The year 2005 is full of challenges that impose a greater commitment to humanity in terms of solidarity and political will. This year has witnessed a historical show of human force as a gigantic wave in response to the tsunami incident last December.

Nation states and ordinary citizens offered a helping hand to ease the burden and suffering caused by the natural disaster to rebuild shattered nations and their people.

While we continue this effort to improve and re-build the lives and the needs of these victims, we should pause to ponder and reflect on this noble mission.

Today is World Refugee Day - designated by The United Nations to recognise and celebrate the contributions of refugees throughout the world.

The theme is simple yet profound - 'courage'. It is a theme that emerged from the backdrop of the vicious dangers, violence and hunger that turn an ordinary human into a refugee.

It is also to recognise the courage of refugees in rebuilding their lives and their contributions to society in most difficult and unfamiliar circumstances. Courage not to give up hope, and courage to start life anew against all odds.

In Malaysia...

The United Nations High Commissioner for Refugees (UNHCR) has registered some 40,000 refugees in Malaysia. There are about 20,000 people from the troubled Indonesian province Aceh, which is plagued with strife and reeling from the after-effects of the tsunami.

The other majority group is the stateless people of Arrakan, where some 10,000 Muslim Rohingyas fled from Myanmar, formerly known as Burma. The other 10,000 consist of ethnic minorities from Myanmar and elsewhere.

Malaysia is also a host to some10,000 Nepalese foreign workers who are now facing political turmoil in their homeland where over 7,000 people have died as a result of the seven-year Maoist insurgency.

Our nation also shares its borders with troubled provinces in southern Thailand where more than 600 people have been killed since last January.

These statistics and facts show that Malaysia is in a position to show great concern and care as a nation that hosts a large group of human rights victims and vulnerable people. The need is especially because Malaysia is a focus country due to its projection of stability and growth.

The fact is, Malaysia is in critical need of a clear and humane policy on immigration.

Refugees are ordinary people. Through no fault of their own, they find themselves in extraordinary and dangerous circumstances. These are people who have fled their country as a result of fear. Initially, that fear may be the immediate one of trying to escape the horrors of war and persecution, the pain of losing homes and loved ones, and the ordeal of flight.

Later comes the deeper anxiety of uncertainty - the worry of how to rebuild their lives, either in completely new circumstances, or in the country of origin where they now may not be welcomed. These create real fear for their future and survival.

Refugees by definition are victims of human rights violations. Article 1(a)(2) of the United Nations Convention Relating to the Status of Refugees 1951 defines a 'refugee' as: "Any persons who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

No distinction

The position is however different in Malaysia. These people are seen as immigrants and technical requirement determines whether they are legal or not. Malaysian law, especially the Immigration Act does not distinguish a person as a refugee or as a person in need of temporary protection. The Act also excludes validity of documents granted by the UNHCR that accord such people with International Protection.

Up to now, there are no clear policies and decisions regarding refugee protection and recognition and no comprehensive system of refugee assistance in terms of basic human rights. It is simply established that they are illegal immigrants.

As a result, refugees in Malaysia face arrest and prosecution for violating immigration rules that carry a sentence of up to five years imprisonment and six strokes of the cane. The law in particular to the status of these persons results in denial of bail and subjects them to long periods of detention.

The arrested refugee also faces deportation due to the blanket approach taken by the authorities. Often, they are subjected to deportation to their country of origin where they face the risk of being subjected to serious human rights violations and continue life in fear and trauma.

Various human rights reports over the years have revealed that a huge number of refugees, including children and women, have been subjected to an indefinite period of detention in overcrowded camps without proper food, health care and sanitation.

Amnesty International in its annual report for 2004 highlights the failure of the detention camps to meet international standards. Such reports also raise serious concerns regarding the detainees' basic human rights and right to a dignified life.
A recent statement from UNHCR Malaysia revealed there are 42 children in detention centres here, raising concerns of deprivation of basic education, being subjected to an unsuitable environment for growth as well as exposed to harmful influences, abuse and exploitation.

While Malaysia is not a party to the 1951 UN Convention Relating to the Status of Refugees, it is nonetheless bound by the fundamental principle of non-refoulement, which prohibits any person being returned to a country where he/she faces serious human rights violations.

This principle, outlined in Article 33 of the 1951 Convention and in numerous other international instruments and declarations of the UN General Assembly, is a norm of customary international law and is binding on all states.

Malaysia is formally obliged to care for refugee children as it is a signatory to the Convention on the Rights of the Child. According to Article 22, the Malaysian government should actively provide assistance and protection to children of asylum seekers and refugees.

Stringent scrutiny

Refugees in Malaysia go through stringent test and screening before they qualify for protection. Such high standards are maintained by the UNHCR to ensure protection for bona fide refugees. Often UNHCR also acts as an advisor and puts forward rules and regulations, including the cultural sensitivity and the laws of the host countries for these people to observe.

The protection accorded by UNHCR is termed as International Protection, in line with the function and mandate given to this body. Often, such protection remains on paper only, as it is the obligation of the host country to respect and recognise it. In Malaysia, there is no clear and concrete position or policy on this issue although the government recognises and respects the existence of UNHCR.

In past years, Malaysia has protected victims of conflict, including those from Bosnia, Afghanistan, Palestine and even Iraq. Support was handed out most comprehensively during the mass exodus of Vietnamese boat people from the late1970s onwards with the guidance of the 1967 Declaration on Territorial Asylum.

The Declaration noted that, "Where a state finds difficulty in granting or continuing to grant asylum, states individually or jointly or through the United Nations shall consider, in a spirit of international solidarity, appropriate measures to lighten the burden on that state."

