By Yulida Nuraini Santoso and Gading Gumilang Putra
Human rights groups worldwide are startled by the regression of support towards refugees and asylum seekers. Malaysia had recently deported over 1000 migrants to Myanmar, notwithstanding Kuala Lumpur High Court orders to stop repatriation in fear of further persecution upon arrival temporarily. This number includes a number of the United Nations High Commissioner for Refugees (UNHCR) identified persons of concern (POC) belonging to five ethnic minorities facing persecution in Myanmar. Despite claims that the deportees excluded refugees and asylum seekers and that all had agreed to return voluntarily, the truth remains that Malaysia has hindered international human rights organizations from accessing its immigration detention centers since August 2019. There is no clarity regarding the status of the deportees and the motive behind such a decision.
Malaysia has yet to ratify the 1951 Refugee Convention. It does not recognize asylum seekers nor refugees but has allowed a large population to stay on humanitarian grounds. It hosts at least 175,000 refugees and asylum seekers, most of whom come from Myanmar but have not been granted any legal status and remain unable to work or enroll in government schools. Due to this, refugees and asylum seekers who have been granted entrance have been detained as “illegal migrants” and face the risk of being deported despite being registered by the UNHCR as Persons of Concern (POC). In the past, Malaysia has also been known to refusing the arrival of boats carrying desperate Rohingya refugees when its neighboring recipient country, Indonesia, decided to welcome them in Aceh. Malaysia claims this was necessary to prevent the further spread of COVID-19.
Myanmar recently peaked in headlines due to the coup d’état. In early February, the military seized control after the general election won Aung San Suu Kyi’s National League for Democracy (NLD) party. This caused the military-backed opposition to claim that the results were frauds. With the military now in power and the recent deportation setting a precedent, we question why ASEAN has continuously failed to address this recurring problem? Despite Suu Kyi’s popularity, the civilian government has repeatedly refused to cooperate meaningfully with UN rights investigators’ pursuit of accountability for violations, including the persecution of refugees and asylum seekers causing them to flee. To this end, what workable actions can international communities take part in to move the issue of refugees and asylum seekers higher on the agenda of ASEAN policymakers?
The ASEAN Intergovernmental Commission on Human Rights (AICHR) is the only body to respond to the growing issue of refugees. The body was officially inaugurated in October 2009 with the initial focus on human rights promotion, but not the investigation of complaints of human rights violations. Being the first and a milestone for ASEAN at the time, it was deemed “the most prominent regional cooperation group in [South] East Asia”. However, little has been done to develop a coordinated, comprehensive, and actionable plan that addresses both the proximate problems, such as the ongoing boat crisis and root problems concerning the Rohingya, to this day. Many argue that the root cause for the lack of response is influenced by the ASEAN Way. Others blame AICHR’s Terms of Reference (TOR), where a formal mandate to sanction human rights abusers is missing. Instead, it plays the role of mediator with civil society organizations (CSOs), formulates strategies to promote confirmation of international legal instruments, build capacities of member states, offer consultative services, and participate in conferences, discussions, and consultations.
Most of AICHR’s activities are held by organizations, forums, or networks that have helped them remain relevant, horizontally. However, these engagements are not as in-depth as most would prefer, as AICHR is restricted in the engagements they may conduct. To help, the ASEAN Coordinating Centre for Humanitarian Assistance (AHA Centre), the nearest ASEAN entity to resemble a working leg of ASEAN’s humanitarian approach, distributes relief or conducts need assessments where needed. Like AICHR, their mandate pivots on the consensus of all member states. Therefore, it is not a surprise that AICHR will continue to be questioned in the future if its TOR is not reviewed to include meaningful and workable clauses. The process of mainstreaming human rights in ASEAN is crucial as it depends on this. In the long run, it must establish itself as the most authoritative organ for human rights protection in the region if it wishes to remain relevant.
Nonetheless, there are several available opportunities to help remedy this situation. Firstly, to appropriately address the statelessness of Rohingya through ASEAN mechanisms, particularly the Committee of Permanent Representatives (CPR) from an international humanitarian point of view. The topic has been avoided mainly due to sensitivity. However, without appropriately responding to the core of the issue, namely persecution, refugees and asylum seekers will continue to live in limbo. In 2019, two high-level visits to Cox’s Bazar, Bangladesh, were conducted to conduct a Preliminary Needs Assessment (PNA). However, these visits were government-facilitated, focused on the repatriation without addressing the potential harm of further persecution, and had not consulted international humanitarian agencies working directly with refugees and asylum seekers themselves. As a result, the assessments have been heavily criticized by global humanitarian communities as being “misleading.”
Secondly, a regional instrument or body is to be established to provide protection specifically to refugees if any meaningful change is to occur. This body shall consult with experts, relevant agencies, CSOs, academics, and especially the refugee community to achieve solutions targeted at emergency responses, access to healthcare, livelihood initiatives, alternative pathways of migration, dignified repatriation, etc.
Thirdly, to call on states who have yet to grant access to international agencies, government social agencies, and NGOs for refugees/asylum seekers who are denied entry to the territory, the necessary legal representations. This should also include monitoring mechanisms for detainees.
Fourthly, to continue to work with governments through capacity-building programs on access to remedies and asylum. This can be aimed at judicial bodies, refugees, paralegals, and community interpreters.
Fifthly, to advocate for governments to consider providing civil documentation, such as birth certificates, and, further, to recognize the refugee status documented by the UNHCR. It is worth noting that the provision of birth certificates for refugees born in receiving countries is not necessarily a citizenship grant. It simply allows for protection and serves as a formal recognition of one’s refugee status.
Lastly, ASEAN must heighten its engagement with the public to address issues of refugees and asylum seekers. This includes partnerships with universities to create awareness and take part in protection measures and initiate solutions such as Model ASEAN meetings (MAM) initiated by the ASEAN Foundation. Governments can also consider issuing policies based on policy briefs, joint statements, Focus Group Discussions (FGDs), and consultations.
 Gamez, Kimberly Ramos. 2017. “Examining the ASEAN Intergovernmental Commission on Human Rights (AICHR): The Case Study of the Rohingya Crisis”. Tilburg University, Netherlands. Pg. 40 citation no. 157.
 Op.Cit. Pg. 7 citation no. 5.
 Up.Cit. Pg. 8 citation no. 13.
- Yulida Nuraini Santoso is the Managing Director of the ASEAN Studies Center at Universitas Gadjah Mada, with researches and areas of interest surrounding the ASEAN Political-Security Community and transnationalism. The researcher can be reached through firstname.lastname@example.org.
- Gading Gumilang Putra is the National Information and Advocacy Officer for Jesuit Refugee Service (JRS) Indonesia. His work includes advocacy for refugees and asylum seekers and can be contacted at email@example.com.