ADVOCACY FOR ASYLUM-SEEKING AND REFUGEE WOMEN IN MALAYSIA AT THE CEDAW COMMITTEE’S 69TH SESSION
MTYBA INTERN AWARD WINNER 2017
1 MARCH 2018
Asylum-seeking and refugee women in Malaysia live in perilous conditions, experiencing continuous and grave human rights violations. They are detained in terrible conditions, suffer abuse and exploitation and endure severe restrictions to their access to justice, healthcare and safe employment. The Malaysian government (‘the Government’) is currently under review by the UN Committee on the Elimination of Discrimination against Women (‘CEDAW Committee’) with respect to its compliance with the Convention on the Elimination of Discrimination against Women (‘CEDAW’) in the 69th session of the CEDAW Committee, which began earlier this month. CEDAW is one of only three UN human rights treaties ratified by Malaysia (and there are nine in total). Given that Malaysia has not signed the 1951 Refugee Convention, the CEDAW mechanism is one of the only instruments through which activists, non-governmental organisations and national human rights institutions on the ground may lobby the government for better human rights protection for women in Malaysia on an international platform. Through the operation of the CEDAW Committee’s General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women (‘General Recommendation 32’), asylum-seeking, stateless and refugee women fall within the scope of CEDAW.
This essay will provide an overview of the submissions made to the CEDAW Committee during its 69th session on the issue of asylum-seeking and refugee women in Malaysia. Four key issues were raised: detention and non-refoulement, sexual and gender-based violence and access to justice, health care and employment. At the time of writing, the CEDAW Committee has yet to publish its Concluding Observations on Malaysia, so it remains to be seen how strongly these issues will be reflected in the outcome of the current review of Malaysia, and consequently, how much the situation will change in the coming years.
At the end of November 2017 there were 152,420 refugees and asylum seekers registered with the office of the United Nations High Commissioner for Refugees (UNCHR) in Malaysia. The majority of these are Rohingya women, who are also stateless. In spite of housing such a large refugee population, Malaysia is not a signatory to the Refugee Convention 1951 or its 1967 Protocol, and there are no formal legal or administrative frameworks which protect refugees and asylum seekers within its jurisdiction. As the Government has repeatedly declared, there is no separate category for asylum seekers entering Malaysia – all migrants are treated alike and refugees are not recognised as being a legitimate category within the broad scheme of undocumented and/or illegal migrants. This is reflected in the domestic Immigration Act 1959.
The Government does, however, permit the UN Refugee Agency (UNHCR) to conduct a process of refugee status determination through which asylum seekers may be registered within the UNHCR system, and their refugee claims are assessed to determine whether they meet the criteria for refugee status under the Refugee Convention. Individuals who are granted refugee status through this UNHCR procedure are provided with UNHCR identification cards, and the Government has said that individuals in possession of these cards will not be arrested or detained. It is of note, however, that UNHCR identification cards do not permit access to affordable healthcare, legal employment opportunities or education (apart from that which may be provided through non-governmental organisations and charities).
Detention and non-refoulement
The Government detains asylum-seeking and refugee women for immigration-related offences. Women who have received refugee status through the UNHCR procedure remain vulnerable to arrest and detention. According to CEDAW articles 1, 2 and 12, the Government is obliged to provide for the specific needs of asylum-seeking and refugee women and ensure that they are treated with respect. This is far from being the case – the situation on the ground shows that conditions in immigration detention centres are deplorable, and this is particularly dire for women as their specific health care needs and vulnerabilities are not addressed. Distressingly, they are also vulnerable to sexual and gender-based violence perpetrated by immigration officers and staff while in detention.
Non-refoulement is a key principle of international law and carries significant weight in the context of asylum and refugee law. As summarised by the UNHCR, ‘the principle of non-refoulement under international refugee law … prohibits the expulsion or return in any manner whatsoever of a refugee or of an asylum-seeker to a country where they may be at risk of persecution.’ Within international human rights law, ‘non-refoulement obligations … preclude [the] removal [of an individual] to a risk of torture and other serious human rights violations.’ The Government recently asserted to the CEDAW Committee that it adhered to this principle; however, distressing reports made to non-governmental organisations on the ground indicate that this is not the case.
