THE Human Rights Commission of Malaysia (Suhakam) has renewed its call for the government to provide alternatives to detention (ATD) for children in immigration detention centres. While the issue of children in detention is not new in Malaysia, the issue was brought to the limelight last month when the two undocumented Filipino children were detained at the Bukit Jalil Immigration detention centre as they were taken into custody during a raid at Plaza Indah Apartment Kajang.

The issue was soon diluted until Suhakam’s press statement yesterday. While there is on-going discourse about refugees and migrant workers in Malaysia, especially on the Rohingya refugees, however, it is rather unfortunate that the issue of children in detention has not been receiving sufficient media attention and necessary actions.

According to the latest report, there are 363 children aged 12 and below in detention centres nationwide in the country. Currently, there are 13 immigration detention centres in Malaysia that hold refugee children. In detention, children are held with adults, as there are no special facilities specifically for them. Girls until 18 years old and boys below 12 years old are held in the adult women’s facility. For boys between the ages of 13-18, they will be held in the adult male facility. For boys above 12 who are arrested with their mothers, they will be separated from them in detention. 

As revealed in the latest Global Trends Report released by the United Nations High Commissioner for Refugee (UNHCR), children below 18 constituted about half of the refugee population in 2018, up from 41% in 2009. The report shows that the number of people fleeing war, persecution and conflict exceeded 70 million last year, which is the highest level that the UNHCR has seen in its almost seven decades.

As we all are aware, the 1951 Refugee Convention is a major foundation document for the international security of refugees, in which it provides a mechanism that allows refugees who have fled from conflict, who face maltreatment in their home countries, to seek protection in another country for security and safety purposes. But the fate of the children is even more vulnerable as they escape from their home countries by following their mother or father. There are also some unaccompanied asylum-seeking children whom may have lost their parents or guardians.  

Holding children at detention centres violates the spirit of the Convention On The Rights of the Child (CRC), to which Malaysia is a party. The CRC requires that the best interests of the child be given paramount importance. From the legal perspective, Malaysia has obligations to be in compliance with the universal human rights standards. However, reservations, such as Article 37 in the CRC, have become obstacles for the Malaysian government to fulfil its obligations. Article 37 spells out the rights of the child, in which a child should not be subject to unpleasant, merciless, humiliating treatment or punishment and deprived of liberty illegally or illogically.

Malaysia’s CRC reservation has unfortunately inappropriately permitted the Malaysian government to violate the human rights of these children. The continued detention of the children has also violated the Child Act 2001 that recognises the right to protection and assistance in all situations to children regardless of race, colour, gender, language and religion.

There are reported numerous problems that the refugee children encounter throughout their detention period in Malaysia. For instance, it is common that these refugee children are found to be liable to physical as well as mental health, problems. They become ill easily due to inadequate nutrition in the detention centres. Moreover, these children are also exposed to various forms of threats and abuses, as they are vulnerable to abuse by adult detainees.

ATD as proposed is a form of procedure or practice, which permits asylum seekers, refugees and immigrants to enjoy their freedom of movement while their movement status is being decided. The little attempts by the government to manage refugee issue from the human rights viewpoint but security concern adds to the difficulty as these children are considered as refugees first, rather than children first. Malaysia’s non-participation of the 1951 Refugee Convention and its 1967 Protocol is a major hindrance to refugee protection; however, it is not a justification to the violations of refugee human rights. Furthermore, as Malaysia is a state party to the CRC, it is necessary that the government acknowledge the basic rights of the refugee children by drafting human rights-friendly policies for protection purposes. – July 18, 2019.

* Dr Khoo Ying Hooi is deputy head and Samitra Parthiban is a postgraduate student at the Department of International and Strategic Studies, Faculty of Arts and Social Sciences, Universiti Malaya. They have recently co-published a journal article on “Detention of Refugee Children in Malaysia and Thailand”. Journal of Southeast Asian Human Rights. Volume 3(1), pp. 59-80, June 2019. ISSN 2599-2147. Available at: jurnal.unej.ac.id/index.php/JSEAHR/article/view/10142.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.