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The Human Rights of Stateless Rohingya in Malaysia

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The Human Rights of Stateless Rohingya in Malaysia EQUAL RIGHTS TRUST IN PARTNERSHIP WITH THE INSTITUTE OF HUMAN RIGHTS AND PEACE STUDIES, MAHIDOL UNIVERSITY Equal Only in Name The Human Rights of Stateless Rohingya in Malaysia London, October 2014 The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. The Trust focuses on the complex relationship between different types of discrimination, developing strategies for translating the principles of equality into practice. The Institute of Human Rights and Peace Studies (IHRP) was created by a merger between Mahidol University’s Center for Human Rights Studies and Social Development (est. 1998) and the Research Center for Peace Building (est. 2004). IHRP is an interdisciplinary institute that strives to redefine the fields of peace, conflict, justice and human rights studies in the Asia Pacific region and beyond. © October 2014 Equal Rights Trust and Institute of Human Rights and Peace Studies, Mahidol University © Cover Design October 2014 Shantanu Mujamdeer / Counterfoto © Cover Photograph Saiful Huq Omi Design and layout Shantanu Mujamdeer / Counterfoto Printed in the UK by Stroma Ltd. ISBN: 978-0-9573458-1-2 All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by other means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Centre, USA. Equal Rights Trust 314 ‐ 320 Gray's Inn Road London WC1X 8DP United Kingdom Tel. +44 (0) 207 610 2786 [email protected] www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England, and a registered charity. Company number 5559173. Charity number 1113288. This report has been prepared with the financial assistance of the European Union. The contents of this report are the sole responsibility of the Equal Rights Trust and the Institute of Human Rights and Peace Studies, Mahidol University and can in no way be taken to reflect the views of the European Union. [T]he pattern of widespread and systematic human rights violations in Rakhine State may constitute crimes against humanity as defined under the Rome Statute of the International Criminal Court (…) [E]extrajudicial killing, rape and other forms of sexual violence, arbitrary detention, torture and ill-treatment in detention, denial of due process and fair trial rights, and the forcible transfer and severe deprivation of liberty of populations has taken place on a large scale and has been directed against the Rohingya Muslim population in Rakhine State (…) [T]he deprivation of healthcare is deliberately targeting the Rohingya population, and (…) the increasingly permanent segregation of this population is taking place. Furthermore (…) these human rights violations are connected to discriminatory and persecutory policies against the Rohingya Muslim population, which also include ongoing official and unofficial practices from both local and central authorities restricting rights to nationality, movement, marriage, family, health and privacy. Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar, Human Rights Council, 25th Session, 2 April 2014, A/HRC/25/64, Para 51 I believe that Malaysia will recognise refugees (…) I don't know why in my heart I believe in this, but I do. Sharifah Binti Hussein, Rohingya refugee in Malaysia Quoted in Jennifer Pak, “Rohingya Muslims want to call Malaysia home”, BBC News, June 2012 Equal Only in Name TABLE OF CONTENTS ACKNOWLEDGEMENTS ACRONYMS 1. INTRODUCTION 1 1.1. Purpose and Structure of This Report 1 1.2. Conceptual Framework and Research Methodology 3 1.3. The Rohingya 5 1.3.1. Ancestral Roots 5 1.3.2. Ethnic Identity 6 1.3.3. Arbitrary Deprivation of Nationality 8 1.3.4. Since the Violence of 2012 11 1.3.5. Overseas Rohingya 13 1.4. The Rohingya in Malaysia 13 1.5. Common Themes and Challenges 17 1.5.1. Protracted Statelessness and Lack of a Legal Status 17 1.5.2. Equality and Non-Discrimination 19 1.5.3. Forced Migration, Trafficking and Smuggling 20 2. THE INTERNATIONAL LEGAL FRAMEWORK 21 2.1. A Regional Overview 21 2.2. Malaysia’s Obligations under International Law 23 2.3. Equality and Non-Discrimination 24 2.4. Statelessness and Refugee Law 27 2.5. The Role of the UNHCR 33 Equal Only in Name 3. PATTERNS OF DISCRIMINATION AND INEQUALITY 38 3.1. Displacement and Migration Patterns of the Rohingya 38 in Malaysia 3.1.1. New Arrivals: The Sea Journeys of Rohingya “Boat 38 People” 3.1.2. Long-term Population: Overland Routes to Malaysia 45 3.2. Arrest, Detention and Deportation 47 3.2.1. Malaysian Responses to Anti-Rohingya Violence in 54 Myanmar since June 2012 3.2.2. Human Trafficking and Smuggling 56 3.3. The Exclusion of Rohingya Children 63 3.3.1. The Right to an Identity – Birth Registration and Nationality 65 3.3.2. The Right to Education 68 3.3.3. The Right to the Highest Attainable Standard of Health 70 3.4. Denial of the Right to Work and Resulting Vulnerabilities 74 3.5. Other