[COLUMNIST] Managing refugees the Malaysian way?

ACCORDING to a recent report from the United Nations High Commission for Refugees (UNHCR), there are approximately 27.1 million refugees across the world and 183,430 are based here in Malaysia (“Figures at a Glance in Malaysia”, UNHCR Malaysia, September 2022). Out of the 183,430 refugees, 157,910 are from Myanmar. In turn, 105,870 are ethnic Rohingyas from the state of Rakhine (formerly known as Arakan) in the northeast, bordering Bangladesh.

The Rohingyas are considered as one of the most ill-treated and persecuted groups of all. The (asymmetrical) ethnic-based conflict in Rakhine/Arakan involving the historically repressive Tatmadaw (Myanmar military) has forced hundreds of thousands of these refugees to flee from their homeland to Bangladesh, most notably as concentrated in the coastal city and port of Cox’s Bazar (some 1.1. million).

Malaysia has been one of the highest refugee-receiving countries in the region. Within Asean, we are among the top three countries, with Thailand bearing the most burden (due to its close proximity with Myanmar).

However, recent news reports concerning the government’s deportation of Myanmar (non-Rohingya) refugees which raise grave concerns “comes on the heels” of the plan to close down the UNHCR office and, by extension, operations in Malaysia. This means that the government will be taking over the management of refugees.

With the government expected to pursue the practice of deportation as a matter of permanent policy, this could trigger an increase in legal challenges (at domestic courts) as well as pushing stakeholders to mount proceedings through international forums such as the International Court of Justice (ICJ) or even the International Criminal Court (ICC).

Even as the local chapter of the UNHCR is set to be in its last throes, the government has introduced a registration and documentation scheme called the Tracking Refugees Information System (Tris) for all UNHCR cardholders and asylum seekers.

The Tris database will contain all the information of the registered refugees and is meant to streamline the process of data management and collection together with enabling a more detailed and accurate analysis and reporting for the government.

Refugees who have registered under Tris will receive a special identity card – MyRC.

The MyRC is aimed at ensuring that refugees’ identities have been verified – so that their livelihood claims can be readily processed, including the opportunity to work and freely move within the country. It’ll also ensure that the risk of arrest, detention and, ultimately, deportation can be avoided since the right to “temporary” residence (while awaiting potential resettlement in a third country) can be properly determined.

Yet notwithstanding, all the while we still have not signed the 1951 Refugee Convention or the 1967 Protocol Relating to the Status of Refugees. Equally anomalous is that the Immigration Act 1959/63 has never been amended to correct the discrepancy (re MyRC) that refugees can be deemed as “illegal immigrants” (with particular reference to section 6).

Shouldn’t the government put in place the necessary legislative and regulatory framework first or simultaneously – so that the rights and welfare of refugees are better protected in line with international standards and also to promote more effective collaborative ties with partner countries?

This can only bolster our reputation as a leading host country for refugees. Seen in this context, the MyRC card serves to complement and supplement, i.e., enhance, the government’s efforts in guaranteeing and securing the rights and welfare of refugees whilst they remain in the country.

Thus, this is why even if UNHCR Malaysia is closed down, how are future refugees to solely depend on the MyRC card if, ultimately, they are meant to be resettled eventually?

Unless we have a specific arrangement with neighbouring UNHCR chapters, with particular reference to Thailand, that any non-cardholders will be returned or repatriated or rediverted there for the sole purpose of such registration and documentation first, such refugees will be left in a limbo.

But has the government made such arrangements?

One specific issue that needs highlighting on the domestic level is the requirement of payment to receive a MyRC card – when it should be free of charge for refugees (as it’s the case for the UNHCR card).

As reported in “Refugees in Malaysia worry government tracking system a ‘trap’” (Al-Jazeera, August 11, 2022), the first type of payment is RM500 which fast-tracks the MyRC card application process on the same day, while the other costs RM50 but takes about a month to complete.

According to the website of the operator of Tris and MyRC, the cost of RM500 per person is applicable to refugees aged between 19-59 years only – so that the rest are exempted from payment.

But there’s no given legal guarantee that a MyRC cardholder will be, by default, exempted from deportation.

