On the occasion of World Refugee Day (20 June), Malaysians Against Death Penalty and Torture (Madpet) urges Malaysia to enact a law on refugees and assylum seekers, which will also define the rights of refugees and asylum seekers in Malaysia.
This becomes all the more important as Malaysia has entered into extradition agreements with many countries. Under these agreements, strict adherence to requests for extradition may see Malaysia violating the principle of non-refoulement if they send back refugees and asylum seekers to the very countries they fled from to escape persecution based on “race, religion, nationality, membership of a particular social group or political opinion”.
The May 2019 arrest and return of a Thai national, Praphan Pipithnamporn, then an asylum seeker recognised by the United Nations High Commissioner for Refugees(UNHCR) was an embarrassment. It was a violation of the principle of non-refoulement.
The refusal to return to China 11 ethnic Uighur Muslims in October 2018, on the other hand, was a commendable act (Asahi Shimbun, 12 October 2018). The Malaysian position on the Rohingyas seeking asylum in Malaysia is also good.
Now, Malaysia, which has an extradition agreement with India, may be forced to decide whether to return Zakir Naik to India if India makes a request in reliance of that agreement. The question will be whether Zakir Naik is considered an asylum seeker or refugee by Malaysia.
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Zakir Naik was accorded permanent resident status by Malaysia allegedly in 2015. But it has never been made clear whether Malaysia considers him a refugee or an asylum seeker, and as such bound to protect him and not send him back to India.
A declaration by Malaysia – which has no law on refugees and asylum seekers currently – that Zakir Naik is a recognised asylum seeker or refugee will only be a political position. This position may carry more weight if Zakir Naik is also recognised by the UNHCR as a refugee or asylum seeker or if Malaysian law considers him a refugee or asylum seeker.
This again highlights the importance for Malaysia to have a clear law on refugees and asylum seekers. Such a law will mean Malaysia will have the right to determine who it considers to be a refugee or asylum seeker in law and hence entitled to enjoy the full protection of the country, including the assurance that it will not be in violation of the principle of non-refoulement. Extradition sgreements cannot, and should not, be used against asylum seekers and refugees recognised by Malaysian law.
Malaysia is not a signatory to the 1951 United Nations Convention Relating to the Status of Refugees – which is of little consequence if Malaysia has its own law that recognises and protects asylum seekers and/or refugees and adheres to the principle of non-refoulement.
Asylum seekers and refugees need to be accorded legal recognition and status.
At present, with regard to foreign nationals, Malaysia only recognises legal (or documented) immigrants, meaning foreigners that are in Malaysia with a valid visa or permit. All other foreigners are considered ‘illegal’ or undocumented, and as such could be arrested, charged, tried, imprisoned, whipped and/or deported.
Asylum seekers and refugees would generally fall into the category of ‘illegal’ immigrants – and as such we need a clear law that grants recognition to refugees and asylum seekers as a special class of foreign nationals.
This recognition should start from the time they seek asylum until the point they are accorded the asylum seeker or refugee status – and thereafter until they are re-settled in another country or alternatively allowed to remain in Malaysia temporarily or permanently.
Such a law will also determine whether they have a right to work, carry on a small business or earn a living while their applications are being processed and after that. As it stands, such asylum seekers and refugees at present do not have a right to work in Malaysia.
At present, Malaysia seems to have an unwritten policy that special treatment be accorded to those seeking or those who have obtained asylum or refugee status from the UNHCR. There is no clear position whether they can work and earn a living in Malaysia.
However, the recent arrest and handing over to Thailand of a UNHCR-recognised asylum seeker shows how inadequate this is to protect refugees and asylum seekers.
Malaysia’s new Pakatan Harapan government must enact a law on refugee and asylum seekers, which also will affect the obligations under these extradition agreements and treaties that Malaysia is now a party to. There should be no extradition of those recognised as asylum seekers or refugees.
Madpet urges Malaysia to enact a law that will govern the treatment and rights of refugees and asylum seekers or those applying for such status.
Madpet also calls on Malaysia to sign and ratify the 1951 United Nations Convention Relating to the Status of Refugees and other relevant conventions that will recognise and protect the rights of refugees and asylum seekers in Malaysia.
Madpet also urges Malaysia to review its obligations under existing extradition treaties and agreements to ensure that it does not violate the country’s obligations under the principle of non-refoulement.
Malaysia should never surrender anyone, including an accused or even a convicted person to another country if that person is then recognised by Malaysia and/or the UNHCR as a refugee or asylum seeker.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).