Rights 78 3.5.1. Access to Adequate Housing 78 3.5.2. Marriage and Family Life 79 3.5.3. Death and Burial 82 4. CONCLUSIONS AND RECOMMENDATIONS 83 BIBLIOGRAPHY 93 Equal Only in Name ACKNOWLEDGEMENTS This report is published by the Equal Rights Trust, in partnership with the Institute of Human Rights and Peace Studies, Mahidol University (IHRP). It is one of the outputs of a collaboration to engage in multi- country research and advocacy to strengthen the human rights of stateless Rohingya, which began in March 2011 and will continue at least until December 2016. The multi-country project research team was led by Dr Sriprapha Petcharamesree (IHRP) and Amal de Chickera (Equal Rights Trust) with support from Natalie Brinham and additional advice and guidance from senior project advisor Stefanie Grant and the Equal Rights Trust Executive Director Dr Dimitrina Petrova. The project research team met regularly to identify and agree research areas, to adopt the research methodology and to exchange information, cross-check research and share analysis. Thus, the Malaysia report and the Malaysia research team benefited from and also contributed to the wider research team, who are consequently acknowledged in this report. The key researchers were Ferdousi Akter (Bangladesh), Prof Kamarulzaman Askandar and his team (Malaysia), Natalie Brinham (Malaysia, Myanmar, Thailand and general desk research), Vivienne Chew (Malaysia), Jennifer Clement (Malaysia), Dr Uttam Das (Bangladesh legal research), Ranajit Dastidar (Bangladesh), Cornelia Epuras (Saudi Arabia legal research), Shohan Ekramul Kabir (Bangladesh and Myanmar), Abul Kalam (Bangladesh), Bo Bo Lansin (Myanmar), Libby McVeigh (Bangladesh legal research), Saiful Huq Omi (Bangladesh, Malaysia and general research), Nicole Ostrand (Thailand and general desk research), Pei Palmgren (Thailand), Eric Paulsen (Myanmar and Malaysia), Nimer Sultany (Saudi Arabia), Yanuar Sumarlan (Indonesia) and Veerawit Tianchainan (Thailand legal research). There were additional researchers for Saudi Arabia and Myanmar who remain anonymous for reasons of safety. Special thanks to Nicole Ostrand for her efficient coordination of research team meetings. All staff of the Equal Rights Trust contributed to the smooth running of the project and the publication of this report. They include Jim Fitzgerald who helped with project related advocacy, Sarah Pickering who helped with launching and disseminating the report and other project outputs, Equal Only in Name Joanna Whiteman, Jade Glenister and Richard Wingfield who helped with proof reading and finalisation of this report and Anne Muthee and Jeana Vuma who were responsible for the financial management of the project. The initial field research for Malaysia was overseen by Dr Sriprapha Petcharamesree and carried out by Prof Kamarulzaman Askandar and his team of researchers from Universiti Sains Malaysia. Additional field research was carried out by Natalie Brinham. The research material produced by Prof Askandar and his team was drafted into this report by Vivienne Chew and Jennifer Clement, who also carried out additional field and desk research, primarily for the purposes of updating the existing research and plugging any gaps. The report was edited and finalised by Natalie Brinham and Amal de Chickera, with a final edit and authorisation for publication coming from Dimitrina Petrova. The research was reviewed at several stages, including at the final stage, where an in depth review was carried out by Dr Sriprapha Petcharamesree, Stefanie Grant, Chris Lewa of the Arakan Project and others. We are grateful to all reviewers for their feedback which has strengthened this report. The project team would like to thank the many interns and volunteers who helped with desk research throughout the project. In particular, we would like to thank Coralie Aboulfouioud, Arendse Baggesen, Adele Barzelay, Gayathri Fonseka, Aditi Mittal, Kimberley Ong, Jason Tucker and Jackie Tumwine. Throughout the project implementation period, the Equal Rights Trust and IHRP have become indebted to many individuals and organisations that have made both the research and publication of this report as well as related project activities possible. The immense contribution of the Arakan Project, which generously gave of its time, expertise and contacts throughout the project, is gratefully acknowledged. The input of Chris Lewa, Director of the Arakan Project when this project was being conceptualised, her participation in project research meetings and contribution to identifying research issues, the sharing of Rohingya community contacts, being interviewed and sharing Equal Only in Name material as part of the research process and the review of report drafts has significantly influenced and improved the project and its outputs. Similarly, the joint advocacy carried out by the Equal Rights Trust and the Arakan Project must also be acknowledged.
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