REGULATING REFUGEES: THE RELATIONSHIP BETWEEN REGIME TYPE

AND POLITICAL ASYLUM IN CHINA AND MALAYSIA

By Erica Lauren Seng Submitted to the Faculty ofthe School of International Service of American University

in Partial Fulfillment of the Requirements for the Degree of Master of Arts

In

International Affairs

Chair:

Dr. Pek Koon Heng

^O:0 Dr.~~ r YoungshikYniinashik BongRotip^^ Knu-y k) fatn> ¿_ Dean of the School of Internationalil ServiceServie

*/ fíjLL^LúJtiçq4M O??? Date

2010

American University Washington, D.C. 20016 AMERICAN UNIVERSITY LIBRARY ^CR- UMI Number: 1486727

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By

Erica L. Seng

2010

ALL RIGHTS RESERVED REGULATING REFUGEES

BY

Erica L. Seng

ABSTRACT

This study analyzes the impact that political regime type has on immigration and asylum policies. The following two hypotheses are tested: greater degrees of political centralization will determine the extent to which asylum policy can be successfully formed and implemented and that greater degree of political openness in a regime will lead to greater difficulty in successfully forming and implementing a coherent policy of asylum. In order to account for the sheer number of refugees within East Asia and to further the existing research on the impact of non-democratic regime on policy, I conduct a comparative case study between Burmese asylum seekers in the Federation of Malaysia, a hybrid regime, and North Korean asylum seekers the People's Republic of China, an authoritarian regime. My findings indicate that greater degrees of political decentralization and political openness do limit the creation and implementation of coherent immigration and political asylum policy measures.

Il ACKNOWLEDGEMENTS

I would like to express my respect for and gratitude to my advisor and second reader, Dr. Pek Koon Heng and Dr. Youngshik Bong for their valuable insights, guidance and, when necessary, the reality checks. A special thanks is also in order for American University Library for the use of their collections and for sharing their respective expertise, Emily Dunn for guiding me through the thesis registration and submission process, and the Office of the SIS Dean for their flexibility and patience during my time abroad. Finally,

I wish to thank my Mother and Father, Gary and Leslie Seng, for their love and moral support throughout my time at American University and long before.

in TABLE OF CONTENTS

ABSTRACT ii

ACKNOWLEDGMENTS iii

LISTOFILLUSTRATIONS vi

Chapter

I INTRODUCTION 1

Literature Review

Theoretical Framework

Research Methods

Summation and Overview

II RECOGNITION OF REFUGEE STATUS 49

The Origins of Refugee Rights Rising Barriers to Migration

Tensions between State and Refugee Rights in East Asia and Beyond Factors behind Forced Migration

Summation

III REGIME TYPE IN MALAYSIA AND CHINA 80

Federation of Malaysia

People's Republic of China

¡v Summation

IV IMMIGRATION AND POLITICAL ASYLUM POLICY IN MALAYSIA ANDCHINA 125

Federation of Malaysia People's Republic of China

Summation

V CONCLUSION 175

BIBILOGRAPHY 185

IV LIST OF ILLUSTRATIONS

Figures 2.1 Population of Concern from North Korea 64 2.2 Population of Concern from Burma 70 3. 1 The Federation of Malaysia's Polity Score 90 3.2 The Federation of Malaysia's Rating Constraints on Executive Power.. ..91 3.3 Degree of Political Openness in the Federation of Malaysia 102 3.4 Malaysia's Trade 103 3.5 The People's Republic of China's Polity Score 113 3.6 Constraints on Executive Power in the People's Republic of China 1 14 3 .7 Degree of Political Openness in the People' s Republic of China 117 3.8 People's Republic of China's Trade 121 4.1 Employed International Migrant Population in Malaysia 130 4.2 International Migrant Stock in Malaysia 132 4.3 Refugees in Malaysia by Country of Origin 135 4.4 Total Refugee Population in Malaysia 149 4.5 Composition of the Population of Concern in Malaysia 151 4.6 Net Migration in China 157 4.7 Total Refugee Population in the People's Republic of China 158 4.8 Refugees by Country of Origin in the People's Republic of China 159 4.9 Total Population of Concern in the People's Republic of China 168

Vl CHAPTER I

INTRODUCTION

The fundamental question that I seek to address is the relationship between the institutional structures and procedures of national governments and their responses to international challenges and crises. The implications that the rise of globalization have for sovereignty and the capacity of states remain a major source of contention within the literature of international studies. In order to better ascertain the manner through which states attempt to cope with the changing structure of the international system, I will trace the evolution of policy formation and implementation in response to challenges posed by one of the more controversial aspects of globalization: refugee flows. Immigration policies are devised by governments to facilitate the regulation of population flows across their respective national borders. Refugees and asylum-seekers pose a challenge to this traditional sovereign exercise. These individuals are forced to cross the borders of their countries of origin in order to escape persecution, general threats, and, in some cases, certain death. Their plight calls for humanitarian initiatives but their presence forces states to contend with complex and contradictory principles regarding their obligations as members of the international community and the rightful control of their own territory.

The concept of political asylum has been enshrined in international law since the end of World War II (see Chapter II for further discussion). In reality, states have not

1 always conformed to the standards of proper behavior, also known as norms, held by the international community. Many states have not ratified the Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. States, regardless of whether or not they have signed the aforementioned agrees, are forced to contend with forced migration. Hence, the immigration policies of non-signatory states are very relevant to the plight of refugees. The structure of the international system has undergone sweeping changes within the twenty year aftermath of the Cold War. Globalization has led to significant increases in international migration, both voluntary and forced. Although the majority of states have become increasingly receptive to the capital and financial flows associated with globalization, they have become increasingly resistant to population flows.2 These trends provide an interesting opportunity to examine the manner through which states seek to address international phenomenon. I focus on the impact that forced migration has on states and the ability of governments to regulate forced migration flows because it is a transnational phenomenon that must ultimately be resolved at the national level of governance. This thesis specifically analyzes the manner through which states generate their policies of immigration and political asylum, the potential effectiveness of these policies, the state's ability to implement the aforementioned policies, and the impact that these policies have on political asylum-seekers.

'Paul R. Viotti and Mark V. Kauppi, International Relations Theory: Realism, Pluralism, Globalism and Beyond, 3rd Edition, (Boston: Allyn and Bacon, 1999), 489. 2 Christopher W. Rudolph, "Globalization, Sovereignty and Migration: A Conceptual Framework," UCLA Journal ofInternational Law and Foreign Affairs, Vol. 3, No. 2, (Fall/Winter, 1998- 1999): 326.

2 I argue that the ability of states to formulate and effectively respond to influxes and steady flows of asylum seekers in a manner that is consistent with their desired policy objectives is contextualized by their political regimes type. My aim is to gain a more complete understanding of the ability of East Asian states to articulate and to enforce a coherent policy, yet the diversity of East Asian states requires me to limit the scope of my analysis. In order to explore the impact that regime type can have on these policies, I analyze the political regime types of two different East Asian regimes, the Federation of Malaysia and the People's Republic of China. I examine the impact that the regime type of these two state governments has on their policies of political asylum and immigration. I selected the specific cases of North Korean refugees in China and Burmese refugees in Malaysia. This study of regime types and political asylum policy will provide insight into a region where the state apparatus has often defied mutually exclusive classification into one of the traditional regime-type: democratic, authoritarian or totalitarian. Researching policy formation and implementation will shed further light on both the conception of sovereignty and the opportunities and obstacles that national governments face in the modern era. I test two main hypotheses that pertain to regime type:

1 . The degree of political centralization will determine the extent to which asylum policy can be successfully formed and implemented, with higher

levels of centralization being more conducive to policy formation, coherence and implementation.

3 2. The greater the degree of political openness within a particular regime type, the greater the difficulty there will be in successfully forming a

coherent policy of asylum and implementing it. My results indicate that political openness and decentralization of power limit the ability of states to articulate and to implement a policy that is consistent with the policy objectives of the policy elites. I will discuss these conclusions in greater length in

Chapter IV and Chapter V.

Literature Review

This literature review will be divided into three major sections. In the first section, I examine the existing research on refugees, political asylum and immigration. It highlights several of the main causal factors for refugee crises and immigration trends, the corresponding policies and their shortcomings, the major non-state actors and the existing analyses of immigration and asylum policies in East Asia. The second section provides an overview of the current literature on political regime type. I analyze three topics that have attracted the most attention from scholars on political regime type; regime typologies, the relationship between regime type and interstate conflict and regime transitions. My review confirms that research of the relationship between regime type and asylum policy would provide a valid contribution to the literature on both political regime type and refugee studies.

Political Asylum, Immigration and Refugee Crises The major themes on political asylum, immigration and refugees focus on the forces that give rise to migratory trends, the responses of receiving states and the role of

4 non-state actors. I also include a survey of recent studies that have been conducted on migrants in East Asia. This section is expanded to include an analysis of immigration given the general lack of institutionalized political asylum processes or policies in states that have not ratified the 1951 Convention relating to the Status of Refugees and/or that refuse to recognize individuals that qualify as refugees under international law. I seek to further the general knowledge of the relationship between institutional structure of political regimes and their policies of political asylum and immigration policies in Malaysia and China.

Sovereignty, Globalization and Population Flows

The literature on political asylum policy, globalization and sovereignty highlights a variety of different perspectives on the implications that population flows have on states' ability to control their sovereign territory; some argue that refugees are perceived to represent a challenge to the traditional notion of sovereignty while another contend that states' past failure to control their borders have not negated sovereignty. The very

3 Rudolph discusses the manner through which globalization has fundamentally altered migration and ensured that the domestic unit of analysis is insufficient for understanding the factors that determine immigration policy and population flows (p. 327). Claudia Tazreiter argues that control of the border is one of the central prerogatives of the sovereign state and that asylum-seekers are often characterized as a challenge to sovereignty Asylum Seekers and the State: The Politics ofProtection in a Security-Conscious World, (Burlington: Ashgate Publishing Company, 2004): 24-25). Saksia Sassen observes that the increasing interconnectedness of national economies has limited the policy autonomy states have in many policy domains, including immigration ("Regulating Immigration in a Global Age: A New Policy Landscape," Parallax, Vol. 11, No. 1, (January-March, 2005): 35). However, Alexander Betts concludes that refugees do not represent a challenge to the traditional notion of sovereignty since they given an inherently distinct classification from typical citizens and the very definition of refugees has been derived from the existing state-centric system (Forced Migration and Global Politics, (Chichester: Wiley- Blackwell, 2009), 58-59) and Diana Wong contends that state borders have historically been open to population flows ("The Rumor of Trafficking: Border Controls, Illegal Immigration and the Sovereignty of the Nation State," in Illicit Flows and Criminal Things, ed. Willem van Schendel and Itty Abraham (Bloomington and Indianapolis: Indiana University Press, 2005), 91).

5 authority of developing states is often perceived to be threatened by influxes of refugees. The traditional notion of sovereignty rests upon the assumption that states have complete authority over the territories in which they are based. Refugee influxes and asylum- seekers are often forced to cross international borders into neighboring states without proper documentation and without the prior consent of the receiving state. The norm of non-refoulement5 has been generally accepted by the international community, this means that any state that forcibly repatriate refugees runs the risk of being rebuked by fellow members of the international community for their actions. Although there are no clear mechanisms for the enforcement of international norms, states are members of the international community and cannot routinely flout accepted practices without provoking the ire of other members.6 Influxes of refugees and asylum-seekers constrain the abilities of the states to decide whom to admit into their borders. There is a general consensus in the literature that states have sought to restrict migratory flows, including political asylum-seekers.7

4 Gil Loescher, The UNHCR and World Politics: A Perilous Path, (Oxford: Oxford University Press, 2001), 16; Wayne A. Cornelius and Marc R. Rosenblum, "Immigration and Politics," Annual Review ofPolitical Science, Vol. 8, (2005): 110. 5 The term non-refoulement stipulates that asylum seekers cannot be forcibly repatriated to a country or territory that would place their survival in jeopardy, that states cannot interdict asylum seekers outside of their borders and that asylum seekers should not be prevented from crossing the border into a receiving state according to the United Nations High Commissioner for Refugees, Handbookfor Emergencies, 3rd Edition, (Geneva: UN High Commissioner for Refugees, 2007), 22. 6Viotti and Kauppi, 217. 7 Wayne A. Cornelius and Takeyuki Tsuda (2004) and Steve Herbert (2010) both make this observation (Wayne A. Cornelius and Takeyuki Tsuda, "Controlling Immigration: The Limits of Government Intervention," in Controlling Immigration: A Global Perspective, Second Edition, ed. Wayne A. Cornelius, Takeyuki Tsuda, Philip L. Martin and James F. Hollifield (Stanford: Stanford University Press, 2004), 4; Steve Herbert, "Contemporary Geographies of Exclusion II: Lessons from Iowa," Progress in Human Geography, Vol. 33, Issue 6, (December, 2009): 827). Nicola Piper highlights the fact that temporary migration policies have become prevalent throughout the world, designed to address labor

6 The end of the Cold War has not led to a decline in the number of individuals seeking political asylum or to a decline in the number of international migrants. Despite increases in political stability, population flows continue at high levels. Globalization has facilitated this trend. I adopt the definition of globalization as being the general decline of the barriers imposed by distance and the decrease in the amount of time necessary for actors to be influenced by non-local events and actions.9 Improvements in technology have led to innovation in transportation and the proliferation of information.10

This makes it far easier for individuals to cross international borders. Increases in the flow of international migration into developed countries have not been well received by the denizens of the aforementioned countries.11 This response is reflected in the general immigration policies and the political asylum policies of potential receiving states. Malaysia serves as an excellent example of this trend (discussed in Chapter IV). Many states have made further efforts to close the borders after the end of the Cold War.12

These increases in the national regulations of immigration are indicative of states' general objectives to exert greater control over their borders.

shortages but prevent permanent resettlement. (Nicola Piper, "Temporary Economic Migration and Rights Activism: An Organization Perspective," Ethnic and Racial Studies, Vol. 33, No. 1 , (January, 201 0): 110). 8 Alan Dupont, East Asia Imperiled: Transnational Challenges to Security, (Cambridge: Cambridge University Press, 2001), 153. 9 Ian Marsh, "Globalisation and Public Opinion in Western Europe and East and Southeast Asia," in Globalisation, Public Opinion and the State: Western Europe and East and Southeast Asia, ed. Takashi Inoguchi and Ian Marsh (New York: Routlege, 2008), 4. 10 Matthew J. Gibney, The Ethics and Politics ofAsylum: Liberal Democracy and the Response to Refugees, (Cambridge: Cambridge University Press, 2004), 9-10. 11 Cornelius and Rosenblum, "Immigration and Politics," 99. 12 Loescher, The UNHCR and World Politics, 16.

7 Although the specific policies of individual states may vary, their preferences of both developing and developed states have been to limit the access of refugees to political asylum.13 The Westphalia notion of sovereignty does not provide the necessary analytical framework to explain the phenomenon of political asylum-seekers. The traditional focus of security has been excessively centered on the security of the state rather than on the security of the individual.14 The inclination to prioritize local citizens over non-citizens is embedded within the structures of the states.15 Asylum seekers who have fled to states that have not acceded to international laws on refugee rights and recognition have difficulty obtaining legal redress for their plight. International law provides the right for individuals to leave their home states but provides no provision guaranteeing them entrance into another state.16 Sovereignty is one of the greatest barriers for individuals seeking freedom from persecution. This is an important insight gained from the theoretical paradigms of non-traditional security and human security.

13 Gil Loescher, Alexander Betts and James Milner, The United Nations High Commissionerfor Refugees (UNHCR): The Politics and Practices ofRefugee Protection into the Twenty-First Century, (London: Routledge, 2008): 100. 14 United Nations Development Programme, "Human Development Report, " (New York: Oxford University Press, 1994): 22, http://hdr.undp.org/en/reports/global/hdrl994/chapters/, (accessed April 11, 2010); Betts, identifies two major themes that characterize the field of human security: it recognizes that threats can be non-military in nature and stipulates that the security of individuals should be main focus rather than state security (p. 67); for a more in-depth discussion of the theoretical parameters of the school of human security, see Pauline Kerr, "Human Security," Contemporary Security Studies, ed. Alan Collins (Oxford: Oxford University Press, 2007), 92-107; Osier Hampson, "Human Security" in Security Strategies: An Introduction, ed. Paul Williams (New York: Routledge, 2008): 229-243 and William T. Tow and Rüssel Trood, "Linkages Between Human Security and Traditional Security," in Asia's Emerging Regional Order: Reconciling Traditional and Human Security, ed. William T. Tow Ramesh Thakur and In- Taek Hynn , (Tokyo: United Nations University Press, 2000): 13-32. 15 Gibney, 197. 16 "Universal Declaration of Human Rights," United Nations General Assembly in Paris on December 10, 1948, General Assembly Resolution 217 A (III): 74, http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx, (accessed March 30, 2010).

8 Immigration and Asylum Policies

The relationship between immigration policy and the patterns of migration has been well established in the literature.17 Immigration policies often determine the context of migration.18 Increasingly stringent restrictions on immigration have made legal migration far more difficult. This is true for both voluntary and forced migration. An increase in the overall number of illegal migrants has curtailed the willingness of governments to grant political asylum.19 The criminalization of migration and the increasing restrictions placed on the granting of asylum status has led to an increase in the number of asylum-seekers resorting to traffickers and other illegal methods. Strict immigration laws have not served to stem the flow of migrants, rather they have only served to increase the number of individuals migrating illegally.

Hein de Haas (2006) contends that the efforts of governments to seal off their borders, increase surveillance and encourage the sending state to better regulate population outflows has led to higher levels of illegal immigration, encouraged migrants to utilize different methods of entry (overstaying visas, overseas travel and varying points of entry to elude capture) and has led to human rights violations in sending states that ironically encourage immigration (Hein de Haas, "Trans-Saharan Migration to the EU: Historical Roots and Current Trends," Migration Policy Institute, ( November, 2006), http://www.migrationinformation.org/Feature/display.cfm?ID=484, (accessed April 25, 2010); Lynda Sanderson (2009) suggests that a reduction in the welfare in the receiving state that is available for migrant labor decreases the amount of time that migrants spend in said state (Lynda Sanderson, "International Mobility of New Migrants to Australia," International Migration Review, Vol. 43, Issue 2, (Summer, 2009): 316-317); Céline Nieuwenhuys and Antoine Pécoud (2007), Piyasiri Wickramasekara (2008), and Liana Sun Wyler, Alison Siskin and Clare Ribando Seelke (2009) all conclude that more restrictive measures against immigration lead to higher levels of illegal immigration (Céline Nieuwenhuys and Antoine Pécoud, "Human Trafficking, Information Campaigns, and Strategies of Migration Control," American Behavioral Scientist, Vol. 50, Issue 12, (August, 2007): 1687; Piyasiri Wickramasekara, "Globalisation, International Labour Migration and the Rights of Migrant Workers," Third World Quarterly, Vol. 29, No. 7, (2008): 1251; Liana Sun Wyler, Alison Siskin and Clare Ribando Seelke, "Trafficking in Persons: U.S. Policy and Issues for Congress," Congressional Research Service, (June 8, 2009): 4). 18 Cornelius and Rosenblum, "Immigration and Politics," 112. 19 Loescher, The UNHCR and World Politics, 15-16. 20Koser Khalid, "Asylum Policies, Trafficking and Vulnerability," International Migration, Special Issue (2000/2001): 106.

9 Declining public support for immigrants and asylum-seekers has also not limited population flows. There has been a noticeable increase in the level of hostility to immigrants in countries that receive large in-flows of migrants.21 Government controls

99 have not kept pace with the domestic demand for higher barriers to immigration. This indicates that many states have not been able to effectively devise a policy to regulate population flows. Immigration trends are mainly determined by structural factors (such as international factors, interest groups and political institutions) and past policy. States' reliance on their past policies, their failure to comprehend the structural barriers to the implementation of immigration policy, and the fact that many states have not accounted for the structural changes in the international system has severely curtailed the effectiveness of their immigration policies. National governments have a tendency to focus more on national security than on human security.24 States regulate from a national perspective while the forces that drive

9S international migration are transnational in nature. The priorities for a state are often grounded in domestic concerns. As a result, states' policies of granting refugee status have been unduly influenced by economic considerations, concerns regarding national security, diplomatic constraints and public opinion. Oft Political asylum policy has not

21 Cornelius and Tsuda, "Controlling Immigration," 19. 22 Cornelius and Rosenblum, "Immigration and Politics," 100. 23Ibid., 106-110. 24 This observation is one of the fundamental assumptions of the school of human security. For a more detailed discussion, please refer to the literature on the human security discussed in footnote 14. 25Stephen Castles, "Why Migration Policies Fail," Ethnic and Racial Studies, Vol. 27, No. 2, (March 2004): 212. 26 Gibney, 195.

10 provided a clear and consistent means for states to recognize and curtail abuses of the asylum system. The distinction between forced and voluntary migrations is difficult to discern, given the fact that many are faced with similar incentives for migration.27 Although Matthew J. Gibney (2004) and Wayne A. Cornelius and Marc R. Rosenblum (2005) both recognize the role that domestic constraints have in the formation of effective immigration and political asylum policy, they do not describe the causal mechanisms behind these domestic constraints. Instead of providing an empirical argument on the shortcoming of states' policies, they merely assume the role of domestic factors, including the political openness of the national government, the variation between the policy formation processes of different countries, the extent to which national governments are able to enforce the law. The structure of the ruling regime has not been sufficiently incorporated into the analysis of the current literature.

The Role of Civil Society and the International Community in the Formation of National Asylum Policy and the Protection of Asylum Seekers

A substantial portion of the literature is dedicated to the role that civil society performs for refugees and asylum-seekers. The success of non-state actors is evaluated based upon their ability to provide material and ideational support to refugees and to exert influence over the receiving states. This analysis is focused on the role that the

United Nations High Commissioner for Refugees (UNHCR) and non-governmental

27 Peter Stalker, Workers without Frontiers: The Impact of Globalization on International Migration, (Boulder: Lynne Rienner, 1999) and Kristof Tamas, Mapping Study on International Migration, (Institute for Future Studies Stockholm, 2004) as cited in Cornelius and Rosenblum, "Immigration and Politics," 102. 28 For a more complete conceptualization of the role of transnational advocacy networks in socializing nation-states to international norms, see Thomas Risse, Stephen C. Ropp and Kathryn Sikkink, ed. The Power ofHuman Rights: International Norms and Domestic Change, (Cambridge: Cambridge University Press, 1999).

11 organizations (NGOs) have in the proliferation political asylum norms and providing emergency assistance and protection. The creation of norms takes place in a multitude of distinct yet not mutually exclusive spheres among local, national, transnational and international actors and collectives; these different spheres influences the variation of interpretations and the enforcement of norms at the national level. In the first half of this section I analyze the constructivist interpretation of the role that international and local members of civil society play in the protection of refugees. Constructivist theory provides a clear explanation of the relationship between international norms and national policy. This school of thought argues that these collectives help to generate the norms of political asylum and refugee rights and to socialize states through advocacy and the provision assistance. This perspective focuses on the link between advocates and their ability to convince other international actors to adopt their perspectives. The second section of the literature review focuses on the actual performance of these collectives in crises situations. The role that civil society holds in the process of policy formation and their general ability to provide for the material needs of refugees provides important insights into states policy positions. The concept of moral authority is often invoked by analysts to explain the ability of NGOs and the UNHCR to influence policy despite their lack of formal enforcement mechanisms. These organizations' ability to influence states' policies is due to their moral authority, an authority that is derived from their mandate to promote the public

29 Jane Freedman, "Protecting Women Asylum Seekers and Refugees: From International Norms to National Protection," International Migration, Vol. 48, Issue 1, (February, 2010): 182.

12 good.31 The UNHCR encourages state compliance with international norms of refugee rights.32 These organizations are able to encourage state compliance by virtue of the purity of their mandates and their expertise in the field. The UNHCR has significant moral authority but lacks concrete political authority.33 This lack of concrete political authority has not prevented it from influencing states' political asylum policies. It has been able to influence states through socialization and by the distribution of humanitarian aid.34 NGOs have been able to exert similar levels of influence through similar means. The total impact of the influence that moral authority has on the creation of asylum policy has yet to be fully determined within the literature. Analysts also recognize several constraints that limit this authority for both the UNHCR and NGOs. States ultimately determine which norms to incorporate into their national policies. An increasingly large number of international NGOs have begun to rely on government funding for their efforts to protect refugees, leading to challenges to NGOs' claims to moral authority and has led NGOS to increase their efforts to remain visible to potential donors.36 This hurts the image of NGOs as neutral arbitrators and advocates. The UNHCR continues its efforts to create, implement, and enforce international norms of

31 Thomas Risse, "Transnational Governance and Legitimacy," unpublished working paper, Freie Universitaet Berlin: Centre for Transatlantic Foreign and Security Policy, (February 17, 2004), http://userpage.fu-berlin.de/~atasp/texte/tn_governance_benz.pdf, (accessed April 13, 2010). 32 Gil Loescher, "A Universal Mandate to Protect: The Challenges of Refugee Protection," Harvard International Review, (Fall, 2009): 46. 33 Loescher, The UNHCR and World Politics, 1 . 34 Ibid., 6. 35Freedman, 183. 36 Elizabeth G. Ferris, "The Role of Non-Governmental Organizations in the International Refugee Regime," in Problems ofProtection: The UNHCR, Refugees and Human Rights, ed. Niklaus Steiner, Mark Gibney and Gil Loescher , (New York: Routledge, 2003), 123.

13 asylum but its influence has declined during the 1980s due to states' reassertion of their sovereignty.37 Moral authority has not guaranteed that civil society will be able to protect refugees. Another major thread in the research on the role of NGOs and the UNHCR focuses on the efforts of these institutions to provide for refugee relief. The early efforts of NGOs included the provision of material assistance and advocacy on behalf of refugee needs and rights.38 One of the main constraints on the ability of international institutions to assist refugees is sovereignty. NGOs must act within the confines of the host government in which they are operating.39 A tension exists for the UNHCR between protecting refugees without challenging the sovereignty of states.40 These institutions require the approval of the receiving state to be able to operate within its (the state's) borders. The ability of the UNHCR to provide political asylum is also dependent upon the willingness of the state to recognize refugees and to grant asylum. Given the fact that states have become increasingly resistant to granting asylum and the costs imposed by the high volume of refugees more generally, repatriation has become an integral part of the UNHCR's efforts to resolve refugee crises during the 1990s.41 Other major constraints on the efforts of these institutions are the difficulties that they have finding funding and coordinating between multiple institutions during refugee crises. The UNHCR often

37 Loescher, The UNHCR and World Politics, 5. 38Ferris, 120. 39Yukie Osa, "The Role of Japanese NGOs in the Pursuit of Human Security: Limits and Possibilities in the Field of Refugees," Japan Forum, Vol. 15, Issue 2, (September, 2003): 251. 40 Loescher, The UNHCR and World Politics, 2. 41 Ibid., 17.

14 relies on NGOs for the implementation of refugee programs, yet its budgetary constraints have led to tensions in these relationships.42 Sovereignty, budgetary constraints and coordination problems limit the capacity of NGOs and the UNCHR to provide relief efforts for refugees.

Immigration and Political Asylum in East Asia The relationship between immigration patterns and government restrictions in East Asia conforms to trends seen at the global level. Government policies aimed at restricting the entry of unskilled laborers has driven up the rates of irregular migration.43 East Asian states are also having similar difficulties generating a viable policy for immigration. Legal frameworks for immigration are not coherent in many East Asian countries.44 This reality has important implications for the willingness of East Asian governments to grant political asylum. Political asylum in East Asia has not been institutionalized. The majority of Southeast Asian states are not even signatories to the Convention relating to the Status of Refugees 195 1.45 Many East Asian countries do not have a formal procedure for granting political asylum. This is reflected in many of the foreign labor laws and institutions in

42 Ferris, 126. 43 Jorge V. Tigno, "Irregular Migration From and Within Asia," in Foreign Workers, Refugees, and Irregular Immigrants: Political Challenges and Perspectivesfor Asia-Europe Cooperation, ed. Carolina G. Hernandez and Steffen Angenendt (Tokyo: Council for Asia-Europe Cooperation and the Asian Secretariat c/o Japan Center for International Exchange and Quezon City: Institute for Strategic and Development Studies, Inc., 2004), 157. 44 Ruth Lusterio Rico, "Labor Migration in Asia: Policies, Issues, and Implications," in Foreign Workers, Refugees, and Irregular Immigrants: Political Challenges and Perspectivesfor Asia-Europe Cooperation, ed. Carolina G. Hernandez and Steffen Angenendt (Tokyo: Council for Asia-Europe Cooperation and the Asian Secretariat c/o Japan Center for International Exchange and Quezon City: Institute for Strategic and Development Studies, Inc., 2004), 154. 45 Eva-Lotta E. Hedman, "Refuge, Governmentality and Citizenship: Capturing 'Illegal Migrants' in Malaysia and Thailand," Government and Opposition, Vol. 43, No. 2, (2008): 358.

15 East Asian states. Intra-regional migrations for purposes of labor increased dramatically in Asia during the mid-1980s and the 1990s.46 This increase has not led to a corresponding increase in the willingness of East Asian governments to grant permanent resident status for migrants. East Asian migration policy focuses on guest-worker programs as opposed to legal settlement.47 Despite the lack of formal institutional mechanisms for obtaining permanent resident status, East Asian governments have granted political asylum and de-facto asylum to some refugees and asylum-seekers. These instances, especially in Southeast Asia, have been largely ad hoc. The use of informal policies for granting de facto asylum, the unwillingness to recognize refugees, and the rationale behind not providing for a more formal policy require further investigation.

Regime Type This section analyzes the conclusions of the current literature on political regime type and its relationship with public policy. Although researchers have begun to examine the impact that regime type has on policy formation, they have focused more on interstate relations than on domestic policies. The discussion on this subject has been concentrated around the Democratic Peace Proposition and on the manner through which the structure of governance can either facilitate or constrain interstate conflict. The main focus in the literature on regime type has been to establish the typology of political regimes. National governments' institutional structures throughout the world have undergone significant

46RiCO, 137. 47 Cornelius and Rosenblum, "Immigration and Politics," 111. 48 Hedman, 359.

16 changes and thus necessitated constant revision and reinterpretation. Recognition of this trend has also led to a substantial number of studies on the conditions under which political regime types can change successfully. The literature has provided me with a variety of interpretations through which I can approach my analysis of regime type.

Typology Three main regime types have emerged in the literature are democratic, totalitarian and authoritarian. Totalitarian regimes are defined as having only one political party, pervasive political power centralized under the authority of one individual and /or collective that cannot be removed from power through any existing government procedures, a highly mobilized population, and an overarching and all encompassing ideology.49 A political regime can be classified as democratic if it allows for regular, peaceful, and free competition for political office and if it does not hinder the peaceful creation and expression of political preferences.50 Significant limitations on civil society, rulers that do not have clearly defined boundaries of authority but still rule in a manner that is generally predictable to the public, depressed political participation and a lack of an overarching ideology but having a specific 'mentality'51 are all defining characteristics of the authoritarian regime type.52 These definitions, derived from the research of Juan J. Linz, will serve as the basis of my analysis.

49 Juan J. Linz, Totalitarian and Authoritarian Regimes, (Boulder: Lynne Rienner Publishers, 2000), 67. 50 Ibid., 58. 51 Linz defines 'mentalities' as being a relatively emotionally derived manner of thinking that influences political actions and reactions to events (Totalitarian and Authoritarian Regimes, 162). 52 Juan J. Linz, "An Authoritarian Regime: Spain," in Erik Allard and Yrjo Litt (eds.), Cleavages, Ideologies, and Party Systems, (Helsinki: Transactions of the Westermarck Society, 1964), 255.

17 The very definitions of different political regimes have given rise to debate in the field of international studies. The substantial variations in the regime types identified by scholars and in their conceptualizations have led to widely divergent conclusions on the ramifications of political regimes. A lack of consensus in the current literature can be seen in the variations in conceptualizations between different regime types; this has led to fundamentally different understandings of the factors that give rise to different regime types.53 Variations in the methodology of different studies on the relationship between the policy and the structure of political regimes have made it difficult to be certain that researchers are indeed comparing the same attributes.54 Another rationale behind the continued debate about specific regime types is the rise of political regimes with both authoritarian and democratic features. 'Partial democracies', or regimes that have both democratic and authoritarian features, are becoming an increasingly salient category yet have not received sufficient attention in the field of comparative politics.55 Further research is necessary to determine the full implications of the increasing number of regimes that do not fit into the traditional regime type typologies.

Democratization

Another major area of investigation in the literature on regime type is regime transitions. This area of study tends to concentrate on state efforts to implement democratic reforms. Authors have attempted to determine the factors that facilitate and

53 David L. Epstein, Robert Bates, Jack Goldstone, Ida Kristensen and Sharyn O'Halloran, "Democratic Transitions." American Journal ofPolitical Science, Vol. 50, Issue 3, (July, 2006): 551. 54 John Sloan and Kent L. Tedin, "The Consequences of Regime Type for Public Policy Outputs," Comparative Political Studies, Vol. 20, No. 1, (April, 1987): 99. 55 Epstein, et. al, 555-556.

18 impair democratization. One argument is that states' efforts to transition to a democratic regime are often fraught with peril; strong institutions are an important prerequisite for successful democratization.56 When institutions are weak, both vested interests collectives from the previous regime and political factions seeking popular support will be far more inclined to play upon nationalist sentiments to advance their agendas. Others have contended that the political economy has a far more salient role to play in the success of democratization. David L. Epstein, Robert Bates, Jack Goldstone, Ida Kristensen and Sharyn O'Halloran (2006) have argued that the level of per capita gross domestic product (GDP) is an important factor in democratization and that higher levels of economic growth are conducive to democratization.58 Other authors have reached alternate conclusions. Stephan Haggard and Robert R. Kaufmann (1997) have theorized that the failure of authoritarian regimes to adequately address a disruption in its economic status quo deprives them of the resources they need to maintain elite support, providing one pathway to regime change.59 Although regime change can occur when political protests provide the sole impetus, regime change that occurs as a result of an economic crisis provides the opposition with far greater levels of negotiating power. ° This general

56 Edward D. Mansfield and Jack Snyder, "Democratic Transitions, Institutional Strength, and War," International Organizations, Vol. 56, No. 2, (Spring, 2002): 299. 57 Ibid., 300. 58 Epstein, et. al, 566. 59 Stephan Haggard and Robert R. Kaufman, "The Political Economy of Democratic Transitions, " Comparative Politics, Vol. 29, No. 3, Transitions to Democracy: A Special Issue in Memory of Dankwart A. Rustow, (April, 1997): 267. 60 Ibid., 270.

19 disagreement indicates that further research on the factors that give rise to regimes change is needed.

