In 1990 I was arrested and because there was no detention camp I was sent to Pudu jail. I was coming from work when the police asked for my passport. I was doing daily work-construction. The police arrested me for a passport case. I didn't see a judge or magistrate, and I didn't have a charge or a sentence. After about four months in jail, immigration took me to the Thai border. Other Rohingya, Burmese, Pakistanis, and a few Indonesians were there as well.
In 1993 I was arrested on my way home from work. I was in Pudu jail for about three months and was then sent to the Thai border.
In 1995 I was sent to the Kajang immigration camp. It was also a passport case, and I was brought to the court. In court the magistrate asked me if I was arrested two other times, and I said "yes." He asked when I came and if I had travel documents. I said that I had none because I am Rohingya and explained that I couldn't stay in Burma. The magistrate asked me if I was guilty of illegal entry, and I said "yes." He sentenced me to two months in Kajang prison. I did not have a lawyer. After prison I was sent to Kajang immigration camp for eight months. With eighty other Rohingya I was then deported to the Thai border. -undocumented Rohingya man in Kuala Lumpur56We can't really assure the protection of refugees here[.] -UNHCR protection officer, Kuala Lumpur57Malaysia has one of the world's highest percentages of foreign workers: roughly two million of the country's eight million workers. About half of those are estimated to be undocumented. 58 Although many sectors depend on foreign labor, statements by government officials and frequent denunciations in the press reflect a deep distrust of foreigners.59 This sentiment has extended to asylum-seekers and refugees since the days of the Indochinese boat people, when tens of thousands of refugees landed on Malaysia's shores. According to Foreign Minister Datuk Seri Syed Hamid Albar, "We do not recognize the status of refugees. . . . [W]e only allowforeigners to stay on a temporary basis after which they have to go back."60 While Malaysia has, on an ad hoc basis, willingly hosted certain groups of refugees-including Khmer Muslims from Cambodia, Filipinos Muslims, and, most recently, Bosnians-it lacks any institutionalized protections for them. Malaysia has no asylum system, and under the country's general immigration law, refugees are not distinguished from other undocumented workers but are considered illegal immigrants. The Malaysian government has not agreed to let the Rohingya stay on even a temporary basis, and the Immigration Department reportedly declared in March 2000 that "the Rohingyas or Myanmars have never been accorded refugee status."61Without permission to live legally in Malaysia or any way to get such permission, Rohingya are at constant risk of detention and deportation. Local police and immigration officials generally ignore UNHCR documents and arrest their bearers. Rohingya who are detained spend months in immigration camps where they are subject to poor living conditions and physical abuse in violation of international standards. Then they are deported to the Thai-Malaysia border because the Burmese government will not take Rohingya back. At the border they face detention and deportation to Burma by the Thai authorities.62 Consequently, most reenter Malaysia right away. Many of the Rohingya whom Human Rights Watch interviewed had been deported and had reentered several times, including one man who had been through the cycle eight times in eleven years.63 At each step in the cycle, the Rohingya are susceptible to bribery by unscrupulous police officers and immigration officials. Malaysia has not treated all refugees this way in the past. But for the Rohingya it is providing no protection.
All persons in Malaysia, regardless of their immigration status, share certain basic human rights under international law. Refugees have, in addition, rights based on international refugee law, including the fundamental protection against non-refoulement; that is, their right not to be returned to a country where they fear persecution on the grounds of race, religion, nationality, membership in a particular social group, or political opinion.
International human rights law generally
places obligations on states in relation to all people, not only citizens.64
Although international human rights law recognizes a state's right to control
its borders and restrict entry within its territory, the fact that a person
has entered a country illegally does not affect his or her basic rights
to life, security of person, equality before the law, or other basic civil
and political rights.65
Malaysia, as a party to the U.N. Charter, is bound by the Universal Declaration of Human Rights, which explicitly prohibits discrimination on grounds of national origin.66 It is also a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and to the Convention on the Rights of the Child, neither of which distinguish between citizens and non-citizens in the rights they establish.67 CEDAW provides explicitly that women and men shall "have equal rights to acquire, change or retain their nationality."68
The most important documents establishing the rights of asylum-seekers and refugees are the 1951 Convention Relating to the Status of Refugees (the Refugee Convention), its 1967 Protocol, and the Universal Declaration of Human Rights. Under the 1951 Convention, a refugee is defined as:
any person 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 or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.69
An asylum-seeker is an individual who enters a country with or without the legally required documentation,70 who seeks to obtain refugee status, and whose status had not yet been determined. Asylum-seekers should be considered to have the same rights as refugees, until such time as it is fairly determined that they do not have refugee status.71
Malaysia is not a party to the Refugee Convention or to its 1967 Protocol. However, it is a party to the Convention on the Rights of the Child which requires it to:
ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.72
In addition, Malaysia is an observer state on UNHCR's Executive Committee. While Executive Committee Conclusions do not have the same effect as binding treaty provisions, as an observer state Malaysia should nonetheless respect them. 73 Malaysia is also bound both by the Universal Declaration of Human Rights, which provides refugees the right to seek and enjoy asylum from persecution,74 and by the principle of non-refoulement, which many, including Human Rights Watch, consider to be customary international law. The Refugee Convention articulates the principle of non-refoulement in Article 33(1): "No Contracting State shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion."75
The principle clearly obligates states not to return refugees to countries that will persecute them. Some states maintain, however, that they are not barred from returning refugees to safe third countries, but it has been strongly argued that:
[n]on-refoulement requires that a state be certain that an asylum-seeker who is sent to a third country will not be deliberately exposed to a threat of serious harm, including threats from a third country, and that the individual is being sent to a third country which is willing and able to provide protection. Non-refoulement must therefore include a meaningful opportunity for the asylum-seeker to be heard by someone responsible for identifying those deserving of protection and possessing the authority to provide such protection.76
It is generally accepted that protection against refoulement is "the fundamental criterion when considering resort to the notion [of safe third country]."77 This is true even for individuals who have already been granted asylum inthat third country.78 Accordingly, when a state returns a refugee to an allegedly safe third country that does not offer asylum or other protection, or itself then returns the refugee to a place of persecution, it violates the principle of non-refoulement.
Refusal to Recognize Refugee Status
History of Refugee Policy in Malaysia Malaysia's current policy toward refugees has its roots in its experience with Indochinese refugees in the 1970s and 1980s. After the fall of the South Vietnamese government in 1975, hundreds of thousands of Vietnamese began to leave the country. Most fled by boat to other countries in Southeast Asia, and, for a time, Malaysia was their principal first stop.79These refugees were placed in camps under the auspices of the Malaysian Red Crescent Society in coordination with UNHCR.80 By 1979, people were leaving Vietnam at an increasing rate, and the Thai and Malaysian navies were pushing rickety boats carrying Vietnamese asylum-seekers back into the sea.81 To address this and other problems, the United Nations convened an international conference in Geneva in July 1979.82 At the conference, the participants agreed that the Southeast Asian countries would provide temporary asylum in exchange for resettlement of the Vietnamese refugees in the West. Although the flow of refugees dropped dramatically at first, by the late 1980s the refugee camps were becoming increasingly crowded as asylum-seekers continued to arrive and resettlement to third countries declined. By May 1989, the refugee caseload in Malaysia had again surpassed 20,000, and Thai and Malaysian authorities were again turning away boats of refugees.83 In response, a second Geneva conference on Indochinese refugees was held in June 1989. The conference resulted in a Comprehensive Plan of Action (CPA), adopted by seventy-five countries, that changed the prior system-automatic resettlement in exchange for temporary asylum-by introducing individual screening for refugee status. Persons found not to be refugees would be returned voluntarily or by force.Accordingly, beginning in August 1989, the Vietnamese asylum-seekers already in Malaysian refugee camps were individually screened for refugee status. Although Malaysian military officers actually conducted the screening, UNHCR legal consultants observed and played an active part in the screening interviews. A UNHCR legal consultant provided a written assessment to the Malaysian authorities on every case and was generally present for each interview. UNHCR also provided group counseling on the adjudication process prior to the screening interview and had independent authority to recognize refugees under its mandate.84 At the same time,however, Malaysia continued to turn away boats. This led one expert to conclude that "[i]n effect, Malaysia never restored asylum."85 On June 25, 1996, Malaysia's last camp for Vietnamese boat people was formally closed.86 This coincided with the formal end of the CPA five days later. However, the CPA's legacy-Malaysia's fear of mass refugee influxes and its assumption that refugees should not be resettled in Malaysia but in third countries-lives on. Malaysia's treatment of different groups of refugees, ungoverned by domestic law, has been uncoordinated and variable, ranging from expulsion to full integration. Filipinos, Cambodians, Vietnamese, Indonesians, and Bosnians have all sought refuge in Malaysia at various moments. About 45,000 Filipino Muslims who fled ethnic strife in Mindanao in 1972 and 1974 have been locally integrated in the eastern Malaysian state of Sabah, according to UNHCR estimates.87 About 10,000 of the Cambodian Muslims who fled the Pol Pot regime beginning in 1975 have been permanently resettled in Malaysia, with funding from UNHCR to help with integration.88 In contrast, Vietnamese refugees were classified as "illegal immigrants," confined to camps, and eventually resettled to third countries or repatriated to Vietnam.89 And on and off from late 1977, Malaysia was also towing Vietnamese refugee boats back out to sea. More recently, in the early 1990s UNHCR brokered an agreement with the Malaysian government under which about 180 Acehnese refugees from Indonesia received temporary permits to live in Malaysia. Then, in March 1998, Malaysia forcibly repatriated around 500 Acehnese, sparking international protest. The government continues to deny UNHCR access to Acehnese asylum-seekers in immigration detention. About 400 Bosnian Muslims have also been accepted for resettlement in Malaysia.
