Equal Only in Name

EQUAL RIGHTS TRUST IN PARTNERSHIP WITH
THE INSTITUTE OF HUMAN RIGHTS AND PEACE

STUDIES, MAHIDOL UNIVERSITY
Equal Only in Name
The Human Rights of Stateless

Rohingya in Malaysia
London, October 2014

The Equal Rights Trust is an independent international organisation whose purpose is to combat
discrimination and promote equality as a fundamental human right and a basic principle of social
justice. The Trust focuses on the complex relationship between different types of discrimination,
developing strategies for translating the principles of equality into practice.
The Institute of Human Rights and Peace Studies (IHRP) was created by a merger between Mahidol
University’s Center for Human Rights Studies and Social Development (est. 1998) and the Research
Center for Peace Building (est. 2004). IHRP is an interdisciplinary institute that strives to redefine
the fields of peace, conflict, justice and human rights studies in the Asia Pacific region and beyond.
© October 2014 Equal Rights Trust and

Institute of Human Rights and Peace Studies, Mahidol University
© Cover Design October 2014 Shantanu Mujamdeer / Counterfoto
© Cover Photograph Saiful Huq Omi
Design and layout Shantanu Mujamdeer / Counterfoto

Printed in the UK by Stroma Ltd.
ISBN: 978-0-9573458-1-2
All rights reserved. No part of this publication may be translated,

reproduced, stored in a retrieval system or transmitted in any form or by
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Equal Rights Trust

314 ‐ 320 Gray's Inn Road
London WC1X 8DP
United Kingdom
Tel. +44 (0) 207 610 2786
info@equalrightstrust.org
www.equalrightstrust.org
The Equal Rights Trust is a company limited by guarantee

incorporated in England, and a registered charity.
Company number 5559173. Charity number 1113288.
This report has been prepared with the financial assistance of the European Union. The contents of
this report are the sole responsibility of the Equal Rights Trust and the Institute of Human Rights
and Peace Studies, Mahidol University and can in no way be taken to reflect the views of the
European Union.
[T]he pattern of widespread and systematic human
rights violations in Rakhine State may constitute crimes
against humanity as defined under the Rome Statute of
the International Criminal Court (…) [E]extrajudicial
killing, rape and other forms of sexual violence, arbitrary
detention, torture and ill-treatment in detention, denial
of due process and fair trial rights, and the forcible
transfer and severe deprivation of liberty of populations
has taken place on a large scale and has been directed
against the Rohingya Muslim population in Rakhine
State (…) [T]he deprivation of healthcare is deliberately
targeting the Rohingya population, and (…) the
increasingly permanent segregation of this population is
taking place. Furthermore (…) these human rights
violations are connected to discriminatory and
persecutory policies against the Rohingya Muslim
population, which also include ongoing official and
unofficial practices from both local and central
authorities restricting rights to nationality, movement,
marriage, family, health and privacy.
Tomás Ojea Quintana, Special Rapporteur on the situation of
human rights in Myanmar,
Human Rights Council, 25th Session, 2 April 2014,
A/HRC/25/64, Para 51
I believe that Malaysia will recognise refugees (…)

I don't know why in my heart I believe in this, but I do.
Sharifah Binti Hussein, Rohingya refugee in Malaysia
Quoted in Jennifer Pak, “Rohingya Muslims want to call
Malaysia home”, BBC News, June 2012
Equal Only in Name
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
ACRONYMS
1. INTRODUCTION 1
1.1. Purpose and Structure of This Report 1
1.2. Conceptual Framework and Research Methodology 3
1.3. The Rohingya 5
1.3.1. Ancestral Roots 5
1.3.2. Ethnic Identity 6
1.3.3. Arbitrary Deprivation of Nationality 8
1.3.4. Since the Violence of 2012 11
1.3.5. Overseas Rohingya 13
1.4. The Rohingya in Malaysia 13
1.5. Common Themes and Challenges 17
1.5.1. Protracted Statelessness and Lack of a Legal Status 17
1.5.2. Equality and Non-Discrimination 19
1.5.3. Forced Migration, Trafficking and Smuggling 20
2. THE INTERNATIONAL LEGAL FRAMEWORK 21