The Impact of Regime Type on Policy Formation The Democratic Peace Proposition is one of the major areas of focus in the research on the interaction between regime type and policy. The basic assumption of this theory is that democracies are disinclined to fight other democracies. This implies that there is a relationship between regime type and national security policy. The structural and normative components of democratic regimes are inherently less prone to foster conflict.61 The relevance of this line of research should not be understated. It is essential that researchers recognize and understand the implications that domestic institutions can have at the international level. However, scholars have yet to reach a consensus on these implications. 62 My own research focuses on the impact that domestic institutions have on the ability of states to address local phenomenon that have their origins at the international level.

The fact that relationship between public policy and regime type has not yet been fully determined is one of the main reasons behind this line of questioning. The relationship between policy results and the structure of the domestic system is often

Kenneth Benoit, "Democracies Really Are More Pacific (in General): Reexamining Regime Type and War Involvement," The Journal of Conflict Resolution, Vol. 40, No. 4 (December, 1996): 637. 62 For further discussion on the strengthens and weaknesses of the Democratic Peace Proposition, see Darren Filson and Susan Werner, "Bargaining and Fighting: The Impact of Regime Type on War Onset, Duration, and Outcomes," American Journal ofPolitical Science, Vol. 48, Issue 2, (April, 2004): 296-313; Michael C. Desch, "Democracy and Victory: Why Regime Type Hardly Matters," International Security, Vol. 27, No. 2, (Autumn, 2002): 5-47, and Sloan and Tedin, 1987.

20 assumed instead of being tested. I argue that tracing the process of policy formation in Malaysia and China will lead to a deeper insight into the constraints and the opportunities embedded within the structures and procedures of different governments. The literature on political regime types has focused on conceptualizing and classifying the various government structures into specific regime types and the factors that lead to regime transitions. Some studies have also addressed the implications regime types have on policy. However, the largest issue area for this subset of the literature focuses on the propensity of specific regime types to engage in inter-state conflict. In framing my research design, I have selected two countries that have not been in the process of transitioning to a new regime type (see Chapter III for further discussion). I have also devised a research design that allows me to critically examine the impact that regime- type has at the domestic level. This study will add to the understanding of the relationship between the structure of governance and policy outcomes. The literature on political asylum policy and refugee influxes disproportionately focuses on only one regime type. Liberal democracies are typically the case studies selected by authors conducting research on political asylum policy. As a result, the literature on this subject is written largely from the perspective of western governments and whether or not they are willing to grant political asylum. One interesting study conducted by Triadafilos Triadafilopoulos (2010) has concluded that the US and Canada both attempted to reform their immigration policies to incorporate new norms on non- discrimination in immigration policy, the greater openness of the US political system

63Annica Sandström and Lars Carlsson; "The Performance of Policy Networks: The Relation between Network Structure and Network Performance," Policy Studies Journal, Vol. 36, Issue 4, (2008): 500.

21 limited the extent to which it could initiate reforms while the greater powers invested in the executive branch of the Canadian political system allowed for more complete reforms of the immigration procedures and policies.64 The findings of this study indicate that the institutional structure of national governments do have an important role in the process used for policy formation and the final outcome. Yet this study does not incorporate the types of critical insights that could help to clarify the variety of political regimes that exist in the developing world. Less than five percent of the world's refugees seek political asylum in the developed world.65 Eighty percent of all refugees reside in developing countries.66 This observation indicates that while the experiences of western liberal democratic regimes can provide insights for the field of refugee studies, they should not be taken as a given for the developing world. The studies exploring the short-term implications of refugee inflows are often conducted in countries that do not have strong or stable political regimes. Research on the impact of refugee influxes, or mass exoduses of individuals across the borders of their countries of origin into receiving states,67 and the potential ramifications for the safety of asylum-seekers, is often concentrated in states where the governments are too weak to

Triadafilos Triadafilopoulos, "Global Norms, Domestic Institutions and the Transformation of Immigration Policy in Canada and the US," Review ofInternational Studies, Vol. 36, Issue 1, (January, 2010): 170-171. 65 Loescher, Betts, and Milner, The United Nations High Commissionerfor Refugees (UNHCR), 4. 66 United Nations High Commissioner for Refugees, "2008 Global Trends: Refugees, Asylum- Seekers, Returnees, Internally Displaced People, Stateless Persons," UNHCR: The Refugee Agency, (June 16, 2009): 7, http://www.unhcr.org/4a375c426.html, (accessed March 30, 2010). 67 Karen Jacobson, "Factors Influencing the Policy Responses of Host Governments to Mass Refugee Influxes," International Migration Review, Vol. 30, No. 3, (Autumn, 1996): 657.

22 respond. However, inflows of refugees can happen in states of all capacities. Although these studies have made valuable contributions to the understanding of refugee crises and national policies, further studies need to be conducted on political asylum seekers and state policy in stable, developing states. My study will take a different approach. I also look at two regimes that are not liberal democracies and are able to determine their own political asylum policies, and have the capacity to enforce their policies and to address refugee influxes. East Asian governments fit into these parameters perfectly. I also focus on this region because it has not received adequate attention in the literature on asylum. This oversight is particularly salient, given the fact that one third of all refugees under the United Nations High Commissioner for Refugees (UNHCR) mandate reside in the Asia-Pacific region.69 There were a total of 3.4 million refugees in the Asia-Pacific by December of 2008.70 My research will provide a more complete picture of the relationship between regime type and political asylum policy and a more nuanced understanding of this relationship in a region that has not received adequate attention in the literature of political asylum.

One prevalent example of research along these lines is the study of refugee camps; Sarah Kenyon Lischer (2005) uses case studies focus on states with weak regimes, including Pakistan, Iran, Tanzania, Croatia, Serbian held Krajina, and the Democratic Republic of Congo (Sarah Kenyon Lischer, Dangerous Sanctuaries: Refugee Camps, Civil War, and the Dilemmas ofHumanitarian Aid, (Ithaca: Cornell University Press, 2005). Wim Van Damme (1995) identifies many of the dangers generated by refugee campus and highlights many of the protracted refugee situations as being located in developing states (Wim Van Damme, "Do Refugees Belong in Camps?: Experiences from Goma and Guinea, " Lancet, Vol. 346, Issue 8971, (August 5, 1995):360-362). 69UNHCR, 2008 Global Trends, 7.

23 Theoretical Framework

Regime Type The main argument that I set forth is that regime type will influence the policy response of states to influxes of asylum seekers. I define regime as the procedures and institutions that constitute a specific political order, created for the purpose of governing individuals within a state.71 The resulting informal and formal structures shape both the policy options and the preferences of policy makers. Regime type structures the preferences of the individuals responsible for the creation of specific policies and institutions.72 This analysis will examine the impact of institutions and procedures on policy. Regime type determines the structure of relations between political elites and between the public. It influences the formation of political institutions, which in turn influences the formation and implementation of policy. Policy inefficiencies and failures often have their root in the institution in which they were created. Institutional shortcomings are often the underlying cause of crises in 'policy sectors', i.e. actors, procedures and practices.74 This implies that shortcomings in asylum policy should reflect structural deficiencies in the institutions responsible for their creation and implementation.

71 Viotti and Kauppi, 493. 72Ellen Lust-Okar and Amaney Ahmad Jamal, "Rulers and Rules: Reassessing the Influence of Regime Type on Electoral Law Formation," Comparative Political Studies, Vol. 35, No. 3, (April 2002): 351. 73 Ibid., 338. 74 Alink, Fleur; Arjen Boin and Paul T'Hart, "Institutional Crises and Reforms in Policy Sectors: the Case of Asylum Policy in Europe," Journal ofEuropean Public Policy Vol. 8, Issue 2, (April 2001): 287.

24 The structure of institutions will determine the extent to which the political process can be influenced by social and special interests. This is true for both domestic and foreign interests. However, I will adopt the argument that while external pressure can provide incentives for change, it is not the main factor that determines the resulting structures of institutions.75 The susceptibility of states to external pressure depends on their overall strength and size, the strength of their ties with regional and world powers and the foreign policy agenda of world powers.76 I will attempt to make the case that the ability or inability of states to cope with external crises^ that subsequently impact them domestically^ is inextricably tied to their regime type and the capabilities that this structure generates. It is important to note that this study does not discount the importance of the agency of policy-makers, advocates, advisors and the general public in creating policies. Instead, I adopt the assumption that institutions form the parameters through which elites and other policy actors interact to generate and implement policy; hence, the agency of individual actors is still an important feature.77 Yet the extent to which new ideas and initiatives are able to influence the policy making process is still bound by the formal and informal institution conduct in which they are generated. Regimes are often formed on the basis of elite interaction and choices yet once formed serve to structure and influence

" Lust-Okar and Jamal, 343. 76Steven Levitsky and Lucían A. Way; "Ties That Bind? Leverage, Linkage, and Democratization in the Post-Cold War World," International Studies Review, Vol. 7, Issue 3, (September, 2005): 520. 77 William Case, "Electoral Authoritarianism in Malaysia: Trajectory Shift," Pacific Review, Vol. 22, No. 3, (July 2009): 323.

25 the choices at the disposal of policy-makers. I contend that new initiatives gradually reform the structure of institutions, yet institutions still constrain the scope of agency and that the impact of institutional constraints will be more salient in the short-to-medium term perspective. Given the precarious position of political asylum-seekers, the short and medium term observations are far more relevant for determining the impact that regime type has on their well-being.

The Veto Player Model and Different Regime Types

The distribution of power amongst the collectives and individual actors that hold power within a specific government has a major implication for determining national policy. Therefore, identifying the positions within the government and the institutions that hold sufficient power to determine the direction the actions of the state are crucial to understanding policy formation. The Veto Player Model identifies the concentrations of power that must cooperate in order for a policy to be formed. Veto players are individuals and /or collectives whose support is required for a change in policy.79 This model's emphasis on the role that different actors have within a specific institutional context fits perfectly with the conceptualization of regime type. One of the main features of different regimes is the different officials and institutions that are enabled to make legitimate decisions about a specific policy area.80 The total number, the overall agreement level in the policy choice and their relative political position are important for

78 Case, "Electoral Authoritarianism in Malaysia," 325. 79 George Tsebelis, "Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism," British Journal ofPolitical Science, Vol. 25, No. 3, (July, 1995): 293. 80 Sloan and Tedin, 100.

26 determining the extent to which states will be able to produce policy change. Therefore, the greater the number of veto players that exist within a government, the more difficult it will be to change or create a policy. This theoretical model has been derived to examine the relationship between the structure of a government and its implications for national policy. In the past, the Veto Player Model has focused more on the potential for policy change. I add to this framework by focusing not only on the relationship between policy and structure, but also by applying it to a specific policy and analyzing its impact on political asylum-seekers. I make the assumption that different political organizations and officials become more relevant within the context of specific policies. This assumption allows me to further explore the nuances that institutions and standard operating procedures can have on national policy and its translation into practice.

In light of the insights that the Veto Player Model provides, I hypothesize that the greater the degree of political openness that exist within a particular regime type, the greater the difficulty there will be in forming and implementing political asylum policy. In regimes where there is a higher degree of political openness a greater number of individuals and/or collections of individual policy actors will be able to influence the policy-making and implementing process. Regimes that allow more officials to take an active role in governance, that permit civil society to organize and that are willing to take public opinion into account are less likely to form a coherent policy. Therefore, an

Tsebelis, 301.

Ibid., 292.

27 increase in the number of individuals will make it far more difficult to translate a formal policy into action.

Research Methods

Overview of Methods

In order to test my hypotheses, I will design a comparative case study. I intend to do so using the methods of both process tracing and controlled comparison. Process tracing is defined by Stephan Van Evera (1997) as breaking down the case study into parts to determine the manner through which the independent variable impacts the dependent variable over time.83 The use of process tracing will allow me to examine the path and the evolution of asylum policy formation and implementation. This will also allow me to examine the impact that these policies will have on individual migrants over time. The controlled comparison method, a method which requires a minimum of two cases be usedi to determine the extent to which each case conforms to the theory being tested.84 The use of the controlled comparison method will allow me to determine if there are the variations between policies on the basis of regime type.

Case Study Justification

I have selected two cases, the case of Burmese refugees in the Federation of

Malaysia and the case of North Korean refugees in the People's Republic of China (PRC), on the basis of their different regime types. I will compare the differences in the processes and policies of both states to determine if my theory is valid. I intend to trace

83 Stephen Van Evera, Guide to Methodsfor Students ofPolitical Science, (Ithaca: Cornell University, 1997), 64. 84 Ibid., 56-57.

28 the policy formation and implementation over a period of time. My analysis will focus on the process of policy formation and implementation beginning in the year 2002 and ending with the year 2008. I will determine whether regime type influences policy and the extent to which policy preferences of state actors are effectively reflected on the ground. The political regime in Malaysia has been classified as an amalgamation between democracy and authoritarianism. William Case (November, 2009) makes the argument that Malaysia is a hybrid regime, or a regime characterized by democratic procedures that are held in check by authoritarian features.85 Other authors have interpreted the institutional structure as being characterized by a greater degree of authoritarian control. Larry Diamond (2002) has stated that Malaysia should be classified as a competitive authoritarian regime.86 Regimes that are controlled by civilians and that provide for meaningful political competition but are structured in such a manner as to provide an unfair advantage to the ruling party, are classified as 'competitive authoritarians'. The political regime of Malaysia provides an excellent case study due to the ambiguous demarcation between authoritarian and democratic regime type. Many East Asian political regimes have also gradually shifted from authoritarian regimes in the aftermath

85 William Case, "After the Crisis: Capital and Regime Resilience in the ASEAN Three, " Journal of Contemporary Asia, Vol. 39, Issue 4, (November, 2009): 656. 86 Larry Diamond, "Elections without Democracy: Thinking About Hybrid Regimes," Journal of Democracy, Vol. 13, No. 2, (April 2002): 31. 87 Steven Levitsky, and Lucian A. Way, "The Rise of Competitive Authoritarianism," Journal of Democracy, Vol. 13, (2002): 51-65 as cited in Steven Levitsky, and Lucian A. Way, "Ties That Bind? Leverage, Linkage, and Democratization in the Post-Cold War World," International Studies Review, Vol. 7, Issue 3, (September, 2005): 520.

29 of World War II (WWII) to 'liberalizing autocracies' and 'semi-democracies'. The unique characteristics of the Malaysian system have made it difficult for many researchers to accurately define regime type. For purposes of my study I utilize the description set forth by Harold Crouch (1996), that the Malaysian political system is structured as a democracy with authoritarian limitations.89 It is composed of a federation of states, implying a stronger role for regional powers than that of a purely unitary system. The Barison Nascional

(BN), the ruling coalition in Malaysia, is comprised of United Malay National Organization (UMNO) elites holding power with junior partners made up of ethnic minorities.90 Although electoral law limits the chance that opposition parties will actually gain control of the government at the national level, the elections are sufficiently competitive to make them meaningful.91 The complexities of the Malaysian regime provide an interesting case study for determining the impact of regime type on policy creation and efficiency.

There is far more consensus on the classification within the academic literature on the People's Republic China (PRC). It has been consistently classified as a politically closed authoritarian regime.92 As a result, its institutional structure is significantly

88 Fareed Zakaria, "The Rise of Illiberal Democracy," Foreign Affairs, Vol. 76, Issue 6, (November/December 1997): 27. 89 Harold Crouch, Government and Society in Malaysia, (Ithaca: Cornell University Press, 1996): 5. 90 Case, "After the Crisis," 655. 91 Diamond, 31; William Case, Politics in Southeast Asia: Democracy or Less, (London: Routledge Curzon, 2002), 111. 92 Diamond, 3 1 .

30 different from that of Malaysia's. China has a comparatively more centralized structure for decision making,93 despite the fact that political reforms under the de facto leader, Deng Xiaoping (ruler from 1977 until 1997), have led to further decentralization of political power.94 There are no viable alternatives to the Chinese Communist Party (CCP). China is governed by this political party. Even today, the party is far more powerful than the government.95 The relationships between institutions at different regions and with institutions at different levels of government are complex.96 This leads to efforts between organizations at all levels to advance their own interests yet forces all actors to keep a broad level of consensus.97 The lack of institutionalized political competition has facilitated the CCP' s efforts to retain political control. Powerful national officials are able to obtain the loyalty of regional officials through their control of political appointment.98 The institutions and the procedures that characterize the more centralized political order of China present an interesting comparison to the more open political system of Malaysia. Both countries have been repudiated by NGOs, the governments of other states, and by international governmental organizations for violations of human rights. The

93 Kenneth Lieberthal, Governing China: From Revolution to Reform 2nd Edition, (New York: W.W. Norton & Company, 2004): 188. 94Ibid., 181. 95Ibid., 172. 96Ibid., 187. 97 Tony Saich, Governance and Politics of China, (New York: Palgrave, 2001), 213. 98 Yumin Sheng, "Authoritarian Co-optation, the Territorial Dimension: Provincial Political Representation in Post-Mao China," Studies in Comparative International Development, Vol. 44, Issue 1, (Winter, 2009): 75.

31 Committee against Torture, a committee under the auspices of the Office of the High Commissioner for Human Rights (OHCHR), has identified several areas of concern in the PRC, including: the continued use of torture, the inhumane conditions of detention, the failure to investigate alleged abuses of torture, the harassment of defense attorneys and other protectors of human rights, forced medical treatment of detainees, the shortcomings in the training of police and medical workers, and the failure of the PRC to provide protection for vulnerable populations (gender, ethnic, religious) including North Korean escapees." The PRC has also been cited for its failure to adequately address transnational abuses of human rights. China has been placed on the Trafficking in Persons Tier II Watch List,100 the second to worst ranking possible, by the United States Department of State due to its failure to adequately improve its efforts to combat human trafficking and to protect victims from the previous year.101 Freedom of expression has been harshly curtailed by the Chinese government. Reporters without Borders have ranked the PRC at 168th place (out of a total of 175 countries) in their Press Freedom

"Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Concluding Observations of the Committee against Torture: China, Advanced Unedited Version," Committee against Torture, 41st Session, Geneva, (November 3-21, 2008), http://www2.ohchr.Org/english/bodies/cat/docs/CAT.C.CHN.CO.4.pdf, (accessed April 21). 100 The Office to Monitor and Combat Trafficking in Persons of the US Department of State conceptualizes states' level of compliance with the norms of combating human trafficking in three tiers. Tier I nations are "Countries whose governments fully comply with the Trafficking Victims Protection Act's (TVPA) minimum standards." Tier II nations have not completely met the expectations of anti- trafficking norms but are striving to obtain Tier I status. Tier III nations have not conformed to the aforementioned standards and have not demonstrated a concerted effort to do so. States on the Tier II Watch List are making significant efforts comply with these standards but has a large or rapidly growing number of trafficking victims, has not increased its efforts from the past year or has made guaranteed that it will improve upon its efforts to combat trafficking. (Office to Monitor and Combat Trafficking in Persons, "Tier Placements," United States Department of State, http://www.state.gOv/g/tip/rls/tiprpt/2009/123132.htm, (accessed June 6, 2010)). 101 Office to Monitor and Combat Trafficking in Persons, "Trafficking in Persons Report 2009," United States Department of State, (June 16, 2009): 104- 105. http://www.state.gov/documents/organization/123361.pdf, (accessed April 21, 2010).

32 Index 2009. 102 These reports highlight the continued abuses that the government of China continues to perpetrate and the fact that it has not fully accepted the importance of the norms of human rights. Members of the international community have also reported human rights violations in Malaysia. The Malaysian government has also not fully accepted the international norms of human rights. The Committee on the Rights of the Child, also under the control of the OHCHR, has expressed concern that Malaysia has not acceded to many of the core international treaties that are designed to protect human rights. Malaysia has actually received a worse ranking than the PRC on its efforts to combat human trafficking. Malaysia has been ranked as a Tier III country by the US Department of State in 2009, the worst ranking possible, due to its failure to fully implement legislation to prevent human trafficking, for allegations that some of its immigration officials were involved in the trafficking of detained migrants and its general failure to improve its efforts to eliminate trafficking in persons.104 This ranking indicates that Malaysia has not fully internalized international norms of human rights and continues to face challenges enforcing legislation designed to halt human trafficking. The government of Malaysia continues to place constraints on the freedom of speech of its local press.

102 Reporters without Borders, "World Press Freedom Index 2009-The Rankings," Reporters without Borders for Press Freedom, (2009): 4, http://en.rsf.org/IMG/pdf/classement_en.pdf, (accessed April 23, 2010). 103 "Consideration of the Reports Submitted by State Parties under Article 44 of the Convention: Concluding Observations, Malaysia," 44th Session, Committee on the Rights of the Child, (June 25, 2007): 3, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/426/43/PDF/G0742643.pdf7OpenElement, (accessed April 24, 2010). 104Office to Monitor and Combat Trafficking in Persons, "Trafficking in Persons Report 2009," United States Department of State, (June 16, 2009): 197-198, http://www.state.gov/documents/organization/123363.pdf, (Accessed April 21, 2010).

33 Malaysia has been ranked 131s in the Reporters without Borders Press Freedom Index 2009. 105 Like the PRC, Malaysia continues to be cited for violations of human rights. Although the PRC and Malaysia both lack pristine records on human rights protection, Malaysia has generally been more responsive to the norms of human rights. Malaysia's Freedom House Political Rights and Civil Liberties scores are much better than the PRCs. Malaysia has received a score of four for both Civil Liberties and Political Rights since 2005. 106 China has received a score of seven for Political Rights and a six for Civil Liberties (the lowest score possible on this scale is a seven). The Malaysian government has also made strides to better institutionalize the protection of human rights. The parliament passed Act 597, the Human Rights Commission Act, in 1999; this legislation translated into a formal institution on April 24, 2000 when the Human Rights Commission of Malaysia (SUHAKAM) held its first official meeting.108 SUHAKAM has been accredited by the International Coordinating Committee of

National Institutions for the Promotion of Human Rights, under the purview of the OHCHR, since 2002. 109 No such organization exists for the PRC. Non-governmental

105 Reporters without Borders, World Press Freedom Index 2009-The Rankings, Reporters without Borders for Press Freedom, (2009): 3, http://en.rsf.org/IMG/pdf/classement_en.pdf, (accessed April 23, 2010). 106 Freedom House, "Country Reports," Welcome to Freedom House, http://www.freedomhouse.org/ternplate.cfm?page=21&year=2004, (accessed April 3, 2010).

Human Rights Commission of Malaysia, "History," Official Website of the Human Rights Commission of Malaysia, (April 21, 2010), http://www.suhakam.org.my/info/profil, (accessed April 23, 2010). '^International Coordinating Committee of National Institutions for the Promotion of Human Rights ,"Chart of the Status of National Institutions Accredited by the International Coordinating Committee of National Institutions for the Promotion of Human Rights," International Coordinating Committee of National Institutions for the Promotion of Human Rights, (January 6, 2009): 2, http://www.ohchr.org/Documents/Countries/ChartStatusNIs.pdf, (April 24, 2010).

34 organizations are also able to be relatively active and autonomous in Malaysia. This is in direct contrast to the regulations placed on NGOs in the PRC. Many NGOs in China are under the control of the state, severely curtailing their ability to challenge government policies and actions.111 The government of Malaysia places a relatively greater emphasis on the protection of human rights than the PRC. Neither the Malaysian government nor the government of China has a genuine interest in granting political asylum. The PRC has rebuked the US' criticisms of its treatment of North Korean escapees by claiming that these individuals are 'illegal trespassers' that came to China for 'economic purposes'.112 This perception has been the party line of the PRC since the turn of the century. On June 30, 2001, Zhang Qiyue (Foreign Ministry spokeswomen) stated publicly that "Judging from international law and

in the purpose of their entry into China, they [North Korean escapees] are not refugees." High ranking officials in Malaysia have repeatedly articulated their reluctance to accept refugees and to establish formal rights for political asylum seekers. Datuk Seri Najib Razak (then the Deputy Prime Minister) openly expressed his concern that any further accommodation of refugees would only serve to exacerbate illegal immigration to

110 Meredith Weiss, "Prickly Ambivalence: State, Society and Semidemocracy in Malaysia," Commonwealth & Comparative Politics, Vol. 43 Issue 1, (March, 2005): 61. 111 Katherine Morton, "The Emergence of NGOs in China and their Transnational Linkages: Implications for Domestic Reform," Australian Journal ofInternational Affairs, Vol. 59, Issue 4, (December, 2005): 522. 112 Lu Hui, "China Questions US' Human Trafficking Report," Xinhua News Online, (June 19, 2007), http://news.xinhuanet.com/english/2007-06/19/content_6264460.htm, (accessed April 22, 2010). 113 Elisabeth Rosenthal, "China's Release of North Korean Refugees Sidesteps Sensitive Issue," New York Times, (June 30, 2001), http://www.nytimes.com/2001/06/30/world/china-s-release-of-north- korean-refugees-sidesteps-sensitive-issue.html?scp=16&sq=North%20Korean%20Refugees&st=cse, (accessed April 25, 2010).

35 Malaysia.114 Zaidon Asmuni, the Director General of the Ikatan Relawan Rakyat (RELA),115 was also quoted by the New York Times as saying that "...in Malaysia illegal immigrants are enemy number two, drugs are number one." The fact that the governments of countries are generally not in favor of promoting refugee rights allows me to compare the impact that the political regime type will have on the creation and implementation of public policies and to determine if there are discrepancies between the goals of the top leadership in both countries and the actual policies. The variation between the political regimes and the similarities between the attitudes of the national leadership in both Malaysia and China provides an excellent opportunity for a comparative case study.

Conceptualization

My dependent variable for both hypotheses is the state's formal and informal policies of granting asylum. For purposes of my analysis, I adopt the definition of asylum-seekers as individuals claiming refugee status within the confines of a specific

New Straits Times, "Najib Disputes Refugee Report on Malaysia," New Straits Times, (June 21, 2008), http://findarticles.eom/p/articles/mi_8016/is_20080621/ai_n44405361/, (accessed April 22, 2010). 115 RELA, People's Volunteer Corps is a volunteer agency that provides supports the initiatives of the Royal Malaysian Police Force and the Department of Immigration (Daily Express, "Unfair to Blame the Entire RELA Corps: Hamid," Daily Express, (February 9, 2009), http://www.dailyexpress.com.my/news.cfm?NewsID=62700, (accessed June 6, 2010). 116 Seth Mydans, "Foreign Workers Face Campaign of Violence in Malaysia," New York Times, (December 9, 2007), http://www.nytimes.com/2007/12/09/world/asia/09iht- malay.l.8653718.html?pagewanted=l&_r=l&sq=RELA and Malaysia&st=cse&scp=l, (accessed April 22, 2010).

36 state.117 The working definition of refugees in this study is enshrined in the Convention relating to the Status Refugees 1951: "...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 fact that few East and Southeast Asian states have officially adopted the norms of the 1951 Convention requires me to examine both the formal and the informal policies for forced migrants. I will explore the policies that are specified in law, including immigration law and the institutional context of their creation^ and determine the manner through which visas are distributed. I will also examine the concrete number of individuals that have been recognized by the UNHCR as being 'persons of interest' and compare this figure to the number of asylum-seekers that have received either formal or de-facto asylum.

Independent Variables

My independent variable for my first hypothesis is the degree of centralization of political control within different political regimes. The independent variable for my second hypothesis will be the degree of openness of the political regime. I will examine the structure of institutions that are responsible for the creation and implementation of asylum policy and identify the veto players, or the individuals and collectives whose

ll7Gibney, 9. 118 "Convention Relating to the Status of Refugees," 189 United Nations Treaty Series 150, (entered into force April 22, 1954): Article 1, Section A, Clause 2, http://wwwl.umn.edu/humanrts/instree/vlcrs.htm, (accessed March 30, 2010).

37 consent is necessary to change and implement policy. This will include the legislative making bodies and executive organizations responsible for the creation, interpretation and implementation of these policies. In order to better understand the creation of policy, I identify and analyze the mechanisms through which individuals from a variety of different organizations work together to determine political asylum procedures and practices. These actors and their working relationships can be identified online through government websites, in the formal laws on immigration and political asylum, in the national newspapers and in the current literature on the political systems for both countries. This study will focus mainly on government institutions and procedures at the national level.

The independent variable of the degree of centralization of the overall political regime focuses on the specific government institutions and officials. A high level of centralization of a political regime implies that there will be far fewer potential veto players than a more decentralized system of governance. In order to identify the degree of centralization, I have selected one political regime that has a federal system of governance, the Federation of Malaysia, and one that has a unitary system, the People's Republic of China. In a federal system, no one unit of government has complete control; different units have 'final control' over specific aspects of policy and enforcement.119 This forces different political actors to cooperate to produce and enforce policy reforms.

Competition for power is embedded within the institutional structure of a federal system

119R. Dahl, "Federalism and the Democratic Process", Democracy, Identity, and Equality, (Oslo: Norwegian University Press, 1986), 1 14.

38 and becomes a continuous feature of all federal political regimes.120 The relationship between the number of government veto players and the resulting system of governance is an important characteristic of the overall political regime. Federal states are usually linked with democratic regimes.121 Hence, I assume that the greater degree of decentralization in the structure of governance means that a government has a greater number of veto players. I argue that unitary systems will be able to form a far more coherent policy of immigration or political asylum policy. In a unitary system, although there may be different levels of governance, the government is structured as one complete unit.1 2 There is no division of powers between different territorial units; it is all invested in one core structure. This institutional structure has important consequences for the ability of sub-national actors to influence policy at the national level of governance. I also argue that sub-national actors will have less authority and resources to inhibit the implementation of political asylum and immigration policy. Sub-national actors are more dependent upon the central government in a unitary system.123 The greater concentration of political power at the center of government will, according to my first hypothesis, facilitate the formation and the implementation of immigration and asylum policy.

Lucias I. Gonzalez, "Political Power, Fiscal Crises, and Decentralization in Latin America: Federal Countries in Comparative Perspective (and some Contrasts with Unitary Cases)," Publius: The Journal ofFederalism, Vol. 38, Issue 2, (Spring, 2008): 217. 121 Alfred Stepan, "Federalism and Democracy: Beyond the U.S. Model," Journal ofDemocracy, Vol. 10, Issue 4, (October, 1999): 19. 122DaW, 114. 123 Gonzalez, 217.

39 The degree of political openness is my second hypothesis. I argue that the greater the degree of political openness will result in a higher number of veto players. This hypothesis incorporates actors that are not a part of the formal government. I use the Freedom House Political Rights and Civil Liberties scores to determine the degree of political openness in both Malaysia and China. I contend that this independent variable has far greater importance within a particular policy context. There are interest groups, experts and organizations designed to contest particular issue areas. This particular independent variable will investigate the degree to which civil society is able to operate and to cooperate with the government. Civil society is composed of actors and organization that do not have positions within the government but seek to influence government actions.124 This is an important distinction from the first hypothesis. Civil society remains an essential component for measuring the nature of any political regime. In order for their role to be meaningful, civil society must be independent from the state.125 I will also incorporate the avenues of influence that exist for other non-state actors, namely individuals with economic connections to the ruling regimes and public opinion. The ability of non-governmental actors to participate in the political process can be facilitated or constrained by the structure of the institutions designed to govern

Heidrun Zinecker, "Regime-Hybridity in Developing Countries: Achievements and Limitations of New Research on Transitions," International Studies Review, Vol. 1 1 Issue 2, (June, 2009): 309. 125Ibid., 310.

40 participation.126 I will test my argument that the permeability of a government structure will make it more difficult for officials to formulate or enforce policy.

Dependent Variable While the overarching dependent variable is the political policy to address issues of immigration and political asylum policy, I will address this variable on two separate.,, but equally important components: the formation of policy and the implementation policy. I contend that both are crucial aspects for any policy to be considered effective. I define coherent policy formation as the creation of a plan and/ or procedure for the resolution of a specific issue by government officials that is a logical extension of the policy initiative. Policy implementation can be considered successful if a policy is translated into a specific mechanism for the resolution of a specific issue; a mechanism that is consistently utilized. I contend that even the most sophisticated policy will be flawed if it is not properly carried about by officials designated to enforce it.

The coherent formation of immigration and asylum policy will be the first of my dependent variables. I conceptualize this variable of a coherent political asylum policy as having clear objectives and operating procedures. I also argue that this policy should, at least on the surface, be capable of addressing the issue. I will also examine the policy formation process in general and will attempt to trace which government or non- governmental actors are responsible for particular features of a given policy. This will allow me to determine the potential variations in the policy formation process that exist within different political regimes. Examining the process through which policy is created

126 Ikuo Kabashima and Gill Steel, "Globalisation and Political Participation," in Globalisation, Public Opinion and the State: Western Europe and East and Southeast Asia, ed. Takashi Inoguchi and Ian Marsh (New York: Routlege, 2008), 199.

41 and determining the actors that are responsible for influencing its outcome will shed insight on the manner through which a political regime can impact immigration and asylum policy. The second dependent variable that I will address will be the capability of a national government to respond to issues stemming from political asylum and its ability to implement policy. In order to determine whether a political regime has successfully implemented an immigration or political asylum policy, I will examine the implementation process to see if it has in fact accomplished the government's policy goals. If the implementation process is able to accomplish the goals made by those responsible for generating the formal policy, then the implementation of the policy will be considered successful. Policy failure occurs when a policy does not produce the effects it specifically intended to create.127 I will access the overall impact of the policy on the nation and on the refugees seeking asylum. The long-term impact that the new policy has for the future of political asylum will also be take into account.

Operationalization Data Source Utilized for Testing the Centralization of Power within Political Regimes I will identify the extent to which political power has been centralized within a political regime through the Polity IV data set. This data set was created to provide a quantitative measure of the structure of political regimes. This ranking is determined

127 Castles, 207. 128 The Polity IV Project: Political Regime Characteristics and Transitions (1800-2008) was founded by Ted Robert Gurr and is currently directed by Monty G. Marshall of the Center for Systemic Peace; for more information, please see http://www.systemicpeace.org/polity/polity4.htm , (accessed March 30, 2010).

42 through the use of ordinal variables determined through the use of four main questions. The democratic features of a political regime are determined on the basis of: the competitiveness of political participation, b¿ the openness of executive recruitment, and c. constraints on the chief executive.129 The final score is ranked on a scale of -10 through 10, with -10 being strongly autocratic and 10 being strongly democratic.130 From 2002 to 2007, Malaysia received a Polity Score of three, but rose to a six in 2008 (See Figure 3.1), indicating that the government of Malaysia has become more democratic. The PRC has consistently received a Polity Score of -7 from 2002 to 2008 (See Figure 3.4), highlighting the fact that the characteristics of the political regime of the PRC have remained consistent throughout the last six years. These scores indicate that China's political regime has more authoritarian features than the political regime of Malaysia. I contend that the lower the constraints on the executive branch and the lower the degree of openness of recruitment for the leading office will limit the extent to which the leadership can be challenged by actors both internal and external to government. Hence, there will be few individuals that can challenge the central authority, indicating a high degree of centralization. I will use this dataset to determine the extent to which my first independent variable is present.