Because whatever protection Malaysia offers to refugees is not institutionalized but must be renegotiated for each group, many, like the Rohingya, are overlooked or ignored. Such an ad hoc approach also increases the potential for politicization of asylum based on the relations between Malaysia and the country of origin, and increases the potential for discrimination based on the asylum-seeker's nationality or ethnic background.90 As for refugees recognized by UNHCR but not by the Malaysian government, Malaysia provides no protection. Similarly, in terms of durable solutions for refugees, Malaysia generally does not allow for local integration. Therefore, as in the days of the CPA, UNHCR must seek resettlement in a third country for refugees like the Rohingya who cannot be repatriated. And while they await resettlement, these refugees remain vulnerable to detention and deportation.
For the reasons described above, many of the Rohingya in Malaysia should enjoy international protection as refugees. Although Malaysia does not generally repatriate Rohingya to Burma, it continues to deport them to Thailand, including some identified as refugees by UNHCR, despite the fact that Rohingya refugees are also without meaningful protection in Thailand. · Muhammed Sayed is a Rohingya man recognized as a refugee by UNHCR. On October 25, 1999, he was arrested at his home and detained at the Langkap immigration detention center in Perak, reportedly inconnection with his participation in a demonstration in front of the Burmese embassy on September 9, 1999.91 Despite UNHCR's intervention on his behalf, the immigration department refused to release him until June 29, 2000, when he was resettled in Australia.92
· Abdul R. came to Malaysia in 1981, when he was nine years old. When we interviewed him in late 1999, he had just returned from the border to which he was sent following a month and a half in the Malacca detention camp. This was his eighth deportation. When he was arrested the last time, Abdul R. had already been screened and rejected by UNHCR but had appealed. He showed the police a UNHCR registration document, but they decided that it was not valid as it had expired some months before. He was taken to the Macap Umboo camp in Malacca. Abdul R. was able to show us a copy of a letter that a UNHCR protection officer in Kuala Lumpur had written to the camp commander requesting his release. In this letter, the protection officer stated that, Abdul R. and his family "have been registered with us as Muslims from the Arakan State of Myanmar. They fled their home country due to the problems they faced on account of their ethnic and religious background. Therefore, they do not possess any valid travel documents which would prove that they are Myanmarese citizenship. So far, Malaysia and Myanmar have not been able to agree on a procedure for the verification of the origin of these Muslims from Myanmar and for their [sic] to their country of origin. Until their citizenship and their right to return has been clarified, they will, in practice, not be able to return to Myanmar." The letter also confirmed that Abdul R.'s UNHCR document was authentic and, without mentioning that he had been denied refugee status, stated that Abdul R. was "considered to be a person of concern to UNHCR." The letter concluded by requesting that he be released and granted temporary protection. The camp commander ignored the letter, however, and Abdul R. was deported to Thailand.93
· Eliyas N. registered with UNHCR in 1992 and carries a letter to that effect. Nevertheless, in 1993 and again in 1998 he was detained and deported to Thailand. After he returned to Kuala Lumpur a second time, UNHCR recognized him and his family as refugees. While they await resettlement to a third country, they are at constant risk of arrest.94
· According to the UNHCR office in Kuala Lumpur, Afghans, Sri Lankans, and Indonesians from Aceh who were recognized as refugees by UNHCR, including some who had already been accepted for resettlement in third countries, have been sent back to their countries by Malaysian authorities. In early December 1999, at least one Sri Lankan refugee was being held in immigration detention pending deportation from Malaysia.95Malaysia expels Rohingya to Thailand because Burma will not accept them back and because Rohingya generally enter Malaysia through the Thai border. However, Thailand has also not ratified the Refugee Convention and Protocol, and it too has no procedures for asylum and considers deported Rohingya to be illegal immigrants. At best, Rohingya deported to Thailand are able to return to Malaysia without being detected by Thai officials or by paying officials a bribe. At worst, they face detention in Thailand and deportation to Burma. · Hussein E. had been arrested by Thai immigration officials three times, twice after being deported from Malaysia. Each time he was held in a Thai jail for as long as six months, then sent back to the Burmese border.96
· Sadiq M. was arrested as he was crossing through Thailand on his way to Malaysia. After a month and a half in a Thai jail, immigration officials put him and others in boats and sent them across the Thai-Burma border at Mae Sot. Burmese troops fired on them as they crossed, and Sadiq M. hid in the jungle along the shore until he could make his way back through Thailand and, eventually, to Malaysia.97
· Sayed M. paid money to Thai officials to avoid arrest, but he witnessed others being arrested.98
· Soe Soe had to pay RM100 (U.S. $26) to Thai officials before she could return to Malaysia.99Returning refugees and asylum-seekers to countries where they could face persecution is a violation of the fundamental principle of non-refoulement under international law. Returning refugees and asylum-seekers to a third country, such as Thailand, which is unable or unwilling to provide them with protection and may return them to Burma where they could face persecution, also amounts to a violation of this principle. As the above testimonies indicate, acts of refoulement are not isolated incidents in Malaysia.
Police and Immigration Officials
Malaysia's immigration law makes no provision or exception for asylum-seekers or refugees, and there are no procedures in place for identifying them, informing them about UNHCR, or informing UNHCR about them. Government officials at all levels generally do not respect UNHCR documents or UNHCR's urgent requests that particular asylum-seekers and refugees not be detained and repatriated. Low-level police and immigration officials possess broad discretion and power under the law. What few protections that are mandated, such as judicial review of detention, are often not complied with.
Entry and "Prohibited Immigrants"
A refugee, like any other non-citizen in Malaysia, may be arrested, detained, and deported for violating the 1959/63 Immigration Act. This act prohibits entering at an unauthorized point of entry, entering without valid documents including a passport, remaining after the cancellation of a permit or expiration of a pass, and possessing or using false documents.100 The act also specifies a broad range of "prohibited immigrants" who are barred from entering the country. These include persons unable to show that they can support themselves or that they have employment waiting; anyone suffering from a mental disorder or "suffering from a contagious or infectious disease that makes his presence in Malaysia dangerous to the community"; prostitutes, persons receiving the proceeds of prostitution, or persons bringing in women and girls for prostitution; "vagrants and habitual beggars"; and persons not in possession of valid travel documents. If a prohibited immigrant enters the country or if a person becomes a prohibited immigrant after entering, he or she is subject to detention and deportation.101 The individual bears the burden of proving that he or she entered lawfully and is not a prohibited immigrant.102 Almost all Rohingya in Malaysia, by virtue of having no valid passport or other identity documents and having entered at an unauthorized point, are in violation of these sections. Although the act makes no mention of refugees, it does give the Minister power to "exempt any person or class of persons, either absolutely or conditionally, from all or any of the provisions of the Act[.]"103 However, "[n]othing short of ministerial intervention prevents persons seeking asylum from being treated as illegal immigrants."104
of Search and Arrest
Both police and immigration officers have broad powers to search without a warrant, to interrogate "any persons reasonably believed to be a person liable to removal from Malaysia," to require that a person produce documents, and to arrest without a warrant "any person who [they] reasonably believe had committed an offense against this Act."105 Again, individuals have the burden of proving that they entered and remained legally in Malaysia. Where a person fails to produce evidence of this on demand, "it shall be presumed, until the contrary is proved, that he has . . . entered or re-entered and remained in Malaysia unlawfully."106The Rohingya interviewed by Human Rights Watch who had previously been detained by Malaysian authorities had been arrested in one of two ways. The majority were stopped in the street by police, often as they traveled to and from work, while others were detained in "operasi"-raids on homes and workplaces carried out by police, immigration, and customs officials or at roadblocks.
Review and Sentencing
A person arrested under the Immigration Act "may be detained in any prison, police station or immigration depot for a period not exceeding thirty days pending a decision as to whether an order for his removal should be made."107 However, the act also requires that anyone who is not a citizen who "has not been earlier released, or charged in court for an offence against this Act, or removed from Malaysia under this Act, . . . shall, within fourteen days of his arrest or detention, be produced before a Magistrate[.]" The magistrate is then to order detention for the time necessary to investigate the offense, for an immigration officer to "mak[e] inquiries," or for the person to be removed from Malaysia.108
Persons convicted of violating the Immigration Act face a fine of up to RM10,000 (U.S. $2,600) and up to five years of imprisonment.109 In addition to the general penalty, a person convicted of unlawful return after removal may receive a "whipping of not more than six strokes."110 However, if a person has unlawfully entered, reentered, or remained in Malaysia, he or she is subject to deportation regardless of whether "any proceedings are taken against him in respect of the offense."111 Under Section 34(1) of the act, once a person is ordered removed, he or she may be detained "for such period as may be necessary for arranging removal."The Rohingya we interviewed who had been brought to court were generally charged with illegal reentry and sentenced to a few months of imprisonment. Some were also caned. After serving part or all of their sentences, they were transferred to immigration detention camps where they were held until they were deported. · S. Nasir was stopped at a police blockade as he was traveling in a taxi to Langkawi Island near the Thai border. He could not produce a passport and was taken to a police station. After nineteen days in the station, he was allocated a state-funded lawyer, charged with illegal entry, and presented before a judge. He told the judge that he could not go back to Burma because he would be killed. "If you send me back by force," he said, "I will kill myself." He was sentenced to three months in prison, after which he was deported to Thailand.112
· M. Kadir was detained and deported twice before he ever saw a magistrate. After his third arrest, he was taken to court. He was not given a lawyer, but the magistrate questioned him directly about his two prior arrests, his most recent entry into Malaysia, and his travel documents. He admitted to having been arrested twice before. "I said that I had [no travel documents] because I am Rohingya, and I explained that I couldn't stay in Burma. The magistrate asked me if I was guilty of illegal entry, and I said `yes.' He sentenced me to two months in Kajang prison. After prison I was sent to Kajang camp for eight months. With eighty other Rohingya I was then deported to the Thai border."113
· Soe Soe, a Buddhist woman from Rangoon, was arrested when immigration officers checked passports at the restaurant where she worked. Because the work permit in her passport listed a different employer, she was arrested and taken to an immigration detention camp. After one month and three days, she was brought to court where she was given a lawyer. The lawyer spoke to her in Malay, however, and she did not understand what he said. She was then returned to the camp. On a second trip to the court she was given a Burmese-speaking lawyer who told her that the fine was RM1000 (U.S. $260). Because she could not pay the fine, she was sentenced to four months of imprisonment in a women's prison in Port Klang. Although the time she had spent in immigration detention was to count toward this time, she remained in detention until November 19, 1999, when she was deported to Thailand, over six months after she was arrested. 114Unlike the above individuals, many detainees are never brought before a magistrate and are deported without a hearing of any kind. This practice appears to be officially sanctioned. On March 29, 2000, for example, Deputy Home Minster Datuk Chor Chee Heung announced that illegal immigrants who are caught "fresh off the boats" would be deported without being charged in court. Only the "recalcitrant ones who are caught entering the country many times would be charged."115 Most Rohingya we interviewed were never taken to court, charged with an offense, given the opportunity to explain why they could not obtain identity documents, or sentenced. Once they were detained in immigration camps, they did not know how long they would remain there or when they were deported. None were informed of the rights of refugees or given the opportunity to contact UNHCR.
