Professional Documents
Culture Documents
Child Refugee
Child Refugee
by
To be presented in
Representing
Table of Contents
Content
Page
Abstract
1.0
Introduction
2.0
5-6
Position on Refugees
3.0
7-9
Jurisdictions
4.0
10 - 11
5.0
12 - 14
6.0
Conclusion
Bibliography
15
16 - 17
Abstract
Due to the various kinds of conflicts, be it political disputes or economic crisis,
Malaysia has inevitably received its fair share of refugees. The purpose of this research is
therefore, to examine the host of international laws and conventions that operate to protect
the rights of refugees and Malaysias position on recognizing and implementing such laws.
Refugees are no less human and like ordinary citizens, they too ought to have some sort of
protection under local law. Within the refugees group too stand a weaker and more
vulnerable group being: child refugees. If all else fails, this group ought to be the States top
priority in granting its protection. In this paper, we define what it means to be a child refugee
under relevant Malaysian and international law as well as analyze relevant protections given
to this group, if any. In this sense, we explore relevant matters under basic international law
such as the relationship between international law and municipal (Malaysian) law as well as
State responsibility i.e. Malaysias global responsibility in upholding the basic principles of
human rights. What is the scope to which Malaysia adheres to recognise international
conventions on refugees, particularly children? Regardless, to what extent does Malaysian
law provide for the protection of the said group. All of this shall be the main focus this paper.
1.0 Introduction
It is time we revisit Malaysias obligations under the United Nations Convention
Relating to the Status of Refugees. The convention was a result of the displacement of
millions of people by World War Two and the rejection of many nations to take in Jewish
refugees escaping the Holocaust. It is designed to ensure no country ever denies defenseless
groups a second chance in life, those who are in need to escape persecution.
The most important feature of the convention is that it defines a particular group of
people as refugees and obliges countries who have signed the convention to give such
individuals certain protective rights. A refugee is a person outside of their own country
who fears persecution because of their race, nationality, membership of a particular social
group or political opinion.
What makes a person suffering excruciating pain and discrimination a refugee? This
is a difficult definition to satisfy. For example, if a person is living in fear of persecution
because he is a victim of generalized violence and not because of one of the listed grounds
under the convention, he is not considered a refugee. Nor can we label people who are
escaping natural disasters or poverty as refugees.
The problem that we have identified is not with the acceptance and adherence to the
international law that governs issues pertaining refugees. It is not about whether or not a
country takes in refugees to fulfill its fair share of obligation as a signatory to the UCCR. It is
more often than not the affectivity and efficacy of domestic policies that will affect the
quality of life a refugee or in particular, a child refugee would then go through.
Being the lowest common denominator in this research paper, vulnerable to changes
in the surroundings as well as slow adaption to new conditions could really take a toll on a
childs development. We aim to identify the probable reasons as to the adversities these
children face upon fleeing their home country and upon arrival into these obliged countries,
especially Malaysia, as well as the treatment and protection they receive here.
http://www.malaysianbar.org.my/human_rights/the_protection_of_refugee_children_in_malaysia_wishful_thin
king_or_reality_.html [accessed 15 October 2014]
2
Robert L. Newmark Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial Repatriation
Programs 71 Wash.U.L.Q.833, 845.
Protocol have frequently gave confirmation to the UNHCR of their recognition and
acceptance of the principle of non-refoulement. Thus, there is either an understanding on the
part of States that this principle has a normative character.5This view is further supported by
the Universal Declaration of Human Rights (UDHR) which states that "everyone has the right
to seek and to enjoy in other countries asylum from persecution".6
Thus, we argue that through customary international law, Malaysia has an obligation
to refrain from sending refugees back to their homeland, when there is a high possibility they
will be in danger for their lives if they return. Unfortunately, it should be noted that Malaysia,
in some occasions has violated this fundamental principle, for an example the refoulement of
two Sri Lankan refugees and an asylum seeker in May 2014, as reported inAliran.7
This illustrates that despite having a legal obligation on the basis of international
custom, Malaysia has chosen to ignore it. Now, it is relevant to explore on the stand of other
jurisdictions in dealing with refugees made comparison to Malaysia.
UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary
International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the
Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994,
available at: http://www.refworld.org/docid/437b6db64.html [accessed 14 October 2014]
6
Several complaints about Australia's detention policy have been made to the UNHRC
which has previously found Australia's policy of mandatory detention of both children and
adults to be in violation of the covenant. International law does not allow for the detention of
children for longer than absolutely necessary. The United Nations guidelines on the detention
of asylum seekers also make it clear that children, protected by the Convention on the Rights
of the Child, should not be placed in detention for any length of time.
UNHRC recently ruled that Australia's detention of people in immigration - not just
children - was arbitrary and in violation of the civil rights covenant.
"Detention in the course of proceedings for the control of immigration is not per se
arbitrary, but the detention must be justified as reasonable, necessary and
proportionate in light of the circumstances and reassessed as it extends in time.
Asylum-seekers who unlawfully enter a State party's territory may be detained for a
brief initial period in order to document their entry, record their claims, and determine
their identity if it is in doubt.
The recent conflict in Syria has definitely affected the Middle East region, especially
Lebanon which received a large number of refugees due to forced displacement in their
country. As of January 2014, there are 856, 456 refugees who reside in Lebanon12, which
includes 200, 000 children. Lebanon has not signed the 1951 Convention, and it also does not
have any local legislation to address issues regarding refugees.
As reported in the Washington Post13, Lebanon has no formal refugee camps, which
led the refugees including women and children to settle in informal tents with poor living
condition. Moreover, a study published in earlier this year revealed that 41 percent of the
youth Syrian refugees between the age of 15 to 24 (which some would fall under the
definition of children14) have considered to committing suicide.15 The same study also
observed that sexual harassment, domestic violence and exploitation are widespread and
prevalent among the young refugees in Lebanon. It caught the attention of multitudes when in
12
13
15
The Convention of the Rights of the Child defines child as any human being under the age of eighteen.
http://english.al-akhbar.com/node/20691 [accessed 19 Oct 2014]
a recent video, a Lebanon child was seen beating a Syrian child refugee. There was then no
follow up as to the Legal Avenue taken or medical treatment given in this matter which
proved that the Syrian child refugees16do not receive the protection they hoped for upon
fleeing Syria. In February this year, UNICEF stated that the child refugees in Lebanon have
been facing another silent threat to their survival, namely malnutrition.17
In Lebanon, despite not being a signatory to the 1951 Convention, Lebanon has
ratified the CRC and its principles have been enshrined and underlined in domestic
legislations. However, all the reports on the ill-treatment of child refugees residing in
Lebanon did not reflect Lebanons compliances with CRC. Under CRC, Lebanon should not
be discriminatory in the treatment and protection of children, which also includes the Syrian
child refugees. It is also the role of the state to protect them from abuse and exploitation, in
accordance with the said convention.
16
17
19
20
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living conditions without adequate facilities, and they lose the opportunity to learn and play
like any other child of similar age group would. A study in the context of Australia indicated
that children in detention centers have a tendency to suffer from post-traumatic stress, major
depression problem and display suicidal behaviors.21
By detaining children, Malaysia has knowingly or unknowingly violated Article 37 of
the CRC. Thus, it is a proof that by ill-treating the child refugees in detention centers,
Malaysia has not been upholding the fundamental principles in the CRC.
On the other hand, child refugees who are not detained in detention centers are not
living a better life either. Due to the lack of recognition of their refugee status, they are
considered an undocumented child, and thus are denied right to basic education. Despite
having over 11,000 refugee children which are of school-going age in Malaysia, less than
40%of them have no access to formal education.22
These children only receive informal education via class conducted by nongovernmental organizations. They live in uninhabitable huts, with no proper healthcare
facilities. Basic necessities such as food and clothing are scarce and in rare occasions, if they
are fortunate, they may be assisted from UNHCR. To make things worse, they are unable or
rather, incapable to enjoy simple activities like playing in the outdoors, due to fear for their
own security causing many of them to be forced to work to survive at a young age.23
Reverting back to the CRC, Article 22 specifically provides for the rights of asylumseeking children to protection and humanitarian assistance. Initially, when Malaysia ratified
the CRC, Article 22 was among the reservations made. Then in 1999, the reservation on this
particular article was lifted. The removal of reservation on Article 22 clearly shows that the
government of Malaysia realizes this issue that exists in Malaysia, and this act may be seen as
a positive assertion for a need to protect child refugees. Thus, with all due respect, it is
submitted that this should be taken into account in the protection of child refugees.