Data Source Utilized for Testing the Level of Openness of Political Regimes The degree of political openness of political regimes will be identified by

Freedom House Country Reports on Political Rights and Civil Liberties survey data

129 Monty G. Marshall and Keith Jaggers, Polity IV Project: Political Regime Characteristics and Transitions, 1800-2007 Dataset Users' Manual, (Center for Global Policy, School of Public Policy, George Mason University and Center for Systemic Peace, February 14, 2009): 13-14, http://www.systemicpeace.org/inscr/p4manualv2007.pdf (accessed March 30, 2010).

43 (published 2002-2009). This report is determined by a rating of countries on the basis of ordinal variables one through seven, with one being the most free and seven being the least free; these ratings are derived from survey data gather from experts on an annual basis.131 As I have already stated in the case justification section, Malaysia's Freedom House scores on both Civil Liberties and Political Rights demonstrate, when compared to China, a high level of political openness. I analyze these ratings as they progress over time to determine the impact that non-state actors were able to have on the formation and the implementation of immigration and asylum policy. I will also examine the stances of local and international officials and non-state actors to determine their stances on particular aspects of political asylum and determine if these positions were incorporated into the resulting policy. The main actor that I will examine on this issue is the UNHCR, yet I will also examine the positions of local advocacy groups if the level of political openness permits them to operate.

Policy Formation I will use the domestic laws and the formal policies that are available online to determine the current policy of political asylum. I adopt the definition of domestic laws as being formal rules created by a government body that all subordinates are obligated to obey.132 The relevant officials and agencies will be determined through their inclusion in specific legislation. I begin by determining the goals, objectives and initiatives that have given rise to current immigrations and asylum policies. I determine these goals through

131Freedom House, "Methodology: 2005 Edition," Welcome to Freedom House, http://www.freedomhouse.org/template.cfm?page=351&ana_page=292&year=2005, (accessed March 30, 2010). 132 Viotti and Kauppi, 484.

44 the statements of officials in China and the PRC. I draw on Prime Minister Mahathir

Mohammad's 'Vision 2020' (discussed in Chapter IV) and from the testimony of the

Minister of Human Resources to Parliament to determine the goals of immigration policy in Malaysia. I determine the policy objectives of the CCP from statements made by President Hu Jintao and the Chinese Foreign Ministry to Xinhua News Agency Online. In order to determine the legal framework of Malaysia, I have selected the Immigration Act 1959/1963, the Emergency (Essential Powers) Act and the Passport Act. I have selected the Law of the People's Republic of China on Control of the Entry and Exit of Aliens, Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas, Law of the People's Republic of China on the Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese to determine the structure of the PRCs legal framework. I also intend to take into account the mandates of individual government agencies as they have been posted on official websites and articles in local newspapers to determine the positions of individual ministries and officials. I will also examine policy as it has changed over time through amendments to laws. I will determine the position of international and local non-government organizations through press releases, news articles and the statements that leaders of specific organizations have made to the press. These will allow me to determine the process of policy formation and the objectives of potential veto players. I compare the formal policy results with the goals that led to their creation to see if the formal policies reflect these objectives and would be capable of fulfilling these goals. If centralization does have an impact on formal policy creation and coherence, I expect to see that the policy would only address the objective and concerns

45 of the policy-making elite are similar and that the policy has the capability to accomplish the goal. I expect a more decentralization policy making process to reflect a variety of concerns from the relevant veto players within the government. In a closed political system, I expect the policy to ignore the concerns of civil society and interest groups. In an open political system, I expect that the concerns of the civil society and interest groups would alter the formal policy in a manner that is not entirely consistent with objectives of the national government policy makers.

Policy Implementation For my final dependent variable, I will determine the implementation process by analyzing the actions taken by enforcement agencies. I look at the specific procedures that these agencies use to enforce formal law and policy. I also examine the consistency of the implementation of formal immigration and asylum policy. I will determine if the appropriate agencies have modified their actions in a manner that is consistent with the objectives determined in the formal policy. If the procedures for enforcement do not reflect the formal policy, then I will conclude that a policy has not been completely implemented. I will also examine the assessments of the UNHCR to determine the impact that new legislation has had on political asylum-seekers. I will use the UNHCR' s publications and the publications of NGOs to determine if the policies set forth are able to address issues arising from political asylum procedures more generally. In a more centralized political system, I expect that there will be little to no variation between the formal policy and its implementation procedures executed by subordinate government agencies while in a more decentralized system I expect that different ministries will reinterpret formal policy in a manner more consistent with their own interests. In a

46 closed political system, I expect that there will be limited participation from non- government actors in the implementation process and any monitoring or criticism by non- government actors will not have an impact on implementation, whereas I expect to see both trends taking place in a more open political system.

Summation and Overview

In this chapter, I have highlighted several oversights in the current understanding of the relationship between regime type and asylum policy and my expectations for the impact that regime type may have on political asylum. I have set forth my hypotheses that there will be a positive relationship between the degree of centralization of power of a political regime and the coherence of asylum policy and that the degree of political openness of a political regime and the coherence of asylum policy will have a negative relationship. I have designed a comparative case study and have identified the specific data sets that I will use to determine my findings. I will begin the next section by describing the international standards for determining refugee status and the extent to which the experiences of Burmese and North Korean asylum-seekers justify their recognition as refugees. I make this determination regarding the international expectations from the publications of the UNHCR and the plight of the North Korean and Burmese from the existing literature. I then proceed to establish the institutional structure, identify the relevant actors and determine the degree of centralization of the political regime and the degree of political openness in my third chapter. In the fourth chapter, I will systematically compare the institutional structure of the two regimes, their resulting policies, the implementation of their policies and the implications for asylum seekers. In my final chapter I will evaluate the relevance of regime type for the creation

47 and the implementation of political asylum policy, highlight the implications of my conclusions, and suggest areas for future research. CHAPTER ?

RECOGNITION OF REFUGEE STATUS

The international community has defined the general criteria for determining refugee status and for the treatment of refugees in international law and norms. In this chapter, I will provide evidence that North Korean defectors hiding in the People's Republic of China (PRC) and Burmese asylum-seekers in the Federation of Malaysia meet the international standards of refugee status and as such should be accorded their due rights as refugees within the respective receiving countries. I begin by highlighting the overarching framework that has been formed by members of the international community in the Post World War ? (WWII) era that was instituted as guidelines for state and non-state actors. I also provide a brief synopsis of the rise of barriers to population flows in the 20th century. I include the evolution of the regulation of international travel and of the development of international institutions for political asylum to provide the context for the current tensions that exist between the international standards for refugee rights and the Westphalia state system of governance. I also include a brief overview of East Asia's interpretation of and reaction to the international norms of sovereignty and of refugee rights.

In the final two empirical sections of this chapter, I analyze the plight of North Korean defectors in the PRC and of Burmese asylum seekers in Malaysia. I examine the rationale behind the decisions of individual asylum-seekers from both countries to flee and the factors that distinguish them as refugees. I argue that the rationale behind forced

49 migrants' very decision to migrate that determines the validity of their claim to refugee status. Refugees' precarious situations in their countries of origin, fostered by the Military Junta in Burma1 and the government of Kim Jong Il in North Korea, gives these individuals ample rationale to fear for their own safety and freedom. These two sections will examine both the pervasive trends that exist in both Burma and North Korea that destabilize the safety and security of individuals and several specific crises that have forced individuals to migrate to states with comparably greater liberties and higher levels of security. Yet the barriers that have arisen by the norms of sovereignty and the reaction of many East Asian states to the international refugee rights agreements highlight the reality that states do not always accede to humanitarian norms and that immigration and asylum policies remain the prerogative of the nation state.

The Origins of Refugee Rights The Legacy of World War II

Displaced Populations World War II has had a profound impact on the structure of the international system. One of the most important outcomes of this conflict is the formulation of international framework to regulate the flow of forced migrants. The international and legal concept of 'refugee' did not exist until the post World War II era. The creation of this system was essential for contending with the unanticipated humanitarian cost of

1 The Military Junta changed the name of Burma to Myanmar in 1989. The US has refused to recognize this new name and continues to refer to the country as Burma (David I. Steinberg, Burma/Myanmar: What Everyone Needs to Know, Oxford: Oxford University Press, 2010), 10.) I will also refer to the country as Burma. 2 Liisa H. Malkki, "Refugees and Exile: From "Refugee Studies" to the National Order of Things," Annual Review ofAnthropology, Vol. 24, Issue 1, (1995): 497-498.

50 WWII. Towards the end and during the immediate aftermath of this conflict, states had to resolve crises fostered by the displacement of individuals across two continents. The hostilities of WWII forced millions to flee their homes across the Asian and the European continents, making a response from the international community a necessity for the preservation of stability.3 The response of states has led to the creation of refugee rights and recognition as they currently exist.

International Agreements and Laws Governing Refugee Recognition and Rights Three crucial international agreements: The International Covenant of Human

Rights (1948), the Convention relating to the Status of Refugees (1951) and the Protocol relating the Status of Refugees (1967), emerged during the Post WWII Era and continues to define the parameters of refugee rights and the standards for the determination of refugee status. These three agreements serve as the basis for the international norms governing political asylum. Article 14 of the Universal Declaration of Human Rights codifies the right to seek political asylum as a basic human right. 4 This declaration also recognizes the right of individuals to leave and return to their country origin and protects freedom of movement in Article 13. 5 This agreement serves as the basis for future international agreement on refugee status and the responsibility of the international community.

3 Bill Berkeley, "Stateless People, Violent States," World Policy Journal, Vol. 26, Issue 1, (Spring, 2009): 5. 4 "Universal Declaration of Human Rights," United Nations General Assembly in Paris on December 10, 1948, General Assembly Resolution 217 A (III): 74, http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx, (accessed, March 30, 2010). 5 Ibid.

51 The Convention relating the Status of Refugees is central to international law on refugee rights. This Convention set out the parameters for granting political asylum and recognition of refugees. It attempts to ensure that refugees are protected on the basis of their actual needs rather than on the needs of the nation-state. Article 3 of the

Convention relating to the Status of Refugees obligates states to grant asylum based solely on the legitimacy of asylum-seekers' claims, not on the basis of race, country of origin or religion.6 It also seeks to ensure that refugees are protected by their receiving state and/or by the state that volunteered to resettle them. Chapters ?-V all provide protection for the civil and political rights, the right to earn a living, the provisions for welfare and access to public services, and access to administrative support for the purpose of the legalization of their status.7 While the International Covenant on Human Rights ensures that all individuals had the right to live free from persecution, the Convention relating to the Status of Refugee Status determines the manner through which individuals can avail themselves to international protection to escape persecution. The final major international agreement that has shaped the nature of the international understanding of refugee rights is the Protocol relating to the Status of Refugees (1967). This agreement resolves the major shortcoming of the Convention relating to the Status of Refugees. While the original convention was only intended to apply to individuals that were forced to flee as a result of the events of WWII, the protocol expanded the scope of the convention and ensured that it was applicable to

6"Convention relating to the Status of Refugees," 189 United Nations Treaty Series 150, entered into force April 22, 1954, http://wwwl.umn.edu/humanrts/instree/vlcrs.htm, (accessed March 30, 2010). 7 Ibid.

52 include individuals that were forced to flee after 1945. Another feature of this international agreement is the fact that it facilitates the ability of international organizations to monitor state practices regarding their treatment of refugees and asylum- seekers. Article 2, Section 2 of the Protocol requires all signatories to provide information to the United Nations High Commissioner for Refugees (UNHCR) and all other relevant international governmental organizations.9 It expands the scope of state obligations to the international community by expanding the definition of refugee status and attempts to increase accountability by ensuring that international agencies are able to monitor states' actions vis-à-vis individuals that have been forced to flee their countries of origin.

The United Nations High Commissioner for Refugees The destruction of WWII highlighted the necessity of providing a consistent mechanism for coordination and for the provision of assistance to both refugees and receiving states. As a direct result of this recognition, the UNHCR was founded on December 14, 1950.10 The origins of the UNHCR continue to have a distinct impact on the manner through which this organization interprets its mandate and formulates its operating procedures. The General Assembly of the United Nations (UN) is responsible

8 "Protocol Relating to the Status of Refugees," 606 U.N.T.S. 267, (entered into force Oct. 4, 1967) http://wwwl.umn.edu/humanrts/instree/v2prsr.htm, (accessed March 30, 2010). 9Ibid. 10 United Nations High Commissioner for Refugees, "About Us," UNHCR: The Refugee Agency, http://www.unhcr.org/pages/49c3646c2.html, (accessed March 30, 2010).

53 for the creation of the UNHCR and continues to control the organization to this day. The main purpose behind the creation of this organization is to provide a mechanism for resolving refugee crises. The High Commissioner acts as a conduit for international assistance, provides leadership relief efforts and provides oversight for the efforts of the host government.12 The very structure of this organization is derived from international law of refugee rights and as such provides a measure through which to examine the norms of political asylum inherent within the international community. The mandate for the UNHCR has two main objectives: 1. Provide assistance to governments for purposes of refugee protection; 2. Assist with the reintegration, resettlement or the repatriation of refugees13 This mandate places the rights and security of refugees at the forefront of the UNHCR' s priorities. These objectives require the UNHCR to ensure that it is able to resolve the inherent tensions between the authority of the state and the rights of non-citizens. States that have signed the Convention relating to the Status of Refugees 1951 and the Protocol Relating to the Protection of Refugees of 1967 have agreed, in principle, to honor the rights of refugees. The UNHCR has been charged with the task of ensuring the commitment of these signatories to the Convention relating to the Status of Refugees

1 ' Gil Loescher, Alexander Betts and James Milner, The United Nations High Commissionerfor Refugees (UNHCR): The Politics and Practices ofRefugee Protection into the Twenty-First Century, (London: Routledge, 2008), 75. 12 United Nations High Commissioner for Refugees, Handbookfor Emergencies: 3r Edition, (Geneva: UN High Commissioner for Refugees, 2007), 4. 13 Ibid., 2.

54 1951. Both the Convention and the Protocol provide two of the most important legally binding agreements through which the UNCHR can fulfill its purpose. The UNHCR is expected to protect asylum-seekers refugees and stateless individuals. A political asylum-seeker is classified as an individual that has crossed the border and is requesting that hosting state recognize them a refugee. 15 Once and individual has requested asylum, it is up to the state to determine if the individual actually qualifies as a refugee. An asylum-seeker will be granted status as a refugee if: 1. The individual possesses a 'well-founded fear' on the basis of his/her religious and/or political beliefs, membership in a specific social group, his/her nationality and his/her gender; 2. There is a generalized threat to the freedom and/or the life of the individual.16

Statelessness presents a far greater challenge to the UNHCR. An individual can be considered stateless if they do not have legal recognition by the government of any state.17 When individuals lack even the most basic form of citizenship, it becomes imperative that an international entity takes responsibility for the provision of their security and basic necessities. The UNHCR takes responsibility for stateless individuals to ensure that their rights are met. However, the scope of the UNHCR' s protection is often constrained by the limited financial resources that it has at its disposal to address the numerous refugee and statelessness crises across the world. 18 Guidelines for classification are developed for determining who is an asylum seeker, a stateless

14 Loescher, Betts and Milner, The United Nations High Commissionerfor Refugees (UNHCR), 2. 15 UNHCR, Handbookfor Emergencies, 17. 16IbJd. 17IWd., 18 18 Berkeley, 10.

55 individual and/or a refugee and therefore what rights and recognition an individual is entitled to receive.

The relationship between the UNHCR and the receiving government is of the utmost importance. In fact, the UNHCR must facilitate the receiving government's ability to ensure the safety of refugees and asylum-seekers.19 The UNHCR, once a state has officially recognized individuals as refugees, has specific duties that must be performed to meet its own obligations under international law. Field offices are entrusted with the duties to protect refugees and to operationalize the directives from UNHCR headquarters within their jurisdictions.20 While refugee crises have an impact on the international community, they must often be resolved at a local level. As a result, field offices are required to tailor their efforts to the local political context in which they find themselves to be effective and to avoid expulsion by the receiving government.21 This necessitates coordinating and cooperating by the UNHCR with numerous actors and collectives. The UNHCR must work through a variety of different channels in order to translate its mandate into its everyday activities, yet the consent of the national government of the state where their operations are based is of the utmost importance. The UNHCR, despite the constraints imposed on it by state sovereignty, has a mandate enshrined in international law and thus has the ability to determine the operational definition of refugees and asylum-seekers. Forced migrants that meet these standards thus, have a legitimate claim to international protection. The origin, mandate

19 UNHCR, Handbookfor Emergencies, 4. 20 Loescher, Betts and Milner, The United Nations High Commissionerfor Refugees (UNHCR), 82. 21 Ibid.

56 and workings of the UNHCR also have implications for the response of the aforementioned receiving governments. They determine the manner through which the UNHCR perceives asylum-seekers and refugees and how it will respond to the failure of the receiving states to live up to the standards set forth in international law.

Rising Barriers to Migration

Sovereignty and the Westphalia State System Although international law and organizations have clearly taken on a newfound importance in the aftermath of WWII, they have not always been honored by states. The right to enforce national borders is a crucial aspect of sovereignty.22 Despite the best efforts of the UNHCR and the international community to assist refugees, states still retain control of their own territories and have, at times, deliberately violated international norms. The importance of non-interference by the government of one state in the domestic affairs of another has served as the central norm of the Westphalia State System.23 All of the international governmental organizations responsible for the creation of international refugee and political asylum law are confined by the parameters of state interests. The membership of the United Nations is composed of states and thus must operate within the parameters that are set by state actors. Although the international norm of state sovereignty has been subjected to greater restraints due to the rise of human

Mark B. Salter, "When the Exception becomes the Rule: Borders, Sovereignty, and Citizenship," Citizenship Studies, Vol. 12 Issue 4 (August, 2008): 366; Mark B. Salter, "The Global Visa Regime and the Political Technologies of the International Self: Borders, Bodies, Biopolitics," Alternatives: Global, Local, Political, Vol. 31, Issue 2, (April-June, 2006): 169. 23 P.A. Hayman and John William, "Westphalian Sovereignty: Rights, Intervention, Meaning and Context," Global Society: Journal ofInterdisciplinary International Relations, Vol. 20, Issue 4, (October, 2006): 522.

57 rights norms, it has not been displace. While the international agreements regarding refugee rights are monumental, their state signatories are able to withdraw from them at any time.25 Hence, the government's control over the entry and exit of non-citizens and citizens has not been eroded by the creation of international norms.

Regulation of Interstate Travel

The rise of the modern nation-state has generated new efforts to curtail the mobility of would-be immigrants. Throughout history, few governments have been capable of projecting complete control over their borders. 26 The extent of a state government's control over its territory has grown dramatically within the last century. State governments now have more control than at any previous point in history.27 The current system for the regulation of borders is the product of the early 1900s. Immigration regulations, as they currently exist, began around the time of World War I;28 one of the international community's earliest efforts to generate a global system for the regulation of borders was hosted shortly after this conflicts conclusion. The Conference on Passports, Customs Formalities and Through Tickets in 1920 marks the origin efforts to create a systematic means for receiving states to regulate would be entrants. Rapid

24 Alexander Betts, Forced Migration and Global Politics, (Chichester: Wiley-Blackwell, 2009): 47. 25 "Convention relating to the Status of Refugees" and "Protocol Relating to the Status of Refugees." 26Céline Nieuwenhuys and Antoine Pécoud, "Human Trafficking, Information Campaigns, and Strategies of Migration Control," American Behavioral Scientist, Vol. 50, Issue 12, (August, 2007): 1676. 27 Jonathan W. Moses, International Migration: Globalization's Last Frontier, (New York: Palgrave Macmillan, 2006), 36. 28IbId. 29 Salter, "The Global Visa Regime and the Political Technologies of the International Self," 170.

58 technological advances have led states to exert even more authority over their borders. At the same time, technological advances have made international travel more affordable for would-be migrants.30 The criminalization of migration has increased significantly within the past several years and is part of the efforts of states to manage globalization. However, states' efforts to limit population flows have not been sufficient. These policies have not led to an overall reduction in migration. This system of regulation, despite its shortcomings, is fundamental at odds with the ethos of the international norms of refugee rights.

Tensions between State and Refugee Rights in East Asia and Beyond

Implications for the Enforcement of International Law Once a political asylum-seeker has crossed the border into a receiving state, the UNHCR and the international community expect the government of the aforementioned state to adhere to the international law regarding the rights of refugees. Several of the main tenets of international law attempt to safeguard the individual's right of movement. Governments should not prosecute asylum-seekers, individuals that were forced by justifiable concerns for their own safety and well-being, for entering into their territory without the proper documentation as long as the asylum-seekers identify themselves to

Christopher W. Rudolph, "Globalization, Sovereignty and Migration: A Conceptual Framework," UCLA Journal ofInternational Law and Foreign Affairs, Vol. 3, No. 2, (Fall/Winter, 1998- 1999): 329. 31 Melissa G. Curley, "The "Securitization" of Illegal Migration in Asia: A Concept Paper," in Asia in the New Millennium: APISA First Congress Proceedings, 27-30 November 2003, ed. Amitav Acharya and Lee Lai-To (Singapore : Marshall Cavendish Academic, 2004), 167-168. 32 Kathy Richards, "The Trafficking of Migrant Workers: What are the Links between Labour Trafficking and Corruption?" International Migration, Vol. 42, Issue 5, (2004): 151.

59 the proper authorities within a timely manner. Some of these tenets of international law are binding even if the receiving country's is not a signatory to the Convention relating to the Status of Refugees or the Protocol relating to the Status of Refugees. The principle of non-refoulement is an essential part of international law; all states are expected to adhere to it regardless of their status as signatories to the Convention and the Protocol.34 These expectations characterize the UNHCR' s engagement strategies with receiving states. The relationship between the traditional rights of the state and humanitarian norms has been complex and at times has resulted in conflict. Just six years before the Convention relating to the Status of Refugees was formed (1951), the United Nations formally adopted the norm of non-interference in its Charter. The fact that the norms of sovereignty were also enshrined in international law makes the resolution between refugee rights and states' rights difficult. The very reason that the international leaders responded to the millions displaced by WWU was out of fear that these masses would undermine the stability of various nation states. As a result, refugees were initially interpreted as a military concern and that regulation of this population would be essential to the maintenance of national security.36 The collision between these two sets of international norms has led to a wide variety of state responses to refugee crises and constant negotiations between international actors charged with protecting refugees and international actors responsible for ensuring the national security.

UNHCR, Handbookfor Emergencies, 21-22. 'ibid., 19. ' Amitav Acharya, Whose Ideas Matter, (Ithaca: Cornell University Press, 2009), 32. ' Malkki, 499.

60 Despite its mandate, the UNHCR must also operate within the context of states sovereignty. The creation of the UNHCR reflected both the impact that the Westphalia modern state system has had on migration patterns and the recognition by world leaders of the shortcomings of ad hoc responses to refugee crises that manifested themselves during the aftermath of World War ?.37 States have still taken pains to ensure that they remain in control of their territory. As a result, a tension exists for the UNHCR between protecting refugees without challenging the sovereignty of states.38 The ability of the UNHCR and other international actors to protect refugees is contingent upon the willingness of states to cooperate. States are expected to allow the UNHCR to establish a permanent presence to address and monitor refugee needs and rights, but it is ultimately

on up to the state leaders to grant access to members of the international community.

Therefore, the interests of states continue to influence the actions of the UNHCR. International laws regarding the rights of refugees often contradict states' national security concerns and their traditional prerogative of border control. States are required to admit asylum-seekers without prejudice.40 International law regarding the rights of refugees expects states to temporarily set aside issues of sovereignty and allow humanitarian concerns to override national security concerns. In practice, states have

Loescher, Betts and Milner, The United Nations High Commissionerfor Refugees (UNHCR), 6, 12. 38 Gil Loescher, The UNHCR and World Politics: A Perilous Path, (Oxford: Oxford University Press, 2001), 2. 39 UNHCR, Handbookfor Emergencies, 22. 40 Ibid., 21.

61 retained their sovereign rights and continued. Upon entry, refugees are still expected to surrender themselves to the sovereignty of the state.

East Asia's Adoption of Sovereignty The end of WWII also marked the beginning of independence from European rule for many East Asian states. Colonization has had a major impact on the willingness of many East Asian states to accede to international agreements on human rights. Many of the East Asian states did not have any chance to provide input during the creation of international norms and laws of refugee rights.42 The norm of non-interference has taken on a special significance in Asian international relations. In the post WWII environment, the norm of non-intervention was embraced by Asian leaders, recently freed of the confines of colonization and eager to ensure that they would be able to prevent further external influence in their countries.43 This international norm was adopted by Asian leaders in such a manner as to perpetuate their own independence. Sovereignty continues to hold sway in the majority of the East Asian region. The leaders of Asian states are disinclined to accede to international agreements and established practices of refugee rights.44 Their resistance to the influence of external actors on their domestic affairs for purpose of promoting human rights can be seen in the Bangkok Declaration on Human Rights (1993). Articles 3, 5, 9, 12, 13 of this Declaration all stipulate that the international community should respect sovereignty of 41 Salter, "When the Exception becomes the Rule," 371. 42 Sara E. Davies, "The Asian Rejection?: International Refugee Law in Asia," Australian Journal ofPolitics & History, Vol. 52, Issue 4, (December, 2006): 563. 43 Acharya, 36. 44 Davies, 566.

62 states when addressing issues arising out of human rights and claim that states should have the final say when determining how to address abuses.45 The sentiments expressed in the Bangkok Declaration are highly significant for my case study. Both China and Malaysia were participants in the Regional Meeting for Asia of the World Conference on Human Rights that drafted the Bangkok Declaration.46

Factors behind Forced Migration

The rationale behind a political asylum-seeker's decision to flee his or her country of origin is one of the most important factors that will determine the validity of his or her claim to refugee status. Although refugee status is ultimately up to the receiving state, the factors that force an individual to migrate affect the willingness of the international community to recognize that individual as a refugee. In order to determine if the asylum- seekers in the two case studies that I am utilizing actually qualify as refugees, it is important to understand the conditions under which they fled and the extent to which these circumstances justify the classification of these individuals as refugees. In this section, I will examine both the pervasive conditions under which North Koreans and Burmese people live their everyday lives and several specific crises that have threatened their lives and their freedoms within their countries of origin.

"The Bangkok Declaration," the Regional Meeting for Asia of the World Conference on Human Rights in Bangkok from March 29-April 2, 1993, pursuant to General Assembly resolution 46/1 16 of December 17, 1991, (entered into force April 7, 1993), http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/9d23b88fll5fb827802569030037ed447Opendo cument , (accessed March 30, 2010).

63 The Democratic People's Republic of Korea The government of the Democratic People's Republic of Korea (DPRK) routinely violates the political freedoms and basic human rights of its people: The totalitarian system in the DPRK is absolute. Kim Il Sung, the founder of the North Korean government and the father of current leader Kim Jong ?, systematically targeted all political opposition and consolidated his grip on power in the immediate aftermath of World War ? and the Korean War.47 The impact that this system of governance has had on the Korean people can be seen from the rising number of refugees leaving the country. The devastation of the Great Famine (1994-1998) highlights the fragility of the state- controlled economy and the general lack of food security for the North Korean people; a disaster that could easily be repeated given the state of the North Korean economy.

Population of Concern from North Korea (2000- 2008) 1200

1000 -Total refugees and people In 800 refugee-tike situations

600 -Asylum -seekers (pending cases) 400

200 • Total population of Concern 0

ooooooooo ooooooooo

Figure 2.1 UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), http://www.unhcr.org/statistics/populationdatabase, (accessed March 20, 2010). Despite the absence during the last decade of any major catastrophes, the total population of concern from North Korea has continued to increase (see figure 2. 1). The lack of

47 Bertil Lintner, Great Leader, Dear Leader: Demystifying North Korea under the Kim Clan, (Chiang Mai: Silkworm Books, 2005), 71-73.

64 political freedoms, the draconian nature of the ill-defined penal code and the Great Famine (1994-1998) all highlight the rationale behind the decision of North Koreans to leave their country in search of safety. Their daily plight provides a clear justification for classifying them as a refugee population.

Political Dictatorship and Human Rights The DPRK has been ruled by Kim Jong Il since the death of his father, Kim ? Sung, in 1994. Kim Jong Il maintains an iron grip on the country through his control of powerful government organizations, such as the National Defense Council, and through the placement of close relatives and loyal supporters into important government positions. 48 The plight of the vast majority of North Korean people is unquestionable. Food and human rights violations serve as the main push factors for seeking refuge in the PRC. Refugees have often defected due to the deprivation of such basic rights as the lack of religious freedom.50 Kim Il Sung was able to establish a culture of personality and new national ideology. The creation of the 'Juche' ideology, or self-reliance, has served to bolster the idolization of the Kim Clan levels bordering worship.51 Kim Jong Il has been able to continue his this hold over the population through his perpetuation of this ideology, rather than through his ability to actually lead North Koreans to peace and prosperity.

48 Lintner, 85-86, 87. 49Rhoda Margesson, Emma Chanlett-Avery and Andorra Bruno, "North Korean Refugees and Human Rights Issues: International Response and US Policy Options," CRS Report for Congress, (January 18, 2008), 6. 50 Mike Kim, Escaping North Korea: Defiance and Hope in the World's Most Repressive Country, (Lanham: Rowman and Littlefield, 2008), 65. 51 Lintner, 98.

65 Crime and Punishment The control that Kim Jong D has been able to exert over North Korea is not solely due to his strong backing of the Juche ideology. There are currently an estimated 150,000-200,000 political prisoners in the DPRK.52 Camps for political prisoners inspire terror throughout the country and provide a staunch deterrent for any would-be- challengers of Kim Jong II. The draconian punishments that individuals face for such innocuous actions as listening to radio broadcasts from abroad are a testament to the level of fear that Kim Jong ? and his supporters have managed to instill in the general population.53 North Koreans are not at liberty to leave their country without the expressed permission of their government. North Koreans that flee the DPRK are considered criminals by the Kim Regime and are punished accordingly.54 This trend has been increasing in severity since the end of the Great Famine. Punishment is not limited to the guilty individual. Collective punishment in North Korea ensures that three generations of the family of one 'guilty' individual can be punished.55 Interviews with North Korean refugees have provided reports of public executions and the use of torture.56 These gulags and prisons are characterized by deplorable conditions. There is

52 Kim, 104. 53 Ibid., 103. 54 Margesson, Chanlett-Avery and Bruno, 9. 55Kim, 2008: 113. 56 Amnesty International, "Democratic People's Republic of Korea Persecuting the Starving: Plight of North Koreans Fleeing to China," Amnesty International, (December, 2000), 5, http://www.amnesty.org/en/library/asset/ASA24/003/2000/en/6fbfa0e4-dd04-lldd-a007- 3753b71c3d78Zasa240032000en.pdf, (accessed March 30, 2010).

66 limited access to food, water and sanitation within these prisons. Prisoners are

CO subjected to forced labor and routinely beaten by guards. The heinous nature of the punishments that individuals face for simple violations serves as a pervasive deterrent for political challenges to the Kim regime. This systematically violates the political and civil liberties of the North Korean people.

Constant Surveillance

The enforcement of such dire punishments would not be possible without an extensive network of informants ând a well-established monitoring system. The Korean Workers Party's Organization and Guidance Department monitors the activities of all government employees and the State Security Department serves as the secret police today.59 These institutions guard against any challenges to Kim Jong II' s leadership. The "Five Household System" is the monitoring system for individuals living in ordinary neighborhoods; each group has five families informing on one another and attending self- criticism sessions together or, should the individuals live in apartment complexes, they are reported on by an informant that lives on every fifth floor of each apartment building.60 These punishments reinforce the complete control of Kim Jong Il and his ability to deter any challenges to his rule, regardless of how dire the situation in the

DPRK becomes.

Kim, 104-106.

Ibid., 107, 109.

Lintner, 102.

Ibid., 103.

67 The Great Famine

The Great Famine is one of the most tragic events that has taken place in North

Korea in recent years. A combination of poor governance, economic stagnation, changing geopolitical factors, geography and natural disasters led to the death and greater depravation in the DPRK. The geographic features of North Korean make its agriculture dependent on a functional industry to supply the necessary inputs for fertilizer. ' This did not pose a problem for the DPRK throughout the Cold War due to favorable trade relations with fellow Communist states. The end of the Cold War and the disintegration of the Soviet Union precipitated a steep drop in economic development in the DPRK.62 Without the availability of necessary inputs, agricultural production began suffer. Severe flooding in 1995 exacerbated this economic downturn. Poor management of the agricultural system and the high level of deforestation only increased the impact that the flood had on the arable land in North Korea.64 The Kim regime was unable to meet this challenge on its own. The collapse of the state-controlled economy led to an increase in the number of North Koreans fleeing to neighboring states.65 Food security in North Korea was undermined by the crisis. Given the communist structure of the economy, it 61 David Morton, "Steep Learning Curves in the DPRK," in Humanitarian Diplomacy: Practitioners and Their Craft, ed. Larry Minear and Hazel Smith, (New York: United Nations University Press, 2007), 195. 62 Ibid., 196. 63 Alan Dupont, East Asia Imperilled: Transnational Challenges to Security, (Cambridge: Cambridge University Press, 2001), 166. 64 Ibid. 65 Diana Wong, "Forced Migration in East Asia," in Foreign Workers, Refugees, and Irregular Immigrants: Political Challenges and Perspectivesfor Asia-Europe Cooperation, ed. Carolina g. Hernandez and Steffen Angenendt (Tokyo: Council for Asia-Europe Cooperation and the Asian Secretariat c/o Japan Center for International Exchange and Quezon City: Institute for Strategic and Development Studies, Inc., 2004), 189.

68 Stands to reason that the majority of the population would be completely dependent on the government to meet their basic needs. The failure of the public distribution system ensured that individuals that were not considered priority groups did not have steady access to a sufficient source of food.66 As a result, the death toll of this tragedy was nothing short of catastrophic. The estimates of the total number of deaths related to the famine range from 220,000 to 3.5 million. The Great Famine clearly constituted a 'general threat' to life and well-being of the North Korean people.

To this day, the public distribution system has not fully recovered. Few people, beyond the political and military elites, are able to have their nutritional needs met by this system alone.68 North Korean officials were both slow and ineffective when attempting to respond to the crisis. The DPRK could have decreased the severity of the Great Famine if its leaders had sought aid more actively and at an earlier point in time and/or if they had worked to ensure that they had the necessary foreign currency reserves to import food.69 Even after the DPRK made a belated request to the international community for food assistance, national security was paramount to all other concerns; thus humanitarian organizations were repeatedly denied access to victims and specific regions.70 This failure clearly indicts the Kim regime for gross negligence and provides credence to the classification of North Korean defectors as refugees.

