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Child Refugees Malaysias Adherence to International Law

by

ELSIA ENGKU KANGON


KALAIVAANAN MURTY
SHARON KAUR JESSY

To be presented in

ALSA NATIONAL CONFERENCE 2014


UNIVERSITY UTARA MALAYSIA

Representing

ALSA UNIVERSITY OF MALAYA

Table of Contents
Content

Page

Abstract

1.0

Introduction

2.0

International Law on Refugees and Malaysian Legal

5-6

Position on Refugees
3.0

The Plight of Child Refugees A Look at Other

7-9

Jurisdictions
4.0

Malaysias Stand on Child Refugees In Its Entirety

10 - 11

5.0

The Behind Story From the Eyes of a Child Refugee

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.

2.0 Malaysias Obligation towards Refugees


There are two important international instruments relating to refugees, namely the
1951 Convention and the 1967 Protocol. However, it is pertinent to note that Malaysia has
not ratified these two conventions, despite the fact that there are approximately 27,000
refugees.1 Owing to this fact necessarily implies that Malaysia is not bound to follow any of
the provisions of the said instruments.
Thus, this has contributed to the absence of a legal framework that deals with
refugees, coupled with the non-existence of domestic legislation for the protection of
refugees.This has led to refugees being treated as illegal immigrants and subjected to
various penalties under the Immigration Act.2As such, it would seem that Malaysia has no
legal obligation towards safeguarding refugees because it has neither ratified the 1951
Convention nor the 1967 Protocol. Having said so, what then can be used as a benchmark or
guideline to ensure the protection and proper treatment of refugees in Malaysia?
In relation to the issue of refugees, the principle of non-refoulement is one of the most
integral parts of customary international law. According to Article 38 of the Statute of
International Court of Justice, in deciding a dispute, the court is to apply international
customs, as evidence of general practice accepted by law. In Nicaragua v United States
(Merits),3 the court stated that:
In order to deduce the existence of customary rules, the Court deems it sufficient that
the conduct of States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indications of the recognition of a new rule.
Generally, a state has to comply with customary international law unless it has been
persistently objected it. Furthermore, the United Nations High Commissioner on Refugees
(UNHCR) believes that non-refoulement has gained customary status, and may even be jus
cogens.4. On the other hand, Governments of States who are not parties to the Convention or
1

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

Immigration Act 1959, Act 63.

ICJ Rep. 1986, p.14

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

Article 14, paragraph 1.

http://aliran.com/civil-society-voices/2014-civil-society-voices/refoulement-two-sri-lankan-refugees-asylumseeker-condemned/ [accessed 14 October 2014]

3.0 A Look into Other Jurisdictions Child Refugees


In the context of child refugees, unarguably, the 1957 Convention and 1961 Protocol
is applicable as both instruments cover all refugees. Furthermore, the asylum seeking children
are also afforded protection under the Convention of the Rights of the Child, which stated
that:
States Parties shall take appropriate measures to ensure that a child who is seeking
refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied or
accompanied by his or her parents or by any other person, receive appropriate
protection and humanitarian assistance in the enjoyment of applicable rights set forth
in the present Convention and in other international human rights or humanitarian
instruments to which the said States are Parties.8
Moving on, we will now discuss how several other countries treat child refugees
whether or not in accordance or in violation of the international laws abovementioned.
In Australia, it is law that people of all ages who arrive by boat on the shores of
Australian beaches are put in detention on Christmas Island or offshore in Nauru until their
claims have been processed and their refugee status determined by the authorities. Statistics
show that as of 30th September 2014, there have been more than 1000 children in these
detention facilities since March who remain there for an average period of 8 months. 9
Although Australia is a signatory to the Convention on the Rights of the Child, which sets
out international benchmarks for the care and rights of all children, and though they have
ratified the International Covenant on Civil and Political Rights, they lock defenceless
children up in cells which only add to their fear10 which is in violation of Article 9 of the
said covenant.11
8

Article 22(1), CRC.

Fact Check, April 1 2014, Retrieved from : http://www.abc.net.au/news/2014-03-31/children-in-detention-isaustralia-breaching-international-law/5344022


10 Article 37 of the CRC says that "no child shall be deprived of his or her liberty unlawfully or arbitrarily".
11 "Everyone has the right to liberty and security of person"."No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure
as are established by law,"

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

http://www.unhcr.org/pages/49e486676.html [accessed 19 October 2014]

13

http://www.washingtonpost.com/world/middle_east/lebanon-ill-equipped-to-handle-ptsd-in-children-ofsyrian-refugeees/2014/09/27/4b035b44-4406-11e4-9a15-137aa0153527_story.html [accessed 19 Oct 2014]


14

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

http://stream.aljazeera.com/story/201407212102-0023946 [accessed 19 Oct 2014]

17

http://english.alarabiya.net/en/News/middle-east/2014/02/25/Syria-refugee-children-in-Lebanon-riskstarvation-U-N-says.html [accessed 20 Oct2014]

