WHILE Myanmar has rejected the damning United Nations (UN) independent fact-finding report on genocide against the Rohingya citing it as false allegations, it is encouraging that in the spirit of Association of Southeast Asia Nations (Asean), Malaysia has taken a strong position to urge the Myanmar government to take action against those who perpetrated acts of violence against the Rohingya community and other minorities. Foreign Minister Saifuddin Abdullah also emphasised that Malaysia would continue to speak about the plight of the Rohingya.

In an interview with Malay Mail last July, Saifuddin said a key issue that Malaysia would work to address within Asean was the plight of the Rohingya. In addition, he said activities related to Rohingya were currently ongoing and I quote, “Foreign policy begins at home… My colleagues in Cabinet have been involved in activities that are related to the Rohingya… We do not have to wait until we ratify the convention on refugees; we can start by doing something here at home, first.”

The Malaysia national report for the third cycle of the Universal Periodic Review (UPR) was recently released to the public and it covers the review period after its second cycle in 2013 to early 2018. The UPR is a peer-review human rights mechanism created under the Human Rights Council (HRC) where each member state is reviewed every four or five years.

In the national report under the section “Management of Refugees and Asylum Seekers”, the government of Malaysia states that while it is not a state party to the 1951 Refugee Convention, the government has provided temporary refuge to refugees and asylum seekers and continues to cooperate with the United Nations High Commissioner for Refugees (UNHCR) on humanitarian grounds in managing the issue. The report includes several measures taken by the government such as the halving of the stipulated rate for foreigners under the Fees Act 1951 (Act 209) on healthcare services.

Civil society organisations such as the Coalition of Malaysian NGOs in the UPR Process (Comango) have also submitted reports. The Comango report endorsed by 52 organisations point out that Malaysia has failed to implement the critical CRC Committee recommendations to promote and protect the rights of migrant, refugee and stateless children.

In a separate report submitted on behalf of Asylum Access Malaysia (AAM) and the Asia Pacific Refugee Rights Network (APRRN), it is highlighted that while Malaysia, on humanitarian grounds, generally allows asylum seekers and refugees in the country, the absence of a legal or administrative framework leaves asylum seekers and refugees without legal status and formal rights, and puts them at risk of various forms of human rights violations such as arbitrary arrest, detention, refoulement and exploitation.

The report also mentioned that there has been an increase in initiatives by the government since the UPR in 2013 in addressing refugee issues. Among these include the establishment of a refugee registration-tracking project known as the Tracking Refugee Information System (TRIS), pilot programs permitting Rohingya UNHCR cardholders to work in plantation and manufacturing sectors and inclusion of asylum seekers and refugees as a marginalised group in Malaysia’s National Human Rights Action Plan in 2016. But, the root problem is not identified.

In Southeast Asia region, only Cambodia and the Philippines have ratified the 1951 Refugee Convention and its 1967 Protocol. However, neither of these two countries has fused the international instruments into their national laws. Malaysia for example although it is one of the countries that host a high number of refugee population, it however did not ratify the 1951 Refugee Convention and the 1967 Protocol. The lack of such legal infrastructure postures a major challenge to refugee protection. Furthermore, most countries including Malaysia looks into refugee protection issue as a UNHCR or an international problem rather than a domestic issue which requires a domestic long-term solution.

Two weeks ago, Deputy Prime Minister Dr Wan Azizah Wan Ismail was reported to have said that Malaysia had to achieve the right balance between helping refugees and protecting the sovereignty and security of the country. She added that Malaysia was trying to find a long-term solution instead of applying ad hoc fixes to the problem of refugees. While acknowledging the challenges ahead on ways to sustain the influx, she highlighted that the government of Malaysia under the Pakatan Harapan (PH) coalition would like to help as a responsible government by addressing the root causes instead of the problem being exported to neighbouring countries.

As of now, due to the lack of recognition in legal framework, refugees are treated the same as other foreigners who enter the country, bound by the existing immigration policy meaning if they do not have legal documents, then they are considered undocumented and therefore illegal immigrants. In Malaysia, anyone who does not have a legal document to stay in Malaysia, whose visa is expired, or has entered Malaysia illegally are subject to Section 6(1) (c) of the Immigration Act 1959/93 and some, subject to sentence detention.

Those who manage to reach out to the UNHCR are given the UNHCR card if they fulfil the criteria. The UNHCR card is considered a lifeline to these refugees in term of authenticity, but cases of exploitation have been reported. The UNHCR card, although not recognised officially by the Malaysian government, has to a certain extent enabled some refugees, like the Rohingya, to get employment,.

The constant rejection of international refugee law by Malaysia has posed a number of effects. In accordance with the national legal framework, any individual, including children, who enters the state without proper documentation will be detained in immigration detention centres. Refugee children in such centres have limited protection. Although Malaysia has ratified the Convention on the Rights of Children (CRC), these refugee children are not given protection and are exposed to high chances of depression, psychological trauma, inadequate nutrition, and deprivation of access to education.

Page 78 of the PH manifesto states: “Recognising that Malaysia is hosting more than 150,000 refugees, including Rohingya and Syrians, the Pakatan Harapan government will legitimise their status by providing them with UNHCR cards and ensuring their legal right to work. Their labour rights will be at par with locals and this initiative will reduce the country’s need for foreign workers and lower the risk of refugees from becoming involved in criminal activities and underground economies. Providing them with jobs will help refugees to build new lives and without subjecting them to oppression.” On page 121, the PH government pledges to ratify the 1951 Refugee Convention so that refugees who escape from war-torn countries and arrive in Malaysia are given proper assistance.

It is enlightening that a new government under PH has pledged to various reforms to adopt more human rights-oriented approach in dealing with issues such as on its approach on refugees. While we recognise that it is challenging to untangle every cause that seeking the answer of who is responsible for the refugee crisis, but with every step the Malaysian government has taken thus far, the third cycle of UPR that will take place this November 2018 in Geneva is then timely for the new government to strengthen what it has pledged, by walking the talk for the best interest of these refugees not only in law but also implementation in practice.

* Dr Khoo Ying Hooi is senior lecturer and Samitra Parthiban is a Master’s student at the Department of International and Strategic Studies, Faculty of Arts and Social Sciences, Universiti Malaya.

* 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.