[#StayAtHome: Rights of migrants and refugees – equal before the law?]
While many Malaysians are struggling to make ends meet during the pandemic, migrant workers and refugees have had the additional burden of having their rights violated.
Join us for a discussion with Mr Dobby Chew from Suara Rakyat Malaysia (SUARAM) and Mr Jerald Joseph from SUHAKAM (Human Rights Commission of Malaysia) as we address the impact of the pandemic on migrant workers and refugees, the obstacles faced in protecting their labour rights and right to access healthcare services, the reforms we can push for, and the action we can take to support the rights of migrant workers and refugees.
Details of the event are as follows:
Date: Thursday, 30 July 2020
Time: 9 p.m. MYT /2 p.m. UKT
Platform: Zoom/FB Live
Register now at https://www.kpum.org/stayathome.
Highlights from the #StayAtHome Webinar with Mr Jerald Joseph and Mr Dobby Chew
We thank both speakers for spending their Thursday evening to share about their knowledge and insight on the rights of migrants and refugees in Malaysia.
Link to the webinar is available here.
1. NO INQUEST FOR 80 OUT OF 110 LOCKUP DEATHS
Under s.334 of the Criminal Procedure Code (CPC), EDICT founder M. Visvanathan said an inquest is mandatory for deaths that occurred in a police lockup, prison or mental asylum.
However, he pointed out that there is no such provision for deaths that occur in immigration detention centres. Without a mandatory provision to investigate deaths in immigration detention centres, an inquest will only be conducted if there is a public outcry and the AG’s chambers take action. He further said even with the existing mandatory provision for inquest, out of the 110 lockup deaths from 2010 to 2016, 80 were not investigated.
2. ACTIVISTS SUMMONED FOR HONOURING THOSE WHO DIED IN CUSTODY
On 16 July 2020, several activists gathered to honour and remember those who died in police custody. Some were later summoned by the police to give statements regarding the gathering.
According to EDICT, since 2009,176 persons have died in police lockups, 550 persons have died in immigration detention centres and 2,838 persons have died in prisons.
Despite initially obtaining permission to organise the gathering from the Kuala Lumpur City Hall (DBKL), the police revoked the permission. The police claimed that the notice submitted was incomplete, and, thus, failed to comply with the Peaceful Assembly Act, as there had been no consent notice from DBKL, who the police have claimed to be the ‘custodian’ of the area for the event. However, EDICT contended that, although DBKL is the owner of the said area, “custodian” does not mean “owner.” EDICT asserted that no such notice was required from DBKL, but rather from other authorities.
3. WORK PERMIT OF MIGRANT FEATURED IN AL JAZEERA DOCUMENTARY REVOKED
Lawyers for Liberty (LFL) has expressed grave concern over the revocation of the work permit of the Bangladeshi man interviewed in Al Jazeera’s documentary. The documentary has attracted widespread attacks from the government and members of the public since it was posted on 3rd July 2020.
S.9(1)(c) of the Immigration Act 1959/63 only allows the Director General of Immigration to cancel a permit if it is prejudicial to public order, public security, public health or morality in Malaysia. LFL said it is inconceivable that the mere action of highlighting his plight to the media would fall under any of the categories listed under s.9(1)(c).
Al Jazeera is also being probed for various offences, including sedition, defamation and improper use of network facilities. On 10 July 2020, at least six Al Jazeera staff were summoned to Bukit Aman to facilitate investigations.
4. AL JAZEERA’S ACCREDITATION AND LICENCE QUESTIONED
The National Film Development Corporation (Finas) had investigated Al Jazeera regarding the production of the documentary titled Locked Up in Malaysia’s Lockdown and found that the company does not hold the necessary licence to film or air its documentary.
S.22(1) Perbadanan Kemajuan Filem Nasional Malaysia Act 1981 (Amendment 2013) states that no person shall engage in any activities of production, distribution or exhibition of films or any combination of these activities without a licence authorising the person to carry out such activities.
S.25 of the same Act provides for punishment upon conviction — a fine not exceeding RM 50,000 or an imprisonment for a term not exceeding two years or both. Al Jazeera has since dismissed the claim, saying that, as per Finas’ own definition, its 101 East weekly current affairs show does not fall into the category of film requiring a licence.
5. ALL FILMING, EVEN ON SOCIAL MEDIA, REQUIRES LICENCE
On 23 July 2020, the Communications and Multimedia (MCMC) Minister Saiffudin announced that, under s.22 of the National Film Development Corporation (Finas) Act 1981, all film production whether from media outlets or personal media on traditional platforms or even social media require a licence. This was made in reply to a question by YB Wong Shu Qi on the exact definition of film, and whether the Act would affect people who use social media platforms such as Instagram TV or TikTok.