4.0 Malaysias Stand on Child Refugees


As observed from previous discussion, due to Malaysias paucity in ratifying
conventions on the issue of refugees, there is no formal or legal protection towards this
group. This is especially important in the context of child refugees, as they are more
vulnerable due to their tender age, naivety and immaturity. Nearing the end of August 2013,
according to the UNHCR, there are somewhat 108,336 refugees and asylum-seekers
registered with UNHCR in Malaysia. There are approximately 25, 000 children below the age
of 18.18
The Immigrations Acts failure in recognizing the status of refugees, has caused a
great impact towards the children because they would then fall within the meaning of illegal
immigrants under the Act. Therefore, children are subjected to harsh penalties, detention in
unfit environment and also bear the risk of being separated from their families.
It is relevant to take into consideration the Convention of the Rights of Children
(CRC) and whether or not it carries any weightage, since it is one of the human rights
conventions that Malaysia has ratified. It is also noteworthy that the provisions in the Child
Act 2001 (Act 611) are based on the four core principles of the CRC that is, nondiscrimination, best interest of the child, the right to life, survival and development and
respect for the views of the child. Thus, it can be argued that in dealing with child refugees,
much attention should be given to the principles embedded in the CRC.
Despite that, quite the opposite has occurred in Malaysia. In the year 2005, it was
reported that there were 40 children in detention centers because they entered the country
without proper documentation, setting aside the fact that they fled in desperation.19
A coalition of several childrens rights NGO has highlighted seven main problems at
the immigration detention centers, which are: overcrowding, lack of food and clean water,
poor medical care, poor sanitation, limited number of bedding and the lack of special
protection or procedure for children in the centers.20 Research has also shown that the
incarceration of children in detention centers has incurred long-lasting physical and
psychological health problems to child refugees. They are constantly exposed to detrimental
18

http://www.unhcr.org.my/ [accessed 17 Oct 2014]

19

http://aliran.com/archives/monthly/2005a/5b.html [accessed 16 October 2014]

20

http://www.thestar.com.my/News/Nation/2013/10/06/Stop-child-detention/ [accessed 17 Oct 2014]

10

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

A study by Royal Australian and New Zealand College of Psychiatrists (RANZCP).

22

Refugee Children and Education http://www.unhcr.org.my/refugeeMsia.htm [accessed 18 Oct 2014]

23

http://www.freemalaysiatoday.com/category/opinion/2013/12/05/recognise-the-refugees/ [accessed 19 Oct


2014]

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5.0 The Behind Story From the Eyes of a Child Refugee

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.

Life in India was comfortable as an inter-faith organization took care of their


sustenance and livelihood. But as the years passed by, stricter laws were put into place and by
2010, India no longer offered visas and they had to once again leave yet another home for
greener pastures.
Sathyas family finally arrived in Malaysia in the hopes of a bright future and was
taken care of by the same organization that did in India. However, the permit of their
residence was running out and so were their funds. Having taken regular leaps of faith, they
approached the UNHCR in Bukit Petaling and laid their case before them. The officers there
follow strict protocols when documenting their application. They would listen to the refugee
life story in detail and are strict on dates of arrival and departure to and from countries. They
also scrutinize and assess the refugee beliefs to make sure he did not convert just so you
could be granted a refugee status easier. The process was rather smooth but extremely long,
says Sathya, as it takes time nearing 3 and half years. Apparently there are some of his
friends who have been waiting for 7 years and still, no certainty as to their status and future.

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

13

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

In conclusion, as a member of the United Nations, Malaysia seems to have been


cooperative and supportive in international effort in alleviating refugee problems. There are
precedents to support this like in 1973, the UNHCR in Malaysia was concerned with the
Filipino refugees who were fleeing to Sabah due to the struggle between the Manila
government and the Moro Liberation Front and provided them with refuge. Even so, the
establishment of the office of UNHCR in Malaysia was through an invitation of the
Malaysian government. This puts forth the notion that their existence in Malaysia is because
of the goodwill of the Malaysian government. The main prerogative of the UNHCR in
Malaysia is to assist the government in identifying refugee problems within the country and
secondly, to serve as a protector to them because the UNHCR is only permitted to offer
protection if they live in conformity to the laws and policies in place.
As such, the issue on child refugee is one that should not be taken lightly by any
party. It is an ongoing and critical problem, which involves one of the most vulnerable groups
in our society and if not addressed accordingly, could be a global humanitarian crisis. It is
Malaysias responsibility to provide as much protection within its capability to ensure the
child refugees are protected from discrimination, ill treatment and other form of cruelties.
Thus, we urged the government to uphold the principles in CRC when dealing with child
refugees, and to consider ratifying the relevant international conventions to establish a more
comprehensive legal framework for the protection of child refugees.

There can be no keener revelation of a societys soul thanthe way in which it


treats its children.
Nelson Mandela, Long Walk to Freedom

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:

http://www.refworld.org/docid/437b6db64.html [accessed 14 October 2014]


Universal Declaration of Human Rights (UDHR) Article 14, paragraph 1
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17

http://english.alarabiya.net/en/News/middle-east/2014/02/25/Syria-refugee-children-inLebanon-risk-starvation-U-N-says.html [accessed 20 Oct2014]


Fact Check, April 1 2014, Retrieved from :http://www.abc.net.au/news/2014-03-31/childrenin-detention-is-australia-breaching-international-law/5344022
http://www.unhcr.org.my/ [accessed 17 Oct 2014]
http://aliran.com/archives/monthly/2005a/5b.html [accessed 16 October 2014]
http://www.thestar.com.my/News/Nation/2013/10/06/Stop-child-detention/ [accessed 17 Oct
2014]
Refugee Children and Education http://www.unhcr.org.my/refugeeMsia.htm [accessed 18
Oct 2014]
http://www.freemalaysiatoday.com/category/opinion/2013/12/05/recognise-the-refugees/
[accessed 19 Oct 2014]
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

18

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