2.1. A Regional Overview 21
2.2. Malaysia’s Obligations under International Law 23
2.3. Equality and Non-Discrimination 24
2.4. Statelessness and Refugee Law 27
2.5. The Role of the UNHCR 33
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3. PATTERNS OF DISCRIMINATION AND INEQUALITY 38

3.1. Displacement and Migration Patterns of the Rohingya 38
in Malaysia
3.1.1. New Arrivals: The Sea Journeys of Rohingya “Boat 38
People”
3.1.2. Long-term Population: Overland Routes to Malaysia 45
3.2. Arrest, Detention and Deportation 47
3.2.1. Malaysian Responses to Anti-Rohingya Violence in 54
Myanmar since June 2012
3.2.2. Human Trafficking and Smuggling 56
3.3. The Exclusion of Rohingya Children 63
3.3.1. The Right to an Identity – Birth Registration and
Nationality 65
3.3.2. The Right to Education 68
3.3.3. The Right to the Highest Attainable Standard of Health 70
3.4. Denial of the Right to Work and Resulting
Vulnerabilities 74
3.5. Other Rights 78
3.5.1. Access to Adequate Housing 78
3.5.2. Marriage and Family Life 79
3.5.3. Death and Burial 82
4. CONCLUSIONS AND RECOMMENDATIONS 83
BIBLIOGRAPHY 93
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ACKNOWLEDGEMENTS
This report is published by the Equal Rights Trust, in partnership with

the Institute of Human Rights and Peace Studies, Mahidol University
(IHRP). It is one of the outputs of a collaboration to engage in multi-
country research and advocacy to strengthen the human rights of
stateless Rohingya, which began in March 2011 and will continue at least
until December 2016.
The multi-country project research team was led by Dr Sriprapha

Petcharamesree (IHRP) and Amal de Chickera (Equal Rights Trust) with
support from Natalie Brinham and additional advice and guidance from
senior project advisor Stefanie Grant and the Equal Rights Trust
Executive Director Dr Dimitrina Petrova. The project research team met
regularly to identify and agree research areas, to adopt the research
methodology and to exchange information, cross-check research and
share analysis. Thus, the Malaysia report and the Malaysia research team
benefited from and also contributed to the wider research team, who are
consequently acknowledged in this report. The key researchers were
Ferdousi Akter (Bangladesh), Prof Kamarulzaman Askandar and his team
(Malaysia), Natalie Brinham (Malaysia, Myanmar, Thailand and general
desk research), Vivienne Chew (Malaysia), Jennifer Clement (Malaysia),
Dr Uttam Das (Bangladesh legal research), Ranajit Dastidar (Bangladesh),
Cornelia Epuras (Saudi Arabia legal research), Shohan Ekramul Kabir
(Bangladesh and Myanmar), Abul Kalam (Bangladesh), Bo Bo Lansin
(Myanmar), Libby McVeigh (Bangladesh legal research), Saiful Huq Omi
(Bangladesh, Malaysia and general research), Nicole Ostrand (Thailand
and general desk research), Pei Palmgren (Thailand), Eric Paulsen
(Myanmar and Malaysia), Nimer Sultany (Saudi Arabia), Yanuar
Sumarlan (Indonesia) and Veerawit Tianchainan (Thailand legal
research). There were additional researchers for Saudi Arabia and
Myanmar who remain anonymous for reasons of safety. Special thanks to
Nicole Ostrand for her efficient coordination of research team meetings.
All staff of the Equal Rights Trust contributed to the smooth running of
the project and the publication of this report. They include Jim Fitzgerald
who helped with project related advocacy, Sarah Pickering who helped
with launching and disseminating the report and other project outputs,
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Joanna Whiteman, Jade Glenister and Richard Wingfield who helped with
proof reading and finalisation of this report and Anne Muthee and Jeana
Vuma who were responsible for the financial management of the project.
The initial field research for Malaysia was overseen by Dr Sriprapha

