by Amer Hamzah Arshad
Aliran Monthly Vol 25 (2005): Issue 5

	I�m for truth, no matter who tells it. I�m for justice, no matter who it is for or against. I�m a human being first and foremost, and as such I�m for whoever and whatever benefits humanity as a whole. Malcolm X

Ismail (not his real name), a child below the age of 18, was born in the district of Inderapuri in Aceh. He was only five when the war in Aceh erupted, prompting his mother to flee to Malaysia, leaving him with his father in Inderapuri. A young boy who grew up in a war-torn country without his mother, Ismail has nevertheless survived in a life that never showed him an ounce of mercy.

When he was 12, the Indonesian army murdered his father and burned down his home. Ismail did not know whether to feel fortunate to be alive - for he was now all alone in a world where violence and cruelty is an everyday event.

In May 2003, martial law was declared in Aceh. The violence that had been inflicted upon Ismail�s family was now everywhere. Flames engulfed schools and houses and futile cries for help rose into the smoky air. Acehnese men were murdered by the dozen; women and girls were raped. This was the reality in Aceh at a time when peace prevailed in most other countries in the world. Ismail�s description of the havoc that reigned in his homeland would be surreal to most people, especially Malaysians.

Seeking refuge from almost certain death and torture, Ismail finally escaped to Malaysia where he was happily reunited with his mother. He was then brought to the office of the United Nations High Commissioner for Refugees (UNHCR) in Kuala Lumpur, where he was registered as an asylum seeker, and subsequently accorded refugee status.

Little did he know that under the Malaysian laws, he could still be charged under the Immigration Act for having entered the country illegally. In August 2004, despite his status as a child refugee, Ismail was arrested and charged in the Kuala Lumpur Court for Children under Section 6(1)(c) of the Immigration Act 1959/93 punishable under Section 6(3) of the same Act. Fortunately for Ismail, after some legal intervention, the charge against him was dropped and he was released into the custody of the UNHCR.

No refugees, please, we are Malaysian

There are 145 countries that are parties to the 1951 Refugees Convention and/or the 1967 Protocol as of 15 Feb 2005. Unfortunately, Malaysia is one of the few remaining countries that has ratified neither the 1951 Refugee Convention nor the 1967 Protocol, even though there are some 27,000 refugees in Malaysia (excluding asylum seekers), 4,600 of whom are children.

Malaysia has also failed to enact any legislation for the protection of refugees. The Immigration Act 1959/63 does not recognise refugees and due to the lack of such recognition in the Malaysian context, refugees have been placed in a state of uncertainty, inevitably resulting in human rights violations. Refugees, adults and children alike, are instead treated as �illegal immigrants� and are subjected to harsh penalties, detention and deportation under the Immigration Act. They risk fines of up to RM10, 000 or jail terms of up to five years or both. They shall also be liable to whipping of up to six strokes of the cane. Since Malaysia is neither a state party to the 1951 Convention nor the 1967 Protocol, and does not provide for the protection of refugee children under the Immigration Act, one wonders what protection exists for refugee children.

Over the years, apart from the 1951 Convention and the 1967 Protocol, other international or regional treaties that directly or indirectly deal with the protection of refugees and those who seek asylum have been developed. One of the more relevant and noteworthy ones is the Convention on the Rights of the Child (�the CRC�), primarily because Malaysia has ratified it.

Children under detention

From the Malaysian government�s point of view, asylum seekers and refugees (whether adults or children) are nothing more than unwanted statistics or a modern-day version of the plague-rats who have the potential to cause social problems in our current capitalist society. Despite the ratification of the CRC, the actual protection and assistance given to refugee children is virtually non-existent. Thus, refugee children in Malaysia are vulnerable and suffer due to the lack of recognition of their status as refugees. There are cases of refugee children as young as 10 years being arrested, detained (some 40 refugee children are in detention centres as of 28 Feb 2005), charged in court or subjected to penalties merely because they entered into Malaysia without proper documents.

The incarceration of refugee children in detention or remand centres may cause serious physical and psychological health problems to refugee children. Refugee children in immigration detention are denied anything remotely resembling a normal life. They are constantly exposed to an environment detrimental to their physical and psychological well-being. In Australia, for instance, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) conducted a study on refugee children detained in detention centres as asylum seekers. It found that 80 per cent of the refugee children there had attempted to harm themselves and that all the children met the diagnostic criteria for major depression and post-traumatic stress disorder. The combination of pre-migration trauma, the detention environment and parental depression was �damaging� the children.

There has been no proper study undertaken by the Malaysian government or the medical fraternity on the impact of detention on refugee children. But, based on the UNHCR�s interviews and psychological assessments and my own interviews, there is empirical evidence to prove that refugee children in Malaysian detention centres do suffer from fear, severe depression, and emotional and traumatic experiences whilst in detention. Apart from the psychological issue, there are also cases where refugee children have been beaten up by other detainees, as I heard from the children themselves. Must we wait until a death in custody occurs before the Malaysian government rectifies the appalling situation of refugee children in detention?

