Malaysia: Human rights
at risk in mass deportation of undocumented migrants - Dec 2004
2 December 2004 "I understand the emotions generated among our
people because of children having died in detention centres, the canings that
are happening and other controversial events that are being covered profusely in
the media."(1)
1. Introduction
In July 2004, Malaysian Home Minister Azmi Khalid announced plans to expel more
than one million ‘illegal immigrants’, many of whom are undocumented migrant
workers, from the country by the end of 2005. In August, Deputy Prime Minister
Najib Razak stated that the government would seek to prosecute all arrested
undocumented migrants under the Immigration Act prior to deportation.(2) Those
convicted under the Act are liable to imprisonment and caning.(3)
The government intends to deploy the People's Volunteer Corps, an organization
of uniformed part-time volunteers with some policing powers, to assist the
regular police and immigration officials in the planned mass arrest and
detention operations.(4) Preparations are also underway to introduce biometric
identification cards to enhance the long-term regulation of the entry and exit
of migrant workers.(5) Although the Malaysian government announced an ‘amnesty
period’ during which ‘illegal immigrants’ could return to their home
country without facing penalty between 29 October and 14 November 2004, Home
Minister Azmi Khalid confirmed in October that "a large-scale deportation
exercise would begin in January".(6)
Amnesty International is concerned that the government’s current mass
deportation plans may result in serious human rights violations. As part of
continuing efforts to regulate migration flows, Malaysia has periodically
implemented "special operation" mass expulsions within specified time
frames. In March 2002, under former Prime Minister Mahathir Mohamad, the
government ordered an estimated 600,000(7) undocumented migrant workers to leave
Malaysia before an August 2002 deadline, after which harsher penalties were to
be imposed under the newly amended Immigration Act, including sentences of up to
five years imprisonment and six strokes of the cane. Over 300,000 migrant
workers left Malaysia during the crackdown and severe overcrowding was reported
in departure ports, during transportation and in many of the country’s
immigration detention centres, especially those in Sabah (East Malaysia).(8)
In apparent contravention of international standards on the treatment of
detainees, unsanitary conditions and inadequate provision of food, clean water
and health care during the deportation process were reported to have contributed
to the deaths from various treatable illnesses of scores of deportees, including
at least three children.(9) Given the scale of the proposed 2005 detentions and
deportations, Amnesty International fears that similar violations of the rights
of detainees may re-occur.
While Amnesty International recognizes the Malaysian government’s sovereign
right to control its borders from its territory, the organization fears that
given that Malaysia is not party to the 1951 Convention relating to the Status
of Refugees and its 1967 Protocol, it is likely that the intended arrest and
deportation of over one million ‘illegal immigrants’ will also target
persons who are in fact refugees or would otherwise be at risk of being
subjected to serious human rights violations if returned to their country of
origin. The forcible return of an individual to a territory where s/he would be
at risk of serious human rights violations constitutes refoulement and is
strictly prohibited under international law.
’ Amnesty International urges the Malaysian authorities to halt the planned
mass deportation until they can guarantee that methods of dealing with
immigration issues fully protect the fundamental rights of asylum-seekers,
refugees and undocumented migrants in accordance with internationally recognized
human rights standards.
Amnesty International’s human rights concerns with regard to the Malaysian
government’s proposed policy include the:
1. Risk of mass expulsion without examining the individual circumstances of
undocumented migrant workers;
2. Risk of refoulement of asylum-seekers, refugees and others to their country
of origin, where they may be at risk of serious human rights violations,
including extrajudicial executions, torture, arbitrary detention, and
‘disappearances’;
3. Lack of guarantees that trials of individuals charged under the Immigration
Act will be fully consistent with international standards for fair trials;
4. Risk of cruel, inhuman or degrading treatment during arrest, detention and
through punishment under the Immigration Act;
5. Risk that all those detained, but particularly vulnerable groups, such as
women and children, may suffer other human rights violations, including denial
of access to adequate health care in detention.