Under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, "[a]ny form of detention . . . shall be ordered by, or be subject to the effective control of, a judicial or other authority."116 The Body of Principles also mandate that "[a] person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority," and that a detainee who is "a refugee or otherwise under the protection of an intergovernmental organization" be "promptly informed of his right to communicate by appropriate means . . . with the representative of the competent international organization."117 The current practice in Malaysia of bypassing judicial review, failing to inform asylum-seekers of their rights, and failing to provide them the opportunity to contact UNHCR, violates these standards.
Abuses by Police Police officers who conduct passport checks on the street are woefully ignorant of what constitutes a refugee and of refugees' rights under international law and often take advantage of the Rohingya's vulnerability to extract bribes. While the policy of ignoring UNHCR refugee status determinations comes from the highest levels of government, abuses against the Rohingya occur at all levels.
or Destroying UNHCR Documents
When stopped by police checking for passports, Rohingya show the police UNHCR documents if they have them. Rohingya interviewed by Human Rights Watch said that, despite the documents' affirmation that the bearer is a refugee or is registered with UNHCR, police often ignore and sometimes destroy those documents. For example, Ahmed K. received a certificate from UNHCR in 1992. He stated:
I show the letter to the police, but I still have to pay whatever I have to them. Sometimes if I have a lot they will give me RM5 for transport. Last time (one month ago) I had to pay RM20. The police tore the picture off the letter to see if it was fake so I had to laminate it to keep it on. The policeman said next time not to show him the letter because I would still have to pay.118
Another man explained, "When I showed the policeman my U.N. card, he said, `I don't need this, I need money.' I gave him RM5."119 Human Rights Watch interviewed one fifty-two year-old man who had been detained and deported to the Thai border twice, despite having a UNHCR registration document. The second time he was arrested, the police took away the document and did not return it. He subsequently returned to Malaysia, contacted UNHCR, and was granted refugee status in 1999. As Malaysia has increasingly cracked down on undocumented persons, UNHCR documents are now even more commonly ignored.120
Extortion, and Theft during Arrest
Being stopped by the police does not automatically lead to Rohingya being arrested. On the contrary, the information obtained firsthand by Human Rights Watch from Rohingya is that even small amounts of money will almost always secure an undocumented person's release. Usually, we were told, Rohingya who are stopped are obliged to give the police all the money that they have, though some police officers will allow them to retain enough for the bus fare home. Several interviewees told us of cases in which individuals who did not have enough money to satisfy a particular officer were sent by the officer to collect money from family and friends while he waited.121 Rohingya, as a powerless and vulnerable group, are an easy target for corrupt police. According to one Rohingya man, when asked when he last had to pay a bribe: "The police are waiting when I go to work and they do not ask for any documents, only bribes-about RM10. It is very shameful how many times I have had no lunch. . . . I can't count how many times this year the police have stopped me and taken money."122 Bashar R., who works at odd welding jobs which require him to travel around Kuala Lumpur, told us: "I have never been detained, but I am stopped by the police all the time, almost daily. I have to pay them RM10 to RM50. The last time I was stopped was three days ago. The police used to wait in this little land by a bridge that we all had to cross in order to get to the road to go to work. It was like a toll."123 M. Khan said he had RM1000 taken by police in 1996: "They said, `Do you want to go to the camp or do you want to give us this money?' So I surrendered the money."124The Malaysian government, officially, is not unaware of the problem of corruption among police and other officials. Indeed, soliciting or accepting a bribe is a crime under both the Penal Code and the Anti-Corruption Act,125 and Malaysia's powerful Anti-Corruption Agency is charged with investigating, prosecuting, and preventing all forms of corruption and abuse of power.126 In practice, however, the authorities seem unconcerned about police extortion of bribes from Rohingya: we are not aware of any cases in which police or immigration officials have been prosecuted for taking bribes from undocumented persons.
Abuse and Corruption at Local Police Stations
When arrested by police, undocumented persons are generally taken to a local police station before being transferred to an immigration detention camp. How long they are held at the station varies from a few hours, in some cases, to several weeks. While most of those we interviewed complained primarily of abuses at the point of arrest or in the detention camps, some also reported that they or others had been subjected to police corruption and physical abuse while they were being held at police stations.
· Pu Van Mang from Chin State in Burma, is not Rohingya and has a Burmese passport with a Malaysian work permit. However, the permit had expired at the time he was arrested on September 7, 1999, in the Pudu Raya bus station. Two police officers took him to a local police station where he was stripped to his underwear and placed in a cell he described as being around five feet by five feet, with a toilet in one corner. About ten other men, also in their underwear, were in the cell. He was transferred several times to other similar cells. He was not questioned and did not see a magistrate. Three days after he was arrested, he was allowed to call his employer in exchange for all of his money (about RM150 (U.S. $40)). After a week, his employer renewed his work permit. The police returned his clothing and released him.127
· Police arrested S. Ali in June 1999 as he was walking along the road from work. They took him to a police station, stripped off his clothes, and took his money. They also punched and kicked him, he said. He was never questioned or taken before a magistrate. After three days, the police turned him over to immigration officials who took him to the Malacca camp.128· A Rohingya woman described to us how she was assaulted in the police station:I used to go to Kelantan to get property and fish to sell in Kuala Lumpur. In 1995 I was returning to Kuala Lumpur by bus when I was arrested by the local police. In the station I was attacked physically. I was forced to stand still. I was punched and my head hit on the wall. The police said to me, "Why did you come here without permission? Go back." I was not given a chance to explain why I couldn't go back. · Budi was caught on November 6, 1999, as he was landing on the Malaysian shore in a boat with almost fifty other people from Indonesia. He did not know what officials were arresting him because they were not inuniform. The officials took them to what he believed was a police station. "They stripped me naked and took all my money - 80,000 rupiah (about U.S. $11)."129
From local police stations, those persons who are not taken to court and sentenced to prison are handed over to immigration officials and taken directly to immigration detention camps.
I spent one and a half months in the Malacca detention camp. When I reached the camp, the guards first took RM250, my watch, my gold ring, and my shoes. None of these were ever returned. The food was not edible: the rice and curry were burned and smelly. Water was very limited so I was always thirsty. My throat became swollen, and when I asked for medication I was kicked and hit with a PVC pipe.
The buildings were two-story longhouses with wooden floors. We slept on the floor without mats. There were many bugs and we couldn't sleep. . . . Within one week of being detained, everyone had skin diseases. We were not able to bathe often and the water, which was in open tanks, was smelly and rusty. We had no soap, not even for washing clothes. We could only wash every four to five days and then only at night. The toilets were dirty and smelly.
Six times a day we had to line up in ten-person lines under the sun. When we were sleeping the police would wake us up and make us clean the area so we could not sleep. We had to eat outside in the heat. There were not many rules. When the whistle blew we had to sit down and if we didn't we were beaten. I was beaten one time-almost everyone there was. When you are beaten you cannot do anything (like speak or look at the guard) or you will be beaten more. Guards beat people with PVC pipe, rubber, and rattan [flexible palm branches]. I was beaten in what was just a random beating, and I still have scars on my back. Punishments were based on the whim of the guard: one person was kept in the sun all day, one person had water put on his head. I saw one person being made to climb up and hold on to the iron mesh fence, but I don't know why he had to do this. I saw many people die . . . . I saw one person die because he did not get medical treatment. -Rohingya man detained at the Malacca detention camp, August-September 1999130
Detainees in Malaysia's immigration detention camps are robbed, beaten, inadequately fed, and denied medical care, all out of the sight of domestic and international monitors. When these abuses have been brought to light, the Malaysian government has shown more interest in attacking the source of the information than addressing the problem.When the non-governmental organization Tenaganita ("Women's Force") released a memorandum entitled "Abuse, Torture, and Dehumanised Treatment of Migrant Workers at Detention Camps" in mid-1995, camp conditions attracted international attention. Drawing on interviews with over 300 former detainees, the memorandum alleged that unsanitary conditions, inadequate food and water, frequent deaths from beatings and a lack of medical care, sexual abuse, and corruption were rife in Malaysia's immigration detention camps. In response, the Home Ministry's response accused Irene Fernandez, Tenaganita's director, of defamation, and in March 1996, she was arrested on charges of malicious publication of false news.131 She pled not guilty, and at the time this report went to press, she had been on trial for over four years, forced to bear devastating court costs, andfaced three years of imprisonment and substantial fines if convicted.132 At the trial, former detainees from Bangladesh testified that, while held at the Tanah Merah and Semenyih camps, they were beaten and seriously injured, subjected to gross sexual abuse, kept in crowded, mosquito-infested rooms with foul toilets, denied water and clean clothes, and forced to stare into the sun.133 In researching this report, Human Rights Watch received information that substantiated many aspects of the conditions reported by Tenaganita and indicates that conditions have not significantly improved since Tenaganita's report was published over four years ago.
