Amnesty Report - Dec 2004 (Part 1)
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)
5.3 Children
In 2002, reports indicated that the process of mass deportations of undocumented
migrants led to the deaths of children, due to dehydration and disease in
detention centres in the state of Sabah.(46) Amnesty International is gravely
concerned by these reports and urges the Malaysian government to ensure that
such incidents will not occur again and that children will be provided with
adequate medical care and nutrition while in Malaysia.
On 17 July 2004, seven Acehnese refugees, including three children, were
reportedly detained in the Jalan Hang Tuah police station in Kuala Lumpur.
Reports indicate that the three children were detained for five days along with
20 adults, some of whom were believed to be drug-addicts. The children were
reported to have been given food which was stale, and had no option but to drink
unsafe tap water. Due to lack of proper food, clean water and lack of sleep,
they became ill. However, it was alleged that requests for medicine by the
family was rejected.(47)
As a state party to the Convention on the Rights of the Child (CRC), Malaysia
has a duty to ensure that detention of children is used only as a measure of
last resort and for the shortest appropriate period of time. Malaysia should
also take all appropriate measures to ensure that children who are detained are
treated in accordance with the needs of people of their age. In particular,
every child deprived of liberty shall be separated from adults unless it is
considered in the child’s best interest not to do so. Like adults, all
children who are detained in police lock-ups or immigration detention centres,
have the right to be examined by a doctor and, when necessary to receive medical
treatment free of charge.(48) Torture and other cruel, inhuman or degrading
treatment of children, as of adults, is absolutely prohibited.
’ In accordance with international standards, Amnesty International believes
the Malaysian government has a duty to ensure minimum standards for conditions
of detention and imprisonment, including the right to adequate medical care and
the right not to be subjected to ill-treatment or torture.
5.4 Conditions during deportation operations
Amnesty International is aware that in 2002 overcrowding and poor sanitary
conditions during the process of deportation may have led to illnesses and
deaths of undocumented migrants both in the country and outside(49). The
organization urges the Malaysian government to take appropriate measures to
ensure that these violations will not take place again. In particular Amnesty
International urges the Malaysian government to take measures to ensure that
during deportation operations all deportees are provided regularly with adequate
and safe food and water, have ready access to sanitation facilities and are
treated with respect for their human dignity.
6. Recommendations
Amnesty International urges the Malaysian government to take the following
steps:
1. Halt the current plans for mass deportations and ensure that measures are
taken to ensure that the fundamental rights of both documented and undocumented
migrant workers are respected in any expulsion process. Ratify the UN
International Convention on the Protection of All Migrant Workers and Members of
their Families, the Convention against Torture and the 1951 Convention relating
to the Status of Refugees and its 1967 Protocol;
2. Ensure that any person whose expulsion is being considered has her/his case
individually examined in a fair and transparent procedure where s/he has the
possibility to submit reasons against expulsion and has the possibility to have
her/his case reviewed should an initial decision be negative;
3. In accordance with the fundamental principle of non-refoulement, put a halt
to the current plans of deportations until it can be guaranteed that all those
seeking asylum have full access to a fair and satisfactory procedure to
determine their refugee status; ensure that no one is returned to a country
where s/he is at risk of torture and other forms of ill-treatment and that all
those seeking asylum have full access to the UNHCR;
4. Take measures to ensure that arrests and deportations by the Royal Malaysia
Police, members of the People’s Volunteer Corps and immigration officials are
conducted with due respect of human rights and the rule of law, and ensure that
all complaints of abuse are promptly, independently and impartially
investigated;
5. Ensure that all prosecutions of undocumented migrants will be conducted with
full respect for international human rights law, most notably the right to a
fair trial, including taking specific measures to ensure that defendants are
brought promptly before a judicial or similar authority and that they are able
to communicate with the outside world;
6. Repeal caning as a judicial punishment, including under the Immigration Act,
and ensure that neither migrants nor asylum-seekers and refugees will face
corporal punishment under immigration laws;
7. Ensure that conditions in police lock-ups, prisons and immigration detention
centres are consistent with the UN Standard Minimum Rules for the Treatment of
Prisoners, including access to adequate food and water and medical attention,
and that independent monitors, including the UNHCR and Suhakam, are provided
access to the detention centres. Adequate detention conditions should be
provided at all times including prior to and during any individual expulsion
process;
8. Take measures to ensure that any child and woman detained be granted
appropriate protection as required by the UN Convention on the Rights of the
Child, and the UN Convention on Elimination of All Forms of Discrimination
Against Women, to which Malaysia is a party.
********
(1) Philippine President Gloria Macapagal Arroyo commenting on a public outcry
in relation to the 2002 mass deportation of Filipino migrant workers.
"Manila sends mission to Malaysia on deportations", Reuters, 31 August
2002.
(2) "Government acts to stem rising tide of illegal workers", The
Star, 11 August 2004.
(3) Immigration Act 1959/63 (2002 Amendment) Section 56.
(4) "Malaysia plans new crackdown on illegal workers", Agence France
Presse, 13 July 2004.
(5) "Malaysia to consider halting deportation of Indonesian illegal
immigrants", Bernama, 19 August 2004.
(6) "Government offers amnesty to all illegal immigrants",
Malaysiakini, 22 October 2004.
(7) Data varies between 600,000 and 1,5 million undocumented migrant workers.
(8) "Malaysia: Human Rights Report 2002", Suaram, pp. 131-135.
(9) "Philippine delegation visits Sabah deportees camp", Reuters, 4
September 2002.
(10) Data varies between the announcement of Azmi Khalid, Malaysia’s Home
Minister in July 2004, and that of Deputy Prime Minister Najib Razak in August
2004. Accurate figures on the numbers of migrant workers in Malaysia are elusive
due in large part to the difficulty of determining the exact population of
undocumented migrant workers in the country.
