Rights of Refugees in Malaysia
By: Neysa Kumar A/L Asok Kumar
Instagram Username: @neysakr
University: The National University of Malaysia (UKM)
Every cloud has a silver lining and that is how the life of a refugee has always been. The word ‘refugee’ brings out a contemporary issue that has been lingering in every corner of the world. This eventually rings a bell on the issue that just seems to be controversial when it involves international law which includes the sovereignty of a state. But, what does being a refugee mean and why does it have such a big impact on the world? In the normal sense, a refugee is a person who flees or is expelled from a country, especially because of persecution and seeks haven in another country1 while according to The United Nations Convention on the Status of Refugees 19512 which has seen the ratification of 143 countries to the Convention and its Protocol, a refugee is someone owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.
The history of refugee law in the international landscape started in World War II where the Jews attempted to escape Nazi Germany. By 1945, some 40 million people had been forcibly displaced, deported and resettled in Europe and elsewhere. At the end of World War II, The United Nations High Commissioner for Refugees (UNHCR) was established and before this time, the rights of refugees were not anchored in international law but subject to the laws of the countries they fled to. For over half a century, UNHCR has helped millions of people to restart their lives. They include refugees, returnees, stateless people, the internally displaced and asylum-seekers.3 UNHCR began its operations in Malaysia in 1975 when Vietnamese refugees or better known as ‘the boat people’ began to arrive by boat in Malaysia and other countries in the Southeast Asian region. From 1975 until 1996, UNHCR assisted the Malaysian government in providing protection and assistance to the Vietnamese boat people.4 However, Malaysia is not one of the 143 states party to the 1951 Refugee Convention nor its Protocol and also does not have a domestic asylum system regulating the status and rights of the refugees that it takes in.5
As there is no legal framework on deciding the distinction between illegal entrants and asylum seekers, unless there is documentation proof, it has been a roller-coaster ride to identify them. It would be dangerous to allow a claim that one is a refugee by a mere allegation without documentary proof. This would set precedent for all other refugees to come to court and ask for the punishment of whipping to be set aside based on oral confessions or allegations that they are refugees registered with the UNHCR.6 This opens the door to a discussion on whether the refugees should be granted protection and fundamental rights in Malaysia. Article 8 of the Federal Constitution sets out that all persons are equal before the law and entitled to the equal protection of the law.7In this context, the core of Malaysian law describes the equal protection of the law for every ‘person’ and not just ‘citizens’. As we are aware in the year 2013 (mid) the Government of Malaysia through the Ministry of Home Affairs has made work legal for refugees and all asylum seekers in Malaysia. Today such refugees and asylum seekers have a legal recourse if they get caught in any exploitative situations with employers. This move by the government is lauded as a humanitarian solution to a humanitarian problem that is most welcomed as it takes account of social realities on the ground which are better tackled than ignored. Previously however, Malaysia did not recognize the rights of refugees to include the right to work.8
Malaysia has always been a go-to place for Rohingya refugees to seek protection and Malaysia has acted magnanimously in welcoming them. However, during the implementation of Movement Control Order (MCO) across the country, there was a perceptible tone of hostility in social media posts and comments about Rohingyans in Malaysia. It was due to a statement made by a self-proclaimed leader of Rohingya refugees, Zafar Abdul Ghani seeking citizenship in Malaysia but it was not a representative claim of the refugees. This stirred up some controversial issues including xenophobia and racial discrimination where Rohingya refugees have been specifically targeted in social media attacks. Malaysia has barred multiple boats carrying Rohingyans, citing coronavirus border closures, leaving hundreds of people stranded at sea for weeks. At least 32 people died on one boat that landed in Bangladesh in mid-April after being denied entry into Malaysia. The Malaysian navy turned back another boat the next day.9In the 19th century, Malaysian citizens have fought tooth and nail to obtain independence towards a free, multiracial country. Malaysia, being a non-party to UNHCR, still possesses the international obligation to at least provide temporary shelter for refugees from Rohingya, Syria and Afghanistan but it has not brought forward the interest of the citizens and government to provide citizenship or any other fundamental rights required.
Fundamental rights are also known as liberty is laid down in Article 5 to 13 under the Federal Constitution of Malaysia. Fundamental rights are the basic rights of a person or citizen in a nation that matters to himself as equivalent to his life and dignity. However, Article 5 to 8 provides the fundamental rights of every person and not limited to citizens only. No person shall be deprived of his life or personal liberty save in accordance with law and no person shall be held in slavery.10 No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed and all persons are equal before the law and entitled to the equal protection of the law.11 Refugees are not given the liberty to have the freedom of speech, assembly and association. Refugees cannot voice out to proclaim or to demand any further than provided as this will create animosity between citizens and government.
As a part of Malaysia, every citizen has pledged to have the belief in God which leaves the supremacy of God within every person. As such, every refugee is free from professing religion, as long as there is any belief in God and not against the belief of another religion. Refugees are also not given the right to education and own property as this will fan the flames of rights of Malays, Chinese, Indians and other Bumiputeras. Malaysia’s education system revolves around the majority religion, and the influx of refugees can create a schism between all religions, resulting in racial discrimination. As such, it is my two cents, refugees are not to be given equal fundamental rights as any other citizen in certain aspects. Malaysia has gotten independence after years of struggle and through the fighting from every edge but this does not leave room for refugees to seek all the fundamental rights as equal to any other citizen. Nonetheless, refugees are not trivial in comparison to other people’s lives, and as such, they should not be mistreated or dismissed for who they are.
1 Black Law’s Dictionary
2 Art 1 of The United Nations Convention on the Status of Refugees (UNHCR) 1951.
6 Tun Naing Oo v Public Prosecutor  5 MLJ 680.
7 Art 8 Federal Constitution 1957/2009.
8 Ali Salih Khalaf v Taj Mahal Hotel  4 ILJ 15.
9 Emily Fishbein, The New Humanitarian: Fear and uncertainty for refugees in Malaysia as xenophobia escalates, 25 May 2020.
10 Art 5 & 6 Federal Constitution 1957/2009. 11 Art 7 & 8 Federal Constitution 1957/2009.