The Immigration Department operates at least nine immigration detention camps in peninsular Malaysia and others in Sabah and Sarawak.134 These camps are known by the names of the towns in which they are located. The Malaysian government prohibits access to its immigration detention camps. Consequently, Human Rights Watch was not able to gain access to the detention camps themselves. UNHCR staff are allowed to interview certain detainees within particular visiting areas but it is denied general access to the facilities, and whom UNHCR representatives may interview is also restricted. The Minister of Home Affairs has denied UNHCR's request to see Acehnese asylum-seekers, for example, on the grounds that the Malaysian government does not consider people from Aceh to be refugees.135
In order to obtain the most accurate picture of life in the camps, as Human Rights Watch could not visit them directly, we sought out people who had been recently released from the camps. Because detainees usually are not separated by nationality and, thus, generally experience the same conditions, we interviewed Indonesians, and both Christians and Buddhist Burmese, as well Rohingya. To do this we traveled to Dumai, the port in Indonesia to which Indonesians are generally deported, and spoke with deportees as they arrived off the ferry from Malaysia. Altogether we interviewed forty-five individuals who, taken together, had been in immigration detention a total of sixty times in Malaysia. Of these, seventeen were detained in 1999, some more than once or in more than one camp, including in camps in or near Tanah Merah, Lenggeng, Malacca, Port Klang, and Johor Baru, and in local police stations. Twenty-eight had been detained from 1997-1999 in the above camps or camps in Kedah, Semenyih, Kajang, Langkap, Kemayan, Juru, or in Pudu prison. We interviewed sixteen people who had been detained in more than one place, and many Rohingya we interviewed had been transferred to the camp in Tanah Merah, Kelantan, prior to deportation. While Indonesians and Bangladeshis constitute the largest groups among detainees, we were told that Filipinos, Pakistanis, nationals of various African countries, Indonesians, Burmese, Indians, Nepalese, Sri Lankans, Thais, and Cambodians were also held in the camps.
All persons held in detention, whether nationals, non-nationals, asylum-seekers or refugees, criminally accused or convicted, should be held in conformity with the guidelines for minimum standards of state practice laid down in the U.N.'s Standard Minimum Rules for the Treatment of Prisoners136 and in other authoritative international guidelines for minimum standards of state practice, notably the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,137 the Basic Principles for the Treatment of Prisoners,138 and the Rules for the Protection of Juveniles Deprived of their Liberty.139 These instruments provide a set of standards that are broadly in agreement with each other. For example, they specify conditions under which persons may be detained and include requirements that basic sanitation installations, food, and water be provided; that detainees have access to health services; that no one be subject to cruel, inhuman or degrading treatment or punishment, and that the use of force be limited; that juveniles be held separately from adults; that families not be separated; and that detainees' property be preserved. In particular, the Basic Principles for the Treatment of Prisoners states that, except for those limitations that are demonstrably required by the fact of incarceration, all prisoners should retain and have respected their human rights and fundamental freedoms as set forth in the Universal Declaration of Human Rights. In addition, the prohibition on torture contained in the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is considered to be customary international law and, thus, binds Malaysia despite Malaysia's failure to date to become a party to the convention. The Convention of the Rights of the Child, to which Malaysia is a party, also elaborates standards for the detention of juveniles.140
Asylum-seekers and refugees should be granted additional protections. UNHCR's Guidelines on the Detention of Asylum-Seekers state that "[a]s a general principle asylum-seekers should not be detained."141 Guideline 3 provides that: The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law. . . . [T]he detention of asylum-seekers may only be resorted to, if necessary: I. to verify identity . . . ii. to determine the elements on which the claim to refugee status or asylum is based . . . iii. in cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum . . . iv. to protect national security or public order. Where detention of asylum-seekers is considered necessary it should only be imposed where it is reasonable to do so and without discrimination. It should be proportional to the ends to be achieved (i.e. to ensure one of the above purposes) and for a minimal period.142Where asylum-seekers are detained, Guideline 4 specifies minimum procedural guarantees, including the right to contact and be contacted by the local UNHCR office and a lawyer. Regarding detention conditions, the Guidelines on the Detention of Asylum Seekers refer to the various U.N. documents and emphasize the need for the segregation of children from adults except when they are part of a family group; the provision of appropriate medical treatment and psychological counseling; and the access to "basic necessities, i.e., beds, shower facilities, basic toiletries, etc."143
While the camps vary somewhat in size, most are guarded compounds of one or two story wooden longhouses, surrounded by wire. Inside are common rooms, not cells, and the various longhouses are known as blocks. Not all camps detain women but when women are detained, they are separated from men. Small children are detained with the women; however, as discussed below, pre-adolescent boys are detained with adult men. A few detainees reported being separated by nationality, but persons of different nationalities are usually detained together. No recreation or educational facilities are provided, and detainees reported having little to do other than occasional chores.
Almost every person we interviewed complained of overcrowding, insect infestation (especially mosquitoes and bed bugs), and not having enough food. With some variation, food in the camp generally consists of bread and tea for breakfast, and rice and small salty fish for lunch and dinner. Some complained that the food was rotten and wormy.144 A few reported having an occasional egg, vegetable, or piece of chicken. One man from Batam, Indonesia, told us that he saw a man from Madura, Indonesia, die from what he believed was beri beri, a vitamin B deficiency. The man was hospitalized but died after he was returned to the camp. He said that he saw three other detainees, from Bangladesh, Java, and Madura, get sick from beri beri but they were soon deported.145 While some detainees reported not being allowed to see a doctor when sick or not being given medicine, others reported being hospitalized for nutritional deficiencies and then returned to the camps.
In some camps, access to water for drinking, bathing, or laundry is restricted.146 A Burman man described conditions at Lenggeng in 1995:
The most difficult conditions I faced was the toilet and bathroom. There was 250 people in one hall, and the toilets were almost spoiled. Some toilets were blocked by the waste, and we can see the maggots traveling around the floor in the bathroom. Sometimes the water ran out for two or three days, and we had our meals without washing our hands and dishes.147
On July 27, 1999, detainees at the Lenggeng camp mounted a protest demonstration following three days without water. Some of the detainees who demonstrated were also overcome by sudden respiratory problems, and one man reportedly died following the camp's being sprayed with insecticide for mosquitoes that morning.148
Detainees sleep on wooden floors without mats. Those we interviewed complained that this, combined with the insects, heat, and overcrowding, made sleep very difficult.149 One woman who was detained in bothimmigration detention in May and June 1999 and in prison (for an immigration offense) from mid-1999 to November 1999 told us that the conditions in jail were much better than immigration detention in Port Klang:
In Port Klang, there were about fifty-two people in a [small] room which made it very crowded and hard to sleep. The toilets smelled very bad, and the smell in the room was very strong. We could buy bread, tea, and coffee from the guards at double the price. The food was sent by contract people and water came in plastic bags. There was not enough drinking water. Sometimes there was enough for showering and sometimes not. . . . We slept on the floor without mats and were bitten by bugs and mosquitoes. Sometimes the meals were brought in cardboard boxes, and we would open them and sleep on those. I made friends in Port Klang. There were two Filipino women, many Indonesians but no Malays-only foreigners.150
These conditions breach the Standard Minimum Rules for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Rules for the Protection of Juveniles, and UNHCR's Guidelines on the Detention of Asylum Seekers. These rules provide that adequate sanitary installations, medical care, sleeping accommodations, and food and drinking water of sufficient quality and quantity be provided.151
Detainees do not appear to have any effective way to make requests or complaints regarding the conditions of detention, or any remedy against abuse. Two men and one woman told us that when they complained about the lack of food or its quality, they were punished by being forced to stand in the sun. The woman, who complained to two "inspectors," was also made to do twenty squats, had water thrown in her face, and was hit on her palm with a rattan cane by guards.152 A former detainee from Bangladesh testified at Irene Fernandez's trial in May 2000 that "the environment was such that we could never complain. . . . I have witnessed some of my friends who complained before, they were beaten up. And this had led me not to complain."153 The Standard Minimum Rules for the Treatment of Prisoners requires that prisoners be given the means to exercise their right to make requests and complaints without censorship to the central prison administration, the judicial authority, or other proper authorities.154 This guarantee is critical to the protection of prisoners from abuses and substandard conditions.
Abuse and Deaths
Punishment for alleged infractions is often physical and administered on the spot. For small matters, such as dropping food, both men and women reported being forced to stand in the sun or rain for extended periods.155 For acts such as possessing contraband, arriving late for roll call, making noise or fighting, or men trying to "look at" the women, detainees may be beaten. When tobacco was found in a doorway in S. Yusof's block in the Lenggeng camp in 1999, the guards forced the three people they thought were responsible to take off their clothes and walk around on their elbows until they were raw and skinned. S. Yusof and the rest of those in the block then had to stand in the afternoon sun for three or four hours.156 A common time for beatings was roll call (or "check-up"), during which detainees line up outside by name or number and are counted, sometimes as often as five times a day.
