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 (hereinafter referred to as the 'Refugee Convention') defines a 'refugee' as:

"Any persons who, owing to a well founded fear of being persecuted for reasons of race, religion, natioality, membership of a particular social group or political opinion, is outside the country of his nationlity and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

Malaysian laws, particularly the Immigration Act 1959/1963 does not recognise a refugee nor does it make a distinction between a refugee and an illegal immigrant (economic or otherwise). The lack of recognition of a refugee's status in the Malaysian context has placed a refugee in a state of uncertainty, inevitably resulting in human rights violations.

Malaysia is one of the few remaining countries that has not ratified the Refugee Convention and all the other major UN human rights instruments that are relevant to asylum seekers and refugees16. Malaysia has also failed to enact any legislation for the protection of refugees.

No distinction

Refugees in Malaysia will therefore be considered 'illegal immigrants' and would shoulder the full brunt of the harsh and arbitrary penalties enacted in the Immigration Act 1959/63 (hereinafter referred to as 'the Act').

According to section 6(1) of the Act which deals with the control of entry into Malaysia, any person other than a citizen shall not enter Malaysia unless he is in possession of a valid entry permit lawfully, or his name is endorsed upon a valid entry permit and he is in the company of the holder of the permit; or he is in possession of a valid pass lawfully issued to him to enter Malaysia; or he is exempted from the operation of section 6(1) of the Act by an order made under section 55 of the Act.

In the event that a person contravenes section 6(1) of the Act, he shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding RM10,000 or to imprisonment for a term not exceeding five years or to both, and shall also be liable to whipping of not more than six strokes.

Unfortunately, there are no provisions in the Act relating to refugees. In fact, the Act draws no distinction between a refugee and an illegal immigrant.

In our country, a refugee, if arrested, can be charged and punished under Section 6(3) of the Act. This directly contravenes Article 31 of the UNHCR Convention which, as earlier mentioned, states that penalties should not be imposed on refugees who come directly from a territory where their life or freedom is threatened.

Inhumane act

The non-recognition of the refugee status by the Malaysian government, and the absence of any kind of protection in the Act vis--vis the refugee, not only exposes the refugee to the harsh penalties imposed under the Act, but also has the effect of endangering his life and liberty.

This is because the Act not only punishes a refugee for entering into Malaysia without lawful documentation. It also provides for the removal and deportation of a refugee back to his country of origin.

Therefore, if a refugee has been convicted of an offence, inter alia, under Sections 6 and 8 of the Act, he shall then be liable to be removed from Malaysia by order of the director-general.

For those who have been found to be a prohibited immigrant during examination upon arriving in Malaysia or after such enquiry as may be necessary by the immigration authorities, that person shall be prohibited from disembarking into Malaysia. Alternatively, he may be detained at an immigration depot, or other place designated by the director-general until an opportunity arises to return him to his place of embarkation or to the country of his birth or citizenship.

These provisions are clearly against the very principle of non-refoulement, which is not only the foremost basic protection that should be afforded to any refugee, but also forms part of the customary international law, which is binding on all states, Malaysia included (even though Malaysia has yet to ratify the Refugee Convention or Protocol).

An act of removing a refugee from Malaysia and deporting him back to his country is just as inhumane as the human rights violations that he/she would suffer in their home country. This situation is aptly summarised by the proverb, 'from the frying pan into the fire'.

A refugee's predicament is further compounded under the Act as any detention or custody at the detention depot is deemed to be lawful. The refugee will also not be given an opportunity to be heard before the minister or the director-general in relation to any detention orders made against him.

The chances of a refugee challenging the detention order in courts of law are also non-existent. Section 59A of the Act has expressly excluded the powers of the courts to judicially review any detention orders made by the immigration authorities.

Refugee's predicament

In the 1990's, the Indonesian Army abducted Ahmad Adnan's father due to his brother's involvement with the Free Aceh Movement (GAM). His brother, Shamsul Bhari, had been on the Indonesian army wanted list for quite some time.

Since the abduction, Ahmad Adnan never saw his father again. Ahmad Adnan himself was beaten up by the Indonesian Army on several occasions. So was his other brother who subsequently became insane and eventually died.

In 1998, the Indonesian Army resumed harassing Ahmad Adnan by ransacking his house and beating him severely. In the first quarter of 2002, the Indonesian army visited him again to carry out their usual ransacking of his house. This time, however, they burned his house down. The Indonesian army confiscated all of his personal belongings, and he was ordered to go to an army camp.

