MALAYSIA'S LEGAL POSITION

carry proper UNHCR documentation and not to repatriate Rohingya to Thailand. The New York Times has reported RELA's director-general, Zaidon Asmuni stated that it was a question of national security and severe defensive methods are necessary.¹⁶³ They are given broad powers to arrest and detain Rohingya. There is no judicial review of the detention that is conducted to ascertain if it was lawful and just. When these abuses have been revealed, the Malaysian government has reacted towards the source of the information rather than preventing future abuse from happening. ¹⁶⁴

There is much reluctance on the part of the Malaysian government to acknowledge the existence of stateless people in its country and sign as well as ratify the 1954 Convention or even the 1951 Convention. The reason behind this stems from the possibility ofhaving another wave of refugees arriving on Malaysian shores replicating the influx of the Indochinese boat people in the 1970s and 1980s. When the government could no longer support the large number of refugees and began pushing the boats back to sea, the Comprehensive Plan of Action in 1989 was put into place to ensure that the government will provide temporary protection to the refugees until they could be resettled in a third country. This policy is still adopted by the government although it now has the resources to provide asylum and protection to stateless people. This also results in the lack of any form of legal protection for the Rohingya. This fear of a massive influx has extended towards Rohingya. A UNHCR protection officer has reported saying that "We can't really assure the protection of refugees here[.]"¹⁶⁵ The Malaysian government has not agreed to allow Rohingya to seek asylum in the country even though they are completely aware of the human rights abuse and the life threatening situation the Rohingya are exposed to in Myanmar.

l63f:lutnl3 Human Rights Y ~arboo" 2008. op . .:11.

1<~-~f:ltuma Human Rights Y~arbook 2008. foe. c"ll.

lo51::lunna !hunan R1glll' ~arhno" 2()l!l<, op. ell.

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Since March 2000, the Malaysian government has expressly maintained a stand where they do recognise Rohingya as refugees. Malaysia's former Foreign Minister, Datuk Seri Syed Hamid Albar has stated that "We do not recognize the status of refugees ... [W]e only allow foreigners to stay on a temporary basis after which they have to go back."¹⁶⁶ This reasoning can no longer hold water today as there are many other countries who are signatories but do not experience this problem. Further, even though Malaysia is not a signatory, it does not justify the abuses that are detailed below.

Most of the Rohingya live in the vicinity of the capital city ofMalaysia, Kuala Lumpur.

The second largest group resides in Penang followed by smaller communities in Kelantan, Terengganu, Johor and Malacca. There are many Rohingya communities that reside in plantation and jungle areas throughout the country for fear of being discovered by the authorities. ¹⁶⁷ When discovered, these makeshift homes are raided and burnt. Those who live in the city stay in tiny flats that are overcrowded. ¹⁶⁸

Aside from the immense problem faced by the Rohingya in crossing over the Malaysian border (which will be discussed later), there is a significant issue that the Rohingya face during entry into Malaysia. The Rohingya arrive already deep in debt. As they are forced to flee from their homes in Myanmar, many sell what little assets or possession they have to pay for the travel expenses by boat. Those who have nothing to sell have to borrow money to pay smugglers that will carry them across the borders. Fee for one person can cost up to RM2,500. If they are arrested, they are not able to work and if they are deported, they have to pay fees for release and to avoid being trafficked. Those who do manage to find work are treated very badly with long hours, poor work conditions and meager wages that is less than sufficient to sustain themselves. The employers know they do not have

166 Kalyvas. Stathis N .. --Th~ Logic of Viol~nce in Civil War''. March 2000: 6. 19 S~pt.:mber 2012

cwww:nd.edul-cmendozlldatos/papers/kalyvas.pdf->

167 The Equal Rights Trust. ·'Trapp~d in a Cycle of Flight: Stateless Rohingya in Malaysia''. January 2010:2-42.30 August 2010 http://burmacampaign.org.uklimages/uploads/ERT-Malaysia-Report.pdf>

loSJ:3unna Human Rights 'I earbook 200~. lac·. ^C/1.

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work permits as they do not have the proper documents to apply for one. Thus, they are treated in an extremely degrading manner. They work as garbage collectors, painters, at markets, restaurants, construction sites, plantations and factories. Other employers are afraid to take undocumented Rohingya for fear of the police and immigration authorities. ¹⁶⁹

A Rohingya who has been living in Malaysia since February 1990 managed to find work with an employer who did not ask about his immigration papers. He was able to work but he was soon kicked out of the house he was renting with five other men because the owner did not want to rent to men without passports. He eventually lost his job and was deported to Thailand three times. For him, working is the difference between having a meal for the day or going hungryl⁷⁰

Another Rohingya who had left his family in Arakan found work sweeping roads but was caught lost his job after the police caught him. After arresting him for the first time, he was released when he paid them a bribe. The second time he was arrested and taken to the detention camp because he did not have a passport.l7l

Most of the Rohingya that live in Malaysia are male. Their families in Myanmar are left to fend for themselves if the assets have been sold and more often this person would have been the breadwinner of the family. The Rohingya have very little hope of seeing their families again unless and until the Burmese government changes its citizenship laws to recognise the Rohingya as they are barred from entering into Myanmar again. Many of these men remarry again in Malaysia; these women are usually Burmese or even Indonesian Muslims while others live in Malaysia remain faithful to their families they

t69Bun11a Human Right~ Y ~arbook 2008. op . .::11.

1 ·osunna Human Right>< Y <!arbook 2008. loc. <-'II.

1"1 Human Right~ Watch. op. ell.

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have left behind. They continue to support them by sending them money from what little they earn.¹⁷² Some oftheir children now have their own children.¹⁷³

4.2 THE LEGAL ARRANGEMENT WHEN THE ROHINGY A ARRIVE IN