2. Migrant Workers: entitled to respect for their fundamental human
rights
2.1 Background
According to government figures, until 1 June 2004, there were at least 1.3
million documented migrant workers working in Malaysia (an increase of about
500,000 since 2003) and between 700,000 to 1.2 million undocumented migrant
workers.(10) The authorities argue current trends indicate that unless economic
migration is regulated more effectively, documented and undocumented foreign
workers will comprise 30 per cent of the national workforce in the next few
years.(11)
Government officials acknowledge the contribution made by foreign labour in
increasing the country’s economy and productive capacity. As a rapidly
developing nation with a population of 25 million, Malaysian business continues
to benefit from competitive labour supplies from poorer neighbouring countries,
including the Philippines, Indonesia, Bangladesh and India, especially to work
in the low-skilled sectors of construction, agriculture and services. Following
the 2002 mass deportations, serious labour shortages were experienced by the
construction and plantation sectors, prompting the authorities to expedite new
approvals for recruiting foreign workers for specified industries.
In Malaysia, the majority of those designated by the government as ‘illegal
immigrants’ are migrant workers. They become ‘undocumented’ for various
reasons: either because they enter Malaysia without proper documentation, or
because they lose their legal status during their stay in Malaysia.(12) Many
migrant workers work and live in inadequate conditions, without access to basic
services and at risk of physical and sexual abuse.(13) They are subject to weak
recruitment regulations and limited legal protection and are vulnerable to
exploitation by unscrupulous recruitment agents and employers.
2.2 Human rights of migrant workers
In light of the Malaysian government’s plans, Amnesty International recalls
that all human beings, including so-called ‘illegal immigrants’, are
entitled to respect for and protection of their fundamental human rights.
As a member of the United Nations, Malaysia has the duty to uphold the
principles of the Universal Declaration of Human Rights (UDHR). The UDHR
enshrines internationally recognised human rights, and many of its provisions
are considered to be reflective of customary international law binding on all
states. Among the rights provided for in the UDHR are that everyone has the
right to life, liberty and security; to equality before the law without
discrimination; to a fair and public trial; to the presumption of innocence; to
freedom from torture and other cruel, inhuman, or degrading treatment or
punishment; to freedom from arbitrary arrest, detention or exile and the right
to a standard of living adequate for the health and well-being of her/himself
and of her/his family, including food, clothing, housing and medical care and
necessary social services.
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families (which came into force on 1 July 2003)
outlines the human rights protections which all migrant workers, whether
documented or undocumented, should receive. Under the terms of this Convention,
migrant workers are entitled to protection of their basic freedoms including the
right to life; the right to freedom from torture; the right to due process
including freedom from arbitrary arrest and detention; the right not to be
subject to measures of ‘collective expulsion’; the right to medical care
that is urgently required and the right of equal treatment - in comparison to
nationals in the country - in respect to remuneration and other conditions of
work, membership of trade unions and access to social services.
’ Amnesty International urges the Malaysian government to respect the
fundamental human rights of migrant workers (whether documented or
undocumented), ratify the Migrant Workers Convention, and implement effectively
its provisions.
2.3 Risk of mass expulsion without access to fair procedures
In any case of mass expulsions there is a risk that the expulsion will be
tainted with discrimination and arbitrariness, and will therefore be inherently
unlawful. The collective nature makes it virtually impossible for the state to
provide the necessary procedural guarantees and to ascertain whether among those
expelled are some who are legally entitled to be in the country. Practice shows
that, even in instances where a mass expulsion is purportedly aimed at
undocumented migrants, legal residents or nationals, or both, can be caught up
in such expulsions.
In 2002, reports indicated that Malaysian nationals may have been deported along
with undocumented migrants. A 13-year-old girl who was deported in August 2002,
was originally thought to be from the Philippines. Further investigation showed
she was a Malaysian citizen. She was reportedly raped in an immigration
detention centre in Sabah state by three policemen. (14)
All migrant workers, including undocumented migrant workers, should be entitled
to specific rights during expulsion,(15) and should not be subject to mass or
collective expulsion. Their rights include:
The right to have his/her expulsion examined and decided individually;
The right to have the decision communicated in a language he/she understands;
The right to submit the reason he/she should not be expelled;
The right to have his/her case reviewed by the competent national authority
(unless the final decision had already been pronounced by a judicial authority);
The right to be provided a reasonable opportunity before or after departure to
settle any claims for wages.
