bangkit.net

By Suaram, endoresed by various NGOs.

21 November 2006

Datuk Wahid Md Dom
Immigration Department of Malaysia
Level 7,Block 2G4 (PODIUM) Precint 2
Federal Goverment Administrative Centre
62550 Putrajaya
Tel: +603-88801000
Fax: +603-88801200

Memorandum to the Immigration Department of Malaysia on the
DETENTION OF ASYLUM SEEKER CHILDREN, MOTHERS AND PREGNANT WOMEN IN VIOLATION of INTERNATIONAL HUMAN RIGHTS TREATIES

Through our investigations and from other credible sources, we have learned that the Immigration Department is detaining scores of asylum seeker children, pregnant women and other vulnerable individuals, mainly from Burma/Myanmar, at various detention camps and prisons around the country. Since April of 2006, we have recorded at least 13 mass-scale raids at different locations around the country by the Immigration Department and RELA (People’s Volunteer Corps).

Also arrested and detained in these round-ups are children, mothers, pregnant women and other extremely vulnerable individuals who have come to this country for no other reason than to seek a safe haven from persecution and serious human rights violations in their home country.

Despite repeated protests by human rights groups and civil society organizations, the government has consistently tried to justify the detention of refugees and asylum seekers on the ground that they are illegal entrants and that Malaysian immigration law does not recognize their status as a special category of people who need international protection. This indiscriminate policy has rendered refugees and their children vulnerable and defenseless against exploitation, detention and deportation.

Breach of Treaty Obligations and Customary International Human Rights Law

We however, would like to remind the government that Malaysia is a signatory to the United Nations Convention on the Rights of the Child (CRC) and Convention on the Elimination of all kinds of Discrimination Against Women (CEDAW). By signing on to these human rights treaties, Malaysia has declared its commitment to observing and respecting the rights and obligations set forth in the documents to protect the children and the women. In addition, Malaysia is also a member of the newly-instituted United Nations Human Rights Council and thus has a special duty to be exemplary in its human rights practice. As a responsible member of the international community, Malaysia is also bound by the principle of Non-Refoulement, a customary international law which prohibits the deportation of persons to their countries of origin where their lives could be at risk.

We therefore would like to express our grave concerns over the following phenomena and to draw your attention to the breaching of international human rights treaties by the immigration department:

1. Detention of Children Seeking Refugee Status

Article 22 of the Convention on the Rights of the Child, to which Malaysia is a party, specifically states:

“States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”

In practice however, rather than making efforts to fulfill its obligations to protect and assist children seeking refugee status in Malaysia, the government regularly arrests and detains children as parts of an ongoing effort to crackdown on undocumented migrants. This indiscriminate policy has been facilitated by its continued utilization of untrained civilian volunteers or the RELA, which has consistently shown utter disrespect for fundamental human rights and basic human dignity.

Malaysian authorities still detain at least 11 Chin asylum seeker children from Burma, half of whom are minors under three years old at Lenggeng and Juru Detention Camps. (See Annex # I for detailed list of detainees) Some have spent more than 5 months in detention awaiting charges for immigration violations with possible deportation order. Many of the children are reported to be in poor health conditions as a result of inadequate medical attention, poor diet and unsanitary environment of detention camps. The above detainees represent only those known cases but more are believed to be in detention at other facilities around the country.

Dawt Khun Tial, age 3, (See Annex # I ) who is being detained with her mother at Lenggeng, for example, is reported to be in deteriorating health condition. Local volunteer doctors who recently visited the child suspected a case of Tuberculosis. According to the child’s mother, Dawt Khun Tial has not been eating well since their detention and is losing weight and becoming very frail. Woman detainees reported that they suffer regular verbal and physical abuse by guards. Dawt Khun Tial and her mother were splashed with water by one female guard during one of the regular cross-legged-sitting session. Women detainees testified that children are often too terrified by verbally abusive guards who often raised their voice and verbally abused detainees in the presence of the children.

In a similar case, Ram Za Thang, (See Annex # I) another 3 year-old child is being held with her mother at Juru Detention Camp. According to the child’s father, a UNHCR-recognized refugee, who visited them on 13 November 2006 (Monday), the child is suffering from Malaria and has been to hospital for a total of five times, three times in October alone. He said the mother is also complaining of painful shoulders, which made her unable to sleep properly at night.

The welfare and best interest of the child are the two underpinning considerations of the UN Convention on the Rights of the Child (CRC). Children’s welfare and best interest can not possibly be attained at detention centers. It is an absolute shame and irony that after 52 years since the United Nations General Assembly has proclaimed the Universal Children’s Day, which falls on 20 November; Malaysia is detaining the most vulnerable type of children – children seeking refugee status on its soil.

