I REFER to your editorial, “Is it for others to worry about?” (NST, May 14). You argue that while humanitarian assistance for the maritime arrivals in Langkawi was necessary, the root causes of the problems can be resolved only by the countries of origin, Myanmar and Bangladesh. Concluding that the international community’s involvement may go as far as sanctions on Myanmar for its treatment of Rohingyas and aid to Bangladesh for the poverty that motivates the dangerous journey, the editorial misses the debates surrounding the question.
Some of these are, “How should the arrivals be labelled?”, “Which labels link state parties, international organisations and civil society within a framework that states have agreed upon?” and “Is it purely a question of immigrant arrivals or is there a less convenient but more challenging aspect to it?”
The conceptualisation of persons as humanitarian entrants, smuggled migrants, asylum seekers and victims of trafficking has been the subject of a great deal of international discourse at the United Nations General Assembly, the United Nations High Commissioner for Refugees Annual Consultations and, at the regional level, at the Asean Ministerial Meeting on Transnational Crime. The outcomes of these negotiations amount to “soft”/informal international law, and states express their commitment to adopting it by signing or ratifying agreements to eventually enact laws domestically on the subject. While it is tempting to adopt the philosophy in the popular Dilbert comic strip, which goes, “I don’t understand anything you do, so I assume it’s all useless”, our evaluation may be more informed if it accommodated germane facts.
Of the 1,158 maritime arrivals on May 10, the Home Ministry has identified 486 as being from Myanmar and 672 as being from Bangladesh. Of these numbers, 104 are women and 61 are children. The head of strategic planning at the Anti-Trafficking of Persons Council has taken the position that the arrivals are not victims of trafficking due to the fact that they had paid the smugglers to embark on the journey. Never mind that Malaysia ratified international conventions relating to the rights of women, children and transnational organised crime. It has been decided that all the arrivals will be treated as illegal migrants and detained at the immigration detention camp in Belantik, Sik, Kedah, pending deportation.
Civil society activists have called for compliance with the non-refoulement principle — the non-return to persecution of persons claiming asylum as per the Universal Declaration of Human Rights (UDHR).
This document is meant to be adopted and practised by states who count themselves members of the United Nations, but the United Nations does not police that due to the sovereignty of its members.
Malaysian authorities, however, ignore the UDHR and consider the fact that they have not signed the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol or the Convention relating to the Status of Stateless Persons as grounds to avoid the discussion about its obligations to asylum seekers.
Further, due to the exploitation and torture en route to Malaysia, others have called for the arrivals to be considered and dealt with as victims of trafficking. Either way, for an individual or group to be declared “asylum seekers” or “victims of trafficking’, formal interviews or assessments, whether individual or group based, must be made by the designated authority.
The most a state or its enforcement authorities can achieve without such a formal system of individual identification is a prima facie determination based on information about the country of origin and publicly available information about smuggling and trafficking modus operandi. Where the state abdicates the responsibility of that assessment, the prima facie assessments of the United Nations or other internationally recognised human rights groups, of the label to be attached to the group in question, circumvents that assessment by the state of arrival and even has the capacity to render a subsequent negative assessment by the receiving state incredible. Human Rights Watch has documented the atrocities against the Rohingyas as ethnic cleansing and crimes against humanity. For parallels in the recent past, think the Bosnian war and Rwanda. This should justify at least the Rohingyas being assessed as prima facie refugees.
Although UNHCR performs status determination, it, too, is constrained by its small annual budget and the lack of significant offers for places of resettlement from other states. Malaysia trumpets its “administrative cooperation with the UNHCR”, but in practical terms, this means it will, at its discretion, only desist on arrest and deportation of those registered with UNHCR. In a number of cases, arrests and deportations may and certainly do occur, but civil society is resigned to considering these the casualties of an informal system. Refugees and asylum seekers are expected to “subsist” with those minimal protections.
Although these facts underscore the importance of a state initiating a mechanism for performing adequate status determination or “prima facie labelling” of the arrivals, regrettably Malaysia, notwithstanding its unemployed graduates, has not prioritised.
There are those who argue that human rights and humanitarian assistance are for the developed states and that we ought to focus on self-preservation and non-interference. This still features the transnational organised crime perspective. Transnational organised crime is an US$870 billion dollar (RM3.1 trillion) industry that creates new forms of crime, compromises legitimate economies, and has a direct impact on governance through corruption and the buying of elections.
In Malaysia, the kidnapping and trafficking of children for begging, burglary or pick-pocketing, the sacrifice of the morals of our youth to the sex trade and drugs, the brutal public firearms killings, the rise of identity theft or breaches to private data resulting in financial losses, extortion, racketeering, sale of fraudulent drugs, food and counterfeit products are examples of the expansive reach of transnational organised crime.
Transnational organised crime has a hidden ability to increase the power of local criminals. Unbeknownst to the public, the underbelly of society is growing like a cancer and it is aggravated by the indifference of the Malaysian public to what is considered in isolation, as a matter of no concern to citizens.
Migrant trafficking and smuggling are among the crimes that can destabilise our economy and governance, reducing it to that of some of the most dangerous cities in the world, such as Rio de Janeiro or Cape Town.
Bangladesh and all Asean states, except Singapore, have ratified the Convention on Transnational Organised Crime. Articles 24 and 25 of this convention cover protection and assistance to witnesses and victims to facilitate apprehension of the perpetrators of these crimes.
The fact that the perpetrators may not be Malaysian is irrelevant because only a thorough investigation will disclose more. Pursuant to Article 18, Myanmar, Bangladesh and Malaysia have further agreed to provide each other with legal assistance when requested.
These may include the taking of evidence or statements from persons, executing searches and seizures and freezing assets, examining objects and sites, identifying or tracing the proceeds of the smuggling, which led to the arrivals and providing originals or certified copies of government, bank, financial, corporate or business records. Yet, the most common and convenient response by investigating authorities is the handing over of the victim — witnesses to the authorities in the country of origin and washing their hands off the matter as it “does not concern our jurisdiction”. So much for international cooperation in combating transnational crime.
These arrivals are more than pitiful humanitarian entrants, asylum seekers, smuggled migrants or victims of trafficking. They are an important link between the Malaysian public and transnational criminals. They are witnesses whom crime bosses would like “disappeared”. They are also a link between Malaysia and its regional neighbours.
The events of last week should draw a line where diplomatic courtesy ends. Instead, there should be a clear expression of the Malaysian public’s displeasure towards not the people, but the governments of Bangladesh and Myanmar, for the nuisance they are causing their neighbours in failing to clean up their backyards. Before we sit back and pass the buck to our neighbours, let us stop to ask if our instincts for self-preservation include demands to our government to do what is necessary in the battle against the unlimited funds of transnational organised crime.
Renuka T. Balasubramaniam, The writer is pursuing postgraduate research in refugee protection at La Trobe University, Melbourne, Australia