21
22
23
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For the purpose of this research paper, we had the liberty of interviewing a then child
refugee named SathyaJalilehvand. As a 6 year old, he fled Iran in the summer of 2003 due to
the persecution and excommunication to be able to live a normal, feasible life in Iran.
Religious converts are persecuted in most of the Muslim countries today and Iran is
no exception to this. His family consisted of practicing Hindus, who aren't allowed to
publicly express their beliefs in Iran. After his mother's conversion back in early 1990's, her
own family began criticizing her beliefs and began cutting ties with her and her children who
includes Sathya and his little brother. In the late 2002, those similar to his familys situations
were imprisoned and things began to get out of hand. That was when his family decided to
take a leap of faith, to flee Iran for India.
The officers ensured them safety in Malaysia as long as they broke no laws or
committed any crimes against the State. However, refugees in Malaysia constantly live in the
fear of being caught by a police officer and having their ID's confiscated. A refugee without
12
his UN identification document can be deported to his motherland, where they would be
subjected to face the same persecution they were running away from.
To add to their woes, refugees cannot find a legal way of earning a living or education
in this country. No company takes on the risk of getting a work permit for a refugee. They do
however allow the refugee to do menial tasks or errands for a meager sum of money which
may seem great compared to the sweet nothings you may earn elsewhere.
Education is imperative in ensuring stability and a sense of normalcy for the refugee
children. Since Malaysia took in Rohingya refugees in the 1980s, they have lived without
proper access to basic healthcare and education. Many adult Rohingya refugees are illiterate,
with some able to read and write Jawi and after years of living in Malaysia, the Malay
language. The Rohingya refugee children attend learning centers operated by the community
and faith-based organization with the assistance of UNHCR.24 Therefore, the integration and
adaption process into society for an average refugee child would be nothing less than
challenging as they are not exposed to education within a schooling compound to mingle with
the local kids. The biggest concern for the Rohingya refugee community is for their children
to succeed and have a better life than theirs and so they believe that only through education is
this possible.
As a non-adult, 13 year old Sathya faced even more problems when it came to
education. No school, local, private or international was willing to accept refugee children
unless with higher fee, which was practically impossible to obtain by jobless refugee parents,
was paid. Sathya then joined forces with few Sri Lankan refugees in the battle for a decent
education. They were fortunately guided by a few retired teachers who voluntarily coached
and prepared them for the IGCSE examinations. Upon triumphing over one obstacle, another
arose. College. The UNHCR in Malaysia has very few affiliated universities and colleges
which refugees may attend. Despite that, those who perform brilliantly are blessed as they
can be sponsored by individuals who take on the risks of admitting these refugee kids into
college. Sathya had lady luck on his side when he was notified of attaining a college seat, but
not all refugees are.
24
Myanmars Rohingya Refugees in Malaysia: Education and the Way Forward, HemaLetchamanana, CRICE,
University of Malaya. Retrieved from: http://crice.um.edu.my/downloads/4Letchamanan.pdf
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Article 3(1), United Nations Convention on the Rights of the Child enlists a vital
aspect in child welfare in which depicts that
In all actions concerning children, whether undertaken bypublic or private social
welfare institutions, courts of law,administrative authorities or legislative bodies,the
best interests of the child shall be a primary consideration
As such the best interest of any child should be of primordial interest in any policies
made and even in statute but the limitations imposed over refugees in general accompanied
by the failure of the authorities to differentiate child refugees from the rest has caused a
disrupt in the implementation of the following pivotal concept. The story of Sathya is a
manifestation of the defects that is present in the current legal framework which consistently
fails to adopt the fundamental principles to protect and nurture the wellbeing of children. The
life of every refugee, including him, in Malaysia, remains in constant danger, and if not
danger, it remains in a dark corner of the world, with no guarantees of a bright future.
14
15
Conclusion
16
Bibliography
Child Act 2001 (Act 611)
Convention of the Rights of the Child, Article 22(1)
Immigration Act 1959, Act 63.
ICJ Rep. 1986, p.14
Robert L. NewmarkNon-Refoulement Run Afoul: The Questionable Legality of
Extraterritorial Repatriation Programs 71 Wash.U.L.Q.833, 845.
UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a
Norm of Customary International Law. Response to the Questions Posed to UNHCR by the
Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2
BvR
1953/93,
BvR
1954/93,
31
January
1994,
available
at:
17
CRICE,
University
of
Malaya.
Retrieved
from:
http://crice.um.edu.my/downloads/4Letchamanan.pdf
18