’ Amnesty International urges the Malaysian government to halt the planned
mass deportation until it can guarantee that fair procedures are provided to
undocumented migrant workers in the context of any process of expulsion.
Fundamental human rights of undocumented migrant workers should be fully
protected prior to and during expulsion.
3. Asylum-seekers and Refugees: at risk of arrest, detention,
imprisonment and refoulement
3.1 Background
In 2003, the United Nations High Commissioner for Refugees (UNHCR) registered
15,000 new asylum-seekers in Malaysia. Most were from Chin and northern Rakhine
States in Myanmar and from the Indonesian province of Nanggroe Aceh Darussalam (NAD),
commonly known as Aceh.(16) As Malaysia is not a party to the 1951 UN Convention
Relating to the Status of Refugees nor to its 1967 Protocol, the Malaysian
government has refused over the years to offer protection, including legal
status, to refugees on its territory, instead designating all undocumented
foreign nationals as ‘illegal immigrants’.
In a significant step forward, the Malaysian government announced in October
2004 its willingness to provide official identity documents to Rohingyas to
allow them to work in Malaysia and to protect them from becoming caught up in
the deportation process. Mohamed Nazri Abdul Aziz, Minister in the Prime
Minister's Department, confirmed that identity documents will be provided to
Rohingyas until the Government of Myanmar confirms their citizenship and stops
‘persecuting’ them. Procedures establishing how Rohingyas can obtain
identity cards have yet to be announced and implemented. (17) UNHCR estimates
that there are about 10,000 Rohingyas currently living in Malaysia(18).
The Malaysian government still denies legal protection to other groups of
refugees, such as the Acehnese and the Chins(19). Its position is strongly
influenced by a desire to maintain a cordial relationship with neighbouring
countries. Amnesty International reminds the Government of Malaysia that the
grant of asylum has been explicitly recognized as a peaceful and humanitarian
act, and should not be considered unfriendly by any other state.(20)
Thousands of Acehnese have escaped counter-insurgency operations or have
migrated to neighbouring Malaysia for economic reasons over the years. Following
the declaration of a military emergency on 19 May 2003 in NAD, the numbers of
Acehnese fleeing in fear of violence and other human rights violations,
including extrajudicial executions, torture and arbitrary detention are believed
to have increased.(21) UNHCR considers that the high-level of generalized
violence in NAD places all Acehnese in Malaysia at potential risk of human
rights violations if forced to return. Nevertheless, several hundred Acehnese
are believed to have been returned since May 2003. In most cases, there is no
information on their fate. However, Amnesty International is aware of recent
cases where Acehnese were subjected to arbitrary detention on their return to
NAD. An unconfirmed report indicates that an individual who returned was
unlawfully killed.(22)
3.2 Risk of arrest, detention and imprisonment
In pursuit of its protection mandate, UNHCR issues ‘Temporary Protection
Letters’ (TPL) to some refugees. However, this documentation offers variable
levels of protection during police identity checks in Malaysia. While in some
cases the letter is accepted as a valid document establishing the status of the
holder, in many others it is ignored, confiscated or destroyed by police
officers, thus leaving the holders in a precarious situation. Although the
Malaysian government recently said that refugees and persons of concerns for
UNHCR would not be affected by the planned mass deportation of undocumented
migrants, many asylum-seekers whether they are holders of TPL or not still feel
at constant risk of arrest, detention, imprisonment and refoulement(23).
In August 2003, around 260 asylum-seekers, including some from Myanmar and NAD
were arrested outside UNHCR offices as they attempted to register for refugee
determination. It was subsequently reported that the majority of them were
deported.
