The United Nations Convention Relating to the Status of Refugees 1951 was the first and most important international legislation on refugees.

It clearly defines a 'refugee' and sets out the kind of legal protection and the minimum assistance, social and human rights to be accorded by states party to the treaty.

The convention emphasises that the rights to be accorded to refugees should, at the very least, be equivalent to the rights enjoyed by foreign nationals living legally in a country.

To date the convention and the amending 1967 Protocol are the two main international instruments that regulate the treatment of those compelled to leave their homes due to persecution.

They are the guiding light for the office of the United Nations High Commissioner for Refugees (UNHCR) in its efforts to help and protect more than 17 million people of concern.

To date, 145 countries have signed up to the convention and/or the protocol. Unfortunately Malaysia isn't one of them, even though there are approximately 27,000 refugees in Malaysia (excluding asylum seekers), 4,600 of whom are children.

Malaysia has failed to enact any legislation for the protection of refugees. They are treated as illegal immigrants by the authorities and are subjected to harsh penalties, detention and deportation under the Immigration Act.

Over the years, supporting treaties have been developed to deal with the issue of protection of refugees and asylum seekers. Of the more relevant ones, is the Convention on the Rights of the Child (CRC).

Child rights

The CRC is important to children because it sets comprehensive standards for almost all aspects of a child's life - on health, education, social and political rights. It came into force in 1989 and was signed and ratified by Malaysia in 1995.

Article 22 specifically endorses the rights of refugee and asylum seeking children to appropriate protection and humanitarian assistance.

It states: "States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee...receives protection and humanitarian assistance...

For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the UN and other competent oganisations... to protect and assist such a child and to trace the parents or other members of the family for reunification..."

The CRC has gained importance because of the near-universal ratification of the treaty - only two countries are yet to ratify it. Importantly, when a state is a party to the CRC but not to any refugee treaty, the convention may be used as the primary basis for protecting refugee children.

Effects of ratification

Ratification of international conventions should not be considered as a mere public relations exercise. It requires the state parties to take pro-active steps and in the Malaysian context, the immigration laws must be amended to incorporate the principles pertaining to refugees.

Malaysia has generally taken a conservative approach in dealing with international law and instruments. Rights or principles in a convention or treaty have no application and cannot be incorporated into the local jurisprudence until an Act of Parliament decrees it so.

If at all, such instruments are only persuasive in nature as long as they do not contradict any express statutory provisions.

It can be suggested that since Malaysia has ratified the CRC, it would have the force of law and thus bind the government in its dealings with refugee children.

More importantly, it would enable the courts to provide relief to refugee children who have not been accorded such protection and rights.

Therefore by ratifying the CRC, the Malaysian government has effectively made a positive statement that it will act in accordance with the convention and thus render the appropriate protection to refugee children.

If any refugee child is prosecuted in court for entering into Malaysia without a valid pass under Section 6(1)(c) of the Immigration Act, a challenge may be made to such criminal proceedings.

The refugee child may commence appropriate proceedings by motion to a high court to quash the charge and the proceedings by producing evidence to satisfy the court that the charge has been referred without any basis or jurisdiction.

It is unacceptable for the Malaysian government to ratify the CRC and then act in a way clearly contradictory to the clauses of CRC by prosecuting refugee children as illegal immigrants.

Unfortunately, the local jurisprudence is hesitant in developing standards that would enable application of international standards without an Act of Parliament.

It has been widely accepted in other jurisdictions that the principles or norms of international instruments may be incorporated through the process of common law. Courts may, through the interpretation of municipal law, introduce and adopt principles of international human rights law into the domestic system.

Unwanted statistics

It appears that in the Malaysian government's point of view, asylum seekers and refugees are nothing more than unwanted statistics who have the potential to cause social problems.

Notwithstanding the ratification of the CRC, the actual protection and assistance given to refugee children is virtually non-existent.

There are cases where refugee children as young as 10 years have been arrested, detained, charged in court or subjected to penalties merely on account of entering into Malaysia without valid documentation. They have little access to basic amenities and invariably suffer from symptoms of trauma.

The government's paranoia of the influx of asylum seekers and refugees if it ratifies the Refugee Convention is an unfounded fear that it must overcome. Its justification is arguably nothing more that an attempt to avoid dealing with pressing humanitarian problems that are beleaguering thousands of asylum seekers in and around Malaysia.

It must also be remembered that since the government has ratified the CRC, its action must not contravene the principles as laid out in the convention.

Otherwise, the government will be seen as being ignorant of its international obligations and blatantly disregarding the protection of human rights norms and values.

AMER HAMZAH ARSHAD is a lawyer in Malaysia. This article was first published in the Autumn 2005 newsletter of the Delhi-based Commonwealth Human Rights Initiative, a non-governmental body.