(11) Declaration by the Deputy Prime Minister Najib Razak, "Government acts
to stem rising tide of illegal workers", The Star, 11 August 2004.
(12) In Malaysia, migrant workers are constantly at risk of having their work
permit terminated or their passport confiscated by their employer.
(13) For example, for further information on the situation of female domestic
workers, see "Indonesia/Malaysia, Help wanted- Abuses against Female
Migrant Domestic Workers in Indonesia and Malaysia", Human Rights Watch
report, July 2004.
(14) See Amnesty International 2003 annual report.
(15) See the Migrant Workers Convention, Article 22, which provides an
authoritative elaboration on the relevant rights in the context of expulsion.
See also in this context, General Comment No. 15 by the Human Rights Committee
to the ICCPR on "The Position of Aliens under the Covenant."
(16) UNHCR Global report 2003, "East Asia and the Pacific", p. 370.
(17) "Daily says Malaysian minister confirms refugee status of Burma's
Rohingyas", Malaysiakini, 2 November 2004.
(18) UNHCR "Rohingyas flock to UNHCR in Kuala Lumpur following Malaysia
government pledge", 9 November 2004.
(19) Christian Chins are suffering human rights violations in Myanmar, including
religious persecution.
(20) See inter alia UNHCR Executive Committee Conclusion No. 94 (LIII), 2002 on
the civilian and humanitarian character of asylum.
(21) Precise numbers are unknown.
(22) See "New military operations, old patterns of human rights abuses in
Aceh [Nanggroe Aceh Darussalam]", AI Index: ASA 21/033/2004, Amnesty
International, October 2004.
(23) UNHCR briefing notes "Rohingyas flock to UNHCR in Kuala Lumpur
following Malaysia government pledge", 9 November 2004.
(24) UNHCR Guidelines state that the detention of asylum seekers is
"inherently undesirable". They further provide that the basis for
detention of asylum-seekers and refugees should be to verify identity; to
determine the elements on which the claim for refugee status or asylum is based;
to deal with cases where refugees or asylum seekers have destroyed their travel
and/or identity documents or have used fraudulent documents in order to mislead
the authorities of the State, in which they intend to claim asylum; or to
protect national security or public order. See Conclusion No. 44 of UNHCR’s
Executive Committee (EXCOM) and UNHCR’s Revised Guidelines on Applicable
Criteria and Standards relating to the Detention of Asylum-seekers of 1999.
(25) Declaration by Malaysia’s Deputy Prime Minister Najib Razak in relation
to the government’s plan to deport more than one million "illegal
immigrants." "Illegals: Courts told to be efficient", Bernama, 11
August 2004.
(26) Defendants who are older than 50 years of age are exempted from this form
of punishment.
(27) Rule 92 of the Standards Minimum Rules for the Treatment of Prisoners.
(28) "Malaysia faces rising problems of illegal immigrants", Channel
News Asia, 17 August 2004.
(29) "Suhakam: Whipping of illegal immigrants violates human rights",
Malaysiakini, 28 January 2003.
(30) George Osbourne v Jamaica (communication number 759/1997) UN Doc. A/55/40,
pp. 133-139.
(31) UN Doc. A/52/44, p. 250.
(32) UN Doc. E/CN.4/1997/7, p. 6.
(33) Irene Fernandez was arrested and charged in 1996 following the release of a
report on conditions in immigration detention centres. The report, published by
the non governmental organization Tenaganita in 1995, provided details of
alleged patterns of human rights violations in the centres, including beatings,
sexual abuse and denial of adequate medical care. In 2000, former migrant
workers from Bangladesh testified for the defence in the trial of Irene
Fernandez and confirmed cases of torture and sexual abuse in immigration
detention centres in 1994-1995. For more information please refer to
"Malaysia: Irene Fernandez defends rights of migrants workers despite
conviction", AI Index: ASA28/010/2004, Amnesty International, November 2004
(34) RELA is a voluntary program established in 1972 under the Interior Ministry
to provide assistance to the security forces.
(35) Irene Fernandez, Director of the non governmental organization Tenaganita
commenting on detention conditions at Semenyih immigration detention centre,
"The ‘truth’ about detention camps", Tenaganita, 14 September
2004.
(36) "Rights of remand prisoners", Suhakam, 2002.
(37) Article 12, Convention on Elimination of All Forms of Discrimination
Against Women.
(38) Annual report 2002, Suhakam, p. 39.
(39) "Prisons department should take over management of more immigration
depots", Suhakam, 22 September 2003.
(40) Ibid.
(41) Irene Fernandez, "The ‘truth’ about detention camps",
Tenaganita, 14 September 2004.
(42) "Prisons department should take over management of more immigration
depots", Suhakam, 22 September 2003.
(43) See footnote 39.
(44) Ibid.
(45) The hunger strike ended on the third day following promises by Malaysian
authorities to improve access to medical care and basic conditions of the
detention centre. "Semenyih inmates end hunger-strikes after three
days", Malaysiakini, 8 September 2004. Conditions are reported to have
since improved partly due to less overcrowding, renovation of toilets and
increase access to water supplies.
(46) "Philippines asks Malaysia for moratorium on deportations",
Agence France Presse, 31 August 2004.
(47) "Five harrowing days in lock-up for refugees", Malaysiakini, 23
July 2004.
(48) The Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, principle 24.
(49) It is reported that in 2002, tens of Indonesians died in the city of
Nunukan, at the border with the Malaysian state of Sabah, after being deported
from Malaysia and while waiting to be transported to their home town in
Indonesia. The deaths were reportedly due to inadequate nutrition and lack of
medical care in temporary Indonesian shelters.