Sexual and gender-based violence and access to justice
CEDAW article 15 requires equality before the law, and this encompasses access to justice. CEDAW articles 2(d) and 2(e) obliges state parties to ensure that women are protected against discrimination instigated by non-state actors. Applying these provisions to asylum-seeking and refugee women, state parties
‘must take steps to eliminate discrimination against women in the public and private spheres and should confirm women’s equality with men before the law. To this end, [s]tates should take positive measures to ensure that women are ... provided with effective legal protection, throughout the asylum process, including by providing legal aid, legal representation and assistance, as necessary.’
Asylum-seeking and refugee women experience sexual and gender-based violence in a variety of contexts. As stated above, this includes while in immigration detention centres. Asylum-seeking and refugee women do not have access to legal aid for sexual and gender-based violence they routinely experience in the home, workplace and through forced prostitution and forced marriage.
Access to formal employment
The Government has obligations to provide asylum-seeking and refugee women with sources of livelihood and employment opportunities as this is provided for in CEDAW article 11, General Recommendation 32, ASEAN Human Rights Declaration article 27(1), Cairo Declaration on Human Rights in Islam article 13 and the Universal Declaration on Human Rights articles 17-19.
Asylum-seeking and refugee women are forced into the informal labour market owing to their lack of legal status. They are at heightened risk of exploitation taking various forms, including sexual and gender-based violence, withheld wages, unsafe or unreasonable working conditions and unfair dismissal. There are additional dangers for asylum-seeking and refugee women travelling to and from the work place, including the risk of arbitrary arrest and detention.
Where women are unable to find employment in the informal labour market, their lack of income ‘exacerbates risk of exploitation, contributes to marginalisation and can also lead to negative coping mechanisms such as survival sex or early marriage.’
The Government has launched a pilot project which has given 300 Rohingya men permission to work in the plantation and manufacturing sectors. There have been no such efforts with respect to asylum-seeking and refugee women and this issue was raised by SUHAKAM, the Malaysian national human rights institution, during the CEDAW Committee’s 69th session.
Access to health care
General Recommendation 32 makes it clear that CEDAW article 12 encompasses state parties’ obligations to ensure that asylum-seeking and refugee women have access to affordable health care which is appropriate to their needs. This includes sufficient nutrition during pregnancy and lactation.
Asylum seekers and refugees in Malaysia are not prevented from accessing health care services by law. Individuals who have bene recognised as refugees by the UNHCR through its refugee status determination process are entitled to a discount on public health care services. Even with this discount, the cost of health care for asylum seekers and refugees constitutes an enormous barrier to accessing health care, especially given their inability to work legally in Malaysia. For asylum-seeking and refugee women, this means that they are unable to address the risks of health problems specific to them, ‘including pregnancy complications, pregnancy-related death and infant disease or death.’
The foregoing demonstrates the dire situation of asylum-seeking and refugee women in Malaysia. One of very few channels open to advocates for their rights on the ground is the mechanism through which CEDAW is enforced, and four key issues were highlighted as being of particular significance with respect to Malaysia’s failure to stand by its obligations to ensure the protection of asylum-seeking and refugee women under CEDAW. The extent to which the Committee’s 69th session will impact upon the Government’s putting in place a legal framework for their protection remains to be seen.
 Malaysia has ratified the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities.