This should, therefore, be part of the domestication process which puts into place the signing of the 1951 Refugee Convention together with the 1967 Protocol Relating to the Status of Refugees – via amendments to the Immigration Act 1959/63.

In the final analysis, the decision to do away with UNHCR Malaysia will be a huge gamble for the government. The local UNHCR plays a vital role, among its many activities in the country, as an “in-built” check and balance mechanism to monitor efforts in refugee management and alert the government on any violations or breaches on the ground.

In the absence of the local UNHCR, there’d be a higher possibility of refugees being deported.

The legal standing of refugees in Malaysia will also be considerably weakened – as our domestic courts are compelled to confine themselves to purely administrative matters as constrained and governed by the Tris framework and embodied by MyRC.

EMIR Research would now like to recommend the following policy proposals:

1. First and foremost, if the government is adamant to go ahead and shut down UNHCR Malaysia, there should be “countervailing” (offsetting) policy moves to at least ratify the 1951 Refugee Convention, 1967 Protocol Relating to the Status of Refugees and, not least, the International Covenant on Civil and Political Rights (ICCPR) of 1966.

Section 6, among others, of the Immigration Act (1959/63) should also be amended, accordingly – to include such provisions that refugees or persons claiming to be refugees are to be temporarily exempted. In addition, it’s the duty of the government to ensure that all refugees are to be temporarily registered first (transit stage) in what’s a two stage-process before finally applying to receive their MyRC cards.

Towards this end, the government must enact a Refugee and Asylum Seeker’s Act.

2. Secondly, there’s a need for continuously improving Tris and MyRC. There should be a joint-up effort among the relevant stakeholder ministries together with NGOs – to ensure sharing and exchange/cross-sharing of information pertaining to refugees.

For example, database operated under Tris can be utilised by the Ministry of Human Resources (MOHR) to train, equip and upskill or cross-skill refugees for employment under a special scheme (with the knowledge of the Ministry of Home Affairs/MHA as the lead stakeholder ministry). The Ministry of Education (MOE) can work with NGOs to provide educational access to children of refugees (again with the full knowledge of MHA).

All MyRC cardholders must be entitled to the right of employment and essential services like healthcare and education. Affording refugees the unqualified right to employment will obviate the need for greater government spending on their welfare. At the same time, this will also empower and enable refugees to be self-sufficient, contribute to society and pay their fair share along the way.

Improvements also include the website itself – which should be available in the languages of the major groups of refugees such as the national language of Myanmar, Bengali, Bahasa Indonesia, etc. In addition, there should also be separate sections for access to medical and healthcare services, education, and non-government organisations (NGOs) alongside law firm specialising in refugee issues.

3. Thirdly, the government must maintain cooperation and collaboration with UNHCR, especially the Thailand chapter.

There must be an unqualified guarantee of the fullest cooperation with UNHCR should there be a request for information and data regarding (the status of) refugees. This should be specifically spelt out in the proposed Refugee and Asylum Seeker’s Act – as part of the domestication and incorporation of the international laws.

The UNHCR – principally via the Thailand chapter/representation – must be allowed to monitor the refugee situation in Malaysia with the view of also producing an annual report.

The proposed Refugee and Asylum Seeker’s Act must also provide for a mandatory presentation of the said annual report as a pivotal source and material in Parliament.

Perhaps, the UNHCR representative can also be asked to attend a special select parliamentary committee proceeding – as part of the check-and-balance mechanism and process vis-à-vis the Executive-in-charge (i.e., the MHA).

The UNHCR must also be allowed to maintain an indirect presence via continuing strategic partnerships with local NGOs alongside the private sector, including typically for fundraising and donorship activities.

At the same time, institutional space must be afforded the UNHCR to form a not-for-profit organisation registered under the Societies Act (1966) or a company under the Companies Act (2016) that can sustain the work of refugee management in the country, including advocacy (policy and legal such as court representation) and provision of social services.

In conclusion, it’s hoped that the government will still rescind its decision to close down the UNHCR operations in Malaysia, however.

Be that as it may, managing refugees the Malaysian way shouldn’t involve abnegating our international obligations irrespective of whether these have been signed upon and ratified – since these are as much political and moral standards also.

Jason Loh and Jachintha Joyce are part of the research team at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research. ** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.