On 16 April 2020, it was reported that the Royal Malaysian Airforce has turned back a boat carrying around 200 Rohingya refugees preventing them from entering Malaysia due to fears of them bringing Covid-19 into the country.
The news instantly became a talking point amongst Malaysians and with the issues surrounding refugees and asylum seekers inevitably coming back to public consciousness, it has regrettably resulted in many xenophobic comments being posted on various social media platforms directed towards these Rohingya refugees.
As a general background on the issue, the Rohingya people have been described by the United Nations (“the UN”) as “the most persecuted minority in the world”. They are forced out of Buddhist majority Myanmar by a military crusade of ethnic cleansing and crimes against humanity. To put it simply, they are victims of violence and are therefore here to seek protection.
Without going into the details of the history, this article seeks to explore the legal framework pertaining to refugees, make the case for treating the Rohingya refugees more humanely and thus highlight the need to fight xenophobia towards them, which could very well be due to the misconceptions or lack of understanding that the public has about the issue.
The law relating to refugees is embodied in the principles of international law. As a starting point, one can refer to the Convention Relating to the Status of Refugees Convention, also known as the 1951 Refugee Convention (“the Convention”).
It is noted that Malaysia is a non-party to the Convention in that it does not ratify the Convention. This means that Malaysia does not have the legal obligation to accept refugees. However, Malaysia is still a member state of the UN, making us bound by international obligations and duties to respect and protect human rights.
One of the obligations that Malaysia has under international human rights law is non-refoulement. The principle of non-refoulement, which is provided for in Article 33 of the Convention and logically constitutes the foundation of international refugee protection, “guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all time, irrespective of migration status.”[i]
Accordingly, just because we are not a signatory to the Convention does not mean our act of rejecting these refugees is justified. The principle of non-refoulement can be said to form part of customary international law that is not only recognised in the Convention but also in other conventions such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, both of which Malaysia has ratified.
By sending these Rohingya refugees away, we are seriously violating the traditionally accepted international law obligations. We are essentially sending them back to danger. Be it danger in their country or a place where they will be persecuted or danger at sea.
TRICKY SITUATION MADE TRICKIER
I echo the words of the former UN High Commissioner for Refugees, António Guterres: “We can’t deter people fleeing for their lives. They will come. The choice we have is how well we manage their arrival, and how humanely.”
The hatred shown towards the Rohingya refugees across social media platforms is extremely unsettling. Some even went further to say that these people should be killed. What is more worrying is that it can be said to be reflective of how the general public actually feels about this less fortunate group of people.
Forget about those who have been turned away upon entering the Malaysian waters and let’s just focus on those who are already in the country. Many of the arguments made against them are either inaccurate or, in my view, weak. However, an assertion that stood out to me and arguably the more accepted and popular view relates to national interest: “We should not waste our resources on them, and we should take care of our own people first.”
Whilst that is a fair point, it is my belief that a balance between such interest and the interest of the Rohingya refugees can be achieved. They can be integrated into our community and one way of doing this is by granting them employment and educational rights. It follows that by having said rights, they would be able to support themselves financially and eventually contribute to our economy either by paying tax or general spending.
Besides, we must also not ignore the societal impact that will haunt us if these Rohingya refugees are denied these rights. Do we really want a large number of unemployed and uneducated individuals loitering around in our country?
Further, in addressing the question of whether the Rohingyas are really victims of terrible acts of violence, our first point of reference should be the independent fact-finding reports, such as those made by the UN.[ii] Note that the 2018 report states:
“[It] has reasonable grounds to conclude that serious crimes under international law have been committed that warrant criminal investigation and prosecution.
… [The Rohingyas’] treatment by the Myanmar security forces … includes conduct that amounts to … (a) killing; (b) causing serious bodily or mental harm; (c) inflicting conditions of life calculated to bring about the physical destruction of the group in a whole or in part; and (d) imposing measures intending to prevent births.”
From the above passage alone, it is clear that the UN recognizes the Rohingyas as refugees because they flee their country out of fear of persecution and violence.[iii] So to simply claim otherwise would be imprudent.
I acknowledge that the ongoing Rohingya crisis is one that is already difficult to tackle. With the current Covid-19 pandemic hitting the country, the tricky situation is definitely made trickier.
We can’t simply dismiss the dissatisfaction of the local community, which arises out of the fear that the Rohingya refugees are using up our resources. The frustration is clear. If every voice matters, then voices of those who are against accepting refugees must be heard too because if these concerns are left unaddressed, some of them may resort to violence. But having said that, it is equally important to emphasise on the urgent need to change our mentality and look beyond the argument that our status quo is being threatened. Education and awareness have never been more crucial here to develop empathy towards non-citizens.
Let’s not miss the big picture. We need to understand that the Rohingya refugees, or any refugee for that matter, are unable to return home unless and until the situation in their native lands are safe for them to live in. With this view, we need to treat them with more humanity. We need to see them as human beings because they are exactly that. They are merely trying to survive, and if we don’t have the political nor economical will to support them, the least we can do is spare the backlash and xenophobic comments against them.
[i] OHCHR (n.d.) The Principle of non-refoulement under international human rights law. United Nations Human Rights Office of the Commissioner.
[ii] See Human Rights Council, Situation of human rights in Myanmar, UN Doc A/HRC/RES/34/22 (24 March 2017), Human Rights Council, Report of the Independent International Fact-Finding Mission on Myanmar, UN Doc A/HRC/39/64 (12 September 2018) and Human Rights Council, Report of the independent international fact-finding mission on Myanmar, UN Doc A/HRC/42/50 (8 August 2019).
Nazirah Nazari is a BPTC student. Her passion lies greatly in constitutional and human rights issues. Upon being called to the Bar, she hopes to venture into litigation practice. Nazirah believes that one should always seek knowledge because knowledge is power and ignorance is not bliss.