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Sanctioning their true status

WORLD Refugee Day this year fell on Saturday, the third day of Ramadan. A week earlier, on June 12, the Perdana Global Peace Foundation (PGPF) organised the second International Conference on the Rohingya issue at the Islamic Arts Museum in Kuala Lumpur.

Lest we forget, this month is the third anniversary of the atrocities (genocide and crimes against humanity) perpetrated by the Myanmar regime against the Rohingya people in the Rakhine State (formerly Arakan) in the western coast of Myanmar.

According to the United Nations High Commissioner for Refugees’ official portal, as of April this year, some 152,830 refugees and asylum seekers are registered with the UNHCR in Malaysia.

More than 90 per cent (141,920) come from Myanmar, comprising 49,600 Chins, 45,910 Rohingyas, 12,320 Myanmar Muslims, 7,280 Rakhines and Arakanese, and other ethnic groups. Two-thirds are men while more than 30,000 are children under the age of 18.

While the media may call these people “refugees”, under Malaysian law, they do not enjoy refugee status within the meaning of the Refugee Convention of 1951 and the 1967 Protocol.

According to another portal, the number of “refugees” in Malaysia is 99,381 while asylum seekers number 51,240. Together with stateless persons and other categories, the total number of “population of concern” in the country is 270,621.

According to a Bernama report on June 10, Malaysia is not expected to ratify the Refugee Convention in the near future. Deputy Foreign Minister Datuk Hamzah Zainuddin told the Dewan Rakyat that “a thorough study” must be carried out before the government can ratify any convention in view of the expected “increase in social problems and financial burden to the government”.

On March 12, Minister in the Prime Minister’s Department Datuk Seri Shahidan Kassim said that Malaysia did not intend to ratify the UN Convention because the government would be unable to meet the minimum standards set out in it.

“If we become a signatory, the implication is that we will encourage more foreign workers to come in as refugees and asylum seekers, and this will increase the number of illegal immigrants, foreign labourers and refugees,” Shahidan had said.

Putrajaya should remember that although we have not ratified the Refugee Convention, we are still bound by customary international law, specifically with regard to the principle of “non-refoulement”, in that we cannot send back refugees to their place of origin where their lives and safety will be in danger.

Malaysia is a party to the Convention of the Rights of the Child (CRC), having ratified it in 1985. It requires state parties to provide appropriate protection and humanitarian assistance to refugee children, which now numbers around 30,000 in the country.

Malaysia now has a seat at the UN Security Council for two years, from Jan 1 to Dec 31, next year. It also holds the Chair of Asean this year. It should seize this invaluable opportunity to display courage and leadership in ratifying the 1951 Refugee Convention and its 1967 Protocol, so that adequate protection can be given to refugees in this country — not only safeguarding them from arbitrary arrest and detention, but also, in the long-run, to facilitate their resettlement in third countries. At present, refugees in this country are constantly mistaken as economic migrants and illegal immigrants.

The term “refugee” is defined in the 1951 Convention as someone who “owing 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”.

The above definition, therefore, requires the presence of the following three elements — well-founded fear of persecution; being outside the country of his nationality; and, unable or unwilling to avail himself of the protection of his country of origin.

The difficulty with Rohingya refugees is that, according to the nationality law of Myanmar passed in 1982, they are not regarded as citizens of Myanmar. That creates a difficulty in regard to the second element in the definition.

The Refugee Convention contains three cardinal principles — non-discrimination, non-penalisation and non-refoulement.

State parties to the convention must ensure there is no discrimination based on sex, age, disability or sexuality. Subject to specific exceptions, refugees should not be penalised for their illegal entry or stay.

Refugees must also not be charged with immigration or criminal offences relating to the seeking of asylum, or being detained purely on the basis of seeking asylum. State parties to the convention are also required to cooperate with UNHCR in the exercise of its functions.

With regard to the minimum standards set out in the convention, these standards for the treatment of refugees include access to the courts, to primary education, to employment and the provision for document (including travel document).

Unless the Rohingyas currently given shelter in Malaysia are granted refugee status, they will have none of those rights.

The convention does not apply to people who have committed war crimes, crimes against humanity, serious non-political crimes, or who are guilty of acts contrary to the purposes and principles of the UN.

As of April this year, 145 states have become parties to the convention, and 146 states have become parties to the 1967 Protocol. Malaysia is singularly missing in that long list.

According to UNHCR, there are now more than 50 million refugees around the world, half of whom are women and children.

Of late, we had seen the plight of boat people stranded at sea, and the discovery of mass graves.

Will these shocking revelations move Putrajaya to consider ratifying the Refugee Convention?

Only time will tell, but I am not hopeful it will come to pass.

The writer formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector, and then, academia.

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