The 1967 declaration set out the mechanism of responsibility sharing.

For example, wealthier states can give financial support to international humanitarian agencies and to states with significant refugee populations. Third states may also offer to resettle selected refugees. Further, third states may intervene to reduce conflict or rebuild shattered institutions in states of origin so as to facilitate safe and dignified return

The other relevant example is the 'Casablanca Protocol' or otherwise known as the Protocol on the Treatment of Palestinians adopted by the Council of Ministers in Casablanca in1965. The 'Casablanca Protocol', was a major effort to regularise the status of Palestinians in the states where they had primarily fled in 1948, and which continued to host them.

In its five articles, the Casablanca Protocol required that Palestinians receive the same treatment as nationals of Arab host states with regard to employment; the right to leave and return to the territory of the state in which they reside, freedom of movement between Arab states, issuance and renewal of travel documents, and the same treatment regarding freedom of residence, work and movement.

Beside these examples, the Kosovo situation is also an interesting illustration of ad hoc responsibility sharing. Several states participated in the organised evacuation of refugees from regional temporary protection, recognising that a concrete manifestation of solidarity was vital to securing minimal protection in the face of mass influx.

Examples of regional arrangements are seen as a fundamental guidance for states that have not acceded to the 1951 Convention.

Further, in 2003, during the XIII conference of heads of state or government of the Non-Aligned Movement (NAM), The heads of states reiterated the movement's concern over human rights and international humanitarian law and principles.

The Final Document of the conference in Kuala Lumpur among others in its plan of action, reiterated the necessity of international burden-sharing and responsibility in refugee situations and called for intensified financial and moral support to developing countries hosting refugees.

Malaysia as the current chair of NAM remained silent to this arrangement expressed by various positions and declarations although NAM as a coalition have expressed the concerns and stipulated a collective solution to this issue.

Islamic values

Furthermore, Malaysia as a country that subscribes to Islamic values should take note of the concept of hijrah that marks one of the fundamental points in the history of Islam. The Hijrah refers to Prophet Muhammad's migration from Mecca to Madinah.

The word hijrah means to leave a place to seek sanctuary or freedom from persecution or freedom of religion or any other purpose.

As a Muslim country and chair of the Organisation of Islamic Conference, the plight of asylum-seekers should be recognised by the government in the name of Islamic brotherhood and solidarity.

Statistics reveals that the highest number of refugees in Malaysia are Muslims. Interviews with them reveal that these refugees who are mainly from Burma and Aceh, often choose Malaysia due its official position on Islam.

These refugees express great hope with regard to Malaysia, especially after the Sept 11, 2001 terrorist attacks, which led them to develop a sense of insecurity as per their religious identity in the light of nation states employing stricter migration policies especially towards Muslims.

For these people, being in Malaysia means a bigger sense of security and a suitable environment to live as Muslims. For them, Malaysia is a country they can live without any doubt over their religious obligations.

As for the Acehnese refugees, this factor is a major force of attraction coupled with the fact that Malaysia is a country closely linked to them in terms of ethnicity, language and culture.

The need for such protection and recognition besides humanitarian reasons are also relevant and suitable with the government's objective in the introduction of Islam Hadhari that seeks to promote a just society and protection of minorities in Malaysia.

Prime Minister Abdullah Ahmad Badawi, in his speech at the Bertelsmann Foundation in Berlin on May 18, 2005, emphasised that Islam Hadhari is meant for the benefit of all in Malaysia regardless of religion and racial identities and to make Malaysia a model Islamic state.

The premier's speech was relevant in the context of refugees who make up the vulnerable minority in Malaysia and in dire need of greater care and protection. Islam Hadhari as, explained by the prime minister, to benefit all persons meant establishing a just society that respects and accepts all humans as equal in terms of rights and dignity.

The concept of Islam Hadhari is hereby seen as the roadmap for the solution of the protracted suffering of refugees in Malaysia.

Courage needed

Another June 20 has arrived but the fear among refugees in Malaysia remain. The government cannot ignore this as it exists in our backyard. These issues are long overdue and any further delay and ignorance would only mean more suffering and trauma, and would contribute to loss of precious life.

The government and the public came out unconditionally in the aftermath of the tsunami and demonstrated excellent commitment towards humanity and human rights. Little did we bother to ask the question of the status, age, gender, race or even the religion of the said victims.

This effort is commendable and reflects true concern towards humanity and life, but such efforts and concerns are also needed here in Malaysia.

While we engage in this discussion on World Refugee Day, refugees and asylum seekers in Malaysia continue to struggle in an ocean of uncertainty and fear without much medicine, food, and proper shelter.

They continue to live a shattered life with little assistance and are often subjected to suspicions and allegations of crimes and diseases. The only question relevant is their status and the legality of them as a human in Malaysia.
In the wake of the tsunami, we spoke and acted without fear and prejudice but why not for these refugees?

Its time for the government to demonstrate 'courage' and provide a permanent solution. This is the true spirit of Malaysia Boleh.

This is a day for us who are fortunate to focus on the plight and suffering of refugees and displaced people worldwide. A day for us to liberate ourselves from prejudice and unfounded fear that we have inherited towards this said group of people.

It's time for us to change our mindset and begin to see humans as humans equal to us in dignity and rights. This is courage and the true meaning of a caring society.

K SHAN is a human rights activist who is attached to various organisations working with refugees. He is a member of Refugee Committee of the Human Rights Association of Malaysia and the co-ordinator for Indonesia in Amnesty International.