Another man detained in the Tanah Merah camp in May and June 1999, told us,
I got a fever and the doctor came and I requested medicine. Three of us went together. The doctor did not examine me-he did not check my eyes or chest-but accused the three of us of cheating. He said I was not sick and punished me. He made me put my finger down on the ground and walk around it fifty times. After fifteen times I fell down.157
Many who were beaten told us that they did not know why. Eliyas N. was stripped to his underwear and hit once on the back with a rattan when he first arrived at the Lenggeng detention camp in 1998. One month later he was given five more strokes of the rattan, and he said the guards did not tell him the reason.158 Abdul R. told us that "one guard had slingshot (`caterpillar') which he used to launch stones at the detainees. I was hit in the head. We would all hide when he pulled it out."159
Some former detainees told Human Rights Watch that they had seen guards seriously injure or kill detainees. · T. Jamaluddin was detained three times between 1996 and 1998 in Malacca, Lenggeng, and Tanah Merah for a total of about 10 months. In the Malacca camp in 1996 he was twice beaten by guards. In the Lenggeng camp in 1997 he said he saw guards beat two men, one Bengali and one Indian, so badly that they later died. The guards became angry and beat the men because they were quarreling and shouting, though they were not physically fighting. A doctor came after the guards had assaulted them, but they were not taken to the hospital and both died in the camp, one two or three days later and the other after eight or nine days.160
· S. Ali was in the Malacca camp in July 1999, when a Bangladeshi detainee escaped. When the escape was discovered at roll call, the guards beat the other detainees one by one. When the Bangladeshi man was later caught, S. Ali said he saw the guards forcing other detainees to beat him with small rattan canes and then beating him themselves. The Bangladeshi was taken to the hospital, but S. Ali heard later that he had died.161
· Budi, from Indonesia, told Human Rights Watch that in November 1999 in a Johor camp, an East Timorese man being detained in the block next to him "got crazy"-he was depressed, stayed alone, and screamed. Through the wooden partition separating the blocks, he heard someone begin to beat the man, causing thevictim to cry out in pain. He went over to the block when he saw a guard leave the building and found the East Timorese covered with blood. Budi then saw him die.162
· According to T. Jamaluddin and S. Yusof, access to bathrooms at Tanah Merah is restricted to two hours in the morning.163 Detainees are required to collect urine and feces in plastic bags and dispose of the bags when the bathrooms are open. S. Yusof told Human Rights Watch that while he was detained there in May or June 1999, "the guards would come in and check the rooms, and people were punished if the bags were not thrown away. One day the guards found a packet full of urine next to me. Four people including me were made to drink it. A Rohingya who refused to drink was beaten and his skull was broken. The place that he was hit was high on his forehead. Blood came down and the guards were afraid. Guards gave him medicine and the guard that beat him was transferred. The guard that beat him was wearing a uniform and beat him with a stick made of wood as long as an arm. The man was taken to a clinic and then brought back. After three days he was deported to Golok [on the Thai-Malaysia border]."164
· On March 27, 2000, detainees at Pekan Nanas camp in Johor demonstrated after a guard beat a detainee. The immigration department deported the demonstrators several days later.165
· From January 1 to March 31 1997, ninety-eight people died while detained in immigration camps according to Malaysian Prime Minister Dr. Mahathir Mohamad. The causes of death, he said, included AIDS, beri-beri, heart problems, accidents, cancer, and kidney failure.166Articles 63 and 64 of the Standard Minimum Rules of the Treatment of Prisoners limit the use of force, and Article 31 forbids corporal punishment. Under Article 54(1), Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use it no more than is strictly necessary[.]Although Malaysian law allows for caning as punishment for certain crimes, the law specifies for what crimes it may be applied and against what categories of persons.167 In addition, this punishment must be in accord with international due process standards, not at a guard's whim, and must be proportional to the act committed.
Women detainees are often vulnerable to sexual abuse in detention, particularly where facilities are not subject to outside monitoring and where there is no effective mechanism for reporting abuse, as in Malaysia.168 Although Malaysia's immigration detention camps employ do female guards, male guards are able to obtain access to female detainees. Girls as young as thirteen reported sexual solicitation and touching by male guards.169 One of these girls told us, "Once a guard attempted to force me to have sexual relations against my will. A guard drew me to the side and tried to entice me to follow him by making promises. The guard asked me if I had a man and I said `yes,' that my husband was in the camp. The guard then let me go."170 Many other detainees reported being told of sexual assaults and expressed their conviction that sexual abuse was common, but we were not able to verify these reports. One man, detained in the Malacca camp in August and September 1999, told Human Rights Watch:There was a Rohingya woman who was taken by guards who intended to rape her. She said that her husband was in the camp and the guards came and asked me if I was her husband. I did not know her but I said I was to save her. After that we were allowed to meet periodically (because married couples were allowed to meet). She told me that in the women's block, there were many children and that women delivered babies there. She said that women kept secret the fact that they had heard sounds of people being tortured and that women were also raped. She said that while women guards looked after the women, those guards would send women detainees to the male guards. This woman, who is about thirty years old, was still detained when I was deported. I have been back to the camp to see her since I returned to Malaysia.171 A witness at Irene Fernandez's trial testified in May 2000 that he saw women at the Kemayan detention camp being caned by police and subjected to other degrading treatment.172 The same witness also testified that camp guards forced men to perform sexual acts with one another and that Burmese men, on at least one occasion, were singled out for such abuse.173
International law, including the Standard Minimum Rules for the Treatment of Prisoners, defines the fundamental rights of prisoners to humane treatment. Sexual abuse and misconduct may constitute either torture or cruel, inhuman, or degrading treatment as defined by international law. Torture is "any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing . . . or intimidating him or a third person," by or with the acquiescence of an official.174 Not all acts of rape constitute torture; however, in a custodial setting, if a guard uses force, the threat of force, or other means ofcoercion to compel a prisoner to engage in sexual intercourse, the act of rape constitutes torture.175 If a guard uses force or coercion to engage in sexual touching of prisoners, including aggressively squeezing, groping, or prodding women's genitals or breasts, and the acts cause severe physical and mental suffering, they, too, would amount to torture.
Although Human Rights Watch did not receive direct testimony of rape or sexual assault, former detainees believed such abuses to be common. Sexual abuse of both female and male detainees by guards in Malaysia's immigration camps should be fully investigated. The Malaysian Immigration Department should make clear that such behavior is unacceptable. Individuals should have secure mechanisms to report abuse, and sexual abuse of detainees in immigration camps should be vigorously prosecuted. Malaysia should allow independent monitoring to insure that such abuse does not occur.
Children Malaysia, as a party to the Convention on the Rights of the Child, has agreed to protect certain fundamental rights of children. Under the convention, it must make "the best interests of the child" a primary consideration in all actions concerning children.176 The convention defines a "child" as anyone under the age of eighteen; this definition is consistent with the U.N. Rules for the Protection of Juveniles Deprived of their Liberty ("Rules for the Protection of Juveniles").177 Malaysia maintains reservations to eight articles of the Convention on the Rights of the Child, including provisions that children shall not be subjected to "torture or other cruel, inhuman or degrading punishment"; that children deprived of liberty be treated with humanity and respect for their dignity; that detention of children be used only as a "measure of last resort . . . for the shortest time possible"; that children be detained separately from adults; and that a child is anyone under the age of eighteen.178 Malaysia's reservation states that those "provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia." It is settled international law that a reservation to a treaty must not be incompatible with the object and purpose of the agreement. To the extent that Malaysia's reservations are incompatible with the duty of care the convention establishes, they should not be considered to be effective.Malaysia has agreed under the Convention on the Rights of the Child to make available a variety of alternatives to institutional care, including "counseling; probation; foster care; education and vocational training programmes."179 In addition, UNHCR's Guidelines on the Detention of Asylum Seekers states categorically that "minors who are asylum-seekers should not be detained."180 But Malaysia does detain juveniles in its immigration detention camps, often mixing them with adults. Human Rights Watch interviewed three unaccompanied boys who had been detained with unrelated adult men. Adult men also told us that juveniles had been detained with them. · Adi, from Indonesia, was detained in the Johor Baru camp in the fall of 1999, along with his younger brother. When he was detained, Adi, who had completed one year of primary school, told the police he was fifteen, although he believes he was actually twelve. Nevertheless, he and his younger brother were detained with the adult men.181
· Budi told us he was eighteen, although he looked much younger. When he was arrested on November 6, 1999, he was taken to the Johor detention camp and placed in a longhouse with adult men and many boys younger than he was.182
· Doni from Indonesia and S. Yusof from Arakan are both adults and were both housed in the Lenggeng detention camp in March and April 1999. Both said that boys from thirteen to fifteen years old were housed with them.183The Convention on the Rights of the Child, the Standard Minimum Rules for the Treatment of Prisoners, the Rules for the Protection of Juveniles, and UNHCR's Guidelines on the Detention of Asylum Seekers require that children be separated from adults unless they are family members.184
Upon arrest, children in Malaysia are sometimes separated from their parents and deported by themselves. Human Rights Watch documented two cases in which a father and daughter were arrested together, detained separately, and deported to Thailand at different times. In each case, the father was deported first and the daughter was not informed. · Eliyas N. and his daughter were arrested together in 1993, when she was twelve or thirteen years old. They were sent to the Lenggeng camp where they were not allowed to communicate. After about four months, the father was deported to Golok on the Thai border, where he waited for about two months until his daughter was deported there as well.185 Five years later, Eliyas N. was arrested again, this time with his youngest daughter, who was then about thirteen. They were sent to the Malacca camp where they had no contact or communication with each other. The father requested several times that he not be deported so that they might be deported together, but his requests were ultimately refused. The daughter was not notified that he was deported, but when she was sent to Thailand after about ten months, she made her way to the Burmese quarter in Golok and found her father. They then traveled back to Kuala Lumpur together.186In addition, UNHCR staff in Kuala Lumpur told us that they were aware of two Burmese boys, each about ten years old, who had been detained and deported to Thailand without their parents.187
The practice of separating parents from their children contravenes Article 9 of the Convention on the Rights of the Child, which requires states to ensure that children are not separated from their parents against their will except when competent authorities determine it is in their best interests. Where children and parents areseparated, states must respect their rights to maintain personal relations and direct contact on a regular basis. The practice also conflicts with the duty of care for children articulated in Principle 31 of the Body of Principles for the Protection of all Persons under Any Form of Detention and with UNHCR's Guidelines on the Detention of Asylum Seekers.188
Corruption and Theft
Former detainees reported pervasive corruption in the camps. Primarily, this consisted of guards stealing money, jewelry, and sometimes clothing as the person entered the camp, often by conducting a strip search.189 "At the camp they took everything I had, even my clothes and my watch," said an Indonesian man who was detained in the Malacca camp for three weeks in April 1999. "I had RM350 (U.S. $92) with me and when I was released they gave me only 250,000 rupiah (about U.S. $35). The guards also took my jacket, my hat, and many things from my big bag of clothes. When I got the bag back it was opened. Everything was messed up and all the good clothes taken."190 One man told us that at the Tanah Merah camp in June 1999, "[w]e kept money in our bodies. As long as we paid, the police did not check for money."191 Another man from Indonesia told us he had been issued a receipt for his things but was not allowed to collect them before being deported.192This practice contravenes Rule 43 of the Standard Minimum Rules of the Treatment of Prisoners, which requires that all money, valuables and property that prisoners are not allowed to retain while in custody be safeguarded and that a receipt be issued.193 Detainees who manage to keep some of their money when they enter the camps may be relieved of it once they are inside. For example, in order to telephone their families, detainees pay guards to use their personal handphones. The rates in the Tanah Merah and Kajang camps in 1999 were reportedly RM10 (U.S. $2.60) for three minutes.194 Two people reported having to buy medicine from guards.195 If undocumented family members visit detainees, they must also pay the guards, and if they send food or money to detainees, a percentage of that is taken as well by guards.196In some camps a bribe may also secure faster deportation. We interviewed only one woman who paid a bribe (RM400) to be deported.197 However, others told us that detainees could pay to be deported more quickly. While they had not been able to pay themselves, they were able to quote rates, which varied by nationality.198
Detention and Deportation
Burmese often spend months and sometimes over a year in detention before being sent to the Thai-Malaysia border. In contrast, Indonesians, who are the majority of detainees and who are only a short ferry ride from Indonesia, often are deported within a few weeks.