66 Stephan Haggard and Marcus Noland, Famine in North Korea: Markets, Aid and Reform, (New York: Columbia University Press, 2007), 22. 67Ibid., 11. 68 Kim, 55. 69 Haggard and Noland, 10. 70 Morton, "Steep Learning Curves in the DPRK," 207.

69 Burma/Myanmar

Population of Concern from Burma (2000-2008) 350000

300000 ¦Total refugees and people in refugee-like situations 250000 » Asylum-seekers (pending cases) 200000 -IDPs protected/ assisted by UNHCR, 150000 incl. people in IDP-Ilke situations • ReturnedlDPs 100000

50000 -Total Population of Concern 0 O<-Hr\im"*u">i£>r»-00 OOOOOOOOO OOOOOOOOO G?G??G??G?G?G??G?G?G?

Figure 2.2 UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), http://www.unhcr.org/statistics/populationdatabase, (accessed March 20, 2010).

The standard of living and the quality of life in Burma has declined substantially within the last fifty years. The impact on the Burmese people has been dire. There have been a rising number of individuals that have fled Burma in search of security and freedom (see figure 2.2). The lack of political freedoms, human rights violations, the persecution of minorities, the failure of the state to respond to natural disasters provide a clear justification for the determination of Burmese asylum-seekers in Malaysia as refugees.

The Military Junta and Human Rights The political system in Burma severely curtails the right of the individual to obtain effective political representation and the means to voice discontent with their political leaders. It is far more accurate to describe Burma as an artificial political construct than as an actual nation. The British colonization of the state now known as

70 Burma entailed the combination of a variety of different ethnicities, cultures, histories, languages and religions; this has acted as a major barrier to the formation of a modern nation since its independence in 1948. 71 Burma has been governed by a military dictatorship since 1962.72 Despite recent efforts to implement a new constitution,73 there has been little optimism from the pro-Democratic movement. Many fear that it and the upcoming 2010 elections will only further entrench the military's role.74 History suggests that the results of these elections will not be honored. Daw Aung San Suu Kyi was placed under house arrest in 198975 and remains there to this very day, despite the fact that her political party, the National League for Democracy, won sixty percent of the popular vote in 1990.76 The house arrest was extended yet another 18 months, long enough to ensure that she will not be able to take part in the upcoming elections.77

71 David I. Steinberg, "Legitimacy in Burma/Myanmar: Concepts and Implications," in Myanmar: State, Society and Ethnicity, ed. N. Ganesan and Kyaw Yin Hlaing (Singapore: Institute of Southeast Asian Studies; Hiroshima, Japan: Hiroshima Peace Institute, 2007), 1 10. 72 Burma was taken over by the military through a coup in 1962. Although different governments, such as the State Law and Order Restoration Council (SLORC) and the State Peace and Development Council (SPDC) have taken control in the aftermath, Burma has continued to be dominated by the military (Steinberg, Burma/Myanmar, 62). 73 The new Burmese Constitution, adopted in 2008, has been greeted with skepticism by the international community and will likely only serve to perpetuation the military's control over the country (Marc McDonald, "Leader of Junta Confirms Myanmar Is Planning 2010 Elections," New York Times, (January, 4, 2010), http://www.nytimes.com/2010/01/05/world/asia/05myanmar.html?scp=19&sq=Burma%20and%20Constitu tion&st=cse, (accessed June 7, 2010)). ^International Crisis Group, "Burma/Myanmar After Nargis: Time to Normalize Relations, " International Crisis Group: Working to Prevent Conflict Worldwide, Asia Report N°161, (October 20, 2008), 1. 75 Steinberg, "Legitimacy in Burma/Myanmar," 119. 76Alden T. Roycee, "Burma Country Profile," in Burma in Turmoil, ed. Alden T. Roycee (Hauppauge: Nova Science Publishers, 2008), 15. 77 Thomas Fuller, "Burmese Dissident Meets With Foreign Envoys," New York Times, (October 9, 2008), http://www.nytimes.com/2009/10/10/world/asia/10myanmar.html, (accessed March 30, 2010).

71 Political rights and civil liberties are frequently violated under this political framework. There are currently an estimated 2,100 political prisoners in Burma.78 Individuals are routinely persecuted by the Military Junta for their political beliefs. The basic civil liberties of the Burmese people are systematically violated by the Military Junta. Freedom of movement and association for the people within Burma has been rigidly curtailed. Freedom of speech is controlled through the arbitrary detention of the press.79 The Military Junta's effort to control the flow of information leads to violations of individual rights. The 1964 National Security Act has severely curtailed the ability of Burmese citizens to organize for political purposes.80 Only the Burma Socialist Programme Party (BSPP), the government in control of Burma froml962-1988, and supported organizations were considered legal, with their main purpose being to monitor any activities that could undermine government control.81 This trend has continued with the rise of the State Law and Order Restoration Council (SLORC); currently known as the State Peace and Development Council. The constraints on individual movement support the assertion that attempting to forcibly repatriate a Burmese asylum-seeker in Malaysia constitutes refoulement. Individuals that leave Burma without prior dispensation from the government have later been forced to return and possibly

78 Neil MacFarquhar, "U.N. Chief Meets With Myanmar Junta," New York Times, (July 3, 2009), http://www.nytimes.com/2009/07/04/world/asia/04myanmar.html, (accessed March 30, 2010) 79 Reuters, "Myanmar Arrests Journalists, Activists In Crackdown," New York Times, (October 30, 2009), http://www.nytimes.com/reuters/2009/10/30/world/international-us-myanmar-arrests.html, (accessed March 30, 2010) 80 Kyaw Yin Hlaing, "Associational Life in Myanmar: Past and Present," in Myanmar: State, Society and Ethnicity, ed. N. Ganesan and Kyaw Yin Hlaing (Singapore: Institute of Southeast Asian Studies; Hiroshima, Japan : Hiroshima Peace Institute, 2007), 14. 81 Ibid., 155-156.

72 punished. This form of persecution would give individuals a well founded fear of persecution. Unlike the DPRK, the Military Junta has not been as effective staving off dissent. British rule of Burma, despite all of its negative ramifications, attempted to institute political institutions that were reflective of the needs and the desires of the Burmese people.83 This created the opening for civil society and other interest groups to form, prior to the dictatorship that began in 1962. Ineffective political rule and stagnant economic development have undermined its legitimacy in the eyes of the people. Civil society in Burma had been vibrant both during British rule and for the fourteen years during which Burma had a democratic system of government; it was the remnants of these groups that facilitated the organization of 1988 Protests.84 The shortcomings in economic policies and rigid political control that Burmese government has exerted over the country have led to widespread dissent that has collated into the Four Eights Democratic movement in the 1988.85 The events of the Saffron Revolution in 2007 and the anger after the failure of the Military Junta to provide effective relief after the devastation of Cyclone Nargis indicate that dissent has not subsidized. These events illustrate the shortcomings of the Military Junta and provide examples of how the

Tin Maung Maung Than, "Mapping the Contours of Human Security Challenges in Myanmar," in Myanmar: State, Society and Ethnicity, ed. N. Ganesan and Kyaw Yin Hlaing (Singapore: Institute of Southeast Asian Studies; Hiroshima, Japan : Hiroshima Peace Institute, 2007), 179. 83 Robert H. Taylor, "British Policy towards Myanmar and the Creation of the 'Burma Problem'," in Myanmar: State, Society and Ethnicity, ed. N. Ganesan and Kyaw Yin Hlaing (Singapore: Institute of Southeast Asian Studies; Hiroshima, Japan : Hiroshima Peace Institute, 2007), 80-81. 84 Hlaing, 144. 85 Roycee, 12.

73 individuals can be rightfully classified as refugees and the major crises that have resulted in refugee outflows.

The Marginalization of Ethnic Minorities One of the most salient legacies of the British colonial rule is the endemic contestation for political legitimacy between minority groups and the Military Junta. The British elected to indirectly govern Northern Burma, the area where a concentration of distinct ethnic minority groups live, separately from the rest of the colony. This has major implications for the modern secessionist struggles in this area. The central government greatly fears that a federal system will allow minority groups to succeed from the state and hence continues to attempt to establish its authority over these groups.87 Individual ethnic groups that have resisted the Junta's rule have borne the brunt of discrimination and reprisals. Certain ethnic rebel groups continue to prevent the Junta from projecting its authority to the border of its territory, namely the United Wa State Army and the Shan State Army-South, and have allowed these ethnic rebels to established networks that extend from Malaysia to India.88 These conflicts, the result of the aforementioned tensions, have led to the displacement and the depravation of the rights of ethnic minority groups within the country. Other minority groups are not recognized by the government as being citizens of Burma. The Rohingyas are the most prominent example of this reality. There are approximately 723,000 Rohingyas in Burma

86 Taylor, 72. 87 Steinberg, "Legitimacy in Burma/Myanmar," 1 19. 88 Liana Sun Wyler, "Burma and Transnational Crime," Burma in Turmoil, ed. Alden T. Roycee (Hauppauge: Nova Science Publishers, 2008), 76.

74 at this time. These individuals lack adequate representation and rights as a result of the refusal of the Military Junta to provide them with citizenship. Although there have been widespread allegations, the government has only acknowledged the existence of forced labor by claiming that it is not a significant issue.90 These trends highlight the difficulties that the people of Burma must endure on a regular basis.

The Four Eights Movement

The ongoing movement for democracy in Burma began as a direct result of the Four Eights Movement. What began as a fight between locals and students at Rangoon Institute of Technology at the Sanda Win Teashop on March 12, 1988 culminated in mass protests and led to the downfall of the BSPP.91 Individual frustrations with the shortcomings of the repressive regime finally found a voice in public. Throughout the course of the protests, a pro-democracy movement emerged with a demand for multiparty elections.92 Eventually, the State Law and Order Restoration Council (SLORC) stepped in to halt the protests. The Four Eights Democracy movement ended due to the harsh and repressive tactics of the SLORC.93 Many of the participants of this protest faced dire consequences for their actions. The SLORC has attempted to consolidate its rule by

Peter Gelling and Thomas Fuller, "Myanmar Refugees Rescued at Sea," New York Times, February 3, 2009, http://www.nytimes.com/2009/02/04/world/asia/04indo.html, (accessed April 4, 2010). 90 Tin Maung Maung Than, 190. 91 Michael W. Charney, A History ofModern Burma, (Cambridge: Cambridge University Press, 2009): 148. 92Ibid., 155. 93 Hlaing, 160.

75 arresting leaders and participants of the democracy movement. The persecution of individuals for expressing political dissent provides sufficient justification for classifying Burmese dissents as refugees due to the fact that this constitutes a well-founded fear of persecution on the basis of their political beliefs.

The Saffron Revolution

A similar event took place less than twenty years later. Burma's economy has continued to stagnate. The wages paid to the average worker throughout the last few decades have lagged far behind the substantial inflation rates that have plagued Burma, indicating that there has been a continuous decline in the standard of living of the Burmese people.95 The removal of the fuel subsidy led to rapid inflation of fuel and related prices. Buddhist Monks in Burma responded to the government's removal of the fuel subsidy and its impact on the people by forming protests in August 2007. 96 Thousands of monks participated in these demonstrations.97 The rapidness and the overall popularity of the protests posed a direct challenge to the Military Junta's leadership. As a result, these protests ultimately led to widespread crackdowns by the government.98 Troops were called up to defend the government. Burmese soldiers fired

V4 Hlaing, 160. 95 Steinberg, "Legitimacy in Burma/Myanmar," 120. 96Charney, 196-197. 97 "Monks Succeed in Cyclone Relief as Junta Falters," New York Times, (May 3 1 , 2008), http://www.nytimes.eom/2008/05/3 l/world/asia/3 1 myanmar.html?pagewanted=l&sq=Saffron Revolution&st=cse&scp=ll, (accessed March 30, 2010). 98Charney, 197.

76 into crowds of over 50,000 people. The total number of dead remains unknown. However, it has been confirmed that at least 31 individuals were killed by Burmese soldiers.100 This tragedy demonstrates a pervasive disregard for the basic rights and the political aspirations of the people. Given the indiscriminant manner through which soldiers were ordered to open fire on the crowds and the subsequent number of arbitrary arrests, individual participants certainly meet the international standards for classification as refugees.

Cyclone Nargis Although Cyclone Nargis must on the surface be considered a natural disaster, the response by the Military Junta clearly indicates both the skewed priorities of the government and the overall level of incompetence. Burma was struck on May 2 and 3, 2008 by Cyclone Nargis.101 The impact of this natural disaster has been catastrophic. According to figures released by The Star Online, an estimated 150,000 people ultimately lost their lives as a result of this storm.102 Despite the widespread death and destruction caused by this storm, the military did not accept support from the international community until July of 2008, over two months after the cyclone struck. 103 The government deliberately delayed relief efforts out of a concern for their own political ""Soldater draeber ni I Myanmar", Politiken, (September 28, 2007) as cited in Roycee, 31. 100 Reuters, "Myanmar Arrests Journalists, Activists In Crackdown," New York Times, (October 30, 2009), http://www.nytimes.com/reuters/2009/10/30/world/international-us-myanmar-arrests.html, (accessed March 30, 2010). 101 International Crisis Group, 3. 102Yip Yoke Teng, "Myanmar Children Write a Book to Help Their Countrymen," The Star Online, (May 7, 2009), http://thestar.com.my/metro/story.asp?file=/2009/5/7/central/3792192&sec=central, (accessed April 25, 2010). 103 International Crisis Group, 2.

77 control of the country. Government officials did not trust the intentions of either foreign humanitarian aid organizations or local non-governmental relief efforts. Burmese leaders were unwilling to allow the US to use its military vessels in the region to assist with relief efforts and were slow to provide visas for UN officials that need to enter to determine the best means to provide for the relief effort.104 For the Military Junta, national security took precedence over assisting their people in the wake of a natural disaster.105 There were over 2.4 million individuals affected by the crisis and in need of medical and material assistance.106 Rather than relying on the expertise and efforts of different organizations, the government demanded that both local and international groups surrender relief supplies to the government for distribution.107 This led to concerns that the relief supplies would not make it to the intended recipients. Some

? no known activists were actually arrested by the government for their humanitarian work. This crisis clearly meets the burden of 'general threat to life or freedom'.

Summation

In this chapter I have highlighted the development of the international norms and laws of refugee rights. Despite the development of these international standards of

104 Seth Mydans and Helene Cooper, "Aid for Myanmar Mobilizes, Mixed with Criticism," New York Times, (May 7, 2008), http://www.nytimes.com/2008/05/07/world/asia/07myanmar.html?pagewanted=2&_r=l&sq=cyclone Nargis&st=cse&scp=6, (accessed April 25, 2010). 105 International Crisis Group, 2. 106 Mergawati Zulfakar and Yeng Ai Chun, "Anifah: Re-engage Myanmar," The Star Online, (July 24, 2009), http://thestar.com.my/news/story.asp?file=/2009/7/24/nation/4382763&sec=nation, (accessed April 25, 2010). 107 International Crisis Group, 5.

78 behavior, sovereignty still holds sway. Many states have sought to preserve their sovereignty and have attempted to stem population flows with tighter regulations on interstate travel. The norm of non-interference has led to an inherent tension between the normative objectives of refugee rights and the rights of nation-states. This tension becomes increasingly complex within the context of East Asia. Many of the governments within the region have placed the prerogatives of the state above those of the individual. This emphasis on sovereignty undermines the legal claims of asylum-seekers, regardless of their legitimacy, to protection under international law.

I have also set forth the evidence that entitles defectors from North Koreans and asylum-seekers from Burma to refugee status under international law. The consistent and pervasive human rights violations in both the DPRK and Burma provide overwhelming evidence that the asylum-seekers from both countries meet the international standards for recognition as refugees. Any form of political protest by citizens constitutes a threat to their respective state's regime and the dispensing of severe punishment. Information is strictly controlled by the governments of both countries. Both regimes have repeatedly shown that national security takes precedence over the needs of individuals in their state. This is true even in the direst of circumstances. The people in both countries are denied their basic rights. The numerous examples of the atrocities committed by the leader in both of these states provide justification for the right of Burmese and North Korean people to refugee status. In the next chapter, I will examine the actual response of the PRC and Malaysia to the arrival of North Korean and Burmese political asylum-seekers.

79 CHAPTER ??

POLITICAL REGIME TYPES IN MALAYSIA AND CHINA

Political objectives and ideas must inevitably be subjected to a policy formation process to be realized as public policy. Hence, all new initiatives are forced to contend with a variety of institutions and actors responsible for translating new initiatives into formal policy and into enforcement procedures. As a result, these institutions and officials have the opportunity to challenge policy initiatives while they are in the process of development and once they have been adopted as formal policy to reinterpret them during enforcement. In order to ascertain the impact of this process on the outcome and its effect on political asylum and immigration policy, I have selected the variation between the institutional structure of the Federation of Malaysia and the People's Republic of China (PRC) as my core independent variable. In this chapter, I will establish the degree of centralization inherent within the structure of the governments and the degree of political openness for both countries.

I will begin by analyzing Malaysia's political regime and I will then proceed to examine the political regime of China. I begin both of my case studies by providing an overview of the regime type classification. I then give a general overview of the structure of the government and measure for the degree of centralization of the government decision-making process. I determine this measurement by using the Polity IV dataset, with a greater emphasis placed upon the 'Constraints on the Executive' variable. In a highly centralized regime, I expect that the Constraints on the Executive variable to be

80 much lower in a more authoritarian regime. I also expect the Polity IV score to display a higher degree of autocracy for a centralized regime. I then proceed with a more focused analysis of the institutions responsible for implementing political asylum and/or immigration policy and the degree of political openness. I utilize the Political and Civil

Rights scores that have been identified by the Freedom House. I expect that a more politically-open regime will have a far more favorable ranking for both scores. I examine political openness within the more limited context of institutions responsible specifically for immigration and asylum policy to account for the fact that different actors and collectives exhibit different levels of interest in different policy contexts. The structure of the political systems of the governments of Malaysia and the PRC are noticeably different. The PRC has a much higher degree of political centralization and a far lower degree of political openness than Malaysia. The variation in these government structures on both of my independent variables allows me to examine the impact that political regime type has on political asylum and immigration policy.

Federation of Malaysia

Hybrid Regime

The political regime-type of the Federation of Malaysia does not strictly adhere to the pure regime typologies of: authoritarian, totalitarian or democratic. One main theme that has emerged in the literature on the regime type in Malaysia is that it demonstrates both authoritarian and democratic features. Different authors have drawn on different aspects of the Malaysian governance with a notable variation in their conclusions as to the nature of the Malaysian government. Since 1957 the ruling political coalition, the

81 Barison Nasional (BN) ' , has never lost its control over the national government. Repressive laws, such as the Internal Security Act and Printing and Publication Act, provide avenues for the government to assert control in an authoritarian manner.2 Despite the persistence of authoritarian features in Malaysia, its economy, the structure of its government and its legislative framework provide avenues for non-elite participation and embed democratic values and features that curtail the power of elites.

The salience of the opposition party or parties is one feature that separates competitive authoritarian regimes from a hegemonic electoral authoritarian regime.3 Political opposition parties in Malaysia have been able to gain success at the polls and to challenge the political control of the BN. Citizens in Malaysia can affect the outcome of elections and hence cannot be systematically brushed aside by the political elites. Civil society within Malaysia is vibrant despite legal regulations that restrict freedom of association.4 Individuals outside of the ruling coalition are able to take part in the political process. Economic considerations also factor into the political process. The autonomy of the Malaysian state is limited by its emphasis on economic development, providing a

1 The Alliance became known as the Barison Nasional in 1970 (Barbara Watson Andaya and Leonard Y. Andaya, A History ofMalaysia: 2nd Edition, (Honolulu: University of Hawaii Press, 2001), 325). 2 For further reading, see Harold Crouch, Government and Society in Malaysia, (Ithaca: Cornell University Press, 1996). 3 Larry Diamond, "Elections without Democracy: Thinking About Hybrid Regimes," Journal of Democracy, Vol. 13, No. 2, (April 2002): 31. 4 Meredith Weiss, "Prickly Ambivalence: State, Society and Semidemocracy in Malaysia," Commonwealth & Comparative Politics, Vol. 43, Issue 1, (March, 2005): 61; William Case, "After the Crisis: Capital and Regime Resilience in the ASEAN Three, " Journal of Contemporary Asia, Vol. 39 Issue 4 (November, 2009): 656. 82 greater window of opportunity for non-state actors to influence the political process.5 Political legitimacy in Malaysia has been partially perpetuated through the distribution of rents. The state was created in part to oversee the distribution and guide the development of rents for purposes of political patronage.6 This imbues economic actors with access to political power and the policy-making process. Regular competitive elections and economic development have provided avenues for greater participation in the political process. Given these avenues of influence, the Malaysian government does not usually utilize coercive means to perpetuate its authority.7 The number of political actors with different political agendas makes consensus and cooperation far more difficult. Efforts to create and to enforce policy are thus more likely to encounter opposition. As a result, the formation and implementation of immigration and asylum policy in Malaysia is less consistent with its policy objectives than in the PRC. In this section, I have highlighted the main features that identify the political regime in Malaysia to be a hybrid regime. I will now proceed to examine these features in greater detail as they manifest themselves in the institutional structure of governance in Malaysia.

Institutional Structure

This section will provide a brief overview of the government structure as a whole and then will examine the individual ministries that are responsible for the formation and

5 Garry Rodan, "Accountability and Authoritarianism: Human Rights in Malaysia and Singapore," Journal of Contemporary Asia, Vol. 39, Issue 2, (May, 2009): 182. 6 Case, "After the Crisis," 655-656. 7 William Case, "Electoral Authoritarianism in Malaysia: Trajectory Shift," Pacific Review, Vol. 22,No. 3, (July 2009): 312. 83 implementation of immigration policy as it pertains to refugees in Malaysia. The formal political institutions in the Federation of Malaysia reflect the distribution of power and the need for compromise between conflicting political interests. Malaysia is a federation composed of thirteen states. It has a constitutional monarchy. Laws are created and adopted through a bicameral parliamentary system. The judicial system is formally independent. In addition to observing the structure of institutions, I will also provide a brief historical context behind the formation of the general institutional structure.

Historical trends, as well as societal and economic pressures have had an impact on the formation of institutions and hence also have a role in the impact that institutions have on politics.8 The institutional structure of Malaysia is characterized by the presence of veto players and by a relatively open political system. The ethnic composition of Malaysia has left a discernable mark on the current political institutions. The demography of Malaysia has been a pervasive factor in the formation of political parties and the ruling coalition. There are three main ethnic groups in Malaysia: the Chinese, the Indians and Malays.9 This ethnic composition of Malaysia is the result of British economic interests. The Malays were concentrated in the agricultural sector throughout British control, and the British brought over Indians to work in the plantation sector and Chinese to work in the tin mines.10 The Malays continue to be the largest and the hence the dominant ethnic group in Malaysia. However,

8 Case, "Electoral Authoritarianism in Malaysia," 317. 9 The ethnic composition of Malaysia in as of January 2010 is as follows: Malay 53.3%, Chinese 26.0%, indigenous 11.8%, Indian 7.7%, others 1.2%, Bureau of East Asian and Pacific Affairs, "Background Note: Malaysia," (US Department of State, January, 2010), http://www.state.gOv/r/pa/ei/bgn/2777.htm, (accessed March 30, 2010). 10 Weiss, 63. 84 ethnie Chinese and Indian Malaysians have sufficient numbers that they can pose an electoral challenge to a government controlled solely by Malays. Ethnic minorities in Malaysia have made compromise between the different communal interest groups a necessity11. As a result, the majority of political parties are organized on the basis of community affiliation.12 The ruling coalition is led by the United Malay National Organization (UMNO), with the Malaysian Chinese Association (MCA) and the Malaysian Indian Congress (MIC) as senior partner in conjunction with eleven smaller political parties. This relationship provides opportunities for the political parties to ensure that the concerns of their community are addressed, at least to a certain extent.

Minority ethnic groups' past efforts to curtail the political influence of the Malays has resulted in political instability. One of the main examples of this would be the Alliance's relatively poor showing in the National Elections of 1969. When opposition parties celebrated in the streets of Kuala Lumpur, ethnic tensions resulted in a riot. The 1969 Riots led to a reorganization of the party system with greater emphasis on communal ties, the dominance by a single party (UMNO) and the redistribution with a great emphasis on the Malays.13 The balance between the different ethnic groups in Malaysia is one of the most salient features of the current political parties and thus in the parliament itself. Elections for seats in parliament are able to alter the distribution of power between political coalitions. Opposition coalitions have also been able to gain control

"Crouch, 150. 12 Case, "Electoral Authoritarianism in Malaysia," 318. 13 Ibid., 320. 85 over state governments. A political dispute between then Prime Minister Mahathir and Deputy Anwar Ibrahim over whether or not to listen to the International Monetary Fund during the Asian Financial Crisis (1997-1998) gave the opposition parties a unprecedented rallying point.14 As a result, Anwar was fired and tried on charges of corruption and sodomy. Public outrage over these charges led to the Reformasi Movement (1998-1999). The results of the 2008 General Elections have indicated that the single party system in the structure of the Malaysian state is not immune to opposition challenges, yet elites have been able to exploit their advantage to regain control.15 Although the BN has managed to maintain its hold on power, elections have noticeably impacted the level of control that it is able to exert over the government. National elections in 2008 cost the BN its two-thirds majority of parliamentary seats (the total number of parliament members (MPs) necessary to amend the Constitution) while the opposition either gained or retained control of the state governments of Kedah, Kelantan, Penang, Perak, and Selangor.16 State governments, although they only have autonomous control over such issue areas as 'land, water and Islam,'17 have been able to exert influence at the national level. States must obtain the approval of the Federal government to levy taxes but they can gain

14 Andreas Ufen, "The Transformation of Political Party Opposition in Malaysia and its Implications for the Electoral Authoritarian Regime," Democratization, Vol. 16, Issue 3, (June 2009): 605. 15 William Case, "Low-Quality Democracy and Varied Authoritarianism: Elites and Regimes in Southeast Asia Today," The Pacific Review, Vol. 22, No. 3, (July, 2009): 261-262. 16 Zainal Aznam Yusof and Deepak Bhattasali, "Economic Growth and Development: Policy Making and Leadership in Malaysia, " Working Paper No. 27, The International Bank for Reconstruction and Development on behalf of the Commission on Growth and Development, (2008), 28, http://www.growthcommission.org/storage/cgdev/documents/gcwp027web.pdf, (accessed March 30, 2010). 17 John Funston, "Malaysia: Developmental State Challenged," in Government and Politics in Southeast Asia, ed. John Funston (New York: Palgrave, 2001), 171. 86 'residual revenues' from agriculture, forestry, and from land.18 Sultans, the ceremonial heads of state, are considered the leaders of Islam (discussed below). Some state governments, namely in Sabah, Sarawak and ones led by opposition parties and coalitions have been able to successfully influence national policy.19 One example of this influence can be seen in Malaysia's immigration policy, which will be discussed in greater detail in Chapter IV. Despite the fact that influence of state governments in Malaysia is weaker than might be traditionally expected, they have been able to serve as veto players in certain instances. The political opposition in Malaysia has strengthened to an unprecedented extent.20 As a result, MPs must take into account some of the core concerns of the opposition. The demarcation between the executive and the legislative branches in Malaysia is far more obscure than in a presidential system. All members of the Cabinet are also members of parliament, making the organization itself accountable to the legislature. This provides some limitations on the autonomy of this organization. This institutionalized check is important in light of the fact that the Cabinet is responsible for evaluating and approving all national policies.22 However, the appointments of Cabinet

18 Jomo K.S. and Wee Chong Hui, "The Political Economy of Malaysian Federalism: Economic Development, Public Policy and Conflict Containment," Journal ofInternational Development, Vol. 15, (2003):445. 19 Graham K. Brown, Siti Hawa Ali, and Wan Manan Wan Muda, "Policy Levers in Malaysia," Policy Context Paper 4, Centre for Research on Inequality, Human Security and Ethnicity (CRISE), (May, 2004), 7, http://www.crise.ox.ac.uk/pubs/policycontext4.pdf ,(accessed March 30, 2010). 20 Ufen, 605. 21 Funston, 173. 22 Mohd Nazim Basiron, "Environment and Development in Malaysia: Experience in Policy Reconciliation," (Paper Presented at the Workshop on Economic Development and Environment Policy- Making in South East Asia. Organised by Centre for Strategic Studies, Indonesia and Institute for Global 87 members do not originate in the parliament. They are appointed by the Yang di-Pertuan Agong after consultations with the Prime Minister, for positions that are strongly imbued with executive authority.23 The task of implementing policy decisions often falls to the executive powers as well. Government agencies have often been granted wide leeway in developing policy mechanisms.24 The institutional structure of the Malaysian national government has ensured that the power for policy formation is influenced by both the legislature and the executive branches, while implementation is the prerogative of the executive branch.

The Malaysian judicial system is capable of providing a check on the powers of parliament and the prime minister, yet it has not regularly challenged the elite consensus. There is one main distinction between tiers of courts. The more powerful courts are known as the Superior Courts which include: the Federal Court, the Special Court, the Court of Appeals and the High Court.25 The lesser courts are known as the Subordinate Courts and are composed of: the Sessions Court, the Magistrate and the Court for Children.26 The Judiciary is generally independent but government officials have ensured that interpretations of laws that might infringe upon authority of the government are

Cooperation and Conflict, University of California, San Diego. Jakarta, September 4-7, 1996), 2, http://igcc.ucsd.edu/research/environment/presentations/basiron.pdf, (accessed March 30, 2010). 23Funston, 173. 24 Basiron, 3. 25 Malaysian Courts, "Jurisdiction of the Court," Malaysian Official Court Website, (2004), http://www.kehakiman.gov.my/courts/judicialEN.shtml, (accessed March 30, 2010).

88 limited. Despite its authority, the judiciary system does not regularly challenge the existing political structure or the preferences of the elites. The perpetuation of the Sultanate is indicative of the importance of Islam and the dominance of the Malays. Malay political leaders sought the support of the sultans as a means of promoting 'Malay' interests in an ethnically diverse society. This royal institution has persevered partially due to British colonial rule. The British also co-opted this pre-existing governing system as a means of entrenching their colonialist rule.29 The continued significance of the Malaysian Sultanate is tied to the political role of the Malays. The political preponderance of the Malay ethnic group is epitomized by the Sultanate. 30 These leaders also serve as a symbol for the importance of Islam in Malaysia. Sultans are enshrined with the task of protecting and regulating Islam.31 Sultans continue to exercise limited authority, in nine out of the thirteen states of Malaysia. They have created the national leadership role of Yang di-Pertuan Agong where a sultan from each of the nine states takes a five-year term as the ceremonial national leader.32 The Malaysian Sultanate is similar to other monarchies today in the

Crouch, 142. For a discussion of the implications of Prime Minister Mahathir's struggle with the court system in 1987-1988 to prevent his election as President of UMNO from being overturned by party factions, see Crouch, 140-142. 28 A.J. Stockwell, "Britain and Brunei, 1945-1963: Imperial Retreat and Royal Ascendancy," Modern Asian Studies, Vol. 38, Issue 4 (October, 2004): 786. 29 Case, ""Electoral Authoritarianism in Malaysia," 314. 30 Crouch, 147. 31 Patricia A. Martinez, "The Islamic State or the State of Islam in Malaysia," Contemporary Southeast Asia: A Journal ofInternational & Strategic Affairs, Vol. 23, Issue 3, (December, 2001): 477. 32Crouch, 142-143. 89 fact that it is not a major seat of power. However, Sultans are still able to grant honors to elites and thus retain influence in the Malaysian political system.33

Degree of Centralization in the System of Governance

The Federation of Malaysia's Polity Score (1957-2008)

5

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Figure 3.1 Center for Systemic Peace, Polity IV Project: Regime Characteristics and Transitions, 1800-2008, Dataset, http://www.systemicpeace.org/inscr/inscr.htm, (Accessed March 17. 2010").

Malaysia's score in the Polity IV dataset since its independence from Great

Britain can be observed below in figure 3.1. While Malaysia's ranking indicates that it is not fully a democracy, it is hardly an autocracy. Although the initial political regime type trends show that the democratic features of the Malaysian system of governance began to decline after the 1969 Race Riots, the latest trends in this dataset indicate that democratic tendencies within the Federation of Malaysia are beginning to expand. The May 13, 1969 Racial Riots were riots that took place between the Chinese Malaysians and the

Malays after the Alliance (now the BN) had a poor showing during the general elections

Case, "Electoral Authoritarianism in Malaysia," 317.

90 held that year, and resulted in hundreds of deaths. 34 The decline in the degree of democracy in Malaysia in the Polity IV scoring (see figure 3.1) corresponds with this state of emergency. This increase in the democratic features of the Malaysian government indicates that there will be a far greater number of individuals and collectives with significant levels of political powers. Malaysia's Polity score lends credence to the assumption that political power is not concentrated in the hands of one individual.

The Federation of Malaysia Rating Constraints on the Executive Power (1957-2008)

10

8

6 X J- 4 fc 2

I I I I I I I I I I I I i I I I I I I I I I I I I I I I I I I I 1 I I I I i I I G~»?G??/?^s?r^l^r^l^l^0000000000œCriC!is?(G?s?(?s?s?s??G»s???^s*Fs??s?s?????????

Figure 3.2 Center for Systemic Peace, Polity IV Project: Regime Characteristics and Transitions, 1800-2008, Dataset, http://www.systemicpeace.org/inscr/inscr.htm, (Accessed March 17. 20101.

My assumption on my first independent variable is further supported by the ratings on the component variable of the Polity IV dataset, constraints on the executive power (see figure 3.2). The constraints on the Chief Executive are ranked as follows: Constraint on ChiefExecutive (XCONST): (7) Executive parity or subordination (6) Intermediate category (5) Substantial limitations

34 Kua Kia Soong. "Racial Conflict in Malaysia: Against the Official History, " Race & Class, Vol. 49, Issue 3, (January -March, 2008): 34.

91 (4) Intermediate category For the designated time period of 2002-2008, the majority of the annual ratings were around four, the Intermediate category under Substantial Limitations. Former Prime

Minister Mahathir's retirement has been a major factor in the decline of the centralization of policy formation process.36 The constraints on the chief executive have begun to rise within the last few years, indicating that political power is not limited to the executive branch.

