Refugee swap: Still no human rights commitment

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Asylum seekers in Malaysia have never had any guarantee of safety in this country as Malaysian immigration laws do not recognise those granted official UNHCR refugee status. This month, as in years past, is the month of the refugee. World Refugee Day falls on 20 June, a day significant to all refugees and asylum seekers hoping to be freed from fear and danger to life and liberty.

Photo courtesy of Chin Refugees in Malaysia

Yet, what Malaysia has to offer asylum seekers has always been less than a safe place. Asylum seekers and refugees constantly remain at risk of arrest, detention and human rights violations in this country, which some see as a shade better than where they came from.

The non-recognition of asylum seekers and refugees in immigration legislation and regulations, and criminalisation of those undocumented are two very sharp prongs of a fork keeping asylum seekers and refugees at bay, so it seems. But asylum seekers and other undocumented and irregular migrants still appear undeterred by these risks – despite the added dangers of falling into the hands of local security enforcers like RELA, detention in overcrowded immigration detention camps, whipping, and other physical and mental abuse.

Last month’s announcement by the Australian and Malaysian governments of a refugee–asylum seeker swap deal, pending further negotiations, sent a wave of anxiety among refugee communities in Malaysia. Another door had been slammed in their faces, dashing hopes of finding a safe haven.

Even so, this deal did not go down well with Australian parliamentarians on 16 June 2011 who voted against it by a 70 – 68 margin. In the background and the run up to this resounding Australian parliamentary decision, there was rigorous civil society and opposition political party lobbying in both countries.

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We are grateful to the Australian parliamentarians who opposed this deal. In Malaysia the opposition lobby is completely ignored by the government-controlled mainstream media. But politically and socially aware Malaysians and others exercised their human rights to freedom of information and freedom of expression in cyberspace and have shown support in various ways using social networking tools.

The struggle for refugee and asylum seeker recognition and human rights protection is still far from over. Both governments, with the support of the UNHCR and the International Organisation for Migration (IOM) intend to push ahead with this, amid the on-going controversy over potential continuation of human rights violations of asylum seekers and refugees in Malaysia. According to Minister of Home Affairs Hishammuddin Hussein, “We may be embarking on something that people might want to adopt 50 years from now… Business cannot be as usual.”

However, the Malaysian government has not shown any inclination to ratify the 1951 Refugee Convention and 1967 Protocol, so far. It has even requested the omission of references to human rights in negotiations in this asylum seeker-refugee swap deal, which undermines the requirements of the UN Refugee Agency’s mandate of refugee protection.
It would be wise for Malaysia to follow the example of Nauru in ratifying the 1951 Refugee Convention first, if it insists in pursuing the claimed benefits of this refugee swap deal. The deal seems to serve as a back-door out of Australia’s obligations under the Convention to implement refugee status determination on its own soil.

Aliran urges the UNHCR to take a firm stand and make human rights a mandatory, fundamental and inherent condition of any undertaking or agreement involving asylum seekers and refugees, whether unilateral, bilateral or multilateral.

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We strongly urge the Malaysian government to amend current immigration and related laws and regulations to recognise asylum seekers and refugees. The government should also establish facilities and services to cater for persons claiming asylum from persecution under Article 14 of the Universal Declaration of Human Rights.

We repeat our call to the Government to become a state party to the 1951 Refugee Convention and the 1967 Protocol as well as to ratify the remaining international human rights conventions to guarantee the observance, protection and promotion of human rights of all citizens and non-citizens resident in this country.

If the government refuses to ratify these human rights treaties, it should withdraw from the swap deal with Australia in the interest of the nation, Malaysian citizens and the international community.

Failing this, there are no concrete legally binding or lasting guarantees that asylum seekers and refugees will be afforded protection against human rights violations and deportation to countries where they will be at risk. The Malaysian government’s latest policy proposal to legalise undocumented and irregular migrants in Malaysia falls short of a definite commitment to uphold human and refugee rights.

Aliran Executive Committee
World Refugee Day, 20 June 2011

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