Rohingya and other Burmese are sent from immigration detention by truck to Golok (Kolok) on the Thai-Malaysia border. The deportees are not processed through Thai immigration but are simply released on the other side.
The Rohingya deportees almost always return quickly to Malaysia, often by hiring an agent. Ahmed K. told us: "I was deported to Golok where I stayed in a mosque. Then my brother sent me money and I paid a middle man to bring me to KL."199
56 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
57 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999.
58 See "Malaysia: Foreign Workers," Migration News, Vol. 6, No. 11, November 1999, http://migration.ucdavis.edu/archive/nov_1999-18.html; "Malaysia: Migrants," Migration News, Vol. 6, No. 8, August 1999, http://migration.ucdavis.edu/archive/aug_1999-18.html; Ian Stewart, "Brawling Shanty-Dwellers Fuel Anti-Immigrant Feeling," South China Morning Post, February 14, 2000, p. 9.
59 As in many
countries, foreigners in Malaysia are often scapegoated. A recent article
in a mainstream Malaysian paper urged the government to "stop the inflow
of new migrant labour as well as to reduce the number of migrants already
in the country" on the grounds that:
[t]he presence of illegals creates problems for the host. Illegals are not constrained by rules and regulations and are free to infiltrate into any job so long as the employers are willing to accept them. They also make inroads into jobs not designated for them such as trading, thus putting them in direct competition with the citizens. As illegals, they have no access to the legal system in the country. Thus many conflicts among themselves are resolved internally and this may be the root cause of social strife and much criminal activity among them. Their involvement in criminal activity, their persistent illegal entry and their propensity to violate the law are serious threats to the security and political stability of this country. Besides, the illegals are imposing a heavy financial burden on the government. It has to bear the costs of weeding them out, housing and feeding and deporting them, as well as the costs of stopping further illegal incursions.
Tan See Yunn, "Containing Illegal Workers' Influx," The New Straits Times (Malaysia), January 22, 2000, p. 13. Health Minister Datuk Chua Jui Meng recently described foreigners as "carriers of various diseases." Ramlan Said, Ainon Mohd, Hayati Hayatudin, "Delinquent foreign patients," The New Straits Times (Malaysia), March 15, 2000. See also "Chor: Illegals have no place in Malaysia," The Star (Malaysia), February 25, 2000; and Ian Stewart, "Brawling shanty-dwellers fuel anti-immigrant feeling," South China Morning Post, February 14, 2000, p. 9.
60 Joniston Bangkuai, "500,000 Illegals Expected to Leave," The New Straits Times (Malaysia), September 4, 1999, p. 14.
61 Badro lhisham Bidin, "Hideout for Beggars," The Malay Mail (Malaysia), March 5, 2000.
62 See Shahrum Sayuthi, "Amnesty for 172 Thai Illegals," The New Straits Times (Malaysia), December 4, 1999, p. 5: "Thailand Immigration Bureau commissioner Police Lieutenant General Chidchai Vanasatidya . . . said most of illegal immigrants detained in Thailand before managing to cross the border into Malaysia were those from Bangladesh and Myanmar."
63 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
64 The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which form the foundation of international human rights law, confer the great majority of rights they enumerate to "everyone." UDHR, proclaimed and adopted by U.N. General Assembly resolution 217A(III), December 10, 1948; ICCPR, adopted by U.N. General Assembly resolution 2200 A (XXI) of December 16, 1966, entered into force March 23, 1976; ICESCR, adopted by U.N. General Assembly Resolution 2200 A (XXI) of December 16, 1966, entered into force January 2, 1976. The UDHR, the ICCPR, and the ICESCR all enjoin states to respect and ensure the rights they set out to all persons within their territory without discrimination, except where the rights are expressly qualified.
65 The 1985 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, which is not a treaty but a statement setting out standards of practice by states, reinforces the universal application of the great majority of rights. It provides explicitly that "aliens," defined as individuals who are not nationals of the states in which they are present, shall enjoy the rights to life and security of the person; to be equal before the courts; to freedom of expression and assembly; and to freedom from torture or cruel, inhuman and degrading treatment or punishment. Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, adopted by General Assembly resolution 40/144 of December 13, 1985, Arts. 5 and 6. These and other rights are repeated in a "general comment" relating to the position of undocumented persons under the ICCPR adopted by the Human Rights Committee. U.N. Human RightsCommittee, General Comment 15: The Position of Aliens under the Covenant (27th session 1986), U.N. Doc. HRI/GEN/1/Rev/1 (1994), p. 18.
66 UDHR, Art. 2. The Universal Declaration of Human Rights, adopted by the United National General Assembly in 1948, is not a treaty to which states can become parties. Rather, it is a statement by the international community of the minimum standards of state practice and is also regarded as an articulation of states' human rights obligations as parties to the Charter of the United Nations. The ICCPR and the ICESCR also prohibit discrimination on the basis of national origin. ICCPR, Art. 2(1); ICESCR, Art. 2(2). Malaysia is not a party the ICCPR or the ICESCR, which are treaties. However, many of the rights contained in these treaties and set out in the UDHR are considered to have become part of customary international law, by which Malaysia is bound as a member of the community of states.
67 Convention on the Elimination of All Forms of Discrimination against Women, adopted and opened for signature, ratification and accession by General Assembly Resolution 34/180 of December 18, 1979, entered into force September 3, 1981, and acceded to by Malaysia July 5, 1995. Malaysia became a party to the Convention on the Rights of the Child on February 17, 1995, and maintains reservations to articles 1, 2, 7, 13, 14, 15, 28(1)(a), 37, declaring that those provisions "shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia."
68 CEDAW, Art. 9(1). Malaysia initially entered a reservation to Article 9 but lifted its reservation to 9(1) on February 6, 1998. It retains a reservation to Article 9(2) which provides that women be granted "equal rights with men with respect to the nationality of their children."
69 1951 Convention Relating to the Status of Refugees, Art. 1(A)(2). Note that it is possible for a person to become a refugee at some time after leaving his or her own country, for example if political events at home suddenly make return unsafe.
70 Under the 1951 Convention Relating to the Status of Refugees, Article 31 (1), refugees should not be penalized for "their illegal entry or presence." According to Professor Goodwin-Gill, "In view of the normative quality of non-refoulement in international law, the precise legal status of refugees under the immigration or aliens law of the State of refuge is irrelevant, although a State seeking to avoid responsibility will often classify them as prohibited or illegal immigrants." Goodwin-Gill, "The Refugee in International Law," p. 152.
71 UNHCR Executive Committee Conclusion No. 6 (1977), para. 53.4, reaffirms "the fundamental importance of the principle of non-refoulement . . . irrespective of whether or not individuals have been formally recognized as refugees."
72 Convention on the Rights of the Child, Art. 22. Malaysia revoked its reservation to this provision on March 23, 1999.
73 The Executive Committee (ExCom) is UNHCR's governing body. Since 1975, the Committee has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum-seekers and in their interpretation of existing international refugee law. While Conclusions are not legally binding, they do constitute a body of soft international refugee law, and ExCom member states are obliged to abide by them. Although Malaysia is neither a state party to the 1951 Convention Relating to the Status of Refugees, nor an ExCom member state, it is an observer state and participates in ExCom meetings; as such it should respect the international standards stipulated in the Conclusions.
74 UDHR, Art. 14(1).
75 The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment lends further support to the principle of non-refoulement as it prohibits parties from returning persons to states where they would be danger of being subjected to torture. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by United Nations General Assembly resolution 39/46 on December 10, 1984, entered into force June 26, 1987, Art. 3(1).
76 Arthur C. Helton, "The Malaysian Policy to Redirect Vietnamese Boat People: Non-Refoulement as a Human Rights Remedy," N.Y.U. Journal of International Law & Politics, Vol. 24, Spring 1992, pp. 1206 (arguing that Malaysia's policy of redirecting Indochinese boat people to Indonesia violated international law, including the principle of non-refoulement). In addition, Helton, a refugee legal scholar, contends that the Comprehensive Plan of Action (CPA), adopted at the 1989 International Conference on Indo-Chinese Refugee at which Malaysia participated, "constitutes strong evidence that, at least in South-east Asia, non-refoulement comprehends a considerable number of procedural guarantees and an absolute right to temporary refuge." Ibid., p. 1211.