Fearing for his life, Ahmad Adnan, with the assistance of his uncle, managed to escape from Aceh. Ahmad Adnan fled to Malaysia in May 2002 by ship from Tanjung Balai, Medan to Port Klang. Upon reaching the shores of Malaysia, he went to seek refuge at his countrymen's abode.

A few days later, Ahmad Adnan went to the United Nations High Commissioners for Refugees ("UNHCR) office in Kuala Lumpur. He was interviewed by UNHCR officers and was subsequently given refugee status by the agency in July 2002.

On April 2 this year, Ahmad Adnan with few other friends were stopped by several policemen. He was asked to show his documents. Ahmad Adnan promptly showed the policemen his UNHCR card and explained that he was a recognised UNHCR refugee. Despite his explanation, the policemen arrested him and detained him for eight days.

On April 11, Ahmad Adnan was brought to a magistrate's court in a state of fear and confusion. Despite him being a recognised refugee, he was charged under section 6(1) of the Act. The charge for his arrest was read out to him. Ahmad Adnan, who was unrepresented, pleaded guilty to the charge.

The magistrate therefore convicted him for entering the country illegally. But what the magistrate had refused to consider, despite his attempts to explain his position, was the crucial fact that Ahmad Adnan, is a recognised UNHCR refugee, and thus, should have been afforded protection for his refugee status.

Denied of a chance to explain his situation in Malaysia, Ahmad Adnan was then sentenced to 10 months' imprisonment and two strokes of the rotan. He was then brought to the Kajang prison on the same day. Although Ahmad Adnan had a chance to appeal against his conviction and sentence within 10 days from the date he was sentenced, he was denied the opportunity of doing so due to the refusal of the prison authorities to file the notice of appeal on his behalf.

After enduring days of hopeless attempts to pursue his appeal, Ahmad Adnan finally wrote to the UNHCR explaining his predicament. Luckily for Ahmad, in earl May, a UNHCR official visited him in the prison and assisted him in obtaining legal representation.

An application for revision was quickly made and filed at the Shah Alam High Court. On July 7, the revision was allowed and the conviction (on the guilty plea) and sentence were set aside and the matter was remitted back to another magistrate.

The Attorney-General's Chambers subsequently withdrew the charges against Ahmad Adnan on July 10, and the magistrate discharged Ahmad Adnan. Technically, from that moment onwards Ahmad Adnan should have been released unconditionally. However, to the authorities, he was just another undocumented immigrant.

Because of the present state of the immigration law, an order was issued by the immigration department for Ahmad Adnan to be detained at an immigration depot until an opportunity arose to return him to his place of embarkation or to the country of his birth or citizenship.

Luckily for Ahmad Adnan, at that material time, Denmark agreed to accept him for the purpose of resettlement. His life and liberty was eventually spared, but not after enduring a series of human rights infringement and violations in his country of origin as well as the country which he was seeking refuge from. Some refugees are not so lucky.

It is apparent from this case study that the local laws are inadequate to handle these kinds of situations. Ever since Ahmad Adnan set foot onto Malaysian soil, he was not protected. What is more he was subject to harassment and arrest by the police, prosecution by the public prosecutor, detention and deportation by the immigration authority.

Suhakam's failure

In the present situation, even though the Malaysian government has yet to ratify any of the international conventions pertaining to refugees and human rights, the government, at the very least, could still ensure and provide the very basic protection to a refugee; namely protection from refoulement.

The government, if it wanted to, could use the present laws to achieve this goal. Under the Act, particularly section 55, states that the minister may by order exempt any person or class or persons, either absolutely or conditionally, from all or any of the provisions of this Act and may in any such order provide for any presumptions necessary in order to give effect thereto.

Such a measure however would be purely temporary and since the refugee issue is a never-ending one, the government should seriously look into long-term measures.

It is unfortunate to note that the government has not made any clear and substantive efforts to recognise the Acehnese refugee status in this country. And it is deplorable that the government has not even bothered to invoke section 55 of the Act to protect the Acehnese refugees that have come to our country. Instead they have prosecuted them, like in the case of Ahmad Adnan.

The Human Rights Commission of Malaysia (Suahakam) has failed to live up to its reason for existence. Suahakam has failed in its duty to recommend to the government that it subscribe to the Refugee Convention and its protocol, and treaties and international instruments in the field of human rights, and also to advise the government to incorporate the principles enshrined in the Universal Declaration of Human Rights as a standard which we aim to achieve.

Suhakam has also failed to raise and educate the issue of the Acehnese refugee status to the public, and seek protection for them.

This is an excerpt of a paper submitted by lawyer Amer Hamzah Arshad at a Bar Council organised Aceh Forum earlier this month.