Perhaps the government, particularly the Immigration Department should be reminded of the tragic and unnecessary death of two Filipino minors resulting from their detention in Sabah earlier last month. It has become painfully clear that not only has the government miserably failed to protect children seeking asylum on its soil, but by subjecting them to detention, has seriously breached its obligations under the Convention on the Rights of the Child.

2. Detention of Mothers and Pregnant Women

Article 11 (f) of the Convention on the Elimination of all kinds of Discrimination (CEDAW), which Malaysia ratified on 5 July 1995, guarantees the right of women to “protection of health…and the safeguarding of the function of reproduction.” Furthermore, the detention of pregnant women and their unborn child constitute a flagrant violation of Convention on the Rights of the Child (CRC) which states: “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”

In arresting undocumented migrants, asylum seekers and refugees, Malaysian immigration enforcement officials and its proxy volunteer force, the RELA, often exercised no discretion that takes into account the vulnerable status of mothers with children and women in pregnancy. Such indiscriminate and uncompassionate practice inevitably has led to them being detained, including those who are in their late pregnancies. Mothers with minor children suffer psychological and mental trauma for their children’s well-being, and pregnant women face prolonged detention and the possibility of delivery in detention. Inadequate care and medical attention, compounded with insufficient nutritional diet, increase health risk for prospective mothers and the unborn child.

For example, Par Lang who is 8 month pregnant, is still being held at Kajang prison. (See Annex # II) She was arrested on 5 October 2006 during a RELA-Immigration operation in Jalan Imbi. Par Lang is expecting child birth on 16 December 2006. Her court date has been set for 13 December and it is very likely she will be delivering her child in detention.

Thawm Hlei Mawi, a 24 year-old Chin asylum seeker from Burma is also being detained at Kajang prison. She is more than two months pregnant. Her husband Sui Hu Thawng Peng is a recognized UN refugee and holds a registration No. 354-05C03755. When he visited her on November 2, he found that his wife is losing appetite.

More pregnant women are being detained at Lenggeng and other detention camps. (See Annex # II for detailed list of women). We remain gravely concerned about their well-being and that of their unborn children. We are particularly concerned and appalled by the deportation on 20 November (Monday) of Sai Cin, a six-month pregnant woman to Thailand by the Immigration Department. She was held at Lenggeng Detention Camp after being arrested on 14 October 2006 in Cheras Alamjaya.

3. Detention of Other Vulnerable Individuals

We continue to be highly concerned about the detention of persons with sickness and medical problems. Conditions in prison and detention centers are definitely not appropriate venue for these individuals to receive the medical attention they need. Depriving these individuals of proper medical care and attention on the sole basis of their “illegality,” amounts to inhuman and degrading punishment, which is strictly prohibited under article 5 of the Universal Declaration of Human Rights. This is also against the norm of humanitarianism, which Malaysia must uphold as a member of civilized world community.

A case in point is Za Mang, an asylum seeker from Burma who was arrested during an early morning raid in Cheras Alam Jaya on 14 October 2006. He was just released from hospital only one week earlier where he underwent an operation to remove his gallbladder. Doctors monitoring his situation said he was seriously in need of follow-up medical attention, but he is regrettably still being detained at Lenggeng camp.

Conclusion and Demands

We remain gravely concerned about conditions in detention centers and prisons. Detainees have reported problems of overcrowding, lack of adequate access to health care, unsanitary environments, abuse by guards – problems that the Home Minister admitted still exist. Children, mothers, pregnant women and other vulnerable individuals are also being subjected to such conditions. The government cannot pretend to respect fundamental human rights and observe its obligations under the Convention on the Rights of the Child (CRC) and Convention on the Elimination of all kinds of Discrimination Against Women (CEDAW) while it is subjecting children and women to harsh detention conditions. Malaysia cannot sit on the United Nations Human Rights Council and violate the rights of the most vulnerable people in its own backyard.

We therefore urge the immigration department:

1. To immediately and unconditionally release from detention all asylum-seeker children, mothers, pregnant women and other vulnerable individuals

2. To provide meaningful protection and appropriate assistance such as medical care to children and pregnant women in accordance with the obligations under the CRC and CEDAW

3. To take appropriate measures to ensure full observation of the international human rights obligations under the CRC and CEDAW, and other relevant human rights instruments

4. To strictly refrain from arresting and detaining children and women seeking asylum in Malaysia in the future

5. To cooperate with appropriate local and international agencies in protecting children and vulnerable women

6. To support the ratification of the Convention Relating to the Status of Refugee and recognize the mandate of the United Nations High Commissioner for Refugees in Malaysia in the protection and care of refugees and asylum seekers.

*

List of Asylum Seeker CHILDREN Detainees

List of Pregnant Women and Mothers

* There may be more pregnant women and mothers at other detention camps whom we could not reach