 Convention Relating to the Status of Refugees (and the Protocol Relating to the Status of Refugees 1967)
 UN Committee on the Elimination of Discrimination Against Women, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, 5 November 2014, CEDAW/C/GC/32, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N14/627/90/PDF/N1462790.pdf?OpenElement
 Asylum Access Malaysia, Independent Shadow Report to the Committee on the Elimination of Discrimination against Women, January 2018, available at http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/MYS/INT_CEDAW_NGO_MYS_30014_E.pdf (‘AAM Shadow Report’); Asylum Access Malaysia, Annex to the Independent Shadow Report to the Independent Shadow Report to the Committee on the Elimination of Discrimination against Women, January 2018, available at http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/MYS/INT_CEDAW_NGO_MYS_30015_E.pdf (‘AAM Annex’); For all submissions made by Malaysian NGOs and NHRIs please see OHCHR Treaty Body Internet at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/TBSearch.aspx?Lang=en&CountryID=105&TreatyID=3
 UNHCR, Figures at a Glance in Malaysia, available at http://www.unhcr.org/figures-at-a-glance-in-malaysia.html
 Replies of Malaysia, CEDAW Committee 69th session, November 2017, CCEDAW/C/MYS/Q/3-5/Addendum, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fMYS%2fQ%2f3-5%2fAdd.1&Lang=en, para 11
 According to the Refugee Convention article 1(A)(2), a refugee is any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
 The Official Portal of the Parliament of Malaysia, House of Representatives, Official Statements – 4 April 2017, available at http://www.parlimen.gov.my/hansard-dewan-rakyat.html?uweb=dr&arkib=yes, page 15 (translation): ‘Dato’ Seri Dr Shahidan bin Kassim: […] For the period in which they remain here, holders of UNHCR cards in Malaysia … will not be denied freedom of movement … and will not be arrested unless they are involved in criminal activity or break national laws; (ii) will not be return to their countries of origin in line with the principle of non-refoulement except voluntarily or if the country of origin achieves peace; (iii) will not be denied rights to visit public hospitals/clinics and will receive a 50 per cent discount for treatment as per the expatriate fee; and (iv) vaccinations for children will be free and they will be allowed to receive education from UNHCR, NGOs and the refugee community.’
 AAM Shadow Report, p4
 AAM Shadow Report pp 4-7
 AAM Shadow Report, p7
 UN High Commissioner for Refugees (UNHCR), Guidance Note on safeguards against unlawful or irregular removal of refugees and asylum-seekers, January 2014, available at: http://www.refworld.org/docid/530afbd84.html, para 4
 CEDAW Committee Consideration of Malaysia, 69th session, 1573rd meeting, available at http://webtv.un.org/meetings-events/human-rights-treaty-bodies/committee-on-the-elimination-of-discrimination-against-women/
 AAM Shadow Report, p8
 General Recommendation 32, para 32
 Erica Holzapfel and Diane Paul, on behalf of the US Department of State, Evaluation Report: Evaluating the Effectiveness of Gender Based Violence Prevention Programs with Malaysia, 2013, available at https://www.ecoi.net/en/file/local/1111390/1226_1441694758_233056.pdf; Jonathan Vit, Rohingya Girls for Sale: Malaysia’s Forced Marriage Problem, 2016, available at https://www.vice.com/en_id/article/bn375z/rohingya-girls-for-sale-malaysias-forced-marriage-problem
 General Recommendation 32, para 33
 International Rescue Committee, In Search of Survival and Sanctuary in the City: Refugees from Myanmar/ Burma in Kuala Lumpur, Malaysia, 2012: In a 2012 survey conducted by the International Rescue Committee involving 1,003 refugee respondents, including women, just over 30% reported experiencing abuse in the workplace. Of these, 80% reported unpaid wages or receiving only partial wages; 42% experienced verbal abuse; 15% suffered from an injury in the workplace; 15% had been dismissed without reason; and, 6% suffered from physical abuse, with employers committing most of these abuses.
 UNHCR, Age, Gender and Diversity Accountability Report 2014, available at: http://www.ecoi.net/file_upload/1930_1436957479_55a61f794.pdf and http://www.unhcr.org/548180b69.pdf
 AAM Annex p11; UNHCR, Age, Gender and Diversity Accountability Report 2014, available at: http://www.ecoi.net/file_upload/1930_1436957479_55a61f794.pdf and http://www.unhcr.org/548180b69.pdf
 World Bulletin, Malaysia mulls opening job market to Rohingya refugees, 17 November 2015, available at http://www.worldbulletin.net/todaysnews/166421/malaysia-mulls-opening-job-market-to-rohingya-refugees; AAM Annex p11
 Informal public meeting between the CEDAW Committee and NGOs/NHRIs, 19 February 2018, available at http://webtv.un.org/meetings-events/human-rights-treaty-bodies/committee-on-the-elimination-of-discrimination-against-women/69th-session/watch/information-meeting-with-ngos-and-hris-1571st-meeting-69th-session-committee-on-the-elimination-of-discrimination-against-women/5736652519001
 AAM Annex p18; General Recommendation 32, paras 33, 48
 AAM Shadow Report p7; Women’s Refugee Commission, Livelihoods Facts and Figures, available at: https://www.womensrefugeecommission.org/empower/resources/practitioners-forum/facts-and-figures