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To leave or not to leave The Refugee dilemma
by Amer Hamzah Arshad
Aliran Monthly 2003:11 ALERT: ALIRAN FACES CRITICAL CASHFLOW CRISIS! Please support our work by buying a copy of our print publication, Aliran Monthly, from your nearest news-stand. Better still take out a subscription now. We also welcome donations.
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.
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:
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.
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