Main Institutions Responsible for Immigration Institutions Responsible for the Implementation of Immigration Policy

The main institutions responsible for implementing and enforcing the laws created by parliament and the policies formed by the Cabinet are under the purview of the Prime Minister's Office. These main institutions include: the Ministry of Home Affairs (MOHA), the Ministry of Health (MOH), the Ministry of Foreign Affairs (MOFA) and the Ministry of Human Resources (MOHR). The variation between the individual mandates and purposes of each of the aforementioned ministries makes the coordination between their^ for purposes of regulating immigration^ difficult and at times leads to conflict between them. Although each ministry has divisions that were created specifically to address foreign labor and immigration, the ministry itself must contend with numerous other issues that fall within its mandate. The complexity of the different

Monty G. Marshall and Keith Jaggers, Polity IV Project: Political Regime Characteristics and Transitions, 1800-2007 Dataset Users' Manual, "Center for Global Policy, School of Public Policy, George Mason University and Center for Systemic Peace," (February 14, 2009), 14, http://www.systemicpeace.org/inscr/p4manualv2007.pdf, (accessed March 30, 2010). 36 Brown, Ali and Muda, 2.

92 ministries who are responsible for the regulation of immigration gives rise to ambiguity in the implementation and enforcement of related policies. The Ministry of Home Affairs is one of the main institutions responsible for the regulation of immigration. National security is the main prerogative of the MOHA. The Department of Immigration, the Royal Malaysian Police Force and Ikatan Relawan Rakyat (RELA) are under its control. The Department of Immigration Affairs enacts immigration and passport policies, entry permit policies and handles matters that pertain to its national borders.37 The role of the Immigration Affairs Division is to ensure that the regulations governing the entry of foreigners into the country are in accordance with the national interest of the country.38 This modus operandi places the primary concern on the current citizens over the needs of non-citizens.

The two organizations responsible for the actual enforcement of these procedures are Royal Malaysian Police Force and RELA. The General Operation Force of the Royal Malaysian Police Force is charged with the task of ensuring that illegal immigrants do not enter or remain in the country.39 They conduct raids to ensure that all immigrants have complied with the law and have the power to arrest individuals that violate these laws (see Chapter IV for a discussion of Ops Nyah I and II). RELA is composed of volunteer

Immigration Department of Malaysia, "Introduction to Immigration Department of Malaysia," Immigration Department of Malaysia's Official Website, (July 15, 2009), http://www.imi.gov.my/index.php/en/corporate/introduction, (accessed April 18, 2010). 38Immigration Department of Malaysia, "Vision/Mission Immigration Department," Immigration Department of Malaysia's Official Website, (June 12, 2009), http://www.imi.gov.my/index.php/en/corporate/visionmision, (accessed April 18, 2010). 39 Royal Malaysian Police Force, "About the Royal Malaysian People Force," Royal Malaysian Police Force Official Website, http://www.rmp.gov.my/base.cfm?path=about/about.cfm?mod=l, (accessed April 18, 2010). 93 members. It has been given increased responsibilities for finding and arresting refugees and illegal migrants in the 2005 Amendment to Malaysia's Essential Regulations.41 These private civilians have the power to arrest those suspected of being illegal immigrants.42 Detention camps for accused illegal immigrants are gradually shifting back to the control of the Department of Immigration and RELA. Eleven such centers were placed under the control of the Department of Immigration with RELA managing these centers in March of 2008. 43 The significance of RELA' s management of immigration centers and its increasing role in the enforcement of immigration laws and policies should not be underestimated. Although RELA is under the purview of MOHA, it is still composed of private citizens and highlights the public's decreasing tolerance of illegal migrants in Malaysia. RELA shares many of the same mechanisms for enforcement that the Royal Malaysian Police Force has but far fewer regulations governing its actions. The Ministry of Human Resources shoulders a substantial burden of the responsibility for the regulation of immigrants. Overlap and tension exist between different ministries, mainly the Ministry of Home Affairs and the Ministry of Human

40 Ministry of Home Affairs, "Introduction," Ministry of Home Affairs Official Website, http://www.moha.gov.my/eng/template04.asp?SectionID=l&SectionContentID=162, (accessed April 18, 2010). 41 Trafficking and Extortion ofBurmese Migrants in Malaysia and in Southern Thailand, a Report to the Committee on Foreign Relations in the United States Senate, 1 1 1th Congress, 1st Session, S. Prt.l 1 1- 18, April 3, 2009: 13-14. 42Ministry of Home Affairs, "Roles and Functions of RELA," Ministry of Home Affairs Official Website, http://www.moha.gov.my/eng/template04.asp?SectionID=l&SectionContentID=164, (accessed April 18,2010). 43 U.S. Committee for Refugees and Immigrants, "Malaysia," World Refugee Survey, (January 25, 2010), http://www.worldrefugeesurvey.org/index.php?title=Malaysia#2008_Summary, (accessed April 18, 2010). 94 Resources. The main responsibilities of the MOHR are: to resolve disputes between employers and labourers, to provide for worker training and safety, to promote job creation and to supervise both the creation and the implementation of labor standards. 5 The Department of Labor and the Department of Skill Development bear a portion of the responsibility for the regulation of migrant workers. The Labour Department is responsible for ensuring the safety of work environments and the compliance of employers with labour laws.46 It has a specific division dedicated to foreign workers. Although the Ministry of Human Resources emphasis is on the productivity of the labor force as opposed to national security, they still are designed to focus on the needs of the national economy before the needs of migrants and/or refugees. Ensuring that the Malaysian workers are employed is a far more pressing concern. The 'Train and Replace' program, under the direction of the MOHR, is designed to allow local workers to take over the jobs of foreign workers.47 Labour Courts are meant resolve disputes

Patrick Pillai, "The Malaysian State's Response to Migration," Sojourn: Journal ofSocial Issues in Southeast Asia, Vol. 14, Issue 1, (April, 1999): 183-184. 45 Ministry of Human Resources, "Vision and Mission," The Official Website: Ministry of Human Resources, Malaysia, http://www.mohr.gov.my/index.php?option=com_content&view=article&id=699&Itemid=420&lang=en, (accessed April 2, 2010). 46 Labour Department, "Vision and Mission," Labour Department Peninsular Malaysia, (August 20, 2008) http://jtksm.mohr.gov.my/index.php?option=com_content&task=view&id=49&Itemid=133, (accessed April 19,2010). 47 S. Subramaniam, "Keynote Address by Minister of Human Resources, YB Datuk Dr S. Subramaniam," 10th National Human Resources Summit, Official Website: Ministry of Human Resources, Malaysia, (April 27, 2009), http://www.mohr.gov.my/index.php?option=com_content&view=article&id=1280%3A10th-national- human-resources-summit&catid=140%3Aspeech-yb-minister&Itemid=566&lang=en, (accessed April 18, 2010). 95 between employer and employee. However, the passes that are provided to foreign laborers attempting to pursue a case against a former employer can only be renewed three times for a total of three months (at RJVl 100 per month) and they are not permitted to work while holding this pass.49 Refugees, individuals that did not obtain the necessary permits, will not have access to any of the services provided by this Ministry. The Ministry of Health (MOH) has an important role in determining the medical regulations and standards required for migrants to obtain the necessary passes. This Ministry is responsible for promoting health and well-being in Malaysia.50 The MOH sets the guidelines for the medical examinations and the health certification of foreign workers.51 Migrants are required to undergo a physical examination to determine if they are eligible to work in Malaysia. All foreign workers must present themselves for examination within one month of their arrival and must be re-examined the next two times that they file to renew their work passes. 52 This ministry partially sets the standards for legal immigration into Malaysia.

Labour Department, "Labour Court," Labour Department Peninsular Malaysia, (July 2, 2008), http://jtksm.mohr.gov.my/index.php?option=com_content&task=view&id=104&Itemid=162, (accessed April 18th, 2010). 49Kedai Runcit, "Protection for All Migrants in Malaysia," Suara Rakyat Malaysia (SUARAM), (December 20, 2009), http://www.suaram.net/node/252, (accessed April 18, 2010). 50Ministry of Health, "Mission & Vision MOH," Ministry of Health, http://www.moh.gov.my/opencms/opencms/moh/MOH_Eng/mission_moh.html, (accessed April 3, 2010). 51 Foreign Workers' Medical Examination Monitoring Agency, "Medical and Screening Process," Pantai Fomema & Systems Sdn Bhd„ http://www.fomema.com.my/html/med_screen.html, (accessed April 3, 2010). 52Foreign Workers' Medical Examination Monitoring Agency, "Highlights," Pantai Fomema & Systems Sdn Bhd, http://www.fomema.com.my/html/highlight.html, (accessed April 3, 2010).

96 While the MOH is responsible for formulating the regulations for Medical exams, the actual implementation of these measures is done by a semi-private organization known as the Foreign Workers' Medical Examination Monitoring Agency (FOMEMA). This agency was founded in 1997.53 The government is connected to this agency through Khazanah Nasion Bhd, the Federation of Malaysia's investment holding arm that controls the majority of Pantai Fomema and Systems Sdn Bhd' s parent company, Pantai Holdings Bhd.54 This organization collects the data from individual medical facilities and ensures that both the MOH and the Department of Immigration receive the results of the exam.55 The information is used to determine if the migrant poses a potential health risk.

The Malaysian Ministry of Foreign Affairs is the final institution that has a major role in the formation and implementation of immigration policy. The purpose of this ministry is to manage the relations between Malaysia and other state actors and institutions.56 Its main responsibility, with regard to the regulation of immigration, is to negotiate memorandums of understandings (MOUs) with the various sending states regarding the treatment of migrant labor. Both Indonesia and the Philippines, two states that have given rise to asylum seekers in the past (discussed in Chapter IV), have worked to establish informal mechanisms with Malaysia to regulate the treatment of their citizens

Foreign Workers' Medical Examination Monitoring Agency, "FOMEMA," Pantai Fomema & Systems Sdn Bhd, http://www.fomema.com.my/html/, (accessed April 3, 2010). 54IbId. 55 Foreign Workers' Medical Examination Monitoring Agency, "Medical Screening Process." 56 Ministry of Foreign Affairs, "Bilateral Diplomacy: Overview," Official Portal: Ministry of Foreign Affairs, Wisma Putra, http://www.kln.gov.my/web/guest/overview (accessed April, 3, 2010). 97 within Malaysia. Indonesia signed an MOU with Malaysia in 2006. The Embassy of the Philippines is permitted to provide Consular Services in Malaysia for Filipino nationals.58 The Cambodia, Laos, Myanmar (also known as Burma) and Vietnam (CLMV) and Oceania Division in the Department of Bilateral Affairs would be the most pertinent to the case study on Malaysian refugee policies that I have adopted for my analysis.59 As of the year 2005, no MOU had been negotiated with the Military Junta that governs Burma.60 This highlights the fact that the safety of Burmese in Malaysia has not been a priority for the Military Junta.

Institutions Responsible for the Formation of Immigration Policy The Cabinet Committee on Foreign Workers encompasses the leadership of the aforementioned Ministries and several more to set the guidelines and policies for foreign workers.61 The main purpose of the Cabinet Committee on Foreign workers is to design policies on employment of foreign laborers and policies to address the negative repercussion associated with foreign workers. Like the Ministries, the Cabinet and its

57 Lisa Thomas, "Indonesia Pushes for Better Migrant-Worker Protection," Time Magazine, (July 28, 2009), http://www.time.com/time/world/article/0,8599,1913134,00.html, (accessed April 3, 2010). 58 Office of the Press Secretary, "Filipino Workers in Malaysia," Office of the Press Secretary Online, Malacanang, Philippines, http://www.ops.gov.ph/malaysiavisit/backgrounder.htm, (accessed April 3, 2010). 59 Ministry of Foreign Affairs, "List of Dept and Divisions in MOFA, " Official Website for the Ministry of Foreign Affairs, Malaysia, Wisma Putra, http://www.kln.gov.my/?m_id=l&s_id=43 (accessed April 3, 2010). 60 Puan Zarina Yusof, "Policy and Procedure in Work Permit Application for Construction Sector," (paper presented at the CIDB/CLAB Seminar on Application of Foreign Works for the Construction Sector held on June 7, 2005), 56, http://www.mbam.org.my/mbam/images/MBJ2Q05pdf/MBAM2(WorkPermit)56-58.pdf, (accessed April 3, 2010).

98 committees are under the control of the Prime Minister's Office. The Deputy Prime Minister is the chair of this committee.63 The creation of this Committee represents the evolving efforts of Malaysia to address immigration and foreign labor and to provide for a more centralized policy.

Opportunities for Domestic and International Non-Governmental Influence in Politics The presence of civil society in Malaysia has had its origins during the British colonial era. Progress and welfare organizations during British rule have shaped the structure of civil society as it currently exists in Malaysia. 4 The structure of the Malaysian political regime provides some opportunities for non-governmental organizations, international organizations and interest groups to influence the formation and the implementation of immigration policies. Experts and organizations have been granted the opportunity to participate in policy steering committees and the drafting of new policies.65 However, the manner through which civil society in Malaysia has been able to influence governance and policies varies substantially from civil society in the West. Many civil society groups have tailored their efforts to promote change by cultivating relationships with government officials.66 This indicates that to influence policy, individuals must work through government officials.

There are several organizations, both non-governmental associations and international governmental organizations in Malaysia that work to promote human rights 63Choi Tuck Wo, "Muhyiddin: Monitor Illegal Foreign Workers in Malaysia," The Star Online, (November 19, 2009), http://thestar.com.my/news/story.asp?file=/2009/ll/19/nation/5142059&sec=nation, (accessed April 3, 2010). 64WeISS1Ol. 65 Basiron, 2. 66 Brown, Ali and Muda, 2. 99 and the rights of immigrants. Examples of the non-governmental groups include: Suara Rakyat Malaysia (SUARAM)67, Tenaganita68 and the Malaysian Bar Council69. The United Nations High Commissioner for Refugees (UNHCR) has also had an established presence, despite the fact that Malaysia has not signed the 1951 Convention on the Status of Refugees, since 1975. 70 These groups work to promote immigrant and refugee rights and to protect asylum-seekers in Malaysia. The UNHCR' s efforts in Malaysia include: 1 . Registering individuals that qualify as refugees, 2. Refugee status determination, 3. Providing material benefits and basic services to refugees, 4. Assisting with the development of legal rights for refugees, stateless individuals and asylum-seekers, 5. Increasing the level of public awareness and advocating on behalf of refugees and asylum seekers.71 Certain efforts have influenced the response of the government. The fact that the UNHCR is often able to access detention centers is significant, even if other NGOs and

Suara Rakyat Malaysia (SUARAM) is a human rights activist organization in Malaysia. It began as a movement to abolish the Internal Security Act in 1989, a law that allows for the arbitrary detention of individuals that fit a loose conceptualization of a 'public enemy', and involved into a larger activist organization. One of their main objectives has been to work to protect asylum-seekers within Malaysia. For more information, see Kedai Runcit, "About Us," Suara Rakyat Malaysia SUARAM, http://www.suaram.net/about, (accessed April 3, 2010). 68 Tenaganita advocates and provides for the protection of migrant workers and women in Malaysia. For more information, see Academy for Educational Development, "Human Trafficking: Malaysia," Humantrafficking.org: A Web Resource for Combating Human Trafficking, http://www.humantrafficking.org/organizations/175, (accessed April 3, 2010). 69 The Malaysian Bar Council is composed of members from the legal profession and works to raise awareness of legal rights (The Malaysian Bar Council, "Public Awareness," The Malaysian Bar, http://www.malaysianbar.org.my/public_awareness.html, (accessed April 3, 2010) and to protect the legal rights of the public and the legal profession (The Malaysian Bar Council, "About Us," The Malaysian Bar, http://www.malaysianbar.org.my/bar_council.html, (accessed April 3, 2010). 70 United Nations High Commissioner for Refugees, "UNHCR in Malaysia," UNHCR Malaysia, http://www.unhcr.org.my/cms/basic-facts/unhcr-in-malaysia, (accessed April 3, 2010). 71 United Nations High Commissioner for Refugees, "2010 UNHCR Country Operations Profile: Malaysia," UNHCR: The Refugee Agency, http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e4884c6, (accessed April 18,2010). 100 the media are not granted similar access to detained immigrants. A wide variety of non- government organizations exist and fight for the protection of both migrants and for asylum-seekers in Malaysia.

The ability of the public and private interests to influence government policy is not always benign. Humanitarian and material interests have both exerted influence on immigration policies in Malaysia.73 The regulation of foreign workers is prone to influence by individuals and collectives that are not a part of the formal government structure. One major example of this is the decision by the Cabinet Committee on

Foreign Workers not to raise the levies in May of 2009. They declined to implement a raise in levels after consultation with employers.74 While this decision is not necessarily detrimental to the interests of refugees or other illegal migrants, it does indicate the importance that economic interests have in the formation of immigration policy. The ability of international actors and organizations to influence the policy formation process in Malaysia has been constrained by government officials, especially during the Mahathir era.75 The access of non-governmental actors adds a new dimension to the variety of interests involved in the formation and implementation of immigration policies and laws. The Societies Act requires all organizations that have more than ten members to register with the government and can be denied permission to exist if leaders

U.S. Committee for Refugees and Immigrants, "Malaysia". "Pillai, 183. 74 The Star, "Cabinet Temporarily Defers Foreign Worker Levy Hike," The Star Online, (May 1, 2009), http://www.mohr.gov.my/index.php?option=com_content&task=view&id= 1 1 77&Itemid= 161, (accessed April 18, 2010). 75 Brown, Ali and Muda, 1 . 101 feel that it such organizations are not in the public interest.76 Although Malaysia is not completely politically open, the Freedom House scores for both Political Rights and Civil Liberties indicates that Malaysia is becoming increasingly open (lower scores indicate a greater level of freedom). This increase in rights and liberties corresponds with the retirement of Prime Minister Mahathir Mohammed in 2003 (see figure 3.3). Malaysia

77 has consistently remained 'partially free' for the past five years.

Degree of Political Openness in the Federation of Malaysia (2002-2008)

C ro 0£ Ol ?? 3 O -'oliticel Rights E O -Civil Liberties ? V V

2002 2003 200¿ 2005 2005 2007 2008

Figure 3.3 Freedom House, Country Reports, http://www.freedomhouse.org/template.cfm?page=21&year=2004, (Accessed April 3, 2010). Malaysia has a hybrid, relatively decentralized and partially politically open regime. The general institutional structure hosts a variety of veto players. According to the Polity IV Dataset, substantive constraints do exist on executive authority. Malaysia is open to political influences from both civil society and from interest groups. Its status of 'partially free' has remained consistent throughout the beginning of the 21st century. The structure of the Malaysian economy renders it extremely susceptible to influence from

76 W. Blythe, The Impact of Chinese Secret Societies in Malaya: A Historical Study, (Kuala Lumpur: Oxford University Press, 1969), 2-6 as cited by Weiss, 68. 77 Freedom House, "Country Reports," Welcome to Freedom House, http://www.freedomhouse.org/template.cfm?page=21&year=2004, (accessed April 3, 2010). 102 international and non-governmental domestic actors. Economic growth in Malaysia has been heavily dependent on its strategy of export led-growth while protecting it domestic markets for the past thirty years.78 This conclusion is reinforced by the data shown in figure 3.4, which indicates that Malaysia's trade makes up a substantial portion of its annual GDP.

Malaysia's Trade 215

210

a O 205 o m 200 *¦¦ c Ol ? 195 Ol Q. 190

185 2002 2003 2004 2005 2006 2007

Figure 3.4 World Bank Group, WDI World Development Indicators, (Accessed April 10, 2010). Foreign direct investment (FDI) also has an important role in Malaysia's high level of economic growth. The government of Malaysia has strongly supported the entrance of foreign firms into its domestic economy. However, affirmative action and rent-seeking are two other important characteristics of the Malaysian economy. The New Economic Policy (NEP, 1970-1990) was introduced and implemented with the intention

78Muna Sulaiman and Norma Md. Saad, "An Analysis of Export Performance and Economic Growth of Malaysia using Co-integration and Error Correction Models," The Journal ofDeveloping Areas, Vol. 43, Issue 1, (Fall, 2009): 226. 79 Edmund Terence Gomez, "The Rise and Fall of Capital: Corporate Malaysia in Historical Perspective," Journal of Contemporary Asia, Vol. 39, Issue 3, (August, 2009): 349.

103 of reducing inter-ethnic inequality, especially between the Malaysian Chinese minority and the Malay majority, and eliminating poverty. This has allowed for affirmative action to reduce poverty amongst Malays and for the creation and distribution of rents. All of these factors create avenues for international and non-governmental actors to exert pressure over the formation and implementation of public policy. Although Malaysia exerts a very firm control over its media, independent reporting and the flow of information has begun to increase. A strict legislative framework in Malaysia governing the media still exists. The Printing and Press and Publication Act, the Internal Security Act, the Broadcasting Act, the Official Secrets Act, and the Sedition Act all limit the scope of media activity.81 However, the internet has opened new doors for the Malaysian media. In 1996, the Malaysian government promised not to censor the internet and has continued affirm its commitment to this pledge.82 Online newspapers, such as Malaysiakini, have been able to provide alternative

?? information to the official government discourse. This is not to say that the ruling regime has not attempted to curtail dissident and alternative view. Several bloggers and online news agencies have been charged under existing censorship laws; however, the internet has still provided greater opportunities for the freedom of expression. This has

80 Edmund Terence Gomez and Jomo K.S., Malaysia's Political Economy: Politics, Patronage and Profits, (Cambridge: Cambridge University Press, 1997), 24-25. 81 Graham Brown, "The Rough and Rosy Road: Sites of Contestation in Malaysia's Shackled Media Industry," Pacific Affairs, Vol. 78, Issue 1, (Spring, 2005): 41-42. 82 Reporters without Borders, "Countries under Surveillance: Malaysia," Reporters without Borders for Press Freedom, http://en.rsf.org/surveillance-malaysia,36670.html, (accessed April 22, 2010). 83 Janet Steele, "Professionalism Online: How Malaysiakini Challenges Authoritarianism," Internationaljournal ofPress/Politics, Vol. 14, No. 1, (January, 2009): 94. 84 Reporters without Borders, "Countries under Surveillance: Malaysia."

104 allowed civil society within the country to better monitor and challenge the government's treatment of detained migrants. In the next portion of this chapter, I will examine the PRC to establish the degree of variation between its institutional structure and Malaysia's.

Peoples' Republic of China

Authoritarian Regime The government of the People's Republic of China (PRC) can be safely classified as an authoritarian regime. The specific characteristics of authoritarian regimes are: rulers that exercise their authority in a consistent manner but without clearly demarcated political powers, no clear overarching ideology but a specific 'mentality', a certain albeit very limited degree of civil and political society, and weak political participation by the majority of the governed.85 Within the sixty years, China has undergone remarkable economic reforms that have had a dramatic impact on its political system. The totalitarian and charismatic rule exercised by Chairman Mao Zedong begun to dissipate after his death in 1976. 86 Although the transition from a totalitarian system to an authoritarian regime has led to a general decline in the overall control that the Chinese Communist Party holds over China, the government remains firmly under its command. Economic development in China significantly increased the freedom of mobility for its people. There has been a fundamental shift in the manner through which the government of the PRC cultivates legitimacy, namely through its ability to promote

85 Juan J. Linz, "An Authoritarian Regime: Spain," in Cleavages, Ideologies, and Party Systems, ed. Erik Allard and Yrjo Littunen (Helsinki: Transactions of the Westermarck Society, 1964), 255. 86 Tony Saich, Governance and Politics of China, (New York: Palgrave, 2001), 49. 87 Kenneth Lieberthal, Governing China: From Revolution Through Reform, (New York: W.W. Norton, 2004), 233-234. 105 economie development and increase the standard of living for the Chinese people. Increased liberalization of the economy in China needs a more legalized judicial system to meet its economic objectives. 89 This would have been impossible had the aforementioned totalitarian system been maintained. There is a trade-off between political autonomy and economic development.90 The Opening Up and Reform Policy that began under Deng Xiaoping has significantly relaxed many of the restrictions placed on the economic initiatives of the people of China. However, it is important to note that the speed with which these sweeping reforms were implemented was largely possible as a result of the complete control that the Chinese Communist Party exercises over the country. Decision-making authority rests in fewer hands in authoritarian regimes than in democratic ones, making dramatic change more likely.92 The current political structure in China is still far from a democratic system. Despite impressive economic modernization in the PRC, the tenacity of centralized control continues to limit the extent to which economic reforms and hence growth can occur.93 This tension between maintaining the current pace of economic

ss Saich, 105. 89 Lieberthal, Governing China, 176-177. 90 Richard Harvey Brown, "Political Structure, Status Mobility, and Economic Growth in Imperial and Modern China," Asian Journal ofSocial Science, Vol. 33, No. 1, (2005): 102. 91 Merle Goldman, "The Post-Mao Reform Era," in China: A New History Second Enlarged Edition, ed. John King Fairbank and Merle Goldman (Cambridge: The Belknap Press of the Harvard University Press), 409. 92 Juan J. Linz, Totalitarian and Authoritarian Regimes, (Boulder: Lynne Rienner Publishers, 2000), 269. 93Brown, 122.

106 development yet maintaining political dominance is an important feature in the policy formation of the PRC.

The structure of political institutions in the PRC was created with the intention of maintaining control at the national level. This should not imply that local actors have no agency or opportunities to pursue their own interests. The relationship between the central government and the local governments has often been characterized by non- compliance on the part of local actors.94 While policy formation may be concentrated at the center, given the size of the PRC in terms of territorial and population, it is not surprising that a variety of different organizations and institutions are necessary to implement these policies and are able to influence, intentionally or otherwise, by the failure to perform their assigned duties. Authority in the Chinese political system is often divided across many different organizational and territorial entities.95 Be that as it may, the opportunities for formally influencing policy are far more circumscribed than they are in the Federation of Malaysia. If my theory is correct, I should still expect to observe a far more coherent policy of asylum and immigration in the PRC than in Malaysia. In the next section, I will explore the specific characteristic of the authoritarian regime in China as they manifest themselves in the institutional structure of the PRC.

Institutional Structure

The generally structure of the Chinese political institutions is hierarchical. Although the size of the territory of the PRC is substantial and the factors facing different

94 Andrew Wedeman, "Incompetence, Noise, and Fear in Central-Local Relations in China," Studies in Comparative International Development, Vol. 35, Issue 4, (Winter, 2001): 59. 95 Lieberthal, Governing China, 187. 107 sections of the country are often diverse, the PRC has a unitary political structure. There are three main institutions that govern China. These institutions are the military, the party and the formal government.97 The membership in each of these institutions is not mutually exclusive. The National People's Congress (NPC), the Presidency of the PRC, the State Council, the Central Military Commission, the Supreme People's Court and the Supreme People's Procuratorate are the main components of the central government.98 Although these institutions form the central government, they do not possess equal strength. One of the strongest organizations at the national level is the standing committee of the Politburo which is led by the top bureaucratic officials in the Chinese Communist Party.99 Political power is often gained through patronage, leading to factionalism in Chinese politics.100 The institutional design of the political regime of the PRC is meant to ensure that political control is exercised from Beijing. I will limit my discussion of the general institutional structure of the PRC to the main legislative, judiciary and executive institutions. The government of China has a multitude of different levels of governance. There are five such levels of governance below the central government. These include provinces, municipalities/prefectures, counties, townships/villages with the smallest

96 Wedeman, 76. 97 Liberthal, Governing China, 172. 98 Embassy of the People's Republic of China in the Republic of Albania, "China's State Organs," Ministry of Foreign Affairs, (August 25, 2008), http://al.china-embassy.org/eng/zggk/t514664.htm, (accessed April 3, 2010). 99 Lieberthal, Governing China, 175; Saich, 85. 100 Saichs, 83-84. 108 being the hamlet.101 Another level of complexity is added once the presence of the CCP is factored in. In addition to formal government offices at each level, the CCP will also have presence at all levels.102 In order to maintain dominance throughout its territory, the government of the PRC has established a number of offices meant to regulate the lives of its people. Yet the complexity of the bureaucracy in the PRC also makes exercising complete control a challenge. The sheer size of the bureaucratic structure is partially responsible for this complexity. There are approximately 31 provinces and related government structures the second highest level and hence the second lowest number of offices in China.103 This should indicate the overall scale and the difficulty of ensuring that new policies that are made at the center reach the lowest levels of government. Decisions made at the top must pass through each level of government.104 Economic liberalization, in addition to size provides increased opportunities for corruption. Patron-client relationships remain an important factor in the formation of leadership factions and remain a central feature of politics in the PRC.105 The size of the PRC complicates the efficient implementation of policy directives. The National People's Congress (NPC) is formally the most powerful legislative institution in China. The Central Committee takes over these duties in between sessions

Wedeman, 62. Lieberthal, Governing China, 172.

Ibid., 179.

Wedeman, 62.

Saich, 83.

109 of the NPC. Although the NPCs formal authority may appear substantive and its powers in practice have begun to increase, it is the CCP that actually holds the majority of these powers.107 The NPC has wide ranging powers, including the ability to amend the Constitution, vote on laws, to select, confirm and to remove officials, power of the purse, approval of national plans, the right to determine the demarcation of provinces and autonomous zones, and the ability to decide whether to go to war. 1 OR Its membership is drawn from all corners of the country. Officials are elected by the armed forces, provinces, municipalities, and autonomous regions for five year terms. 109 Despite increasing institutionalization of the legislative branch, the NPC is not independent from the CCP' s control.

The same can be said of the Supreme People's Court and the justice system in the PRC. Although the overall level of education that lawyers and judges receive and the general independence of the courts have been improving, the courts do not have complete independence.110 The structure of the judicial institution limits its ability to perform judicial reviews of laws and enforcement of policies. Local and special courts are set up by the state.111 The courts must also report to the NPC and the Standing Committee.112

106 Saich, 85. I07lbid., 113-114. 108 The People's Daily, "The National People's Congress," The People's Daily Online, http://english.peopledaily.com.cn/data/organs/npc.shtml, (accessed April 3, 2010). 109 Saich, 112. 110John L Thornton, "Long Time Coming: The Prospects for Democracy in China," Foreign Affairs, Vo. 87, No.l, (January/February, 2008), accessed through EBSCO, (accessed April 3, 2010). 111 Embassy of the People's Republic of China in the Republic of Albania. 112IbJd.

110 While direct intervention into court cases has decreased, it has not disappeared. The

Central Government is able to exert its influence on the verdicts in cases that it perceives might threaten its control.113 Hence, the power of the courts in the PRC remains limited and consistent with the expectations of an authoritarian regime. Although the discussion of the legislative and judicial branches in the PRC would suggest that formal institutions in China do not have any substantial powers, the State Council proves otherwise. The State Council is the most powerful formal government institution.114 It is responsible for leading the executive branch and the overall administration.115 While in Malaysia regulation and implementation fell under the purview of the Prime Minister, an elected official and a member of parliament, in the PRC, these powers are reserved for the few elite. The State Council controls the ministries and commissions.116 As a result, the State Council is the most relevant formal institution to understanding immigration and asylum policy in China. The Ministry of Foreign Affairs and the Ministry of Public Security, the two organizations responsible for the regulation of immigration, are controlled by the State Council.117 The concentration of political power, for the generation policy is clearly in the hands of the executive branch.

113 Thornton. 114 Lieberthal, Governing China, 79. 115The People's Daily, "The State Council," The People's Daily Online, http://english.peopledaily.com.cn/data/organs/statecouncil.shtml, (accessed April 3, 2010). 11 Lieberthal, Governing China, 79. 117The People's Republic of China, "The Organizational Structure of the State Council," Gov.cn: The Chinese Government's Official Web Portal, http://english.gov.en/links.htm#5, (accessed April 3, 2010).

Ill Institutions Responsible for the Formation of Policy Policy formation in the PRC is simultaneously diffuse yet centralized. The discussions that give rise to the creation of a particular policy within the PRC are generally concentrated amongst the top elites. n8 The complexity of the bureaucracy and the sheer size of the PRC ironically make policy centralization a necessity. In order for a major policy initiative to reach fruition, it must have the support of one of the top leaders.119 The size of the bureaucracy also ensures that policy makers are forced to cooperate with one another to accomplish any objectives. Policy-makers must consult and reach a consensus with one another at their own level of power, with the officials below them and above them.120 Power is still concentrated in the hands of the political elite and well connected. Approval from the State Council and the Politburo are still

191 · necessary for ensuring that new policies are implemented across the country. Despite major reforms, the CCP has managed to retain control of appointment and policy initiatives.122 The continued political success of the CCP is a seeming irony. However, the key success of the PRC lies in the adaptability of its elite to the current circumstances

1 J "? by co-opting capable leaders and allowing the transition to a more capitalist system.

118 David Shambaugh, "Containment or Engagement of China? Calculating Beijing's Responses," International Security, Vol. 21, No. 2 (Autumn, 1996): 197. 119Saich,213. 120 Kenneth Lieberthal and Michel Oksenberg, Policy Making in China: Leaders, Structures, and Processes, (Princeton: Princeton University Press, 1988), 23. 121 Sebastian Heilmann, "Policy Experimentation in China's Economic Rise," Studies in Comparative International Development, Vol. 43 Issue 1, (Spring, 2008): 11. 122 Lieberthal, Governing China, 234. 123 Li Cheng and Lynn White, "The Sixteenth Central Committee of the Chinese Communist Party," Asian Survey, Vol. XLIII, No. 4, (July/August 2003): 558. 112 It is hardly sufficient to raise a policy initiative once in China. In order for a policy to be thoroughly implemented in the PRC, it usually takes several decisions to ensure that it actually progresses to completion.124 The degree of power invested in institutions and the individuals running them are an important factor in determining the center of policy making. In order for an effective decision to be made, issues are often sent up the chain of command, where the more powerful bureaucratic organizations have sufficient resources and connections to ensure that concerns are resolved.125 As a result, the complexity of the policy formation process has ensured that approval and cooperation at the center become an essential component of policy formation.

Degree of Centralization in the System of Governance

The People's Republic of China's Polity Score (1949-2008) 10

5

0 I I I I I I I I I I M ? I I t I 1 I I ! M ! I I I If ! M I I I I I »Polity Score -5

-10

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Figure 3.5 Center for Systemic Peace, Polity IV Project: Regime Characteristics and Transitions, 1800-2008, Dataset, http://www.systemicpeace.org/inscr/inscr.htm, (Accessed March 17. 2010). The People's Republic of China's Polity IV scores indicate that the PRC has displayed a high degree of autocratic tendencies since it was founded in 1949 (see figure 3.5). These ratings began to improve after the Opening Up and Reform Policy under

124 Lieberthal and Oksenberg, Policy Making in China, 26. 125 Saich, 213. 113 Deng Xiaoping in the mid 1970s, yet it has remained firmly under the control of the CCP. This tight political control indicates that power is concentrated and centralized. The Polity IV ratings for the PRC contrast with the rankings of Malaysia to a sufficient degree on my first independent variable to allow me to investigate whether the degree of centralization has an impact on the formation and implementation political asylum.