Refugee children who are not in detention are not better off. They are deprived of basic needs that are available to normal children. They are deprived of shelter, nutritious food, education and healthcare. They live in uninhabitable huts and shacks, which are set up in secluded areas with no basic amenities or sanitary systems. Some of the more fortunate live in squatter houses. Food and clothing are scarce and, if they are lucky, they may receive assistance from some non-governmental organisations or from the UNHCR. I even saw them cooking and eating the centre of a banana tree as their �main course�. Formal education is denied to refugee children because they are considered illegal immigrants by the Malaysian government. The law as it stands does not allow them to be enrolled in public schools. The only education they receive comes via informal classes organised by non-governmental organisations.

In short, whilst Malaysian children are blessed and enjoy the basic needs and luxuries that any capitalist society can offer, refugee children in Malaysia on the other hand are unfortunate and are denied basic needs that are rightly due to them. Refugee children, by virtue of the CRC, should receive the necessary protection and assistance from the Malaysian government. They should not be ignored and left uncared for. They should not be arrested and charged in court. Neither should they be locked up in detention centres. The Malaysian government�s lack of commitment and political will in acknowledging its moral responsibilities only serves to perpetuate the appalling plight of refugee children.

Some recognition, but...

The CRC is important to children in general because it sets comprehensive standards for almost all aspects of a child�s life � from health and education to social and political rights. The CRC was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, and came into force on 2 September 1989. Malaysia signed and ratified the CRC on 17 February 1995.

What may be of particular interest to refugee children is Article 22 of the CRC, which specifically endorses the rights of refugee-and asylum-seeking children to appropriate protection and humanitarian assistance. It also states that State parties should cooperate with the United Nations and other competent bodies working with the UN to protect and assist such children as well as to try and re-unify these children with their families. Where the parents or family members cannot be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment as set forth in the Convention.

Initially, when Malaysia became a state party to the CRC, Malaysia had 12 reservations, one of which was this particular article. However, in March 1999, the reservation on Article 22 was removed. The removal of the reservation on Article 22 of the CRC can be seen as a conscious act and a positive assertion of the Malaysian government to the world at large that Malaysia does recognise the need to protect and render humanitarian assistance to refugee children.

The CRC has gained importance because of the near-universal ratification of the treaty, with 192 states having ratified it as of 9 June 2004. This widespread ratification is important: when a state is a party to the CRC but not to any refugee treaty, the CRC may be used as the primary basis for protecting refugee children. Article 22, in particular clause (1), makes it clear that all state parties must provide appropriate protection and assistance to recognised refugee children as well as those who are seeking asylum.

However, Article 22 of the CRC does not embark further to spell out what protection and assistance should be given to refugee children. Reference therefore has to be made to the Vienna Convention on the Law of Treaties (Vienna Convention) - to which Malaysia is a state party - which provides for interpretational principles to be used when interpreting an international instrument.

The Vienna Convention, inter alia, states that:

• a treaty, shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in the context and in the light of its object and purpose; and
• the norms or the principles enunciated in the said treaty should be applied and performed in good faith and State parties should not frustrate the achievement of the object and purpose of the treaty.

Read together, these rules call for good faith in the interpretation and performance of the CRC. Clearly, it follows that Article 22(1) of the CRC must be interpreted with reference to the object and purpose of extending international protection to refugee children and state parties must not interpret the Article in a manner that would frustrate or defeat the object and purpose of the CRC as a whole, in particular Article 22(1).

The purpose of the CRC is to ensure that special care, assistance and necessary protection are accorded to children because they are vulnerable and dependent in nature. Article 22(1) of the CRC, in particular seeks to ensure that refugee children will receive the same care and assistance as well as the appropriate protection accorded to refugees.

In the refugee context, the main �protection� and �assistance� envisaged under Article 22 of the CRC, would inter alia, include:

i) The prevention of the return of refugees to the country or territory in which their life or liberty may be endangered;

When a child is compelled to flee his country of origin due to a well-founded fear of being persecuted, his immediate concern is protection against expulsion or refoulement. Such protection is necessary for preventing further human rights violations. This is because a forcible return to his country of origin may endanger his life and safety. Due to this, the international community has recognised the principle of non-refoulement, which prohibits states from returning a refugee or asylum seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. This principle of non-refoulement can be found in Article 33 of the 1951 Convention and has also been considered by a number of scholars as a rule of customary international law. It is thus binding on all states without exception and regardless of whether they have ratified the 1951 Convention or the 1967 Protocol.

ii) To prevent them from penalties for entering into the country of refuge without any documents;

