CONFINED SPACES Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand Equal Rights Trust CONFINED SPACES Legal Protections for Rohingya in Bangladesh, Malaysia and Thailand Equal Rights Trust The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. © December 2016: Equal Rights Trust © Design December 2016: Shantanu Mujamdeer/Counterfoto Cover and All Inner Photographs: Saiful Huq Omi/Counter Foto Layout: Istvan Fenyvesi ISBN: 978-0-9956403-7-5 CONFINED SPACES All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by other means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Centre, USA. Equal Rights Trust 314-320 Gray’s Inn Road London WC1X 8DP United Kingdom Tel: +44 (0) 207 610 2786 www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England, and a registered charity. Company number 5559173. Charity number 1113288. Equal Rights Trust Yes I am a Rohingya Yes I am from Myanmar But I too am Human (…) Somewhere I am restricted Somewhere my rights are denied Somewhere I am discriminated Somewhere my rights are delayed (…) Yes I am a Rohingya Somewhere I do rag picking Somewhere I am starving (…) Somewhere I am in a cage Somewhere I am simply helpless Yes I am a Rohingya Yes I am from Myanmar I too am Human I too am part of this world I too wanna have a life just like you Ali Jonah Contents Acknowledgments Acronyms Foreword 1 Introduction 13 International Legal Framework National Law Papers 57 Ashraful Azad Legal Status of the Rohingya in Bangladesh: Refugee, Stateless or Status Less 88 Asylum Access Malaysia, The Rohingya in Malaysia Helen Brunt and an anonymous third author 164 Nussara Meesen, Legal Analysis: Holes and Hopes for Rohingya Bongkot Napaumporn and in Thailand Sriprapha Petcharamesree 219 Recommendations 230 Bibliography Acknowledgments The publication was compiled by Tayyiba Bajwa, Advocacy and Programmes As- of Part 2 and oversaw and co-ordinated the expert review of the publication and eachsistant of at its the papers. Equal Joanna Rights TrustWhiteman, (the Trust) Co-director who edited at the and Trust, finalised provided the first editorial draft oversight. It represents the culmination of two years of research. At the outset of the project, a research methodology was developed by Amal de Chickera and Dimitrina Petrova, who also commissioned the research papers con- tained in Part 3 of the publication. Joanna Whiteman then met with researchers on 16 September 2015, to further discuss and develop the research as it progressed. The research was finalised in 2016. - sive draft of Part 2. The Trust is also grateful to the researchers and authors of the threeThe Trust research would papers like to published thank Samuel in Part Barnes 3: Ashraful for preparing Azad (author the first of comprehenthe Bangla- desh paper); Asylum Access Malaysia, Helen Brunt, an anonymous third author (authors of the Malaysia paper); Sriprapha Petcharamesree, Nusssra Meesen and Bongkot Napaumporn (authors of the Thailand paper) (collectively – the Authors) for working diligently on the project. - pers. Ashraful Azad would like to thank the participants at the International Forum onThe Rohingya Authors heldwish in to Bangkok thank a number (September of people 2015) for and providing a Legal Training input into Workshop their final held pa in Dhaka (January 2016). He is particularly grateful to staff members at the UNHCR - lum Access Malaysia, Helen Brunt, and an anonymous third author (the Malaysia pa- perBangladesh authors) country would likeoffice to andthank Chris Janice Lewa Tay, of Tan Arakan Hui Project.Wen, Vivian Deepa Siew Nambiar and Nicholas of Asy Lai from Skrine and Nizam Bashir for their invaluable assistance with the research and preparation of their paper, and Eric Paulsen from Lawyers for Liberty for his assistance in reviewing sections of the research. Sriprapha Petcharamesree, Nusss- ra Meesen and Bongkot Napaumporn (the Thailand paper authors) would like to thank all participants, who, in different events namely the International Forum on Strengthening the protection of the Rights of Stateless Rohingya, a Legal Research Roundtable on the Protection of the Rights of Stateless Rohingya (16 September 2015), and a National Workshop (consultation) on the Promotion and Protection of Stateless Rohingya (29 January 