Constraints on Executive Power in the People's Republic of China (1949-2008)

7

6

5

4

1 I I I I I I I I I ! t I I I M I I* I I 'l I I I I I I I I I I I I I I I I I I M I I I I I I I I I 1 I I I I I I I I I I 0?G???00<-<<3·|^?G0s!?'???00<-?·,;?G?*?G0a> ^?????p???ß???^G^G^?^??????s?s?s???? s>s>s><7>s?s>s>s>??*>s>?s>s>???

Figure 3.6 Center for Systemic Peace, Polity IV Project: Regime Characteristics and Transitions, 1800-2008, Dataset, http://www.systemicpeace.org/inscr/inscr.htm, (Accessed March 17, 2010).

One of the components of the Polity variable, Constraints on Executive Power, indicates that there are limited constraints on the chief executive in China. Throughout the time period under analysis, the PRC has consistently scored a three (see figure 3.6). The ordinal ratings for autocratic components for Constraints on Executive Power are listed below:

Constraints on ChiefExecutive (XCONST): (1) Unlimited authority (2) Intermediate category

114 (3) Slight to moderate limitations126 While the executive powers do not have unlimited authority, their scope of power does fall within the range expected of autocratic powers. A high level of centralization of political power is a common attribute of all authoritarian regimes. The policy options of political leadership in such regimes are not limited by internal contestation between different actors and formal checks and balances.127 Hence, the PRCs overall degree of centralization of power is much higher than that of Malaysia's and provides a clear comparison to determine the impact that the degree of centralization of a political regime has on the formation and implementation of asylum policy.

Institutions Responsible for Immigration and Political Asylum One of the major ministries responsible for the regulation of immigration is the Ministry of Foreign Affairs. It is solely responsible for all applications for entry, exit and transit of aliens into the PRC.128 While the entry and exit of aliens is one of its chief duties, it is by no means its only or its primary duty. This ministry is also charged with the task of protecting the diplomatic relations with foreign nations. The Department of Asian Affairs has a specific role and influence over the formation of the PRCs policy vis-à-vis North Korean asylum-seekers. This department is responsible for managing bilateral relations with countries within the region and manages relations and diplomatic

Marshall and Jaggers, 15. 127 Shaun Breslin, "Do Leaders Matter? Chinese Politics, Leadership Transition and the 17th Party Congress," Contemporary Politics, Vol. 14, Issue 2, (June, 2008): 215. 128 "Law of the People's Republic of China on Control of the Entry and Exit of Aliens (China)," (February 1, 1986), Article 25, http://www.unhcr.org/refworld/docid/3ae6b4dclc.html, (accessed May 5, 2010). 115 missions within Asia. 129 Hence, the bilateral relations between the PRC and the Democratic People's Republic of Korea (DPRK) have the potential to influence the manner through which entry and exit policies are administered vis-à-vis North Koreans. The second major ministry whose mandate includes the regulation of foreigners is the Ministry of Public Security (MPS). It is the second main agency responsible for applications for entry, transit, residence and travel within the PRC. The entry and exit of foreigners, foreigner travel within the country and general border security are crucial aspects of the MPS' official duties.131 This can be seen in the departments of this ministry, two of which are the Entry and Exit Administration and Border Control.132 Mechanisms for enforcement are also under the control of this ministry. The People's Armed Police Force is an integral part of the MPS. The modus operandi of this ministry is the protection of the country, and it also is one of the major ministries responsible for the regulation of foreigners within its territory. The specifics of the formal institutional structure for granting asylum are less than transparent. According to the UNHCR, China was creating a new national asylum

Ministry of Foreign Affairs, "The Department of Asian Affairs," Ministry of Foreign Affairs, the People's Republic of China, http://www.fmprc.gov.en/eng/wjb/zzjg/yzs/#, (accessed April 3, 2010). 130 "Law of the People's Republic of China on Control of the Entry and Exit of Aliens (China),"Article 25. 131 The People's Republic of China, "Ministry of Public Security," Gov.cn: The Chinese Government's Official Web Portal, http://www.gov.cn/english/2005-10/02/content_74192.htm, (accessed April 3, 2010). 132IbId. 133 The People's Republic of China, "Ministry of Public Security."

116 system as of March 2006. 134 However, the tangible results of these efforts are not yet readily apparent. Aliens who have been found to be within the borders of the PRC illegally can, at least formally, appeal within 15 days to the next level of the security organization or they can file suit in the local people's court.135 Hence, the various levels of governance and the courts might, on occasion, have an important role in asylum proceedings, yet it is the executive powers that predominate.

Opportunities for Domestic and International Influence

Degree of Political Openness in the People's Republic of China

OO ·§ 6

IZ K

1 4 Political Rights ? Civ I Liberties ¦o 2 2

2002 2003 2001 2005 2006 2007 2008

Figure 3.7 Freedom House, Country Reports, http://www.freedomhouse.org/template.cfm?page=21&year=2004, (Accessed April 3, 2010).

Opportunities for domestic and international actors to influence policy formation and its implementation within the PRC are clearly limited (see figure 3.7). According to

134 Antonio Guterres, "Statement to Media by Mr. Antonio Guterres, United Nations High Commissioner for Refugees, on the Conclusion of his Mission to the People's Republic of China, Beijing," UNHCR: The Refugee Agency, (March 23, 2006), http://www.unhcr.org/cgi- bin/texis/vtx/search?page=search&docid=4427aae04&query=North Korean, (accessed April 3, 2010). 135 "Law of the People's Republic of China on Control of the Entry and Exit of Aliens (China)," Article 29.

117 the Freedom House, China has one of the lowest levels of political rights (seven is the worst ranking on the Freedom House's scale) and few civil liberties. This is hardly a surprising trend given the fact that the PRC is authoritarian regime. The political institutions of authoritarian regimes permeate throughout society and limit the opportunities for freedom of expression.136 The ties between the elite political leaders of Chinese and the Chinese people at the grassroots level remain weak; there are few opportunities for open and honest political discussion with the government.137 This does not mean that non-governmental actors have no influence on asylum policy. Chinese government officials have occasionally heeded the advice of non-governmental actors. As a result, the public agenda has at times been set by the advice of elite experts through internal channels.138 The opportunities for the Chinese people to form civil society organizations have begun to expand. All such organizations are subject to the approval of the government, yet many people have still taken advantage of this political opening. A series of state sponsored organizations and ad hoc grassroots initiatives best characterize association life

Linz, Totalitarian and Authoritarian Regimes, 160. 137 Lowell Dittmer, "Leadership Change and Chinese Political Development," in The New Chinese Leadership: Challenges and Opportunities after the 16'h Party Congress, ed. Yun-han Chu, Chih-cheng Lo and Ramon H. Myers (Cambridge: Cambridge University Press, 2004), 32. 138 Shaoguang Wang, "Changing Models of China's Policy Agenda Setting," Modern China, Vol. 34, No. 1, (January, 2008): 63. 139 Richard Baum, "Systemic Stresses and Political Choices : the Road Ahead," Yun-han Chu, Chih-cheng Lo and Ramon H. Myers (eds.) The New Chinese Leadership: Challenges and Opportunities after the 16th Party Congress, (Cambridge: Cambridge University Press, 2004), 221.

118 in China. Non-governmental groups have had some success with influencing the policy of the PRC, yet they have tended to focus more on the provision of welfare services or acted as a check on local government excesses.141 The PRC has also been (comparatively speaking) increasingly willing to work with the international community. One example of this is the fact that the Chinese have been willing to work with the UNHCR in an informal capacity.142 The UNHCR' s current efforts in China include: 1 . Creating long term solutions for asylum-seekers and refugees, 2. Providing material benefits and basic services to refugees and asylum- seekers, 3. Monitoring against refoulement by the PRC, 4. Ensuring that effective laws regarding the determination of refugee status and refugee rights are implemented and upheld, 5. Refugee status determination.143 The relatively wide scope of activities that the UNHCR undertakes and the increasing latitude for non-governmental action in the country is indicative of an increasing level of acceptance by the PRC and of the utility of international organizations and non- governmental organization in resolving issues that confront the country. Although Beijing has been increasingly receptive to non-governmental initiatives, it is still a politically closed regime. The successes of many of these organizations have been few and far between. Opportunities for international and local NGOs to work

140 Katherine Morton, "The Emergence of NGOs in China and their Transnational Linkages: Implications for Domestic Reform," Australian Journal ofInternational Affairs, Vol. 59, Issue 4, (December, 2005): 520. 141 Ibid., 522. 142 Rhoda Margesson, Emma Chanlett-Avery and Andorra Bruno, "North Korean Refugees and Human Rights Issues: International Response and US Policy Options," CRS Report for Congress, (January 18,2008): 11. 143 United Nations High Commissioner for Refugees, "2010 Regional Operation Profile: East Asia and the Pacific," UNHCR: The Refugee Agency, http://www.unhcr.org/pages/49e487cd6.html, (accessed April 4, 2010). 119 together have increased, yet have been limited to social issues.144 Although the UNHCR has been allowed to set up offices within the PRC, Beijing has not allowed the UNHCR access to North Korean refugees.145 This is in direct contrast to the UNHCR' s access to Burmese asylum-seekers in Malaysia. Even though the central government has been increasingly receptive to the advice of elites, this does not mean that this receptivity has been extended to the masses. There are no ready channels through which the Chinese public can consistently influence policy.146 Efforts by small NGOs working to protect North Korean refugees are usually conducted underground. Humanitarian workers that assist North Koreans have been fined and imprisoned by the PRC.147 The fact that the Freedom House scores for Political Rights and Civil Liberties have remained consistent throughout the past six years indicates that there have been few political reforms in the PRC. There are significantly fewer opportunities for the international and non- governmental local actors to influence immigration and political asylum policy formation and implementation in the PRC than in Malaysia. The economic development strategy in the PRC shares some similarities to Malaysia's strategy. It has also pursued economic development through export led growth.148 Chinese officials have also taken pains to attract FDI. The PRC has been the

144 Morton, "The Emergence of NGOs in China and their Transnational Linkages," 522-523. 145 Margesson, Chanlett-Avery and Bruno, 10. 146 Wang, "Changing Models of China's Policy Agenda Setting," 64. 147 Congressional Executive Commission on China 2006 Annual Report, 109 Congress, 2" Session, September 20, 2006: 15; http://www.cecc.gov/pages/annualRpt/annualRpt06/CECCannRpt2006.pdf, (accessed April 18th, 2010). 148 Sarah Y. Tong and John Wong, "China's Economy," in Understanding Contemporary China, Third Edition, ed. Robert E. Gamer, (Boulder: Lynne Rienner, 2008), 125.

120 top recipient of FDI since 1993.149 However, the increase in FDI inflows has been more a consequence, rather than a cause, of the past levels of economic growth.150 Although exports do make up a substantial percentage of the PRCs annual GDP (see figure 3.8), this percentage is far lower than the levels seen in Malaysia. These trends demonstrate the fact that China is more immune to international pressure than Malaysia.

People's Republic of China's Trade 2002- 2008 80 ¡

j? 40 g 30 S 20 io 0 2002 2003 2004 2005 2006 2007 2008

Figure 3.8 World Bank Group, WDI World Development Indicators Online, (Accessed April 10, 2010). The sheer size of the PRC provides the Chinese government with a vast array of additional resources to stimulate its economy. The PRC has a population of 1.3 billion people,151 providing them with an ample labor force, and numerous consumers and investors. High levels of domestic savings and investment in China are major factors

Tong and Wong, "China's Economy," 120. 150 Jai S. Mah, "Foreign Direct Investment Inflows and Economic Growth of China," Journal of Policy Modeling, Vol. 32, Issue 1, (January-February, 2010): 158. 151 Alexa Olesen, "China May Ease Long-Hated One Chile Rule," MSNBC News, (April 24, 2010), http://www.msnbc.msn.com/id/36754653/ns/world_news-asiapacific/, (accessed April 25, 2010).

121 behind its success.152 Demand from the Chinese domestic market constitutes eighty percent of the economic growth in the PRC.153 This is a major difference from the structure of the Malaysian economy. Despite its growing dependency on international trade and investment, domestic factors still provide a major impetus for economic development in China. Although China has opened up to the international community and has begun to encourage private entrepreneurship, the government has not surrendered its ability to control the economy. Officials are still able to exercise extensive influence over economy decisions.154 International and non-governmental economic actors that wish to conduct business in the country must still comply with the government's desire. The rise in the number of wealthy businessmen and women has not been reflected in the party membership. The CCP has yet to fully incorporate the participation of the private sector into itself;155 local entrepreneurs were not allowed to join until 2002. 156 Economic actors in the PRC, both international and local, are far weaker vis-à-vis government officials than their counterparts are in Malaysia. The government of China exerts strict control over the flow of information. All online actives, traditional print and text messages are subjected to government

Tong and Wong, "China's Economy," 136.

Ibid., 118. Lieberthal, Governing China, 264.

Ibid., 241.

Ibid., 174.

122 monitoring. 157 Officials have been able to utilize comprehensive and sophisticated technology to limit the flow of 'state secrets'. Internet censorship in the PRC is pervasive. China's control of the internet is so pervasive that it is able to filter email. China has been able to prohibit access to information that it deems sensitive by blacklisting IP addresses, domains and specific keywords.159 Efforts to control the media are becoming more and more extensive. This is in marked contrast to the internet freedom in Malaysia. Proposed legislation would force internet and telecommunication companies to increase monitoring and reporting of private communications.160 These controls limit the ability of non-state actors to spread and obtain information about North Korean escapees and to monitor the practices of the Chinese government.

Summation

The institutional structure of the Federation of Malaysia exhibits a lower degree of centralization and a higher degree of political openness than the People's Republic of China. The Polity IV Score and the Constraints on the Executive Power both confirm that the central elite leaders in the PRC are less constrained by domestic forces. The Civil and Political Rights measures provided by Freedom House show that Malaysia has

157 Michael Wines, Sharon LaFraniere and Jonathan Ansfield, "China's Censors Tackle and Trip over the Internet," New York Times, (April 7, 2010), http://www.nytimes.com/2010/04/08/world/asia/08censor.html?scp=7&sq=China%20and%20Text%20mes sages&st=cse, (accessed April 20, 2010). 158 Ronald J. Deibert and Nart Villeneuve, "Firewalls and Power: An Overview of Global State Censorship of the Internet," Mathias Klang and Andrew Murray (eds.), Human Rights in the Digital Age, (Portland: Routledge Cavendish, 2005), 120. 159Md., 120. 160 Sharon LeFraniere, "China Moves to Tighten Data Controls," New York Times, (April 27, 2010), http://www.nytimes.com/2010/04/28/world/asia/28china.html?scp=l&sq=China%20and%20Text%20mess ages&st=cse, (accessed April 27, 2010). 123 demonstrated a far greater propensity for political openness. The trends for both of my independent variables have held throughout the time period from 2002-2008, indicating that they are not subject to major fluctuations and that the political regime type for both countries is stable and thus can serve as a valid comparison. The economy of Malaysia is far more dependent upon foreign investors and demand than the PRC. There is also a greater tolerance for freedom of expression and civil society in Malaysia than in the PRC. Now that I have established the general structure of political institutions and the institutional structure for immigration and/or political asylum, I can proceed to determine its impact on the formation and implementation of policy.

124 CHATPER rV

POLITICAL ASYLUM AND IMMIGRATION POLICY IN MALAYSIA AND CHINA

This chapter will examine the impact that political regime type has on immigration and political asylum policy. I will begin by analyzing the Federation of Malaysian, and will then proceed to analyze the People's Republic of China (PRC). I first highlight the main policy objectives of the Chinese government. I then determine the policy formation process through which these initiatives must travel in order to become formal policy and enforcement procedures. I provide a brief overview of past refugee influxes and the general historical context of the evolution of political asylum and immigration policies. I look at the legal framework, the enforcement procedures, the overall coherence and effectiveness of implementation of immigration and asylum policies. The implications that these policies have on Burmese asylum-seekers in

Malaysia and North Korean asylum-seekers in China is my final section. My findings indicate that political regime type will have an impact on the overall effectiveness of policy implementation.

Federation of Malaysia

Policy Initiatives behind Immigration Policies in Malaysia Economic development is the main impetus behind the formation of immigration policy in Malaysia. The general absence of any legal recognition of refugees in Malaysian law and policy ensures that political asylum-seekers are often treated as illegal migrants. The United Malay Nation Organization (UMNO) uses economic growth as a

125 means to consolidate its role as the main defender of the Malays. One of the fundamental goals of former Prime Minister Mahathir that continues to influence national public policies is to become a fully developed nation by the year 2020. This objective is outlined in The Way Forward, a working paper written by the Prime Minister that conceptualizes his 'Vision 2020' policy proposal. The government's desire to limit Malaysia's dependence on foreign labor can derived from the report of the Minister of Human Resources Datum Dr. S. Subramaniam to parliament:

"... This [current initiative] includes restructuring the economy to help raise productivity, reduce dependency on foreign workers and provide attractive wages to local workers..." The desire to reform the Malaysian economy and promote development is coupled with negative public opinions of foreign workers. Public opinion has been influenced by stereotypes foreign labor in such a manner that many Malaysians have not been in favor of improving and protecting the rights of foreign workers.4 Tough immigration laws allow officials to demonstrate that they are in touch with the people of Malaysia. Malaysia's development objectives and its perceptions of foreign workers both provide the impetus for its immigration policy.

1 Vejai Balasubramaniam, "Embedding Ethnic Politics in Malaysia: Economic Growth, its Ramifications and Political Popularity," Asian Journal ofPolitical Science, Vol. 14, Issue 1, (June, 2006): 25-26. 2 Mahathir Mohamad, "The Way Forward," Office of the Prime Minister of Malaysia, Dato Sri Mohd Najib Tun Abdul Razak Official Website, (paper presented by His Excellency YAB Dato' Seri Dr Mahathir Mohamad at the Malaysian Business Council in 1991), http://www.pmo.gov.my/?menu=page&page=1904, (accessed April 4, 2010). 3Zulkifli Abd Rahman, "Parliament: Freeze on Foreign Labour Stays," The Star Online, (October 26, 2009), http://biz.thestar.com.my/news/story.asp?file=/2009/10/26/business/20091026144818&sec=business, (accessed April 4, 2010). 4For an example of the public opinion in Malaysia vis-à-vis public workers, see The Star, "Get Feedback First, Say Bosses and Association," The Star Online, http://thestar.com.my/news/story.asp?file=/2009/6/17/nation/4133791&sec=nation, (June 17, 2009), (accessed April 4, 2010). 126 Policy Formation Process

Malaysian policy formation is largely the prerogative of the national government. However, the impetus for new policy initiatives has come from the federal government, state governments and non-governmental organizations. The private sector, academic institutions and think tanks have been invited by the government to generate new policy ideas and solutions. 5 Different actors have a variety of methods for influencing the outcome of efforts to reform or generate new policy. Government officials in Malaysia have, on occasion, recognized the utility of incorporating the expertise of non- governmental actors and collectives. Non-governmental interest groups' and organizations' participation in drafting of legislation is done usually at the behest of the government.6 Non-state actors are also able to monitor and report on the actions of the government. Groups such as Suara Rakyat Malaysia (SUARAM; see Chapter III) have annual published reports on political and civil rights in Malaysia that can serve as an informal check on government policies. The actions of non-state and sub-state actors do have an impact on policy formation. Despite the opportunities available for external actors and collectives to participate in the policy-making process and to contribute ideas to the government, policy formation in Malaysia is still predominantly under the control of the national government.

5 Zainal Aznam Yusof and Deepak Bhattasali, "Economic Growth and Development: Policy Making and Leadership in Malaysia," Working Paper No. 27, The International Bank for Reconstruction and Development on behalf of the Commission on Growth and Development, (2008), 33, http://www.growthcommission.org/storage/cgdev/documents/gcwp027web.pdf, (accessed March 30, 2010). 6 Mohd Nazim Basiron, "Environment and Development in Malaysia: Experience in Policy Reconciliation," (Paper Presented at the Workshop on Economic Development and Environment Policy- Making in South East Asia. Organised by Centre for Strategic Studies, Indonesia and Institute for Global Cooperation and Conflict, University of California, San Diego. Jakarta, September 4-7, 1996), 2, http://igcc.ucsd.edu/research/environment/presentations/basiron.pdf, (accessed March 30, 2010). 127 The Cabinet and Prime Minister Offices' decision making process is not transparent.7 However, transparency and openness have increased throughout the last forty years. The policy formulation process in Malaysia as it stands today has become far more open since the 1970' s.8 The Cabinet is also composed of the representatives of different ministries with sufficient authority to block policy. Civil society members and interest groups are able to influence policy outcomes through petitioning the government and by reporting on government activities. The dual tasks of approving and implementing policy are both predominantly the prerogatives of Malaysia's executive branch of government. After the Cabinet has approved a policy measure, government agencies and ministries will begin the task of implementing policy. The variety of actors and collectives involved at the national level ensures that there are numerous veto players.

The Evolution and Historical Context of Immigration Policy Malaysia's lack of legal recognition of refugee status has blurred the distinction between forced and illegal migration. Refugees are denied access to legal status within Malaysia yet still possess the need for food and shelter for themselves. As a result, they often must seek out employment without proper documentation, thus exposing them to accusations of entering the country illegally for the purpose of obtaining employment. Enforcement of these policies does not account for the context of the asylum-seeker's decision to migrate, only whether or not the migrant in question has adhered to the immigration procedures. Since the mid to late 1970s, immigration policy in Malaysia has

7 Ho Khai Leong, "Dynamics of Policy Making in Malaysia: The Formulation of the New Economic Policy and the National Development Policy," The Asian Journal ofPublic Administration, Vol. 14, No.2, (December, 1992): 220, http://sunzil.lib.hku.hk/hkjo/view/50/5000368.pdf, (accessed April 4, 2010). 8 Ibid., 222. 128 been characterized by the institutionalization of the expulsion of 'illegal migrants' and publicized task forces.9 Governmental efforts to expel migrants during the 1970s were largely concentrated on the influx of Vietnamese refugees. Throughout the 1970s, immigration to Malaysia was generally defined by the absence of any overtly articulated policy; in the 1980s, immigration policy was subject to numerous reversals that would at times facilitate and later restrict migration.1 These shifts in policies placed foreign workers in a position of uncertainty. Eventually, an economic downturn in early 1990s eroded public tolerance for 'illegal migrants', a categorization from which refugees are not excused.11 This same trend can be seen in the Malaysian government's response to the subsequent Asian Financial Crisis (1997-1998). This crisis led to stringent government enforcement of immigration policies and deportations of migrant labor.12 The perceived threat of retrenchment for the average Malaysian worker and the increasing viability of foreign workers fuelled negative public opinion. Malaysian immigration law, the economy and public opinion are inexorably linked and do not take the rights of individuals seeking political asylum into account. Malaysia relies on export led growth and the inflow of foreign direct investment for

9 Eva-Lotta E. Hedman, "Refuge, Governmentality and Citizenship: Capturing 'Illegal Migrants' in Malaysia and Thailand," Government and Opposition, Vol. 43, No. 2 (2008): 362-363. 10 Patrick Pillai, "The Malaysian State's Response to Migration," Sojourn: Journal ofSocial Issues in Southeast Asia, Vol. 14 Issue 1, (April, 1999): 182. 11 Alice M. Nah and Tim Bunnell, "Ripples of Hope: Acehnese Refugees in Post-Tsunami Malaysia," Singapore Journal of Tropical Geography, Vol. 26, Issue 2, (July, 2005): 252. 12 Pillai, 187.

129 economie development.13 Foreign workers ensure that there is a sufficient pool of labor to meet the demands of local employers in low skilled labor industries and to keep wages down. The local demand for labor plays a crucial role in the formation and implementation of immigration policies.14 Worker shortages and rising wages would limit the attractiveness of the Malaysian economy to foreign investors.15 Hence, the economic status quo in Malaysia relies on low skilled foreign workers.

Employed International Migrant Population in Malaysia (by Sector) 450000 -Agriaifaue,rtoitrgaidFotes&y 400000 350000 300000 - Manufacluirg 250000 200000 -Constiudion 150000 100000 50000 -Hotete

in r» oo s? O «? G? Gi Gi Gi Gi O O O O Gi Gi Gi Cl Ct O O O • OHw Caiiniuiity.Sodalaid G? G? G? PersonalServireAdMlies

Figure 4.1 International Labour Organization, LABORSTA Labour Statistics Database, http://laborsta.ilo.org/STP/guest, (accessed June 8, 2010). for foreign workers and an increase in the number of foreign workers in service industries (see figure 4.1), which brought them to the attention of the general public.16 The

13Mahathir Mohamad, "Some Key Economic Policies," Office of the Prime Minister of Malaysia, Dato Sri Mohd Najib Tun Abdul Razak Official Website, (paper presented by His Excellency YAB Dato' Seri Dr Mahathir Mohamad at the Malaysian Business Council in 1991), http://www.pmo.gov.my/?menu=page&page=1900, (accessed April 4, 2010). 14 Michelle Ford, "The Regulation of Indonesian Migration to Malaysia," in Mobility, Labour Migration and Border Controls in Asia, ed. Amarjit Kaur and Ian Metcalfe (New York: Palgrave Macmillan, 2006), 228. 15 Zulkifli Abd Rahman.

Pillai, 184-185.

130 Malaysian public's initial negative reaction has not abated. Public opinion has remained consistently suspicious of foreign laborers and believes that they are guilty of criminal activities. A report published in the Malaysiakini in 2007 found that only two percent of all crimes committed in Malaysia were perpetrated by foreigners has not quelled this stereotype.17 The response of many Malaysians to new policies that would entitle foreign domestic workers to one day off per week is indicative of the general public perceptions that are held of foreign laborers. Many employers indicated that they were concerned that their maids would cause trouble if they were allowed to leave the family's home unsupervised.18 Policies against migrant workers became increasingly severe. Reforms of Malaysian Immigration Act 1959/63 in 2002 allow the government to detain, whip and to fine undocumented migrants.19 Limits on worker passes ensure that foreign laborers are not allowed to remain in the country indefinitely (see section on enforcement procedures). However, recent announcements by the Malaysian government have indicated that refugees might be granted permission to obtain employment while they await resettlement by the United Nations High Commissioner for Refugees (UNHCR). Home

Minister Datuk Seri Hishamuddin Tun Hussein rearticulated Malaysia's position on this

17 Malaysiakini, "Rise in Crime? Blame the Foreigners," Malaysiakini, (March 8, 2007) http://www.malaysiakini.com/news/64251, as cited in Suara Rakyat Malaysia (SUARAM), Malaysia Human Rights Report: Civil and Political Rights 2007, (Petaling Jaya: SUARAM Kommunikasi, 2008), 145. 18 The Star, "Employers against Mandatory Days Off," The Star Online, (June 18, 2009), http://thestar.com.my/news/story.asp?file=/2009/6/l 8/nation/4139629&sec=nation, (accessed April 4, 2010). 19 Human Rights Watch, "Aceh Under Martial Law: Problems Faced by Acehnese Refugees in Malaysia," Human Rights Watch, (March 31, 2004), http://www.hrw.Org/en/node/12153/section/4, (accessed April 4, 2010). 131 matter when he cited the fact that the refugees would only work temporarily in the country as one of the positive attributes of this new initiative. Foreign low skilled labor is essential for economic growth but incites public ire. This necessity can be seen from the total number of migrants within Malaysia (see figure 4.2). Unless refugee status is created as a distinct category under Malaysian law, asylum-seekers in Malaysia will continue to be unduly influenced by fluctuations in economic needs and a consistently negative public reaction to their presence.

International Migrant Stock in Malaysia (1975-2005) 2500000 ? 2000000 ~~?S 1500000 ^^y^ 1000000 —-"" 500000 o I 1975 1980 1985 1990 1995 2000 2005

Figure 4.2 The World Bank Group, WDI World Development Indicators Online, (Accessed April 10, 2010). The unwillingness of the Malaysian government to recognize refugee and political asylum status takes on a new degree of tension within the context of Malaysian history of refugee influxes. Malaysia's history of contending with migrants goes back over thirty

20 Mazwin Nik Anis, "Government May Allow Refugees to Work," The Star Online, (February 22, 2010), http://thestar.com.my/news/story.asp?file=/2010/2/22/nation/5692963&sec=nation, (accessed April 4, 2010).

132 years. Many Vietnamese Boat People arrived in Malaysia throughout the 1970s.21 Initially, Malaysia treated the influx of refugees as victims, rather than as criminals. In 1975, Malaysia's response to Vietnamese refugees arriving by sea was humanitarian in nature; the Malaysian Red Crescent Society was willing to rescue refugees. This sympathy afforded to the first wave of refugees did not continue throughout the duration of the crisis. Malaysia policies towards the Vietnamese 'Boat People' were one of the harshest in the region.23 The response of the Malaysian government to the influx of Vietnamese refugees has important implications for its response to future refugee crises. Malaysia received the largest influx of Vietnamese refugees in 1977-1978 after programs of re-education and relocation intensified.24 The Federal Task Force (7) was formed in 1978 and was charged with the task of ensuring that Vietnamese refugees were not able to enter the country.25 The Vietnamese government forced many members of its ethnic Chinese population to migrate to Southeast Asian states and China; given the salience of ethnicity in Malaysian politics and society, these efforts were perceived as a threat to national stability and racial harmony.26 The UNHCR was able to gain cooperation from the Malaysian government by promising resettlement, yet Malaysia's

21 Hedman, 359. 22 W. Courtland Robinson, Terms ofRefuge: The Indochinese Exodus and the International Response, (New York: Saint Martin's Press, 1998), 23-24. 23 Diana Wong, "Forced Migration in East Asia," in Foreign Workers, Refugees, and Irregular Immigrants: Political Challenges and Perspectivesfor Asia-Europe Cooperation, ed. Carolina G. Hernandez's and Steffen Angenendt (Tokyo: Council for Asia-Europe Cooperation and the Asian Secretariat c/o Japan Center for International Exchange and Quezon City: Institute for Strategic and Development Studies, Inc., 2004), 185. 24 Robinson, 26-27. 25 Hedman, 361. 26 Robinson, 41.

133 willingness waned eventually, and in 1989 the government refused to allow Vietnamese' boats to dock on its shores.27 The policies of the Malaysian government vis-a-vis refugees seeking temporary asylum has often shifted between neglect, where non- governmental organizations have been allowed to fulfill their mandates, and one of zero tolerance when all individuals without the necessary paperwork are rounded up and deported. The Indonesian government's actions to stem secessionist sentiments in Aceh triggered a major influx of refugees and asylum seekers into Malaysia. The Indonesian military undertook counterinsurgency efforts after the Free Aceh Movement (Gerakan Aceh Merdeka or GAM) orchestrated attacks against the government, beginning in 1989 and lasting through the early 1990s.28 The actions of the Indonesian military placed many Acehnese citizens in danger of persecution. Counterinsurgency efforts of the Indonesian military reached their apex during the 1990-1 993. 29 Tensions have continued to exist between the central government and Acehnese people. Although the conflict dissipated to a certain extent after the fall of President Suharto in Indonesia, tensions resumed in

2003 and martial law was declared in Aceh, prompting further flight to Malaysia. Guerilla warfare and counter insurgency initiatives have forced many of the people of

Aceh from their homes.

11 Robinson, 281. 28 Nah and Bunnell, 252. 29 Human Rights Watch, "Aceh under Martial Law: Problems Faced by Acehnese Refugees in Malaysia." 30 Nah and Bunnell, 252-253. 134 Refugees in Malaysia by Country of Origin (2000-2008)

50000 45000 ¦Tha land 40000 ¦Sri Lanka 35000 300CO -Somalia 25000 -Pnilippires 20000 -Myanmar 15000 10000 •Iraq 5000 -lrdonesia o - ¦ 2000 2001 2002 2003 2004 2005 2006 2007 2008 d a"

Figure 4.3 UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), http://www.unhcr.org/statistics/populationdatabase, (Accessed March 20, 2010).

Natural disasters also prompted many Acehnese to flee their homes. The tsunami in 2004 also forced many to seek shelter in Malaysia.31 As of 2004, the Acehnese constituted one of the largest groups seeking political asylum in Malaysia.32 However, the number of Acehnese refugees has begun decline after the devastation of the tsunami has begun to dissipate (see figure 4.3). Malaysian policy towards Acehnese political asylum seekers has generally been to deport them as illegal immigrants, with intermittent periods of allowing them to stay on to satisfy demands for labor and periods of amnesty where they can turn themselves in and leave the country without penalty. The advent of the aforementioned natural disaster did foster leniency initially, however Malaysian sympathies for the Acehnese did not last. Malaysia's treatment of Acehnese refugees

31 Nah and Bunnell, 253. 32 Wong, 191. 33 Nah and Bunnell, 249, 252.

135 must be contextualized in the extensive history that Malaysia has with undocumented migrants, many of which are Indonesian nationals.34 Thus, Malaysians are concerned that economic, rather than security concerns, are behind the decision of many of the

Acehnese to flee to Malaysia. Muslim refugees fleeing religious persecution have been historically been given greater latitude within the traditional confines of Malaysian immigration policy. Malaysia provided havens and permanent settlement for Muslim from Cambodia

(beginning in 1975 and continuing into the early 1990s), long term residence for Muslims from the Philippines and temporary asylum for Muslims fleeing persecution in Bosnia.35 One of the most salient examples of this trend is the Malaysian government's willingness to allow Filipino refugees to remain within its borders. Filipino refugees have been allowed to remain in East Malaysia with, to a certain extent, the implicit consent of the Malaysian government.36 In the past, shared religious affiliations were sufficient to entice favorable resettlement and temporary residence policies within Malaysia. The origins of the crisis in the Southern Philippines extends back forty years and continue to threaten the stability of the country, creating the potential for another influx of Filipinos into Malaysia. Tensions culminated into insurrection in Mindanao (Southern

Philippines) in the early 1970s, where the local majority Muslim tribes organized into guerilla movements in response to historic grievances and disputes over current policies

34 Human Rights Watch, "Aceh Under Martial Law: Problems Faced by Acehnese Refugees in Malaysia." 35 Robinson, 283. 36Kamal Sadiq, "When States Prefer Non-Citizens Over Citizens: Conflict Over Illegal Immigration into Malaysia," International Studies Quarterly, Vol. 49, Issue 1, (March, 2005): 103.

