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<<previous | index | next>> Inadequate Malaysian Law, Uncertain Refugee Status and Inadequate Protection
As well as being a destination for migrant workers from all over Southeast Asia, Malaysia has long served as temporary host for refugees fleeing persecution and armed conflict. Malaysia has, on an ad hoc basis, willingly hosted certain groups of refugees—including Khmer Muslims from Cambodia and Filipino Muslims, some of whom Malaysia officially resettled within its borders. However, Malaysia offers very little in the way of legal protection for asylum seekers or refugees. Malaysia has yet to become party to the main international treaty for the protection of refugees: the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees. While Malaysia has a well-developed legal system and sophisticated lawyers and judges, the Malaysian government has no system for determining asylum claims, nor does it provide official protection and recognition to people whom the UNHCR has recognized as refugees under its mandate, or to those whom UNHCR has found to be persons of concern and in need of temporary protection. This is particularly problematic, as many Acehnese in Malaysia have fled persecution and may be considered to be refugees within the meaning of the 1951 Refugee Convention, which defines a refugee as a 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.” And although Malaysia has not signed the Refugee Convention, it is still bound by the principle of non-refoulement—a universally accepted principle of customary international law that prohibits returning asylum seekers or refugees to any country where their lives or freedom would be threatened or they would be at risk of persecution.59 In spite of these obligations, the Malaysian government has repeatedly stated that it makes no distinction between illegal migrants and refugees.60 Although decades old, this policy is particularly problematic now, when there is clear evidence that special protection, including protection from deportation, should be provided to all Acehnese while the armed conflict continues in Aceh. The sheer numbers of refugees arriving from Aceh following the start of military operations in May 2003 have made it difficult for UNHCR to conduct refugee status determination (RSD) interviews for most of the new arrivals. As a result, in July 2003, UNHCR began issuing temporary protection letters to Acehnese, indicating that they were a person of concern to the organization. The letters are issued on the basis of a person’s Acehnese ethnicity and non-combatant status. They are being issued to all Acehnese regardless of when they arrived in Malaysia, recognizing the heightened vulnerability of all Acehnese while military operations continue. The letters are valid for six months and can be extended for another six months if the bearer re-approaches UNHCR. The temporary protection letters are not a replacement for status determination; the decision to supplement normal RSD procedures with the temporary protection letters is largely due to the overwhelming numbers of new Acehnese asylum seekers in Malaysia. UNHCR recognizes the urgent need for international protection for civilians from Aceh, but does not currently have the capacity to provide it. Status determination by UNHCR in Malaysia normally would include more substantial interviews with asylum seekers to establish whether or not they meet the criteria for refugee status under the 1951 Convention, and, if they do, eventual third country re-settlement. While the temporary protection letters are a positive step, in light of the armed conflict and serious human rights violations taking place in Aceh, UNHCR should formally recognize Acehnese in Malaysia as refugees under its extended mandate on a prima facie basis. As a result of successive United Nations General Assembly resolutions, UNHCR’s mandate has been extended to persons who are outside of their country of origin and are in need of international protection as a result of indiscriminate violence or public disorder in their country of origin.61 This recognition would send a strong signal to Malaysian authorities at all levels that deportations of Acehnese at this time are a violation of the internationally recognized principle of non-refoulement. Acehnese refugees without government-issued documentation and even those with UNHCR-issued documents, including asylum seekers with “persons of concern” letters or recognized refugees with UNHCR-issued refugee letters, regularly face detention and summary return to Indonesia. In addition, Acehnese refugees repeatedly told Human Rights Watch that they were reluctant to approach UNHCR after the August 2003 arrests in front of the UNHCR office in Kuala Lumpur. This results in many living in the conditions of extreme insecurity described above. The logistical and financial difficulties encountered in making the journey to the capital serve to further deter asylum seekers from approaching UNHCR. At present there are no UNHCR mobile registration or protection units working in places other than detention centers and, except for those in detention, registration at the Kuala Lumpur office is the only means of acquiring a protection letter or registering for status determination. Most Acehnese in Malaysia are therefore living in a legal and protection vacuum, as they do not have permission to be in Malaysia and cannot return to Aceh. While the interim protection letters issued by UNHCR to asylum seekers should in principle be respected by Malaysian authorities and police officers, the documents are not legally binding in Malaysia and thus are limited in their usefulness as a protection measure. As Malaysia makes no distinction between Acehnese asylum seekers and other Indonesian undocumented migrants in Malaysia, the Acehnese are still subject to arrest, detention, and extortion by local Malaysian authorities, with or without UNHCR letters. Acehnese holding temporary protection letters have been deported to Indonesia. A twenty-nine-year old Acehnese man told Human Rights Watch:
At present there is no systematic method to check to what extent Malaysia is currently deporting Acehnese holding UNHCR protection letters, or those who have arrived since martial law. When asked if UNHCR was keeping track of Acehnese being returned to Indonesia at this time, a UNHCR official told Human Rights Watch:
Given Malaysia’s record of deporting individuals who are or should be recognized as refugees and the lack of screening for refugee status of those caught up in large-scale deportations of putative migrant workers, UNHCR should not only be seeking such data, but insisting upon access to all Acehnese facing deportation.
58 Human Rights Watch interview with twenty-seven-year-old man [name withheld], Malaysia, October 26, 2003. 59 Customary international law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That non-refoulement is a principle of customary international law is well established. See for example “Problems of Extradition Affecting Refugees,” EXCOM Conclusion No. 17, 1980; EXCOM General Conclusion on International Protection No. 25, 1982; and the Summary Conclusions on the Principle of Non-Refoulement at the Global Consultations Expert Roundtable on 9 – 10 July 2001. 60 “Malaysia says will deport fleeing Acehnese,” Reuters, June 3, 2003; “UNHCR concerned over plans to expel Aceh asylum seekers from Malaysia,” Agence France-Presse, September 5, 2003; Baradan Kuppusamy, “Malaysia walks tightrope on Aceh refugees,” Asia Times, September 9, 2003. 61 See in particular “Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime,” EC/50/SC/CRP.18, paras 10 and 11, June 9, 2000. As highlighted already, some of these persons may also be considered to be refugees within the meaning of the 1951 Refugee Convention and some have been recognized as such by UNHCR. In addition, granting of refugee status on a prima facie basis does not preclude the possibility of subsequently canceling such status for certain individuals if they are found to be undeserving of international protection based on article 1 (F) (the exclusion clauses) of the Refugee Convention. 62 Human Rights Watch interview with twenty-nine-year-old man [name withheld], Malaysia, October 26, 2003. 63 Human Rights Watch email communication with UNHCR representative [name withheld], Malaysia, November 20, 2003.
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