refugee; namely protection from refoulement (see box).

The Malaysian Government, if it wanted to, could use the present laws to achieve this goal. The Immigration Act, particularly Section 55, states that the Minister may by order exempt any person or class or persons, either absolutely or conditionally, from all or any of the provisions of this Act and may in any such order provide for any presumptions necessary in order to give effect thereto. Such a measure however would be purely temporary and since the refugee issue is a never-ending one, the Malaysian Government should seriously look into long-term measures.

It is unfortunate to note that the Malaysian Government has not made any clear and substantive efforts to recognise the Acehneses’ refugee status in this country. And it is deplorable that the Malaysian Government has not even bothered to invoke Section 55 of the Act to protect the Acehnese refugees that have come to our country. Instead they have prosecuted them, like in the case of Ahmad Adnan.

The Malaysian Human Rights Commission (Suhakam) has failed to live up to its reason for existence. It has failed in its duty:

  • to recommend to the Malaysian Government to ratify the UN Convention on Refugees (and its protocol) and other international human rights treaties and instruments;
  • to advise the Malaysian Government to incorporate the principles enshrined in the Universal Declaration of Human Rights as a standard;
  • to raise public awareness of the Acehneses’ refugees’ plight; and
  • to seek protection for them.
It has been said that how a country treats its prisoners reflects the level of its civilization. The same can be said of a country in respect of its treatment of refugees.

If the Malaysian government seriously wants to achieve its coveted ‘developed country’ status by the year 2020, the first step in that direction would be to recognize and protect the basic human rights of not only its own citizens but also that of refugees. It can do this by ratifying the relevant conventions. And finally, let it not be forgotten that, the duty to recognise, protect and advocate human rights falls not only on the Malaysian government, local NGOs and human rights groups, Suhakam and UNHCR but also on each and every citizen in this country.

Amer Hamzah is a Kuala Lumpur-based lawyer involved in cases relating to human rights and refugees.

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