In order to ensure that the right to seek and enjoy asylum from persecution as
set out in Article 14 of the UDHR is respected, all asylum-seekers in Malaysia
should have access to procedures for determining whether they are refugees. They
should not be detained unless they have been charged with a recognizable
criminal offence or for reasons recognized as being legitimate under
international standards.(24)
If they are detained, Malaysia should ensure that they are not inhibited in any
way from pursuing asylum claims. Amnesty International welcomes the statement
made in November 2004 by Mohd Bakri Bin Haji Omar, the Inspector General of
Police in Malaysia, saying that "the Police will not stop any person who
may be an illegal immigrant from seeking refugee status with the UNHCR".
However, the organization reminds the Malaysian government that a mechanism
should be established to ensure that UNHCR is notified of the detention of all
refugees and asylum-seekers on immigration grounds. UNHCR should be permitted
access to these refugees and to all areas of immigration detention centres so
that others have the opportunity to identify themselves and request protection.
All refugees and asylum-seekers in detention should be provided with immediate
access to competent legal counsel, as well as interpreters as necessary. In this
context, the Immigration Act which regulates immigration issues in Malaysia
should be revised to ensure that it cannot be applied to detain or imprison
refugees or asylum-seekers.
As a result of the Malaysian government’s plan to collectively deport
undocumented migrants, Amnesty International is gravely concerned that in the
absence of a formal mechanism granting access by refugees and asylum-seekers to
UNHCR, significant numbers of asylum-seekers in Malaysia may not have full and
free access to UNHCR for refugee status determination.
3.3 Threat of refoulement
The principle of non-refoulement prohibits the return in any manner whatsoever
of any person to a situation where s/he is at risk of torture or other serious
human rights violations. As outlined in Article 33 of the 1951 Convention
Relating to the Status of Refugees and in numerous other international
instruments, the principle of non-refoulement is widely regarded as a norm of
customary international law and is binding on all states. All refugees, asylum
seekers and undocumented migrants in Malaysia, should thereby be protected from
refoulement.
According to Amnesty International’s information, hundreds of asylum-seekers
and refugees are currently held in immigration detention centres in Malaysia. At
times, especially when mass arrests lead to severe overcrowding, conditions are
reportedly so poor as to amount to cruel, inhuman or degrading treatment.
Detention conditions which have the indirect effect of forcing people to return
to a situation where they risk facing serious human rights abuses would
constitute a ‘constructive’ refoulement, and is similarly prohibited by
customary international law.
In July 2004, approximately 60 asylum-seekers were arrested in Selayang,
Selangor state. The majority of them were subsequently sent to Semenyih
immigration detention centre, where a significant number of undocumented
migrants are currently held prior to deportation. At least 20 of them have now
reportedly ‘voluntarily’ repatriated to their home country. Amnesty
International is concerned that some of them may have left due to prolonged
detention in poor conditions.
’ Amnesty International urges the Malaysian government to put a halt to the
current plans of mass expulsions, until it can guarantee that all refugee and
asylum-seekers have full access to UNHCR for a fair determination process of
their refugee claim and that the principle of non-refoulement is upheld.
4. The Immigration Act: risk of ill-treatment and lack of fair trial
"We want legal action to be taken against those arrested for not having
proper documents, whether they are caught at random or during operations, before
they are deported to the countries of their origin."(25)
The Malaysian government’s warning that they might prosecute - prior to
deportation - suspected undocumented migrants who have not left during the
"amnesty" period, implies a massive use of the 1959/63 Immigration Act
(as amended).
Under this legislation, those who breach immigration laws in Malaysia face fines
of up to 10,000 Malaysia Ringgit (US$ 2,630) per offence, jail sentences of up
to five years, or both, as well as whipping of up to six strokes with a rattan
cane. In Malaysia, caning is used as a supplementary punishment for at least 40
crimes including in the Immigration Act, even though it constitutes a cruel,
inhuman or degrading punishment and contravenes international human rights
standards.(26) Under the Immigration Act, the police and immigration authorities
are provided with wide powers to arrest, detain and eventually deport
undocumented migrants.
