Malaysia needs law on refugees, asylum seekers

LETTER | On the occasion of World Refugee Day (June 20), Madpet (Malaysians Against Death Penalty and Torture) urges Malaysia to enact a law on refugees and asylum seekers, which will define their rights in Malaysia.

This becomes all the more important when Malaysia has entered into extradition agreements with many countries, where strict adherence to request for extradition may see Malaysia violating the principle of non-refoulement when they send back such refugees and/or asylum seekers to the very countries they fled from to escape persecution based on "race, religion, nationality, membership of a particular social group or political opinion".

The arrest and return of Thai National Praphan Pipithnamporn, a United Nations High Commissioner for Refugees(UNHCR) recognised asylum seeker, in May was an embarrassment and also a violation of the principle of non-refoulement.

On the other hand, Malaysia's refusal to return to China the 11 ethnic Uighur Muslims in October 2018 was a commendable act and the country's position with regard the rohingyas seeking asylum in Malaysia is also good.

Now, Malaysia, who has an extradition agreement with India, may be forced to decide whether to return Islamic preacher Zakir Naik to India if a request was made in accordance to the agreement.

 The question will be whether Zakir Naik is considered an asylum seeker or refugee by Malaysia.

The preacher was allegedly accorded PR status by Malaysia in 2015, but it is never made clear whether Malaysia considers him a refugee or an asylum seeker and as such, is bound to protect him from extradition.

Currently, Malaysia does not have any law on refugees and asylum seekers, and a declaration that Zakir Naik is a recognised asylum seeker or a refugee will be merely seen as a political position.

Such a postion can have more weight if he is also recognised by Malaysian law or UNHCR as an asylum seeker/ refugee.

This raises the importance for Malaysia to have a clear law on refugees and asylum seekers, which will enable the country to determine who can be considered as an asylum seeker or refugee, and entitled to country's full protection.

This will include the assurance that Malaysia will be in violation of the principle of non-refoulement.

Extradition agreements cannot, and should not, be used against asylum seekers and refugees recognised by Malaysian law.

Malaysia is not a signatory to the 1951 United Nations Convention Relating to the Status of Refugees, which in actuality is of little consequence if the country has its own law that recognises and protects asylum seekers and refugees, and adheres to the principle of non-refoulement.

Asylum seekers and refugees need to be accorded legal recognition and status.

At present, with regard to foreign nationals, Malaysia only recognises legal immigrants, meaning foreigners that are in Malaysia with a valid visa or permit.

All other foreigners are considered ‘illegal’, or undocumented, and as such are subject to be arrested, charged, tried, imprisoned, whipped and/or deported.

Asylum seekers and refugees generally fall into the category of ‘illegal’ immigrants, and as such we need a clear law that grants recognition to them as a special class of foreign nationals. 

This recognition should start from the time they seek asylum until the point they are accorded asylum seeker or refugee status until they are re-settled in another country, or alternatively allowed to remain in Malaysia temporarily or permanently.

Such a law will also determine whether they have a right to work, operate a small business or earn a living while their applications are being processed and thereafter. As it stands, such asylum seekers and refugees do not have a right to work in Malaysia.

At present, Malaysia seems to have an unwritten policy that special treatment is accorded to those seeking, or obtained asylum/ refugee status, from UNHCR. 

There is no clear position whether they can work and earn a living in Malaysia. However, the recent arrest and handing over to Pipithnamporn shows the inadequacy this is to protect refugees and/or asylum seekers.

Malaysia’s new Pakatan Harapan government must enact a law on refugee and asylum seekers, which will also affect the extradition agreements and treaties the country is party to.

As such, Madpet calls on Malaysia to:

• Enact a law that will govern the treatment and rights of refugees and asylum seekers, or those applying for such status;
• Ratify/sign the 1951 United Nations Convention Relating to the Status of Refugees and other relevant conventions that will recognise and protect rights of refugees and asylum seekers in Malaysia.
• Review its obligations under existing extradition treaties and agreements, to ensure that it does not violate Malaysia’s obligations under the principle of non-refoulement. 

Malaysia should never surrender anyone, including an accused or even a convicted person to another country if said person is recognised by Malaysia and/or UNHCR as a refugee and/or asylum seeker.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.