136 with the central government that threatened to further erode their religious, economic and political aspirations.37 After President Ferdinand Marcos declared Martial Law in the Philippines in 1972, the insurgency in Mindanao intensified leading to an influx of Filipino Muslims into East Malaysia. 38 Different authors have drawn different conclusions for the rationale behind the Malaysian government's willingness to tolerate Filipino refugees. One major dissenting argument has been set forth by Kamal Sadiq (2005). This author contends that UMNO allows for the inflow of ethnically Malay and Muslim migrants in order to adjust the ethnic composition of Sabah and to increase its power at the polls.39 The fact that Malaysia has not extend this same tolerance to Indonesians, who share a similar ethnic background with the Malay majority, indicates that this is unlikely to play a dominant role in Malaysian policy. Subsequent influxes of Muslim refugees (see section on the Implications for Burmese) have also not generated a similar response indicating that a shared identity has not consistently influence government policies in recent years. This brief overview of major refugee influxes into Malaysia highlights the discrepancies in the policies of the Malaysian government. The variation in many of the policies represents the interest of many the dominant interest groups at the time. When public opinion unifies against political asylum and illegal immigration, the government has responded in kind. When the international community and local NGOs have fought

37G. Eugene Martin and Astrid S. Tuminez, "Towards Peace in the Southern Philippines: A Summary and Assessment of the USIP Philippines Facilitation Project, 2003-2007," United States Institute for Peace, Special Report 202, (February, 2008): 2, http://www.usip.org/files/resources/sr202.pdf, (accessed April 4, 2010). 38 Anne-Marie Hilsdon, "Migration and Human Rights: The Case of Filipino Muslim Women in Sabah, Malaysia," Women's Studies International Forum, Vol. 29, Issue 4, (July, 2006): 407. 39 Sadiq, 105. 137 to protect asylum-seekers, the government policy has tended to accede to their demands, provided that it will not impose substantial costs on the country and that public opinion is ambivalent. Economic interest groups have been able to bring the county's dependence on foreign labor to bear and to encourage the government to generate policies that are conducive to mitigating low skilled labor shortages within the domestic economy. These fluctuations are visible in the treatment of Burmese asylum-seekers in Malaysia.

Legal Framework Legislation governing immigration in Malaysia is decidedly in favor of the needs of the country rather than the rights of migrants. In this section, I will examine the legislation that is most frequently used to prosecute refugees. The three major pieces of legislation that I will discuss are the 1959/63 Immigration Act, the Emergency (Essential Powers) Act of 1979 and the Passport Act of 1966. These laws, especially the Passport Act, are in direct violation of the international norms of refugee rights. Malaysia is not a signatory to the 1951-P-rotecel-eH-the Status of-Refugees and has no legal-^eeognition of refugees.40 It is also not a signatory to the 1967 Protocol and is not a member of the UNHCR' s Executive Committee.41 The existing legislation provides the framework through which issues pertaining to political asylum and addressed.

The legal framework governing immigration in Malaysia has become increasingly complex. Some of the earliest laws in place have been enshrined in the 1959/63 Immigration Act. The 1959/63 Immigration Act is the main piece of legislation that is

40 Hedman, 367. 41 United Nations High Commissioner for Refugees (UNHCR), The State of the World's Refugees, (Oxford: Oxford University Press, 2000), 302 as cited in Wong, 199.

138 used to craft public policies regarding refugees. This act continues to serve as one of the main piece of legislation that is used to govern immigration and, by default refugees; there is no legal recognition of refugees in Malaysian law.43 Malaysia's lack of legal recognition of refugees places these individuals in a precarious position. Part IV, Section 34 of this act provides the legal basis for detention of illegal immigrations. Given the nature of forced migration, refugees are unable to comply with the law. Part II, Section 5 stipulates that all individuals seeking entry into Malaysia must have obtained the appropriate entrance pass. Failure to obtain this pass makes forced migrants eligible candidates for detention and deportation. Individual asylum-seekers have been classified as illegal migrants and are detained accordingly.44 All foreigners in Malaysia that are caught without the appropriate work pass are subjected to the same treatment as illegal foreign laborers. Although Malaysia became an independent nation in 1957, it did not become the Federation of Malaysia until 1963. At this point in time, peninsular Malaysia was joined by Singapore (independent in 1965), Sabah and Sarawak. The legacy of this formation can be found in part in the 1959/1963 Immigration Act. Section VII of this highlights the special provisions for East Malaysia (Sabah and Sarawak). Both states are able to exert control over their own immigration policies, adding another dimension of complexity to the enforcement of immigration law.

4i Hedman, 367. 43 Ibid., 367. 44 Prem Kumar Rajaram and Carl Grundy-Warr, "The Irregular Migrant as Homo Sacer: Migration and Detention in Australia, Malaysia, and Thailand," International Migration, Vol. 42, Issue 1 , (2004): 52- 53. 139 The Emergency (Essential Powers) Act (1979) has allowed the top leadership in Malaysia to grant specific groups legally binding authority. Article 2 Clause (3) of this act states:

"Essential Regulations may provide for empowering such authorities, persons or classes of persons as may be specified in the regulations to make orders, rules and by- laws for any of the purposes for which such regulations are authorised by this Act to be made, and may contain such incidental and supplementary provisions as appear to the Yang di- Pertuan Agong to be necessary or expedient for the purposes of the regulations." Although this legislation was initially designed to counter the threat of national unrest after the 1969 Riots, this legislation has been expanded and has had unintended consequences for foreigners in Malaysia. Amendments to this act have given the Ikatan Relawan Rakyat (RELA) the authority to arrest illegal immigrants.45 As I have previously stated, this group is under the purview of the Ministry of Home Affairs. This legislation has ensured that MOHA has the power to arrest, try and deport all individuals that the Minister deems pose a threat to public security.46 However, the degree to which the MOHA interprets migrants as a threat to public security is up to the discretion of the Minister. This Act provides the MOHA and its enforcement agencies with a legal justification for the detention, incarceration and deportation of asylum seekers. The Passport Act (1966) does not properly take circumstances of forced migration into account. This legislation stipulates that all foreigners entering into Malaysia are required to carry and to produce a passport upon request of the Malaysian government. According to Article 5 of this act, individuals that do not have the necessary

45 Suara Rakyat Malaysia (SUARAM), Malaysia Human Rights Report: Civil and Political Rights 2007, (SUARAM Kommunikasi, 2008), 143. 46"Emergency (Essential Powers) Act 1979 (Act No. 216) (Malaysia)," (February 20, 1971): Article 2, Clause 2 (a), http://www.unhcr.org/refworld/docid/3ae6b51510.html, (accessed March 21, 2010). 47 "Passports Act, 1966 (Act No. 150) (Malaysia)," (April 1, 1966): Article 2 Section 1, http://www.unhcr.org/refworld/docid/3ae6b5204.html, (accessed March 21, 2010). 140 documentation are subject to removal and detention from the country by the Director General of Immigration. Registration cards provided by the UNHCR to registered asylum-seekers are often not accepted as viable documentation. Recent policy announcements have indicated that there might be a reversal in the government's policy of providing identification papers for forced migrants. The Star Online reports that the Malaysia government plans to issue identification cards to refugees that would exempt them from being arrested as illegal migrants. 49 If this initiative is implemented successfully, it would effectively bring this aspect of Malaysian law in line with the international norms of political asylum. The legal framework of Malaysian immigration provides important insight of the context in which policy towards refugees and asylum seekers is formed. The absence of any provisions for forced migrants makes the interpretation of these laws far more flexible. The fact that many of these laws violate the international norms of political asylum is a point of contention for many international and local non-governmental actors that seek to protect the rights of asylum and the well being of asylum seekers. In the next section I will analyze the manner through which these laws are interpreted and institutionalized in practice.

Procedures for Immigration Migrants are required to obtain the correct immigration pass prior to entering Malaysia. The main types of passes include: short term social visit passes, long term

48 Tenaganita, The Revolving Door: Modern Day Slavery Refugee, (Kuala Lumpur: Tenaganita Sdn Bhn, 2008), 46. 49 Mazwin Nik Anis.

141 social visit passes, expatriate work passes, unskilled labor work passes and student passes.50 In order to remain within Malaysia legally and to obtain gainful employment, individuals must apply for the work passes before they enter the country. Long term social visit passes are generally reserved for family members of Malaysian citizens, expatriate workers, permanent residents and foreign students.51 In order to obtain a work permit in Malaysia, migrants must complete a multitude of complex steps. These procedures vary on the basis of the type of employment and the nationality of the potential migrant. Revenue from levies varies on the basis of the sector in which the foreign worker is employed: the lowest levy is for agriculture (RM 360) and the highest is for certain services (RM 1,800). 52 Limitations are imposed on the types of employment that low-skilled laborers are allowed to seek. Foreign workers can only be employed in the following sectors: manufacturing, construction, plantation, agriculture and services.53 Administrative costs are determined on the basis of the applicant's country of origin. The nationality of the foreign worker determines the visa fees and the deposit.54 Refugees are often unable to provide the necessary documentation and fees to obtain these mandatory passes.

Immigration Department of Malaysia, "Home," Immigration Department of Malaysia's Official Website, (March 26, 2010), http://www.imi.gov.my/index.php/en, (accessed April 4, 2010). 51Immigration Department of Malaysia, "Long Term Social Visit Pass," Immigration Department of Malaysia's Official Website, (November 25, 2009), http://www.imi.gov.my/index.php/en/services/visitors/social-visit-long-term, (accessed April 4, 2010). 52Immigration Department of Malaysia, "Levy," Immigration Department of Malaysia's Official Website, (May 20, 2009), http://www.imi.gov.my/index.php/en/services/employer/374-levi, (accessed April 4, 2010).

Immigration Department of Malaysia, "Levy." 142 One of the few passes available that partially addresses the needs of refugees is the IMM 13. IMM 13 work permits are sometimes issued by the Malaysian government to individuals that the UNHCR have classified as refugees; possession of this pass allows them to work and reside within the country legally.55 This permit is a useful starting point should the government consider incorporating the recognition of refugees into its current laws. However, programs extending these permits to Rohingya refugees in Malaysia have been suspended amid rumors of misappropriation.56 Despite its potential, this permit is not regularly issued to forced migrants. The system for preventing unregulated inflows of immigrants began in the early

1990s. In 1992, the Ops Nyah I and Ops Nyah II operations began and continue to this day, the former with the purpose of preventing the inflow of illegal immigrants and the latter designed to expel illegal immigrants that were already within the state borders. Individual asylum seekers have often been apprehended during these operations. Under the Ops Nyah I operations, police were deployed to 100 posts and ordered to arrest migrants as they attempted to cross the border and transfer them to the Department of Immigration for deportation.58 Refugees that attempt to cross the border without the proper identification are subject to the same penalties as economic migrants. Ops Nyah II

Tenaganita, 21. 56 US Committee for Refugees and Immigrants, "Malaysia," World Refugee Survey, (January 25, 2010), http://www.worldrefugeesurvey.org/index.php?title=Malaysia, (accessed April 4, 2010). 57Azizah Kassim, "Indonesian Immigrant Settlements in Peninsular Malaysia," Sojourn: Journal ofSocial Issues in Southeast Asia, Vol. 15, Issue 1, (April, 2000): 120. 58 Tey Nai Peng, "Issues Paper from Malaysia," Patrick Brownlee and Colleen Mitchell (eds.), Migration Issues in the Asia Pacific, Working Paper No. 1 , APMRN Secretariat Centre for Multicultural Studies at the University of Wollongong, (1997), http://www.unesco.org/most/apmrnwp9.htm, (accessed April 4, 2010). 143 Operations entail systematic raids conducted in areas where illegal immigrants are believed to reside and work.59 Refugee communities have been forced to contend with these operations and have been subjected to the same penalties.

Coherence of Malaysia's Policies for Immigration and Effectiveness of Implementation Malaysia's immigration policies, whether stringently enforced or implicitly ignored, have not stopped the inflow of refugees, especially from Burma (see figures 4.3, 4.4 and 4.5). There are an estimated three million migrants in Malaysia, one million of which are in the country illegally.60 Foreign workers are hired when the international demand for goods and services are high and retrenched during economic downturns. This trend indicates that Malaysia's current policies and enforcement of these policies have not achieved its desired goal of regulating in migration and reforming the structure of its economy. The number of veto players in the Malaysian political system is sufficient and thus constrains the translation of initiatives into formal policy. One prime example of this is the conflict between the Ministry of Human Resources and the Ministry of Home Affairs over the 2007 Foreign Worker Bill.61 These ministries fought for control over the right to regulate foreign workers within the country. Both of the ministers of these institutions are members of the Cabinet Committee on Foreign Workers, indicating that

59 Peng, "Issues Paper from Malaysia." 60 United Nations High Commissioner for Refugees, "2010 UNHCR Country Operations Profile: Malaysia," United Nations High Commissioner for Refugees, http://www.unhcr.org/cgi- bin/texis/vtx/page?page=49e4884c6, (accessed April 4, 2010). 61 Ministry of Human Resources, "Human Resources and Home Affairs Ministries at Odds Over," The Official Website: Ministry of Human Resources, Malaysia, (updated April 2, 2010). http://www.mohr.gov.my/index.php?option=com_content&view=article&id=252%3A23-february-2007- new-straits-times&catid=72%3Aarchive-news&Itemid=161&lang=en, (accessed April 4, 2010). 144 both have a high degree of influence over foreign labor. Conflict over the respective mandates of both ministries exposes the fault lines within the Cabinet Committee and highlights the manner through which policy efforts can be constrained by a variety of veto players. Malaysia's degree of centralization, comparatively lower than the PRCs, has impacted its ability to enforce its immigration policies. Sarawak, one of the few states in the Federation of Malaysia that has a Constitutional guarantee to determine its own immigration policies has protested the efforts of the federal government to interfere in these matters (as seen in the 1959/1963 Immigration Act). When the federal government attempted to set up a special unit in the National Registration Department in Sarawak in 2008, it action were constrained by a task force that has been created by the state government for a similar purpose.62 The federal government was forced to reconcile its immigration policy with the concerns of other institutions within the government institutional structure, indicating that implementation is hindered by the relatively low degree of centralization of political authority in Malaysia. The objectives behind the formation of immigration policies in Malaysia have been to ensure economic growth and to placate public opinion. The degree of political openness in the Malaysian political system does undermine the coherence of its immigration policies. As a result, these policies reflect the needs of the government, the people and the economy. 63 The tightening of restrictions against immigration to

62 Joe Fernandez, "D-Day for Those Seeking Malaysian Identity, Malaysiakini, (October 23, 2008), http://www.malaysiakini.com/news/91800, (accessed April 4, 2010). 63 Pillai, 182.

145 Malaysia has raised the cost to such a degree that some migrants find it more affordable to immigrate illegally. Illegal immigration from Indonesia can be as cheap as RM 450, while the cost of many of the levies associated with migrating legally can be much higher.64 In this manner, policy in Malaysia actually contradicts its purpose of restraining and legalizing the flow of migrants. The absence of any provisions for refugee status in Malaysia law also ensures that asylum-seekers enter the country illegally. By refusing to recognize the validity and inevitability of push factors that give rise to forced migration, Malaysia has actually undermined its ability to regulate the flow of people into its border because it encourages them not to avail themselves to the government. The relatively high degree of political openness in Malaysia provides that opportunity for interest groups and civil society to interference implementation of its policies. As Malaysia attempts to end its dependency on foreign labor and is forced to contend with a fitful cycle between its economic goals and the current structure of its economy, it continues to be a major transit point for illegal migrants and refugees. The shortage of low skilled labor in the country has rendered it heavily dependent upon foreign workers. One example of the fluctuations in Malaysia's enforcement of its immigration policies due to interest group demands can be seen in the statements from its manufacturing industry. Recent requests by factories in Johor for foreign workers are the result of both the upturn in the international demand for goods and the unwillingness of

64 The Star, "Only RM450 for Illegals to Enter or Leave," The Star Online, (July 1, 2008), http://thestar.com.my/news/story.asp?file=/2008/7/l/nation/21700274&sec=nation, (accessed April 4, 2010). 65 The Star, "Illegal Migrants using Malaysia as a Transit Point," The Star Online, (May 3, 2009), http://thestar.com.my/news/story.asp?file=/2009/5/3/nation/3825406&sec=nation, (accessed April 4, 2010).

146 native Malaysians to accepted jobs in this industry; their requests were expedited by the Ministry of Home Affairs.66 Human rights groups have greeted the new policy initiative that would provide refugees with identification cards with enthusiasm. SUARAM has issued a press release praising this initiative conforms to one of the central aspects of their mandate: protecting refugees from wrongful detainment. Tenaganita has also recently published an influential study on the plight of refugees in Malaysia entitled: The Revolving Door: Modern Day Slavery Refugee. However, public tolerance for foreign workers has declined throughout the course of the last twenty years. As a result, immigration policy in Malaysia is likely to be impacted by public opinion, political objectives and the status of its national economy. The goal of limiting the flow of migrants to Malaysia are often relaxed in response to employers demand for labor and occasionally as the result of complaints by local and international members of civil society. Economic interests and the interests of Malaysia civil society have, at times, coincided. One the most prevalent examples can be found in the pressure that the US places on Malaysia on issues related to Burmese refugees. This is possible because of the substantial trade ties between Malaysia and the United States. The US is one the largest export markets for Malaysian goods.68 Economic ties between Malaysia and the US have

66 Zazali Musa, "Orders Coming Back but Locals not Keen to Work in Johor Factories," The Star Online, (March 26, 2010), http://biz.thestar.com.my/news/story.asp?file=/2010/3/26/business/5900353&sec=business, (accessed April 4, 2010). 67The Star, "Thumbs Up for Refugee ID Cards," The Star Online, (February 4, 2010), http://thestar.com.my/news/story.asp?file=/2010/2/4/nation/5611433&sec=nation, (accessed April 4, 2010). 68Michael Martin, "U.S.-Malaysia Relations: Implications of the 2008 Elections," CRS Report for Congress, (April 3, 2008), 15, http://file.wikileaks.org/file/crs/RL33878.pdf, (accessed June 10, 2010).

147 had important implications for past and future economic development in Malaysia. Attracting FDI is a cornerstone of Malaysia's economic growth policy,69 and the US is a major source of FDI for Malaysia.70 As a result, the US is able to raise issues related to the rights of Burmese asylum-seekers. The US government has condemned the trafficking of Burmese refugees and highlighted its concerns that members of the Malaysian government might be complicit in these acts, condemnations that were eventually published in a reported issued by the US Senate Committee on Foreign Relations.71 The response of the Malaysian government to these criticisms was prompt. Royal Malaysian Police Force Inspector-General Tan Sri Musa Hussan launched an investigation into the matter.72 This response highlights the fact that the US is able to exert a limited influence over the policies of the Malaysian government. US' policy decisions continue to demonstrate a concern for the plight of Burmese refugees. The US continues to support the UNHCR' s efforts in Malaysia to find resettlement opportunities for asylum-seekers that have been recognized as refugees.

The US has settled approximately 40,000 Burmese refugees, many of whom have come through Malaysia, since 1995.74 Burmese ethnic minorities who have been recognized by

69Martin, 17. 70Ibid., 20. 71 Trafficking and Extortion ofBurmese Migrants in Malaysia and in Southern Thailand, a Report to the Committee on Foreign Relations in the United States Senate, 1 1 1th Congress, 1st Session, S. Prt.l 1 1- 18, April 3, 2009. 72IWd., 1. 73 Proposed Refugee Admissionsfor Fiscal Year 2010, Report to Congress, (August 14, 2009), 27 http://www.state.gov/documents/organization/129393.pdf, (accessed June 10, 2010). 74 Trafficking and Extortion ofBurmese Migrants in Malaysia and in Southern Thailand, 1 .

148 the UNHCR as refugees requiring resettlement have been classified by the US as having Priority Two status in the US Refugee Admissions Program. 75 Priority Two classification is defined as "Groups of cases designated as having access to the program by virtue of their circumstances and apparent need for resettlement."76 This potential provision of resettlement also encourages the Malaysian government to tolerate the presence of Burmese asylum-seekers on a temporary basis.

Total Refugee Population in Malaysia (1990- 2008) 60000

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Figure 4.4 The World Bank Group, WDI World Development Indicators Online, (Accessed April 10, 2010).

Implications for Burmese Asylum Seekers in Malaysia Despite the stringent nature of Malaysian immigration policy, it has not led to a decline in the total number of asylum-seekers and illegal migrants within its borders. The total refugee population in Malaysia has generally grown during the course of the last 5 years (see figure 4.4). Burmese refugees, especially the Rohingya refugees, began to arrive in large numbers in 1991 and 1992;77 however there are communities of Burmese

75 Proposed Refugee Admissionsfor Fiscal Year 2010, 10. 76 Ibid., 6. 77 Tenaganita, 20.

149 that have arrived in the country in the 1970s. According to UNHCR, Malaysia has experienced numerous influxes of political asylum-seekers from Indonesia, Vietnam and the Philippines, yet the core population of asylum seekers today are from Burma (see figure 4.3). 90% of the estimated 90,000 refugees and asylum-seekers in Malaysia are from Burma.79 In January of 2010, 73,300 of the UNHCR registered asylum-seekers are from Burma, of these 35,300 are Chins and 17,700 are Rohingyas. The number of Burmese asylum-seekers in Malaysia demonstrates that Malaysian immigration policy is not an effect deterrent for political asylum seekers.

Burmese asylum-seekers lack the necessary work visas and thus are forced to work illegally or to remain unemployed. Their children are not able to attend public schools.81 They are not able to get regular access to medical care.82 These individuals are generally not distinguished from economic migrants and are subjected to the same treatment. When Rohingya refugees, fleeing census policies enacted in 1974 and further implemented in their country in 1991 by the Military Junta (that does not recognize them as citizen of Burma), arrived in Malaysia they were not recognized as refugees.83 This has exposed the Burmese refugee population to criminal prosecution and incarceration. 78 Elan Perumal, "Myanmar Refugees are Forced to Make a Living Seeking Alms," The Star Online, (April 6, 2010), http://thestar.com.my/news/story.asp?file=/2010/4/6/starprobe/5999784&sec=starprobe, (accessed April 20, 2010). 79 United Nations High Commissioner for Refugees, "2010 UNHCR Country Operations Profile: Malaysia." 80 United Nations High Commissioner for Refugees, "Statistics," UNHCR Malaysia, http://www.unhcr.org.my/cms/basic-facts/statistics, (accessed April 4, 2010). 81 Tenaganita, 16 82 Ibid. 83Ibid., 18.

150 Over 4,800 Burmese were whipped for violating immigration laws from 2002-2008.84 Asylum seekers that are detained by the Immigration Department are also subject to abuses by individual immigration officials. There have been serious allegations by refugees that they, their friends, and/or their loved ones have been subjected to trafficking by employees of the immigration department.85 The consequences of Malaysian immigration policy and the absence of any official policy for granting political asylum has led to numerous violations of the rights of Burmese refugees within Malaysia without a clear decline in the number of political asylum seekers. The total number of individuals identified as the UNHCR as a population of concern has continued to climb throughout the last 8 years (see figure 4.5).

Composition of the Population of Concern in Malaysia (1997-2008) 160000

140000 -TuIaI iefugees anil people in 120000 refugee-like situation« 100000 •Aïyluiii-beekeiï (pending ra<;ps) 80000 »SlaUHeiv 60000

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Figure 4.5 UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), http://www.unhcr.org/statistics/populationdatabase, (Accessed March 20, 2010).

84 Kedai Runcit, "No Refuge: Burmese Refugees in Malaysia," Suara Rakyat Malaysia (SUARAM), (October 1, 2009), http://www.suaram.net/node/224, (accessed April 4, 2010). 85 Trafficking and Extortion ofBurmese Migrants in Malaysia and in Southern Thailand, a Report to the Committee on Foreign Relations in the United States Senate, 1 1 1th Congress, Is' Session, S. Prt.l 1 1- 18, April 3, 2009. 151 People's Republic of China

Policy Initiatives behind the PRCs Immigration and Asylum Policies The objectives behind the PRCs political asylum policies and behind its policy for North Korean escapees are not the same. The willingness of the PRC to grant political asylum does not stem from a desire to conform to international norms. The goal behind Beijing's willingness to recognize political asylum is derived from its desire to obtain international approval. China's reaction to international repudiation of its treatment of North Korean escapees demonstrates that it is occasionally sensitive to criticism from the international community. China has insisted that it has complied with international law on this matter and has earned the appreciation of the international community as a result.87 The PRCs objective in acceding to international agreements on refugee rights and recognition is to gain the respect of a rising power. The PRCs objective behind its treatment of North Korean escapes is distinct from its objective for acceding to international refugee rights and recognition agreements. The fear of political instability is pervasive amongst the political elites and the general public in the PRC.88 The Democratic People's Republic of Korea (DPRK) has the potential to create political instability along the PRCs border. China's efforts to maintain friendly relations with the DPRK as a means of perpetuating stability in its Northeast region can

86 Sun-Young Kwak and Yong Wook Lee, "Using Norms Strategically, Transnational Advocacy Networks Operation for North Korean Human Rights," Asian Perspective, Vol. 33, No. 1, (2009): 38, http://www.asianperspective.org/articles/v33nl-b.pdf, (accessed April 4, 2010). 87 Lu Hui (ed.), "China Questions US Human Trafficking Report," Xinhua News Online, (June 19, 2007), http://news.xinhuanet.com/english/2007-06/19/content_6264460.htm, (Accessed April 4, 2010). 88 Katherine Morton, "The Emergence of NGOs in China and their Transnational Linkages: Implications for Domestic Reform," Australian Journal ofInternational Affairs, Vol. 59, Issue 4, (December, 2005): 527.

152 be inferred from the comments of President Hu Jintao during a delegation meeting with the Workers' Party of Korea (WPK) of the DPRK:

"Under the current complicated and changeful international situation, it is in the fundamental interests of the two peoples and also benefits peace, stability and prosperity of the region and the world to further promote friendly exchanges and expand pragmatic cooperation between the two countries. . ."89 These objectives have generated radically different responses to North Korean and non- North Korean refugee influxes and have, at times, served to undermine one another.

Policy Formation Process

The People's Republic of China's policy formation process is extremely complex and requires cooperation from a variety of different institutions; yet it is dependent upon support at the center. The Chinese Communist Party (CCP) is able to exercise authority in both the formulation and the implementation of public policy. The CCP is responsible for all policy decisions and controls major political appointments in the PRC.90 The degree of centralization and the cohesion within the party can be seen in the press releases and public appearances of all officials. It has taken pains to ensure that all official discourse is heavily scripted and within its accepted ideological and governing parameters.91 Although the CCP has become more open to new policy ideas, it still relies on loyal members of the party and continues to ensure that all major institutions that are responsible for the creation of political policy are under its control. The Party School

89Lin Zhi (ed.), "China Stresses Friendly Ties with the DPRK as its 'Consistent Policy'," Xinhua News Online, (February 23, 2010), http://news.xinhuanet.com/english.2010/china/2010- 02/23/c_l 3 185 160.htm, (accessed April 4, 2010). 90 Kenneth Lieberthal, Governing China: From Revolution Through Reform, (New York: W.W. Norton, 2004), 234. 91 John Delury, "'Harmonious' in China," Policy Review, Issue 148, (April/May, 2008): 36.

153 System of the CCP is one of the main collectives responsible for generating national policy ideas and also serves to further entrench its control of the government. Within this network, loyal CCP elite are able to provide policy advice. Academic institutions in this party system, such as the Central Party School, publish the work of its faculty in academic journals and can provide the impetus for policy changes.93 Once a new policy has been formed, the ministries at all levels of governance take responsibility for ensuring its implementation. However, the ministries are once again composed of loyal CCP elite. At each ministry, there is a core party group that decides how to implement the decisions of their superiors and respond to issues that the ministry needs to address.94 Although the CCP has widened the pool of individuals and ideas from which it can draw upon to generate public policy, it has continued to ensure its own centrality in the implementation and formation of public policy.

The Evolution and Historical Context of Immigration and Asylum Policy and Effectiveness of Implementation In additions to substantial differences between the degree of political openness and the degree of centralization in the institutional structure of their governments, Malaysia and China have different policies regarding political asylum. One of the crucial distinctions between Malaysia and China is the fact that the PRC is not a major destination country of foreign labor.95 Another is that China has been a signatory to the

92 David Shambaugh, "Training China's Political Elite: The Party School System," China Quarterly, Issue 196, (December, 2008): 828. 93 Ibid., 840. 94 Lieberthal, 240. 95 Jorge V. Tigno, "Irregular Migration From and Within Asia," in Foreign Workers, Refugees, and Irregular Immigrants: Political Challenges and Perspectivesfor Asia-Europe Cooperation, ed. 154 1951 Convention, the 1967 Protocol and is a member of the UNHCR Executive Committee since 1982. 96 This radically alters the perspective of the receiving government. However, like Malaysia, China has demonstrated a major concern about the destabilizing effect that a rapid inflow for migrants could have on its national security and stability. The PRC has expressed concerns throughout recent years of the general stability of the DPRK. Many of the Northeast Asian states believe that North Korea has the potential to collapse.97 The Demilitarized Zone between the North and Republic of Korea prevents many North Koreans from going directly to South Korea. The border between the PRC and North Korea is the only feasible exit point for North Korean refugees over land.

Policies that have Influence Mobility in China Two major policy reforms have led to the increased mobility of the Chinese people and have made it possible for refugees, albeit not always legally, to cross the border and to hide within the PRC. One of these policies is the Opening-up and Reform Policy. Opportunities for mobility in China increased in 1986 after the PRC begun to issue identification cards and facilitated the access of individuals to passports.98 The

Carolina G. Hernandez and Steffen Angenendt (eds.) (Tokyo: Council for Asia-Europe Cooperation and the Asian Secretariat c/o Japan Center for International Exchange and Quezon City: Institute for Strategic and Development Studies, Inc., 2004): 163. 96 United Nations High Commissioner for Refugees, The State of the World's Refugees, 302 as cited in Wong, 199. 97 Alan Dupont, East Asia Imperilled: Transnational Challenges to Security, (Cambridge: Cambridge University Press, 2001): 167. 98 Xiang Biao, "The Making of Mobile Subjects: How Migration and Institutional Reform Intersect in Northeast China," Development: Migration and Development Houndmills, Vol. 50, Issue 4, (December, 2007): 70.

155 rationale behind allowing Chinese citizens the opportunity to migrate abroad was to prevent mass dissent over the impacts of the economic liberalization of the PRC. The need to create a more efficient economy led to mass layoffs by state owned enterprises; in order to prevent dissent, the government allowed for great labor mobility and outmigration." Internal migration within China continues to this day. The growing gap between rural and urban economies has both fuelled and has been exacerbated by internal migration; young workers leave the countryside in search of better opportunities, decreasing the rural labor force.100 One additional and crucial reform that has increased mobility is the relaxation of the Hukou System. Although this reform has increased the ability of individuals to migrate to urban areas in search of employment, the Hukou System has ensured that migrants (even within the PRC) do not have access to public services and rights outside of their hometown without proper registration.101

"Xiang,71. 100 John King Fairbank and Merle Goldman, China: A New History 2nd Edition, Cambridge: The Belknap Press of Harvard University Press, 2006), 437. 101 Gaby Ramia, Gloria Davies and Chris Nyland, "The Compliance Challenge: Implications for Social Security in the People's Republic of China," International Social Security Review, Vol. 61, Issue 1, (January-March, 2008): 7. 156 Net Migration in China (1975-2005)

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Figure 4.6 The World Bank Group, WDI World Development Indicators Online, (accessed April 10, 2010). The impact that both of these reforms have had on out migration in the PRC can be seen in the net migration levels (see figure 4.6). Although China has consistently had negative net migration rates, the number of Chinese immigrating abroad increased in the mid 1980s and has continued as further economic reforms have been underway (see Figure

4.6). Under the rule of Chairman Mao Zedong, which deprived the Chinese people of opportunities for mobility, the reforms have had the unintended consequence of allowing for further opportunities for refugees to hide within the borders of the PRC.

157 Total Refugee Population in the People's Republic of China (1990-2008)

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Figure 4.7 The World Bank Group, WDI World Development Indicators Online, (Accessed April 10, 2010). Political asylum in the PRC is not without historical precedent. A number of refugees have fled to China over the years (see figure 4.7) Beijing granted asylum to Indochinese refugees during 1975-1995. 102 The sheer number of Vietnamese asylum seekers that China received is impressive. Over 260,000 Vietnamese refugees were resettled within China.103 However, the government's rationale behind resettling this number of refugees had far more to do with 'family ties' than with humanitarian concerns. China has successfully integrated many of the refugees from Vietnam, but the majority of these individuals are of Chinese descent.104 The end of the Vietnam War and newly instituted policies by the Socialist Republic of Vietnam provided a major impetus for individuals to flee to neighboring countries. This was especially true for the Vietnamese that cooperated with the United States and with the ethnically Chinese population.

102 Wong, 184. 103 Robinson, 2. 104 The Rising Stakes ofRefugee Issues in China: Roundtable before the Congressional-Executive Commission on China, 1 1 1th Congress, 1st Session, May 1, 2009: 4. 158 Beijing reserved the right to protect overseas Chinese living Vietnam, which ultimately resulted in a standoff between Vietnam and the PRC.105 Beijing's willingness to allow for ethnically Chinese persons to come to the PRC for protection was not absolute. In 1978, the CCP sealed the Chinese border to Vietnamese refugees; however many were still allowed to come to China, provided that they were able to obtain a passport from the PRC embassy.106 The border war between Vietnam and China in 1979 also encouraged a greater number of individuals to come to China to avoid the conflict.107 Many of these individuals remained in China. The number of resettled Vietnamese asylum seekers has remained consistent (see figure 4.8).

Refugees by Country of Origin in the People's Republic of China (2000-2008)

350,000 300,000 250,000 • Viet Nam 200,000 ¦ Pakistan 150,000 -Somalia 100,000 -Iran (Islamic Republic of) 50,000 -Burundi 0

t<*** ?#NTo^t^t<**" t<$** f#tC^ t^

Figure 4.8 UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), http://www.unhcr.org/statistics/populationdatabase, (Accessed March 20, 20 1 0).

105 Robinson, 30.

106 Ibid., 39.

Ibid.

159 China has backed away from its policy of protecting overseas Chinese. In both 1965 and 1998, widespread violence against the ethnic Chinese population took place in Indonesia but the response of the PRC varied significantly from its past stances. The first wave of violence took place when President Suharto rose to power and was directed against communists, an ideology that had become synonymous with Chinese ethnicity in

108 the minds of the Indonesian army and civilian militias responsible for the slaughter. Beijing's reaction to this tragedy was similar to its response to the Vietnamese government in the 1970s. The PRC helped to evacuate many of the ethnic Chinese population that wished to flee the violence and the New Order.109 The subsequent episode of violence took place at the end of Suharto's reign in May of 1998. During the second wave of violence, in addition to ethnic violence, several ethnic Chinese women were targeted and gang raped.110 The change in the response of the PRC represents a change in its foreign policy. China has recently embraced the doctrine of non- interference in the internal affairs of other states, including Indonesia.111 The centrality of the norm of sovereignty can be seen in the current policies of the PRC. Interstate relations between the PRC and Indonesia took priority for Beijing over the plight of ethnic Chinese persons during the 1998 Anti-Chinese Riots.112

108 Tim Johnson, "Chinese Diaspora: Indonesia," British Broadcasting Company(BBC) News, (March 3, 2005), http://news.bbc.co.Uk/2/hi/asia-pacific/4312805.stm, (accessed April 4, 2010). 109 Daojion Zha, "China and the May 1998 Riots of Indonesia: Exploring the Issues," Pacific Review, Vol. 13 Issue 4, (October, 2000): 559. 110 Charles A. Coppel, "Anti-Chinese Violence in Indonesia after Soeharto," in Ethnic Chinese in Contemporary Indonesiana. Leo Suryadinata, (Singapore : Chinese Heritage Centre and Institute of Southeast Asian Studies, 2008), 122. '"ibid., 125. 112 Zha, 558.