4.1 The right to a fair trial
Amnesty International has received reports indicating that many defendants
currently charged under the Immigration Act do not fully enjoy their right to a
fair trial. Many defendants reportedly do not have access to a lawyer; are not
fully informed of their rights under Malaysian law; do not have access to the
outside world and are not fully aware of the charges they face. Amnesty
International is gravely concerned by these reports which indicate that the
right to a fair trial, including the right to be presumed innocent, the right to
inform family of arrest or detention and place of confinement(27) and the right
to legal counsel, is not fully respected. The right to a fair trial as
recognized in the UDHR is part of customary international law and legally
binding on all states.
’ Amnesty International remains unaware of any specific measures - including
training of magistrates - which have been taken to ensure that Malaysian courts
will be able to handle an increase of new cases in the context of the planned
expulsions, while respecting the right to a fair trial. The organization
believes the Malaysian government should take necessary steps to ensure that any
defendants charged under the Immigration Act enjoy all aspects of their right to
a fair trial.
4.2 Caning amounts to a cruel, inhuman or degrading punishment
Up to 18,000 ‘illegal immigrants’ are reported to have been caned in
Malaysian prisons within the last two years, and another 16,900 are awaiting
this punishment.(28) Following the 2002 mass deportation of undocumented
migrants, Professor Mohammed Hamdan Adnan, in his capacity of Commissioner at
the Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi Manusia Malaysia,
Suhakam), visited Semenyih detention centre and met detainees who had recently
been caned.(29) He concluded that the government should reconsider caning as a
penalty for undocumented migrants because it amounts to cruel and inhumane
treatment.
The UN Human Rights Committee considers whipping and other forms of corporal
punishment to constitute cruel, inhuman or degrading punishment and contrary to
international human rights law.(30) The UN Committee against Torture has also
called for the abolition of judicial corporal punishment(31) and the UN Special
Rapporteur on Torture has stated that ‘corporal punishment’ is inconsistent
with the prohibition of torture and other cruel, inhuman or degrading treatment
or punishment.(32)
’ In line with Suhakam and the UN Human Rights bodies and experts, Amnesty
International considers caning as a violation of the right to be free from
torture and other cruel inhuman or degrading punishment, and calls on the
Malaysian government to abolish this practice.
4.3 Risk of violations during arrests and detention by police and
immigration officials
Amnesty International continues to have grave concerns that the legal and
procedural safeguards protecting the rights of persons arrested and detained in
Malaysia are insufficiently robust. Over many years the organization has
received reports of a pattern of abuses by police involving ordinary criminal
suspects, alleged undocumented migrant workers, and political protestors
including those detained under the Internal Security Act (ISA).
Reports of human rights violations by police include excessive use of force and
unlawful killings during arrests of criminal suspects; ill-treatment or torture
in police ‘lock-ups’; and deaths in custody. There have also been reports of
periodic incidents of physical and sexual abuse by guards at Immigration
Detention Centres, as described by former Bangladeshi migrant workers testifying
during the trial of human rights defender Irene Fernandez.(33)
Within this context, Amnesty International warmly welcomed Prime Minister
Abdullah Badawi’s initiative in January 2004 to set up a one year Royal
Commission of Inquiry to recommend reforms enhancing the operation and
management of the Royal Malaysia Police, and to address complaints of police
abuses. The Commission is due to report in early 2005.
The Malaysian government is currently recruiting and training new members of the
People’s Volunteer Corps (Ikatan Relawan Rakyat Malaysia, RELA)(34) to assist
the police to arrest and detain undocumented migrant workers. Some fear that it
may lead to further abuses due to past problems with RELA members being
‘overzealous’, poorly trained and not being held accountable.
’ Amnesty International urges the Malaysian government to ensure that the
Royal Malaysia Police, members of the People’s Volunteer Corps and immigration
officials are fully trained in human rights standards and will conduct arrests,
detentions and deportations with due respect for human rights principles and the
rule of law.