77 Report of the Sub-Committee of the Whole on International Protection, U.N. Doc. A/AC.96/781 (9 Oct. 1991), para. 34. See Goodwin-Gill, The Refugee in International Law, pp. 333-44; European Council on Refugees and Exiles (ECRE), Safe Third Country: Myths and Realities.
78 Executive Committee Conclusion No. 58 (XL) (1989) on Irregular Movements accepts that refugees and asylum-seekers may be returned to a country of first asylum if they can enter and remain there, are protected against being returned to places of persecution (refoulement) and treated in accordance with basic human rights standards, will not be subject to persecution or threats to safety and liberty, and have access to a durable solution. See also Executive Committee Conclusion No. 15 (XXX) (1979), para. (h)(iv), (vi); High Commissioner for Refugees, "Background Note on the Safe Country Concept and Refugee Status," Sub-Committee for the Whole on International Protection, U.N. Doc. EC/SCP/68, July 26, 1991, para. 13.
79 See Henry Kamm, "Illegal Refugee Exodus Increasing, but Hanoi Denies Encouraging It," The New York Times, May 3, 1979, http://www.nytimes.org/learning/general/specials/saigon/boatpeople.html.
80 Rachagan, "Refugees and Illegal Immigrants," p. 260.
81 See Court Robinson, The Comprehensive Plan of Action: Sharing the Burden or Passing the Buck?, March 1996, p. 3; W. Courtland Robinson, Terms of Refuge: The Indochinese Exodus and the International Response, (New York: Zed Books, Ltd, 1998) pp. 42, 50-51, 189.
82 See United Nations, General Assembly, Meeting on Refugees and Displaced Persons in South-East Asia, convened by the Secretary-General of the United Nationals at Geneva, on 20 and 21 July 1979, and Subsequent Developments, Report of the Secretary-General, U.N. Doc. A/34/627 (1979); United Nations, 1978 United Nations Year Book, (Lake Success, NY: Dept. of Public Information, 1978) pp. 281-82, 633; and United Nations, 1979 United Nations Year Book, (Lake Success, NY: Dept. of Public Information, 1979) pp. 12, 271-301, 918-10.
83 Robinson, Terms of Refuge, p. 190; Robinson, The Comprehensive Plan of Action, pp. 4, 6.
84 Lawyers Committee for Human Rights, Uncertain Haven: Refugee Protection in the 40th Anniversary of the 1951 U.N. Refugee Convention, (New York: Lawyers Committee for Human Rights, 1991), p. 28-30.
85 Robinson, The Comprehensive Plan of Action, p. 6.
86 Robinson, Terms of Refugee, p. 221; Vietnamese Asylum-seekers: Refugee Screening Procedures Under the Comprehensive Plan of Action, note 8 (GAO/NSIAD-97-12, Oct. 21, 1996).
87 UNHCR, UNHCR Country Profiles - Malaysia, September 1999; Robinson, Terms of Refugee, p. 283; Rachagan, "Refugees and Illegal Immigrants," p. 254-260.
88 Robinson, Terms of Refugee, p. 283; see also Rachagan, "Refugees and Illegal Immigrants," p. 254.
89 Although Vietnamese refugees were initially admitted into Malaysia without their admission being conditional on resettlement elsewhere, by November 1977 as their numbers surpassed 8,000, more stringent conditions were imposed. Rachagan, "Refugees and Illegal Immigrants," p. 261.
90 Under international refugee law, the granting of asylum should be an entirely non-political, neutral act. Executive Committee Conclusion No. 48 (XXXVIII) (1987), para. 206 ("the grant of asylum or refuge is a peaceful and humanitarian act that is not to be regarded as unfriendly by another State"); Executive Committee Conclusion No. 22 (XXXII) (1981) ("[A]sylum seekers . . . should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity.").
91 Mohammed Sayed was a spokesperson for the group and told the press that "the gathering symbolised [sic] the Rohingya refugees' continuing quest for democracy and human rights in Myanmar." He also delivered a memorandum to an embassy official calling for the release of political prisoners and an end to religious and political persecution in Burma. "Rohingya Refugees Appeal for Democracy," New Straits Times (Malaysia), September 10, 1999.
92 E-mail from UNHCR Protection Officer in Kuala Lumpur, Malaysia, July 19, 2000; Human Rights Watch telephone interviews with UNHCR Protection Officer in Kuala Lumpur, Malaysia, February 22, 2000, and March 14, 2000; Ajinder Kaur, "Detained Burmese activist an `illegal immigrant,'" Malaysiakini (Malaysia), February 16, 2000, http://www.malaysiakini.com.
93 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
94 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
95 Human Rights Watch interviews with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12 and December 3, 1999.
96 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 4, 1999.
97 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
98 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999.
99 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 1, 1999. In contrast, Ahmed K. told us that Malaysian officials handed him over to Thai immigration authorities who told him, "in your country there is a problem . . . if we send you back you will be in problems." The Thai authorities gave him one week to leave, and he returned immediately to Malaysia. Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
100 1953/1969 Immigration Act (Act 155), Sections 5, 6, 15, 56.
101 1953/1969 Immigration Act (Act 155), Section 8.
102 1953/1969 Immigration Act (Act 155), Sections 6(4), 8(4).
103 1953/1969 Immigration Act (Act 155), Section 55.
104 Rachagan, "Refugees and Illegal Immigrants," p. 254.
105 1953/1969 Immigration Act (Act 155), Sections 39A, 50(1), 51(1), 51(3)(a).
106 1953/1969 Immigration Act (Act 155), Section 56(4).
107 1953/1969 Immigration Act (Act 155), Section 35.
108 1953/1969 Immigration Act (Act 155), Section 51(5)(b). This requirement is in accord with Malaysia's Federal Constitution which requires that any person "arrested or detained under the law relating to immigration . . within fourteen days" be "produced before a magistrate and shall not be further detained in custody without the magistrate's authority." Federal Constitution, Art. 5.
109 1953/1969 Immigration Act (Act 155), Section 57.
110 1953/1969 Immigration Act (Act 155), Section 36. Not everyone convicted of illegal reentry is caned; however, "the Deputy Home Minister in March 2000 announced that the government will ask prosecutors to request courts to order illegal foreigners caught for the second or third time to be caned, in addition to sentencing them to jail. Deported foreigners will be fingerprinted to determine whether they are repeat offenders." "Malaysia," Migration News, Vol. 7, No. 4, April, 2000, http://migration.ucdavis.edu/archive/apr_2000-17.html.
111 1953/1969 Immigration Act (Act 155), Section 56(2).
112 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
113 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
114 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 1, 1999.
115 Lee Yuk Peng, "Faster Way to Deport Illegals," The Star (Malaysia), March 30, 2000.
116 Body of Principles for the Protection of All Persons under Any Form of Detention, adopted by U.N. General Assembly resolution 43/173 of December 9, 1998, Principle 4. While the Body of Principles is not a binding treaty, it articulates standards based on international law and best practices.
117 Ibid., Principles 4, 11(1), 13, 16(2), 17, 18.
118 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
119 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
120 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999.
121 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 17, 19, 1999.
122 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
123 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 30, and December 2, 1999.
124 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
125 Penal Code (Act 574), Sections 161 ("Public servant taking a gratification, other than legal remuneration, in respect of an official act") and 21 ("public servant"), November 15, 1998; Anti-Corruption Act. Under the Penal Code, a public servant's soliciting or accepting a bribe is punishable by up to three years imprisonment and a fine. Under the Anti-Corruption Act, the minimum sentence for corruption is a mandatory fourteen-day imprisonment and a RM10,000 fine or five times the value of bribe, whichever is higher.
126 Anti-Corruption Agency, The Official Homepage of the Anti-Corruption Agency, Malaysia, visited April 11, 2000, http://www.bpr.gov.my/English/acamain.html. Police officers have reportedly been fired for corruption. See "221 sacked from police force," The Star (Malaysia), April 11, 2000 (citing the 1998 Police Commission report as listing corruption as one of several reasons for which the officers were fired).
127 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 28, 1999.
128 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999.
129 Human Rights Watch interview, Dumai, Indonesia, November 24, 1999. An exchange rate of 7,000 rupiah to U.S. $1 is used throughout this report.
130 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
131 Fernandez was charged under Section 8A of the 1984 Printing Presses and Publications Act (Act 301) which requires the defendant to prove the absence of malicious intent.
132 For more information about the case, see Sidney Jones, Making Money Off Migrants: The Indonesian Exodus to Malaysia, (Malaysia: Asia 2000, Ltd., Center for Asia Pacific Social Transformation Studies, 2000), pp. 107-126.
133 Agence France-Presse, "Bangladeshi Says Police Beat him in Malaysian Detention Camp," January 19, 2000; "Unsanitary Living Conditions at Detention Camp, Says Witness," New Straits Times (Malaysia), January 29, 2000. p. 6; Ajinder Kaur, "Inmates Forced to Do Grueling Exercises, Court Told," Malaysiakini (Malaysia), May 9, 2000, http://www.malaysiakini.com/archives_news/2000/may/may9/news5.htm; Ajinder Kaur, "Sick Inmate Died After Being Kicked by Police," Malaysiakini (Malaysia), May 12, 2000, http://www.malaysiakini.com/archives_news/2000/may/may12/news1.htm; Anil Netto, "Malaysia: Detention Camp Horror Recalled in Shocking Testimony," Inter Press Service, May 16, 2000; Ajinder Kaur, "Detainees Forced to Masturbate, Says Witness," Malaysiakini (Malaysia), May 10, 2000, http://www.malaysiakini.com/archives_news/2000/may/may10/news1.htm; Ajinder Kaur, "Detainees Forced to Perform Sex Show," Malaysiakini (Malaysia), May 11, 2000, http://www.malaysiakini.com/archives_news/2000/may/may11/news1.htm; "Police Beat Detainees Reluctant to Perform Sex Act," Malaysiakini (Malaysia), May 12, 2000, http://www.malaysiakini.com/archives_news/2000/may/may12/news3.htm.