160 Recent refugee crises in China have also led to sudden mass influxes of refugees. An estimated 10,000 to 30,000 refugees fled to Yunnan from Northern Burma.113 The PRC accepted a mass influx of Kokang, Wa and Kachin refugees from Burma that fled from an eruption of fighting between a seemingly united front between the aforementioned tribes against the Military Junta in Burma in August 2009. 114 The response of the PRC has been radically different than its policy vis-à-vis refugees from North Korea. Chinese officials provided emergency shelter and provisions for these refugees.115 The cooperative stance of Beijing throughout the influx of refugees is surprising in light of the geopolitical circumstances surrounding its relations with its neighbors. Burma and China have attempted to improve their relations within the last few years.116 As has been stated in Chapter II, the political legitimacy of Burma is far weaker amongst its people than the political legitimacy of Kim Jong II. Conflict along the Northern border between ethnic minorities and the Military Junta has been endemic and has the potential to escalate.117 The cooperative response of the PRC to the influx of refugees from Burma as opposed to its exclusion of North Korean refugees is indicative of the deeper political relations between the DPRK and the PRC.

113 Andrej Mahecic, "China: Refugees Reported Fleeing Fresh Fighting in Myanmar," UNHCR: The Refugee Agency, (August 28, 2009), http://www.unhcr.org/4a97cb0e9.html, (accessed April 4, 2010). 114 Thomas Fuller, "Fleeing Battle, Refugees from Myanmar Head to China," New York Times, (August 28, 2009), http://www.nytimes.com/2009/08/29/world/asia/29myanmar.html?scp=l&sq=Refugees%20in%20China&s t=cse, (accessed April 4, 2010). 115 Andrej Mahecic. 116 Ian Holliday, "Beijing and the Myanmar Problem," Pacific Review, Vol. 22, Issue 4, (September, 2009): 486. 117 Thomas Fuller.

161 The Evolution of the PRCs Policy for North Korean Escapees Beijing's fear of a mass exodus of North Korean refugees is not without merit. A massive flood in North Korea in the year 1995 led to the collapse of the state controlled economy and to an increase in the number of North Koreans fleeing to neighboring states.118 This natural disaster exacerbated the damages caused to North Korea by shortcomings in political and economic leadership. Poor management of the agricultural system and the high level of deforestation amplified the degree of chaos created by this natural disaster.119 With little to no food available, many North Koreans made the only choice that they could to survive: migrate to China. At first, the PRC did not impose any major barriers to stop the inflow of refugees. Initially, China even provided emergency food aid and set up camps for these refugees, but soon attempted to harden its border to the inflow of North Koreans. An estimated 200,000 to 300,000 North Korean people fled to the PRC during the Great Famine.121 By the end of the 1990s, these policies had forced the repatriation of thousands of North Korean asylum-seekers. Approximately 7,000 North Koreans were arrested and deported back to the DPRK in 1999 alone.122 This incident has made a lasting impact on China's

usWong, 189. 119 Dupont, 166, 120Ibid., 166. 121 Kwak and Lee, 50. 122 Amnesty International, "Democratic People's Republic of Korea Persecuting the Starving: Plight of North Koreans Fleeing to China," Amnesty International, (December, 2000), 7, http://www.amnesty.org/en/library/asset/ASA24/003/2000/en/6fbfaOe4-dd04- 1 1 dd-a007- 3753b71c3d78Zasa240032000en.pdf, (accessed April 4, 2010).

162 policy vis-à-vis North Korean escapees. China's subsequent policies have not been favorable to the plight of North Korean asylum-seekers. The push factors that caused North Koreans to flee to China and its (Beijing's) increasingly draconian 'illegal immigrant' policies has led these asylum seekers to take more desperate measures. A general spree in the number of North Koreans jumping the fences into foreign embassies in an effort to gain political asylum also led to further crackdowns by the PRC.123 However, these events also captured the attention and provoked condemnation of the actions of the PRC, leading to limited concessions from Beijing. One high profile example of this trend took place when the Chinese police were caught on videotape in May 2002 dragging five North Korean asylum seekers from the Japanese Consulate in Shenyang by the international media.124 The governments of Japan and the United States conveyed their concern that the very lives of these individuals would be in jeopardy if they were returned to North Korea. 125 China eventually allowed them to be resettled in South Korea.126 However, this is an isolated incident, not a reversal in the general policy of the PRC.

Elisabeth Rosenthal, "Defying Crackdown, North Koreans Stream into China," New York Times, (June 6, 2002), http://www.nytimes.com/2002/06/06/world/defying-crackdown-north-koreans-stream-into- china.html?pagewanted=l, (accessed April 4, 2010). 124 Kwak and Lee, 48. 125 James Brooke, "Japan Protests China's Arrest of Koreans at Consulate," New York Times, (May 10, 2002), http://www.nytimes.com/2002/05/10/world/japan-protests-china-s-arrest-of-koreans-at- consulate.html?scp=4&sq=Shenyang%20and%20North%20Koreans&st=cse, (accessed April 4, 2010). 126 Elisabeth Rosenthal, "China Allows Five North Korean Asylum Seekers to Leave for Seoul," New York Times, (May 23, 2002), http://www.nytimes.com/2002/05/23/world/china-allows-5-north- korean-asylum-seekers-to-leave-for- seoul.html?scp=8&sq=Shenyang%20and%20North%20Koreans&st=cse, (accessed April 4, 2010).

163 Legal Framework The legal framework in the PRC recognizes and provides limited opportunities for political asylum. Article 32 of the Chinese Constitution reserves the right for foreigners to seek political asylum in the PRC.127 This sentiment is reflected in other laws governing border regulation. One important example of this in the domestic laws of the PRC is the Law of the People's Republic of China on Control of the Entry and Exit of Aliens (1986). Article 15 of this piece of legislation requires asylum-seekers to get approval from the appropriate authorities. The PRC has also given nominal recognition to international laws governing the rights of refugees and political asylum. China is a signatory to the 1951 Convention, the 1967 Protocol and is a member of the UNHCR Executive Committee since 1982. 128 The recognition of political asylum, at least on paper, is reflected in the domestic laws, international agreements, and the Constitution of the PRC.

Despite the PRCs formal recognition of political asylum through its accession to international refugee rights agreements, other agreements and institutional features ensure that political asylum is not regularly granted. China still lacks important mechanisms and a basic legal framework necessary for assisting refugees.129 Foreign policy objectives also trump efforts to grant political asylum. China's relations with the DPRK and

l27"Constitution of the People's Republic of China," (Adopted on December 4, 1982), Document from the CPSR Privacy/Information Archive, http://web.archive.org/web/20041220182131/www.constitution.org/cons/china.txt, (accessed April 12, 2010). 128 UNHCR, The State of the World's Refugees, 302 as cited in Wong, 199. 129 United Nations High Commissioner for Refugees, "2010 UNHCR Regional Operation Profile: East Asia and the Pacific, UNHCR: The Refugee Agency, http://www.unhcr.org/pages/49e487cd6.html, (accessed April 4, 2010).

164 concerns about a refugee influx have limited the willingness of the PRC to recognize North Koreans as refugees. This continued importance of these relations can be seen in the continued acknowledgement of bilateral agreements between the two countries. The Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas was signed with the DPRK in 1986 and requires both countries to repatriate all refugees; although this agreement is usually not put into practice, it has not be abrogated by either side.130 Article 4 of this agreement stipulates that both sides cooperate in the event that an individual is found to have illegally crossed the border. The PRCs conflicting obligations to refugee rights and to the DPRK have contributed to Beijing's lukewarm support for granting political asylum. The willingness of the Chinese government to welcome back ethnically Chinese refugees can be seen in the Law of the People's Republic of China on the Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese (1991). Article 3 of this law ensures the returned overseas Chinese people will not be discriminated against by any institution.132 Although this law was not formalized until 1991, it is high significant when attempting to understand the government's willingness to protect ethnic Chinese Vietnamese in the 1970s. However, like the declining willingness of the Malaysian government to grant political asylum on

130 Rhoda Margesson, Emma Chanlett-Avery and Andorra Bruno, "North Korean Refugees and Human Rights Issues: International Response and US Policy Options," CRS Report for Congress, (January 18,2008), 11. 131 "Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order (China and North Korea)," (1986 ), http://www.bekkoame.ne.jp/ro/renk/Protocol.htm, (accessed May 5, 2010). 132 "Law of the People's Republic of China on the Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese [China]," (January 1, 1991), http://www.unhcr.org/refworld/docid/3ae6b4dc0.html (accessed 21 March 2010).

165 the basis of a shared faith (Islam), the declining willingness of the PRC to grant asylum on the basis of ethnicity has also begun to decline. The PRCs legal framework is only capitalized upon when the CCP deems it favorable to its own national interests.

Procedures for Enforcement

The PRC has sought to limit the number of North Koreans refugees within its borders. The principle of non-refoulemont has not been a priority for the PRC. The Ministry of Public Security has the authority to force the return of North Koreans to their country of origin.133 Illegal aliens may be detained, subjected to residential surveillance or be deported by a public security organ at or above the county level. The PRC has also erected physical barriers to slow the flow of North Korean refugees into borders. The PRC took pains to construct a 20 kilometer long fence in 2006 to prevent further defections from the DPRK.135 The PRC has also increased the number of personnel that it has deployed on the border. It increased the number of police officers in 2002 and even stationed some members of the People's Liberation Army (PLA) in 2003 to deter migration.136 Officials have also increased the security around consulate buildings to

"Law of the People's Republic of China on Control of the Entry and Exit of Aliens (China)," (February 1, 1986): Article 30, http://www.unhcr.org/refworld/docid/3ae6b4dclc.html, (accessed May 5, 2010). 134 Ibid., Article 27. 135 Dick K. Nanto and Emma Chanlett-Avery, North Korea: Economic Leverage and Policy Analysis, CRS Report for Congress, (January 22, 2010): 58, http://www.fas.org/sgp/crs/row/RL32493.pdf, (accessed April 4, 2010). 136 Amnesty International, "People's Republic of China Continuing Abuses Under New Leadership: Summary of Human Rights Concerns," Amnesty International, (October, 2003), 17, http://www.amnesty.org/en/library/asset/ASA17/035/2003/en/bababf09-f7a8-lldd-8fd7- f57af21896el/asal70352003en.pdf, (accessed April 4, 2010).

166 prevent North Koreans from entering in hopes of receiving political asylum. 1 ^7 The policies of the PRC vis-à-vis North Koreans specifically seek to prevent them from crossing the border. The government has created positive and negative incentives against harboring North Korean refugees. Rewards for turning in a North Korean refugee run as high as 400 US dollars while fines for protecting North Korean defectors run as high as 3,600 US dollars.138 Any individuals or collectives caught aiding North Koreans can be subject to arrest and jail. Suzanne Schölte, Chairman of the North Korea Freedom Coalition, cited the case of Steve Kim, a citizen of the United States, who was jailed for four years by the PRC for assisting North Korean refugees during a Congressional analysis of the status of refugees in the PRC.139 Enforcement policies have consistently undermined the rights of North Korean refugees since the Great Famine.

Coherence of China's Asylum Policy and the Consistency of its Asylum Policy Implementation China's policy for granting political asylum has been generally consistent throughout the last thirty years. Asylum-seekers of all nationalities, with the exception of North Koreans, have generally been permitted by the CCP to go to the UNHCR office in Beijing and to put forth their case for refugee status.140

137 Rosenthal, "Defying the Crackdown." 138 Kaitlin Bonenberger, "Human Rights in the DPRK: Ongoing Abuses, Conflicting International Policies," SAIS U.S. -Korea Yearbook, (Washington DC: US Korea Institute at SAIS, 2006): 100. 139 The Rising Stakes ofRefugee Issues in China, 5. 140 Joshua Kurlantzick and Jane Mason, "North Korea Refugees: The Chinese Dimension," The North Korean Refugee Crisis: Human Rights and International Response, (Washington: US Committee for Human Rights in North Korea, 2006): 37, http://www.hrnk.org/refugeesReport06.pdf, (accessed March 23, 2010).

167 Total Population of Concern in the People's Republic of China (1997-2008)

302000

300000

298000

296O0O

294000

292000

290000

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Figure 4.9 UNHCR Statistical Online Population Database, United Nations High Commissioner for Refugees (UNHCR), http://www.unhcr.org/statistics/populationdatabase, (accessed March 20, 2010). With the exception of Vietnamese and North Koreans, the total number of asylum seekers has remained at a consistent and low number (see figure 4.9). Given the fact that China does not receive many asylum-seekers (with the exception of North Korean asylum- seekers), this has not generally imposed any significant costs on the PRC to adhere to international expectations on refugee rights. As I have previously stated, the PRC has two separate goals: gain the approval of the international community, which it attempts to do through accession to international laws on political asylum; and to ensure political stability along its Northeastern border provinces, which it does by attempting to prevent North Korean escapees from entering its borders and by forcibly repatriating them back to the DPRK.

Policy formation in the PRC has been the prerogative of the central government. This policy is clearly influenced by Beijing's concern that the political, economic and social woes of the DPRK will spill into its Northeast region if North Korean escapee

168 inflows are left unchecked.141 The publication of academic debates surround the future of the relationship between the PRC and the DPRK indicates, given the high level of control that the central government seeks to exert over publically available information, that top officials are considering different policy options.142 One of the issues under discussion is the future of the Sino-DPRK Treaty of Friendship, Cooperation, and Mutual Assistance; however, the majority of academics believe that the government should continue to accept it.143 It is also important to note that even this limited debate on the bilateral agreement that underpins the PRCs policy towards North Korean asylum-seekers is reserved for top leaders. Rather than challenge this policy, local officials have further institutionalize these policies. The Jilin province has gone so far as to create a local law that mandates the refoulement North Koreans within its territory. 144 The PRC has not sought the advice of non-governmental organizations, international governmental organizations or foreign governments when devising its North Korean escapee policy. The presence of the UNHCR and its offer to provide assistance in devising a more institutionalized legal framework has been ignored by Beijing. Although the international community has repeatedly expressed trepidations about the implications of forcibly repatriating North Korean refugees, these concerns have not

Kurlantzick and Mason, 34. 142 Bonnie Glaser, Scott Snyder and John S. Park, "Keeping an Eye on an Unruly Neighbor," A Joint Report by the Centerfor Strategic and International Studies and the United States Institutefor Peace, Working Paper (Washington DC: United States Institute for Peace, January 3, 2008): 7, http://www.usip.org/files/resources/Jan2008.pdf, (accessed April 25, 2010). 143 Glaser, Snyder and Park, 9. 144 Kurlantzick and Mason, 40.

169 manifested themselves into policy reforms. The politically closed authoritarian regime allows for the CCP to streamline its policy initiatives into formal policies. The implementation of the PRCs policy towards North Korean escapees has increased during the mid-1990s. Prior to this tragedy, local officials were often lax in their enforcement of policies that stipulated the refoulement of North Koreans.145 Prior to this event, the majority of North Korean 'economic migrants' were actually there in search of employment opportunities and generally not perceived as a threat.14 The number of North Korean escapees that fled to China demonstrated the weakness of the

DPRK and the potential ramifications of a mass exodus in the event of state failure. As a result, a major crackdown against North Korean escapees ensued in the late 1990s and continues to this day.147 This trend is evidence of a positive relationship between the centralization of political power and the consistency with which a policy is implemented. The low degree of political openness in the institutional structure of the PRC has limited the ability of individuals and collectives outside of the Chinese government to influence the implementation of policy. Any efforts by North Koreans or humanitarian organizations to circumvent these enforcement procedures have only led to the creation of more restrictive procedures. The government has not reformulated its enforcement procedures to reflect the concerns of the international community or allowed them to

145 Elisabeth Rosenthal, "China's Release of North Korean Refugees Sidesteps Sensitive Issue," New York Times, (June 30, 2001), http://www.nytimes.com/2001/06/30/world/china-s-release-of-north- korean-refugees-sidesteps-sensitive-issue.html?scp=16&sq=North%20Korean%20Refugees&st=cse, (accessed April 25, 2010). 146 Amnesty International, "Democratic People's Republic of Korea Persecuting the Starving, " 6; Rosenthal, "China Allows Five North Korean Asylum Seekers to Leave for Seoul." 147Kwak and Lee, 50.

170 monitor their treatment of North Korean escapees. The PRC has signed the right international agreements and makes a passing reference to refugee rights in its Constitution but does not have specific legislation for determining political asylum. Beijing's implementation of the agreements that it signed regarding refugee status has not been satisfactory. As of 2008, the PRC has yet to clearly finalize legislation that will establish a system for political asylum.148 The fact that the PRC has yet to bring its legal framework for immigration and asylum completely in line with the expectations of the international community indicates that its accession to these agreements was meant to gain approval from rather than adhere to the norms of the international community.

Implications for North Korea Refugees

Despite the formal recognition of the international rights of refugees, the PRC has systematically ignored the plight of North Koreans on the basis of its own national interests. The vast majority of North Korean refugees are currently hiding in China.149 The PRCs unwillingness to address the issues associated with the abuses of the DPRK and the resulting influx of refugees can been seen in its low estimates of the number of

North Koreans within its borders. Several South Korean NGOs have estimated that as many as 300,000 refugees are in China, while the PRC claims that only 10,000 such individuals are within its borders.150 The PRC continues to conceptualize North Korean refugees in a manner that prevents the international community from coming to their (the

148 United Nations High Commissioner for Refugees, "Global Report 2008," UNHCR: The Refugee Agency, (June, 2009), 210, http://www.unhcr.0rg/grO8/index.html#/home, (accessed April 5, 2010). 149 Wong, 189. 150 Ko Sung Ho, Chung Kiseon and Oh Yo-seok, North Korean Defectors: Their Life and Weil- Being After Defection, (Wollongong: CAPSTRAN, 2000) as cited in Wong, 189-190.

171 refugees') aid. North Korean refugees are classified by the CCP as 'economic migrants' and subject to deportation; the non-governmental institutions that seek to assist them are subject to harassment from the government.151 The UNHCR has not been granted permission by the PRC to go to the areas in Northeastern China to truly access the status of refugees living in the area.152 This not only places North Koreans within its borders in a dangerous position, but it also places individuals crossing the border in grave danger. Eighty percent of North Korean women that have come to the PRC are victims of human trafficking.153 The social costs imposed on the North Korean refugee community are also substantial. The children of North Korean asylum seekers are not able to attend school within the country unless one of their parents is a Chinese national and they secure the necessary documentation.154 The total number of refugees living in China has increased significantly within the last decade (see figure 4.7 and 4.9). The PRC has been consistently enforced its policies regarding North Korean refugees, it has not lived up to its obligations under the Convention on the Status of Refugees and the Protocol on the Status of Refugees.

Summation

The objectives behind the immigration and asylum policies and the historical context of the PRC and Malaysia share the same goal: limiting population in-flows. Malaysia has experienced several sizeable refugee inflows within the last 35 years and

151 The Rising Stakes ofRefugees in China, 4. 152 U.S. Committee for Refugees and Immigrants, "China," World Refugee Survey, http://www.refugees.org/countryreports.aspx?id=2352, (accessed April 18, 2010). 153 The Rising Stakes ofRefugees in China, 5. 154 U.S. Committee for Refugees and Immigrants, "China." 172 also nurses a dependency on foreign workers for specific sectors of its economy. Initiatives to restructure the economy and to become less dependent on foreign labor, in addition to a desire to placate public discontent with the rising number of foreign workers has given rise to immigration policies designed to curtail the influx of foreigners. China is not a major destination for foreign labor and has not been a major destination for refugees. Its willingness to become a signatory to the 1951 Convention on the Status of Refugees stems from a desire to earn respect from the international community. Its reaction to the massive influx of North Korean escapees however is similar to Malaysia's reaction to such influxes. Malaysia's immigration policies and the PRCs political asylum policies clearly indicate a desire to limit future influxes. Neither of the immigration and political asylum policies in both Malaysia and the PRC can be classified as coherent. However, the reasons for policy incoherence are markedly different for both countries. The political regime of the PRC is far more centralized and policy is under the control of the CCP. Asylum-seekers, by virtue of their lack of legal recognition in Malaysian law, are not distinguished from other economic migrants. Discord amongst policy-makers, demands from economic interest groups that hope to use foreign labor to make up for local labor shortages and civil society advocacy have forced the Malaysian government to re-evaluate and, at times, to relax its immigration policies. The relatively higher degree of political openness and lower degree the concentration of power in Malaysia allows for internal and external forces to influence the federal government and increases the likelihood that different veto players will have to reach a compromise between their policy preferences. Regime-types with a high degree of centralization of political power and a low degree of political openness,

173 such as the PRC, have a greater capacity to generate public policy that is reflective of their political objectives. The true variation of political regime type can be seen in the ability of the government to implement its policies. Beijing has been able to narrowly purse its own policy of treating North Koreans as economic migrants rather than asylum-seekers. Implementation of these goals began as soon as the PRC deemed North Korean influxes as a threat to political stability in the region in the late 1990s. The actions of humanitarian organizations have been constrained and the UNHCR has not been able to evaluate the status of North Korean escapes. The influence of civil society in this instance cannot be detected in the implementation process of the PRC. In Malaysia, economic interests have led to concessions from the government, reducing the overall level of enforcement of otherwise stringent policy measures. The UNHCR has been able to register asylum-seekers and access their status. Human rights organizations in Malaysia have been able to monitor and even change policy measures set forth by the government. Interested veto players inside the government have also been able to constrain the scope of implementation. High degrees of political openness and low levels of the centralization of power make implementation of immigration and asylum policy more difficult to implement.

174 CHAPTERV

CONCLUSION

Political regime type is an important factor in the formulation and the implementation of public policy. The aforementioned observation holds true for matters pertaining to political asylum and immigration. In order to reach this conclusion, I have analyzed the relationship between political regime type and immigration and political asylum policy in the Federation of Malaysia regarding Burmese asylum seekers and in the People's Republic of China regarding North Korean asylum seekers. I have drawn insights from the existing literature on political regime typology and on political asylum and on immigration in Malaysia and the PRC. I have drawn insights from George Tsebelis' Veto Player Model, which contends that the greater the number of political actors and collectives, the greater the level of difficulty in generating policy reform. The rationale behind my selection of two East Asian nations stems from the fact that the majority of the literature on political asylum focuses on developed, western democracies while the majority of political asylum-seekers are concentrated in developing countries. I also attempt to explore the relationship between regime-type and asylum policy. The generalizability of my conclusions are limited due to my focus on political asylum and immigration policy, however I feel that this focus is necessary given the fact that different policies entail the participation of different political actors and collectives. In order to be able to consistently compare the trends in political asylum policy over a given

175 period of time, I have to be able to compare a set of institutions designed for similar purposes.

I have selected these two case studies on the basis of their variation in political regime type. Malaysia has a hybrid political regime that is characterized as having both democratic and authoritarian features. The political regime type of the PRC is authoritarian. The two independent variables in my study are: the degree of centralization of political power in the institutional structure of governments and the degree of political openness. I argue that both are salient features of the structure of the governments of both countries. I determined the degree of centralization in both regimes by drawing from the insights of the Polity IV dataset. I conceptualize the degree of centralization by determining the institutional checks on executive power. I also utilize the distinction between unitary and federal regimes, with the later generating a far greater number of relevant veto players. The degree of political freedom in both countries was derived from the Freedom House Survey on Political Rights and Civil Liberties. I also examine the role of civil society and special interest groups. The opportunities for these individuals and groups to influence the process of policy formation and implementation focuses more on non-governmental organizations, while the degree of centralization focuses more on the actors and collectives within the governments of both countries. These conceptualizations allow me to measure the impact of two of the most crucial aspects of political regimes. The policy formation process and policy implementation are my dependent variables. I have attempted to analyze the variation in policy coherence and the extent to which it is implemented. I have examined the implementation of these policies to

176 determine if political regime type is able to impact the manner through which policy prescriptions are translated into action. I contend that no analysis of policy is complete if the policy making process or the implementation process is excluded. I examine a sample of the main pieces of legislation that compose the legal framework for immigration and political asylum and the procedures for enforcement in Malaysia and the PRC. These include the Immigration Act 1959/1963, the Emergency (Essential Powers) Act (1979) and the Passport Act (1966) to determine Malaysia's formal immigration and asylum policies. I have selected the Law of the People's Republic of China on Control of the Entry and Exit of Aliens (1986), Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas (1986), Law of the People's Republic of China on the Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese (1991) and the People's Republic of China's Constitution. I also examine reports from local refugee groups and the United Nations High Commissioner for Refugees (UNHCR) to determine the procedures for enforcing immigration and political asylum policy. Decentralization does inhibit the formation and coherence of immigration and asylum policy. It also undermines the ability of the government to implement its policies. The structure of the Cabinet Committee on Foreign workers is composed of different ministries, each with their own mandates and with a core responsibility for implementing a certain aspect of immigration policy. When different actors within this committee disagree, policy gridlock can result. The federal structure and constitutional guarantees of the Malaysian system of governance make it possible for Sarawak to check the efforts of the federal government to oppose national enforcement procedures within its borders.

177 Greater centralization of authority allows the CPP to determine to its policy with fewer restraints than Malaysia. In the PRC, policy decisions are made in Beijing. The unitary structure of the Chinese government ensures that there are no clear legislative mechanisms at the disposal of local officials to challenge the directions from the central government. Officials all derive their power from their membership in the CCP, not from their actual positions. The general coherence of immigration policy is also negatively impacted by high levels of decentralization. It creates incentives for different and powerful actors to protect their own spheres of influence rather than allow for general reforms. The institutional features of the Malaysian government have ensured that compromise between different interests within the government is necessary for both the formation and implementation of policy. I also conclude that the degree of centralization of a political regime does increase the likelihood the policy implementation will be fully implemented. Its structure puts greater pressure on local officials to carry out the policy directives of the central government. In Malaysia, implementation of its policies is also constrained by competing interests within the government. State governments and different ministries can compete for resources and control. Coordination problems and conflicting mandates make implementation of immigration policies difficult even when such competitions are absent. As a result, immigration policy in Malaysia has difficulty fulfilling its policy objectives. Beijing's two main objectives of appeasing the international community and providing for political security have both been met to a limited extent. The PRC has signed many of the international agreements regarding the rights of refugees and has usually abided by these agreements to the extent necessary to pacify the international

178 community. Despite its accession to these agreements, the PRC has staunchly refused to recognize the plight of North Korean escapees since the potential ramifications of a mass exodus from the DPRK became clear to leaders after the Great Famine. This has compromised its efforts to appease the international community. However, the main objective of promoting stability in its northeastern region has been generally been achieved by the implementation of the PRCs 'economic migrant' policy. Although North Koreans continue to make their way into the country, the government has been able to harden its border and has been able to constrain the movements of refugees within its territory. The PRCs asylum and 'economic migrant' polices were not distorted through by a variety of different competing governmental interests and were generally implemented in full. The comparatively high level of political openness in the Malaysian political regime ensures that non-government actors will be able to exert a greater level of influence over its policy formation process. The Malaysian government does not recognize asylum seekers or refugees, yet it continues to allow the UNHCR to reside within its borders and to make status determinations of political asylum-seekers. This increases the opportunities for civil society to challenge its immigration policies. The presence of local non-governmental organizations that protect refugees and advocate on their behalf also provides constraints on the policy formation process. Economic interest groups demand for low skilled labor also encourages the government to turn a blind eye to the hiring of refugees that are, under law, illegal foreign workers and generate more lax policies on immigration when labor shortages threaten the economy. When public opinion is inflamed by the increasing presence of foreign workers, the government will

179 strengthen its immigration laws and policy. There are a variety of interests, external to the formal government of Malaysia, who are able to create a shift in Malaysia's immigration policy. However, condemnation from the international community has general prompted anger from CCP elites, rather than changes in the PRCs polices. Having a politically closed regime has allowed the PRC to generally ignore the advice and the experiences of civil society at will. China's politically closed system has also increased the likelihood that its policies will be enforced. Although there have been instances where China has bowed to intense levels of international pressure, this has not generated a long term shift in its treatment of

North Korean escapees. Criticism of the PRCs policy towards North Korean escapees has been constrained by its control of all information related to the treatment of escapees in the provinces of Liaoning and Jilin. The UNHCR has not been able to gain access to these areas. Small NGOs in this area are forced to keep a low profile in order to avoid arrest by government officials. Although the UNHCR has issued critical reports of the

PRC, this agency is forced to limit its critiques or else risk being expelled by the government. The structure of its economy has limited the extent to which domestic and

international economic actors are able to bring influence to bear on the PRC. I am able to affirm that a greater degree of political openness does decrease the effectiveness of implementation of immigration policy and limits the degree to which formal policy is in line with policy goal that led to its initial formation. Malaysia's main objectives, achieving the status of a developed state and placating public opinion, are not always upheld in the actual implementation of its immigration policies.

180 Although my research focused on the role of political institutions, throughout the course of my research I observed other trends that warrant further investigation. One of the first underlying trends that I uncovered was the decline in the general level of enthusiasm displayed by governments for granting political asylum to individuals that had elements of a shared identity. In both China and in Malaysia, there appears to have been an element of identity behind the willingness of both governments to recognize specific groups of asylum-seekers as refugees in the past. Many of the individuals that were granted legal status in both countries shared attributes that both countries held dear. In Malaysia, Islam is one of the central features of the Malay identity.1 For China, the persecution of people of Chinese descent has typically been an issue of great importance to the Chinese government and people.2 The tolerance and sympathy for forced migrants with elements of a shared identity have begun to dissipate within the past two decades. In the early 1970s, Malaysia was willing to allow fellow Muslims from Cambodia, the Philippines and Bosnia to legally remain within its borders. The current treatment of Muslim political asylum-seekers does not conform to this pattern. Stateless Rohingya asylum-seekers, despite their faith in Islam, are not given any quarter by the Malaysian government. Their access to EvIM 13 visas has been curtailed and the UNHCR has not been able to gain the support of the Malaysian government for their resettlement. Although the role of Islam in Malaysia has grown stronger and continues to have a role in politics, it has not factored into the willingness of the government to grant Muslim

1 Muhammad Haniff Bin Hassan, "Explaining Islam's Special Position and the Politic of Islam in Malaysia," Muslim World, Vol. 97, Issue 2, (April, 2007): 289. 2 Lowell Dittmer and Samuel Kim, China 's Questfor National Identity, (Ithaca: Cornell University Press):271-290, as cited in Daojion Zha, "China and the May 1998 Riots of Indonesia: Exploring the Issues," Pacific Review, Vol. 13 Issue 4 (October, 2000): 558.

181 asylum-seekers legal residence, let alone political asylum. This observation has important implications for the role of religion in politics and policy formation.

The PRC was vociferous in its defense of the ethnic Chinese in Vietnam and allowed hundreds of thousands of these refugees to cross its borders to safety. However, this trend has gradually begun to decline. The PRC has also demonstrated a waning level of enthusiasm for protecting overseas Chinese. When riots against ethnic Chinese took place during the Asian Financial Crisis in Indonesia, the government response was muted. Further research should determine if these events in Malaysia and China are indicative of a larger trend and the manner through which identity currently influences asylum policies. This research should also seek to ascertain the reasons behind the decreasing salience of ethnic or religious ties as mitigating factors for political asylum. The level of influence that identity exercises in the policy formation process is an interesting area for future research.

The role of foreign policy and bilateral relations is another area that warrants additional analysis. A receiving state's willingness to recognize political asylum-seekers as refugees from a sending state can damage relations between both states. The willingness of receiving states can be swayed by the potential ramifications of angering a neighboring state. Although China has generally been willing to grant political asylum, its treatment of North Koreans has been a noticeable outlier. Beijing has consistently refused to recognize North Korean escapees them as refugees. Although relations between the PRC and the DPRK have not been as strong after the death of Kim Il Sung and the end of the Cold War, Beijing has still taken pains to ensure that it does not offend

182 its neighbor.3 China's role as host of the Six Party Talks has also ensured that the PRC continues to avoid isolating Kim Jong H.4 Even though the DPRK has withdrawn from the Talks in April of 2009, the PRC has recently confirmed that Stephen Bosworth, the U.S. Special Representative for the DPRK, and Kim Yong II, the Vice Foreign Minister of the DPRK, visited the PRC at the same time during September of 2009.5 Given the intensity of international attention to the nuclear crisis in North Korea, it is unsurprising that the PRC would concentrate its negotiations and limited ability to influence the

DPRK on the nuclear crisis rather than on issues of human rights. Malaysia's relationship with Burma may also offer some insight into its stance vis-à-vis Burmese asylum-seekers. Both of these countries are members of the Association of Southeast Asian Nations (ASEAN). One of the core norms of this organization is the non-interference in the internal affairs of other member states.6 If Malaysia were to openly rebuke Burma and to accept Burmese asylum-seekers as refugees, it could potentially damage its bilateral relations and also the consensus within ASEAN. Foreign policy concerns can limit the willingness of the states to address human rights violations. An analysis of foreign relations between the receiving state and

3Joshua Kurlantzick and Jane Mason, "North Korea Refugees: The Chinese Dimension," The North Korean Refugee Crisis: Human Rights and International Response, (Washington: US Committee for Human Rights in North Korea, 2006): 34, http://www.hrnk.org/refugeesReport06.pdf, (Accessed March 23, 2010). 4 Ibid., 39. 5 Xinhua News, "FM Spokeswoman confirms DPRK, US Officials visit China," Xinhua News Online, (September 3, 2009), http://news.xinhuanet.com/english/2009-09/03/content_11991331.htm, (Accessed April 22, 2010). 6 ASEAN Secretariat, "Overview," Official Website of the Association for Southeast Asian Nations, (2009), http://www.aseansec.org/64.htm, (Accessed April 12, 2010).

183 the country origin could potentially determine the extent to which foreign policy considerations influence the domestic policy. My study confirms my hypotheses that centralization of political power and a low degree of political openness will facilitate the formation and implementation of political asylum and immigration policy. Malaysia has been forced to contend with numerous veto players within its own political regime and beyond. China, by virtue of the structure of its institutions, has far fewer veto players. The PRC has also been able to limit the ability of non-governmental actors to influence and inhibit its policies. The implications for asylum seekers living within Malaysia and the PRC have both been dire, yet have been far more consistent with the PRC. Political regime type has clearly influenced the ability of the Federation of Malaysia and the People's Republic of China to regulate refugees.

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