Since a refugee is a person who flees his country of origin to avoid persecution, it would be akin to rubbing salt into an open wound if he is prosecuted and punished for his illegal entry into or presence in the country where he is seeking refuge. It must be emphasised that the situation of a refugee differs from that of an ordinary alien, who holds a national passport and enjoys the protection of the authorities of his country, to which he may return if he so desires. This is not so in the case of a refugee. Having entered the country in an irregular manner, a refugee is immediately at odds with the authorities of the country of reception. A refugee does not enjoy the luxury of immigration through normal customary channels and thus finds himself compelled to seek asylum by irregular entry to a safe country. It is for these reasons that Article 31 was incorporated in the 1951 Convention.

iii) To reunite unaccompanied refugee children with their families;

In cases of unaccompanied refugee children, Article 22(2) of the CRC requires the state parties to assist such children to trace their parents and/or family members and to reunite them. This Article must be read in conjunction with Article 9, Article 10 and Article 20 of the CRC. Article 9 requires states parties to ensure that a child shall not be separated from his or her parents against its will. Article 10 states that applications by a child or the child�s parents to enter or leave a state party for the purpose of family reunification must be dealt with in a positive, humane and expeditious manner. Article 20 states that where a child is temporarily or permanently deprived of the child�s family environment, it shall be entitled to special protection and assistance provided by the State.

iv) Right to education;

Education is vital to the development of children and will contribute enormously to their well-being. The right to education is a recognised universal human right and Article 28 of the CRC binds state parties to fulfill their obligation in providing it. The mere fact that refugee children are being uprooted does not negate their rights to education nor does it negate the state�s responsibility to provide it. In reality, refugee children in Malaysia are deprived of their right to education. Even though there is a provision which enables non-citizen children to be enrolled and admitted in local schools, such provisions do not include refugee children.

It's the govt's social responsiblity

Even though the Malaysian government has not yet ratified the 1951 Convention and/or the 1967 Protocol or any of the international conventions pertaining to refugees and human rights, the Malaysian government, at the very least, can still ensure and provide the most basic protection to a refugee. Such protection could include immunity from penalties under the Immigration Act especially protection from refoulement.

For a start, the Malaysian government is in a position to use the present laws to achieve this goal. The Immigration Act, particularly Section 55, states that the Minister may, by order, exempt any person or class or persons, either absolutely or conditionally, from all or any of the provisions of this Act and may in any such order provide for any presumptions necessary to make this effective.

Malaysian enforcement agencies, including the Attorney General�s Chambers must adopt a policy which reflects, and is in line with, the Malaysian government�s international obligation arising from its ratification of the CRC. There must be strict adherence to such policy. The judiciary can also play an important role through the process of common law. As stated above, the judiciary may adopt the principles of international human rights law relating to refugees into our domestic system through the interpretative process. The authorities, which have been discussed above, have clearly paved the way for the judiciary to move forward; the only question that remains is whether they have the intellectual honesty to do so.

The Malaysian government must also realise that the refugee problem is its social responsibility. Hence, the Malaysian government must consider establishing an inter-ministerial taskforce on the refugee situation in Malaysia to work out concrete measures and practical solution-oriented arrangements for all categories of persons of concern to the UNHCR, especially refugee children and asylum seekers. Ultimately, the Malaysian government must sign and ratify the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees and conduct comparative studies with other jurisdictions which are parties to the 1951 Convention and/or 1967 Protocol. The government should then revise the relevant domestic laws - in particular the immigration laws - to cater for the protection of refugees. Additionally, a proper mechanism for the determination of refugee status must be set up either within the existing Immigration Department or through an independent tribunal.

Our responsibility too

Due to the growing refugee problem in the world today, effective means must be adopted to solve the problem. The Malaysian government�s paranoia about the influx of asylum seekers and refugees if it were to ratify the Refugee Convention is an unfounded fear, which it must overcome. To me, the government�s reason for non-ratification is nothing more that an attempt to avoid dealing with pressing humanitarian problems that are beleaguering thousands of asylum seekers (adults and children alike) in and around Malaysia.

We must remember that, since the Malaysian government has ratified the CRC, its action must not contravene the principles laid out in the CRC. Otherwise, the Malaysian government will be seen as being ignorant of its international obligation and blatantly disregarding the protection of human rights norms and values. Furthermore, it is often said that the level of civility of a country is measured by how we treat our guests � and refugees are our guests. We must treat them with respect. There is much that the government can still do to ensure that refugees are treated humanely and in a civilised manner.

The ratification of the CRC is a step in the right direction. And if a child refugee can be recognised, the next logical step is the recognition of adult refugees because in truth, what is the difference between a child refugee and an adult refugee except their age? Lest we forget, the responsibility of protecting and advocating the rights of refugee children does not solely lie with the Malaysian government, non-governmental organisations or the UNHCR. Rather, it is the responsibility of each and every citizen in this country.

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Amer Hamzah Arshad is a Malaysian lawyer concerned about refugee rights� issues.

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