Saifuddin interpreted “film” under s.2 of the Finas Act 1981 broadly such that film includes feature films, short films, trailers, advertising “filmlets” and any recording on material of any kind, including videotapes and video discs of moving images, accompanied or unaccompanied by sound, and documentaries, for the viewing of the public.
The government has responded to criticisms of these statements by iterating that it will not use the Finas Act 1981 to restrict personal freedom on social media, and that they are aware that the Act is in need of improvement.
6. SOSMA AND SEDITION ACT TO BE IMPROVED
In a written Parliamentary reply, Home Minister Hamzah Zainudin said SOSMA remains “relevant” for public safety and national security. He further said the government is committed to improving security laws, including SOSMA and the Sedition Act, adding that further studies were needed for the laws.
This marks a departure from the stance taken by the former Pakatan Harapan government, which was to revoke the Sedition Act and to abolish draconian provisions in SOSMA.
In a separate Parliamentary reply to a question on the target of SOSMA, Hamzah listed those who committed four specific offences:
- Causing organised violence against people or property, or causing a substantial number of citizens to fear violence;
- Inciting disloyalty towards the YDP Agong;
- Threatening public order in the country;
- Procure the alternation, otherwise than by lawful means, of anything by law established.
7. CALLS TO REPLACE OFFICIAL SECRETS ACT WITH RIGHT TO INFORMATION BILL
In light of the IGP’s remarks that police officers who reveal confidential investigation reports will be liable under the Official Secrets Act 1972 (OSA), the Centre for Independent Journalism (CIJ) called for the OSA to be replaced with a new Right To Information (RTI) legislation.
CIJ states that the present OSA hinders our RTI as it allows any document to be classified as secret, with no requirement for harm or any relation to national security, international relations or defense. CIJ held that exceptions to the RTI should be narrowly defined and subject to strict “harm” and “public interest” tests to justify why said information should be withheld.
While acknowledging the importance of deterring private information from being arbitrarily revealed and subject to abuse, CIJ has emphasised that the State should balance, on the one hand, freedom of expression and RTI, with, on the other, the need to protect privacy and data. CIJ has called for this balance to be struck by using other existing laws, instead of applying the “fundamentally-flawed” OSA.
8. SPIKE IN DOMESTIC VIOLENCE IN SELANGOR
In the Selangor State Legislative Assembly, State Health, Welfare, Women and Family Empowerment Committee chairman Dr Siti Mariah reported 90 domestic violence cases were recorded during the MCO in March and April 2020.
The number of calls received by the special assistance lines for domestic violence, set up by the Committee in collaboration with the Women’s Aid Organisation (WAO), also show a spike:
- January 2020 – 266 calls received
- February 2020 – 250 calls received
- March 2020 – 361 calls received
- April 2020 – 898 calls received
Dr Siti Mariah urged women in the state to know their rights and to seek help if they were abused by their spouses.
9. HIGH COURT OVERTURNS SENTENCE TO CANE ROHINGYA MEN FOR ARRIVING IN MALAYSIA
On 22 July 2020, the High Court overturned the magistrates’ court’s decision to sentence 27 Rohingya men to be caned under s.6 of Immigration Act 1959/63. S.6 provides anyone who enters the country without permission can face a fine of up to RM10,000, jail for up to five years, and six strokes of a cane.
The appeals court said their refugee status affords them international protection from persecution, and the judge reiterated the international law principle of non-refoulement. The judge also said the men were not habitual offenders, and had not committed any acts of violence, and as such, it was “inhumane” to impose a sentence of caning.
Amnesty welcomes the decision, further calling for the release of other Rohingya refugees who had been jailed for attempting to escape persecution in Myanmar.
1. VARIOUS COMPANIES ALLEGEDLY COMPLICIT IN UYGHUR FORCED LABOUR
A coalition of human rights groups have called for companies to end the use of forced labour of the Uyghur population in China. The companies allegedly complicit in the use of such labour range from firms producing PPE masks, to Apple, and ‘virtually [the] entire fashion industry’.
Companies were alleged to have sourced materials from Xinjiang, the western region in China home to the largely Muslim ethnic minority Uyghur population. These reports of forced labour were published amidst earlier reports of state-sponsored human rights abuses against the Uyghurs by the Chinese government, such as the use of mass detention and forced sterilisation.
The coalition has called for companies to cut ties with suppliers complicit in Uyghur forced labour, The coalition has called for companies to cut ties with suppliers complicit in Uyghur forced labour, and to ensure that each level of their supply chain is free from such human rights abuses.
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.