2016), contributed to this research project by sharing their comments and inputs to the draft research paper. The Thailand paper authors are also indebted to Rohingya, other friends and colleagues from NGOs as Thewell asTrust government and the Authorsofficers for are data deeply and indebtedconstructive to thefeedback many provided others who to them. kindly gave their time to review and give their thoughts on the publication and its con- tained papers and whose contributions have strengthened it greatly. The Trust and the Authors wish to thank all individuals and organisations who responded to queries, gave feedback on drafts, providing information and advice. Particular thanks are due to Amal de Chickera for his careful and detailed review of Part 2 and to UNHCR which provided background information for the report. In addition, thanks are due to all those who peer reviewed the papers including Caitlin Wake and Chris Lewa for their peer review comments on the Malaysia paper, Dr Darunee for her comments on the Thailand paper and Dr Ridwanul Hoque for his review of the Bangladesh paper. The Trust would also like to thank the following indi- viduals who provided comments on the draft recommendations: Ashraful Azad, Caitlin Wake, Chris Lewa, Deepa Nambiar, Helen Brunt, Dr Ridwanul Hoque, and Sriprapha Petcharamesree. interns. Thanks go to Sam Barnes, Rosie Monaghan and Stacy Stroud. Charlotte The Trust has been assisted in finalising the publication by a number of staff and- esi for the design and layout of the publication. Broyd co-ordinated the proofing and layout process. Thanks also to Istvan Fenyv Acronyms AALCC Asian-African Legal Consultative Committee AALCO Asian-African Legal Consultative Organisation ACWC ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children AHRD ASEAN Human Rights Declaration AICHR ASEAN Intergovernmental Commission on Human Rights APC APRRN Asia-Pacific Consultations ASEAN Association of Southeast Asian Nations Asia Pacific Refugee Rights Network CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families IDP Internally Displaced Persons ILO International Labour Organization MAS Malaysia Airlines System MoH Ministry of Health MOI Ministry of Interior NaSaKa Nay-Sat Kut-kwey Ye (Inter-agency Border Force in Rakhine State) NCPO National Council for Peace and Order NGO Non-Governmental Organisation NRD National Registration Department RRRC Refugee Relief and Repatriation Commissioner UDHR Universal Declaration of Human Rights UMN Undocumented Myanmar Nationals UN United Nations UNHCR United Nations High Commissioner for Refugees UNOCHA United Nations Office for the Coordination of Humanitarian Affairs j k Foreword “Anwara” with a photograph of her stepfather. Anwara’s stepfather tried to rape her on three occasions but on each attempt her mother saved her. Confined Spaces Confined Spaces j k Foreword - ya, will the world be condemned as a spectator? This is our present trajectory. ForIn the decades, years to the come, Rohingya when havefuture been generations subjected reflect to a perpetual on the history state of uncertaintythe Rohing and despair, piqued by extreme violence and tragedy. They are victims of one of the most serious and sustained campaigns of ethno-religious discrimination in the Foreword world today. Just between October 2016 and April 2017 a reported 90,000 Ro- refugehingya infled Bangladesh their homeland and other in Myanmar, states before an escalation them. in previous rates of flight, rapidly adding to the hundreds of thousands of Rohingya who have fled to seek Despite the efforts of many, the Rohingya’s story has been quietly told. Every so villages catch our attention and we shout into a void “more should be done”. But alloften, too reportssoon, our of collectivemass casualties consternation during their and demandsflight at sea for oraction the burningdissipate. of While their Myanmar restricts access to the Rohingya’s native home, Rakhine state (the center stage of the story), testimony which escapes indicates that the atrocities taking place are on such a catastrophic scale that it will not only be Myanmar which will - mitment from the international community, our sons and daughters will rightly askbe judged. us: where If there were is you? not a significant change in political will and