We do have an obligation towards refugees

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Instead of criticising the UNHCR, the Home Minister should appraise himself of Malaysia’s obligations and ensure compliance, says Amer Hamzah Arshad.

The recent statement made by the Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad in respect of the role of UNHCR published in the NST on 2 February 2007 is a cause for great concern. It reflects too clearly the Malaysian government’s lack of respect for human dignity and human rights. It is also demonstrative of the Malaysian government’s lack of comprehension regarding her obligations vis-à-vis asylum seekers and/or refugees (“refugees”). What is not too clear is whether this ignorance is feigned or true.

For the benefit of the said Home Minister and the Malaysian public, refugees are by their very definition victims of persecution. They are victims of human rights violations caused by the failure of their own government to protect them. Refugees therefore are people in need of humanitarian assistance and protection. It is for these reasons that the international protection is afforded to refugees through the United Nations Convention Relating to the Status of Refugees 1951 (“1951 Refugee Convention”) and the 1967 Protocol pertaining to Refugees (“1967 Protocol”).

Unfortunately, Malaysia is one of the few remaining countries that has not ratified either the 1951 Refugee Convention or the 1967 Protocol. This, however, does not mean that the Malaysian government has no obligations to render assistance and protection to refugees. The Home Minister must be mindful of the fact that Malaysia has signed and ratified the Convention on the Rights of the Child (“CRC”) on 17 February 1995, whereby Article 22 of the CRC clearly and specifically requires state members to provide appropriate protection and humanitarian assistance to refugees. The ratification and acceptance of the CRC, in particular the principles stipulated in Article 22, can be seen as a conscious act and a positive assertion by the Malaysian government to the world at large that Malaysia does recognise the need to protect and render humanitarian assistance to refugees.

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Further, it should be noted that Malaysia, being a member of the United Nations, did not object to the Declaration on Territorial Asylum, which stipulated the need to protect those who are seeking asylum, when it was adopted by the General Assembly of the United Nations on 14 December 1967.

Moreover, the Malaysian government has on previous occasions formally recognised and provided protection for refugee populations since the 1970s, starting with the Vietnamese boat people and later the Bosnians who found refuge in Malaysia during the Balkan conflict, not to mention refugees from the Philippines in Sabah who have been in Malaysia for nearly 30 years.

In the refugee context, at the very least, refugees should be protected from penalties for entering a country of refuge without any valid transit documents. Refugees cannot be compared to economic migrants who go to another country to earn a better living. Refugees also cannot be compared to undocumented immigrants, that is, those who enter the country without a valid working, social or vacation permit but who do not face persecution from their own governments. Often enough, refugees fleeing their country are not able to do so in convenient circumstances. They are desperate and must leave their country; failure to do so would result in either death or a long and painful incarceration.

Secondly, refugees should be protected from deportation. The immediate concern of refugees upon entering a foreign country is deportation or expulsion from the intended host country. Therefore, protection against deportation is necessary to prevent further human rights violations. Malaysia, in turning away or repatriating refugees to their country of origin, would be an accessory to human rights violations.

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It is for these reasons that Malaysia has a moral and social, if not legal, obligation to render assistance and protection to refugees. However, as the Malaysian government has failed and is unable to live up to its obligations as a civilised nation, the office of the United Nations High Commissioner for Refugees (‘UNHCR’) had to step in to ensure that the welfare and the well-being of refugees are protected. When someone is undertaking responsibilities we have shunned, we should be grateful and offer our gratitude.

It is therefore thoroughly unacceptable and unbecoming for the Home Minister to criticise the UNHCR office. Instead of criticising and hindering UNHCR’s work, the Malaysian government should at least attempt to think and act like a developed country since it is supposed to be one in 13 years; it should have started thinking on how best to protect refugees in accordance with international standards. Instead of criticising the role played by the UNHCR office, the Home Minister should be taking the trouble to appraise of himself of the obligations of the State in the international realm and taking all necessary measures to ensure Malaysia’s compliance with them.

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Amer Hamzah Arshad is a Kuala Lumpur-based lawyer with an interest in refugee rights’ issues. 

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