134 We were not able to obtain official figures of camp populations. However, reports in the Malaysian press allow for some general estimates. For example, as of March 29, 2000, there were reportedly 2,000 persons detained in Pekan Nanas, Johor; as of July 28, 1999, there were 1,205 or 1,025 persons detained in Lenggeng, Negeri Sembilan; Norman Ong and Mazwin Nik Anis, "Indons Riot at Pekan Nanas Camp," The Star (Malaysia), March 29, 2000; "Health Problems and One Death Spark Unrest at Detention Camp," The New Straits Times (Malaysia), July 28, 1999, p. 4; Kamarulzaman and R. Sittamparam, "192 Illegals Escape Camp During Demo," The New Straits Times (Malaysia), July 27, 1999, p. 16.
135 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999. Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
136 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663C (XXIV) or July 31, 1957 and 2076 (LXII) of May 13, 1977.
137 Adopted by General Assembly resolution 43/173 of December 9, 1988.
138 Adopted by General Assembly resolution 45/111 of December 14, 1990.
139 Adopted by General Assembly resolution 45/113 of December 14, 1990.
140 Article 37 of the Convention on the Rights of the Child addresses detention and the application of penal law to children. However, Malaysia has entered a reservation to Article 37 stating that the article's provisions "shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia."
141 UNHCR, Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers, Guideline 2, (Geneva: UNHCR, 1996). These guidelines, which UNHCR has published and which it considers to be minimum standards of state practice, apply to all forms of detention or detention-like situations. They would, therefore, apply to Malaysia's immigration detention camps. Guideline 1.
142 Guideline 3 is based on UNHCR Executive Committee Conclusion 44, "Detention of Refugees and Asylum-seekers," adopted by consensus, 1986. However, Human Rights Watch is concerned that the grounds for detention provided in Guideline 3 are too vague and undefined, and believes that states should set more precise and limited rules for detention.
143 Guideline 10.
144 See, e.g. Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
145 Human Rights Watch interview, Dumai, Indonesia, November 24, 1999.
146 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999; Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999; Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
147 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 28, 1999.
148 "Health Problems and One Death Spark Unrest at Detention Camp," The New Straits Times (Malaysia), July 28, 1999, p. 4; Kamarulzaman and R. Sittamparam, "192 Illegals Escape Camp During Demo," The New Straits Times (Malaysia), July 27, 1999, p. 16.
149 See, e.g. Human Rights Watch interview, Dumai, Indonesia, November 24, 1999; Human Rights Watch interview, Kuala Lumpur, Malaysia, November 28, 1999 (stating, "We slept on the timber floor without pillow and blanket. On the floor there was so many bed bugs sucking our blood. There was also a lot of mosquitoes at night").
150 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 1, 1999.
151 Standard Minimum Rules for the Treatment of Prisoners, Arts. 9, 10, 19 (sleeping accommodation), Arts. 11-16 (sanitary installations and water), Art. 20 (food and water), Arts. 22-26 (medical services); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 24 (medical care); UNHCR, Guidelines on the Detention of Asylum Seekers, Guideline 10 (conditions of detention).
152 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999. She was told that the people she spoke with were "inspectors" but was not told what authority they were with. See also Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999 (stating that he saw others beaten for asking for more food).
153 Testimony reported in: Ajinder Kaur, "Detainees `Used Mud as Toothpaste,'" Malaysiakini (Malaysia), May 17, 2000, http://www.malaysiakini.com/archives_news/2000/may/may17/news5.htm.
154 Standard Minimum Rules for the Treatment of Prisoners, para. 36(3).
155 See, e.g., Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999; Human Rights Watch interviews of three people, Dumai, Indonesia, November 24, 1999.
156 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
157 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
158 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
159 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
160 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
161 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999. (9)
162 Human Rights Watch interview, Dumai, Indonesia, November 24, 1999.
163 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 13, 20, 1999.
164 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
165 Norman Ong and Mazwin Nik Anis, "Indons Riot at Pekan Nanas Camp," The Star (Malaysia), March 29, 2000; Lee Yuk Peng, "Faster Way to Deport Illegals," The Star (Malaysia), March 30, 2000. These accounts did not report any investigation of the guard responsible.
166 "Dr M: 98 Illegals Died at Immigration Depots," The Star (Malaysia), April 24, 1997, p. 8.
167 Prison Act 1995 (Act 537).
168 For examples in other countries, see Human Rights Watch/Women's Rights, "Nowhere to Hide: Retaliation Against Women in Michigan State Prisons," A Human Rights Watch Report, Vol. 10, No. 2, September 1998; Human Rights Watch, Behind Bars in Brazil (New York: Human Rights Watch, 1998); Human Rights Watch/Women's Rights, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996).
169 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 30, 1999.
170 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
171 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
172 "'I Saw Female Detainees Screaming When They Were Caned,' Says Witness," New Straits Times (Malaysia), May 16, 2000, p. 11.
173 Ajinder Kaur, "Detainees Forced to Masturbate, Says Witness," Malaysiakini (Malaysia), May 10, 2000, http://www.malaysiakini.com/archives_news/2000/may/may10/news1.htm; Ajinder Kaur, "Detainees Forced to Perform Sex Show," Malaysiakini (Malaysia), May 11, 2000, http://www.malaysiakini.com/archives_news/2000/may/may11/news1.htm; "Bangladeshi Former Detainee Alleges Sexual Abuse in Malaysian Camp," Agence France-Presse, May 13, 2000; "Detainees Beaten for Refusing to Perform Oral Sex," New Straits Times, May 13, 2000, p. 2; Anil Netto, "Malaysia: Detention Camp Horror Recalled in Shocking Testimony," Inter Press Service, May 16, 2000.
174 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment, Article 1.
175 Rape committed by prison authorities against inmates has been recognized as a form of torture. In 1992, the U.N. Special Rapporteur on Torture noted, "Since it was clear that rape or other forms of sexual assault against women in detention were particularly ignominious violations of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture." U.N. Doc. E/CN.4/1992/SR.21, para. 35. Report by the Special Rapporteur, P. Koojimans, appointed pursuant to Commission on Human Rights resolution 1985/33, U.N. Doc. E/CN.4/1986/15 (February 19, 1986), p. 29. More recently, the U.N. Special Rapporteur on Torture recommended "that female security personnel be present during interrogation of women detainees, as interrogation and detention of detainees by exclusively male personnel constitute conditions that may be conducive to rape and sexual abuse of women prisoners or the threat or fear thereof." U.N. Doc. E/CN.4/1995/34 para. 24.
176 Convention on the Rights of the Child, Art. 3.
177 U.N. Rules for the Protection of Juveniles Deprived of their Liberty, adopted by U.N. General Assembly resolution 45/113 of December 14, 1990. These rules apply to "all types and forms of detention facilities in which juveniles are deprived of their liberty." Art. 15.
178 Convention on the Rights of the Child, Arts. 1, 37.
179 Convention on the Rights of the Child, Arts. 40(4), 37(b). Malaysia withdrew its reservation to Article 40 on March 23, 1999.
180 Guideline 5.
181 Human Rights Watch interview, Dumai, Indonesia, November 24, 1999.
182 Human Rights Watch interview, Dumai, Indonesia, November 24, 1999.
183 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999; Human Rights Watch interview, Dumai, Indonesia, November 24, 1999.
184 Convention on the Rights of the Child, Article 37. Malaysia has expressed a reservation to this article. See Standard Minimum Rules for the Treatment of Prisoners, Art. 8(d); and Rules for the Protection of Juveniles, Art. 29; UNHCR, Guidelines on the Detention of Asylum Seekers, Guideline 10. Although Malaysia has entered a reservation to the relevant provision of the Convention on the Rights of the Child, it is still bound by the overall duty of care the convention sets out. That the convention and the rules require that children be detained separately from unrelated adults suggests that this practice is part of that standard of care.
185 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 30, 1999.
186 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 30, 1999.
187 According to UNHCR, NGOs discovered the boys and negotiated with Malaysian government for reuniting them with their parents who were also undocumented. Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, December 3, 1999.
188 Under Principle 31, "the appropriate authorities shall endeavour to ensure, according to domestic law, assistance when needed to dependent and, in particular, minor members of the families of detained or imprisoned persons and shall devote a particular measure of care to the appropriate custody of children left without supervision." See also UNHCR, Guidelines on the Detention of Asylum Seekers, Guideline 6.
189 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 15, 20, 1999. Human Rights Watch interviews of nine people, Dumai, Indonesia, November 24, 1999.
190 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 24, 1999.
191 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
192 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 24, 1999.
193 Rule 43 specifies that: (1) "All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition." (2) "On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorized to spend such money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. . . ." (3) "Any money or effects received for a prisoner from outside shall be treated in the same way."
194 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 20, December 1, 1999.
195 Human Rights Watch interview, Kuala Lumpur, Malaysia November 15, 1999; Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999.
196 We were told that the rate in the past for undocumented persons to visit detainees was RM20 to RM30. Human Rights Watch interviews with undocumented Indonesians, Kuala Lumpur, Malaysia, November 16, 17, 1999. A Burman woman detained in Kajang camp in 1999 told us that her husband sent her RM300 but that she received only RM250. Human Rights Watch interview, Kuala Lumpur, Malaysia, December 1, 1999.
197 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999.
198 Human Rights Watch interviews, Kuala Lumpur, Malaysia, November 15 and 20. The rates we were quoted were fairly consistent. Persons detained at camps in Tanah Merah, Malacca, and Kajang in 1997 and 1999 all reported that sums from RM2,800 to RM3,000 would secure a faster deportation.
199 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999.