5. Inhuman or degrading detention conditions prior to and during
deportation
"The truth is that detainees here only get a handful of rice with a small
piece of salted fish, which is often rotten and smelly."(35)
5.1 Detention conditions in police lock-ups
Amnesty International has received reports indicating that conditions of
detention in police lock-ups and immigration detention centres frequently may
not comply with the UN Standard Minimum Rules for the Treatment of Prisoners,
which sets minimum standards in the area of hygiene, clothing, bedding, food,
medical services, and discipline.
Concerns in police lock-ups include overcrowding: lack of bedding and clothes
for detainees; lack of access to safe water and poor hygiene and sanitation. In
2002, Suhakam recommended that the Lock-Up Rules 1953 be reviewed and brought
up-to date in compliance with the UN Standard Minimum Rules for the Treatment of
Prisoners.(36) Amnesty International urges the government of Malaysia to follow
Suhakam’s recommendations and abide by international standards.
5.2 Conditions in immigration detention centres
Amnesty International is gravely concerned by conditions of undocumented migrant
workers held in immigration detention centres, especially at times when mass
arrests and deportations lead to severe overcrowding. Conditions in some
immigration detention centres may be at times so poor as to amount to cruel,
inhuman or degrading treatment.
As a state party to the UN Convention on Elimination of All Forms of
Discrimination Against Women (CEDAW), the Malaysian government has the duty to
ensure that women, including those in detention, get appropriate services in
connection with pregnancy, confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition during pregnancy and
lactation.(37)
Problems with conditions in immigration detention centres include:
Overcrowding: Severe overcrowding has been reported in some immigration
detention centres. Suhakam recognizes overcrowding as a major problem, which
results in detainees having to sleep on bare floors with insufficient blankets
and lack of proper clothing.(38) In 2003, during a visit to the immigration
detention centre of Belantek in Sik, Kedah state, Suhakam Commissioners observed
that although the centre’s capacity was for 400 people, on the day of their
visit there were 652 detainees housed in the centre. This constituted an actual
inmate rate of one and a half times the centre’s capacity.(39)
Poor hygiene and sanitation: At the immigration detention centre in Macap Umboo,
Malacca, Suhakam described the building which was housing 260 men together as
"in a deplorable state and unhygienic due to an overflowing septic
tank."(40) Detainees held in immigration detention centres are often not
provided with basic provisions such as toothpaste, soap or washing powder.
Reports indicate that women are not always provided with sanitary napkins.(41)
Health issues: Poor conditions in immigration detention centres are reported to
contribute to ill-health of detainees. Although there is some medical attention
provided, this is believed not to be adequate. Suhakam reported that during a
visit at Macap Umboo immigration detention centre, the health of the detainees
and personnel were at risk due to a recent outbreak of meningitis.(42) More
recently, reports indicated that at Semenyih immigration depot, there were signs
of beri beri and diseases arising from malnutrition, and that due to
overcrowding, there was an outbreak of chicken pox placing detainees at risk of
developing pneumonia.(43)
Inadequate nutrition: Detainees reportedly had limited access to clean water,
adequate milk for children and adequate nutrition in Semenyih detention centre.(44)
Verbal and physical abuses: Verbal abuse and threats to migrants or refugees by
camp guards are commonly reported by detainees. Physical abuse, such as
beatings, is reported to occur on some occasions.
Such conditions are contrary to provisions in the UN Standard Minimum Rules for
the Treatment of Prisoners. Suhakam recommended that in order to improve the
conditions of detainees in immigration centres, the authorities should transfer
the daily running of detention centres to the Prison Department. The main
immigration centres of Semenyih, Lenggeng, Macap Umboo, Langkap and Pekan Nanas
are now all reported to be under the Prisons Department. Although Suhakam and
others were optimistic that conditions would improve as a result, deterioration
of detention conditions are reported to have been among the reasons for a
hunger-strike by detainees in Semenyih in early September 2004.(45)
5.3 Children
In 2002,....