Petcharamesree and carried out by Prof Kamarulzaman Askandar and his
team of researchers from Universiti Sains Malaysia. Additional field
research was carried out by Natalie Brinham. The research material
produced by Prof Askandar and his team was drafted into this report by
Vivienne Chew and Jennifer Clement, who also carried out additional field
and desk research, primarily for the purposes of updating the existing
research and plugging any gaps. The report was edited and finalised by
Natalie Brinham and Amal de Chickera, with a final edit and authorisation
for publication coming from Dimitrina Petrova.
The research was reviewed at several stages, including at the final stage,
where an in depth review was carried out by Dr Sriprapha
Petcharamesree, Stefanie Grant, Chris Lewa of the Arakan Project and
others. We are grateful to all reviewers for their feedback which has
strengthened this report.
The project team would like to thank the many interns and volunteers
who helped with desk research throughout the project. In particular, we
would like to thank Coralie Aboulfouioud, Arendse Baggesen, Adele
Barzelay, Gayathri Fonseka, Aditi Mittal, Kimberley Ong, Jason Tucker
and Jackie Tumwine.
Throughout the project implementation period, the Equal Rights Trust

and IHRP have become indebted to many individuals and organisations
that have made both the research and publication of this report as well as
related project activities possible.
The immense contribution of the Arakan Project, which generously gave

of its time, expertise and contacts throughout the project, is gratefully
acknowledged. The input of Chris Lewa, Director of the Arakan Project
when this project was being conceptualised, her participation in project
research meetings and contribution to identifying research issues, the
sharing of Rohingya community contacts, being interviewed and sharing
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material as part of the research process and the review of report drafts
has significantly influenced and improved the project and its outputs.
Similarly, the joint advocacy carried out by the Equal Rights Trust and the
Arakan Project must also be acknowledged.
Very special thanks also go out to Saiful Huq Omi, for sharing his
photographs, for always going beyond what has been required and for
proving to be as good a researcher as he is a photographer. The team
would also like to thank Shantanu Mujamdeer for the cover design and
layout.
The project team is also grateful for the input and generosity of Rohingya
community leaders and groups that have helped with the research; in
particular, the Rohingya Society of Malaysia (RSM) and the Burmese
Rohingya Organisation UK (BROUK). All Malaysian civil society
organisations, academics, government representatives and UN agencies
that attended the project workshop in February 2014 and shared their
expertise are also thanked. Particular thanks go out to Dr Azmi Sharom
and the law faculty of University Malaya, who kindly hosted the project
workshop and related activities. Jirawat Suriyashotichyangkul, who was
responsible for logistics related to the workshop is also acknowledged.
This report is the outcome of a partnership between the Equal Rights

Trust and IHRP on a joint project entitled “Strengthening the Human
Rights Protection of Stateless Rohingya”, funded by the European Union.
The partners are very grateful for the support provided for this project.
We are particularly grateful to Martha Mendez, the EU programme
manager assigned to our project, for her support, advice and flexibility.
The contents of this report are the sole responsibility of the Equal Rights
Trust and IHRP and can in no way be taken to reflect the views of the
European Union.
Finally, we wish to thank all Rohingya who shared their stories with us.
This report is dedicated to them and to all Rohingya in Malaysia and
elsewhere, who have suffered – and continue to suffer – discrimination
and exclusion.
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ACRONYMS
ACWC ASEAN Commission on the Promotion and Protection of

the Rights of Women and Children
AICHR ASEAN Inter-governmental Commission on Human Rights
ASEAN Association of Southeast Asian Nations
ATIP Anti-Trafficking in Persons Unit
ATIPSOM Anti-Trafficking in Persons and Anti-Smuggling of
Migrants Act
BROUK Burmese Rohingya Organisation United Kingdom
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
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic Social and Cultural Rights
CMW Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
CSC Citizenship Scrutiny Card
EU European Union
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of Racial
Discrimination
ICESCR International Covenant on Economic Social and Cultural
Rights
IDC Immigration Detention Centre
IHRP Institute of Human Rights and Peace Studies,
Mahidol University
ILO International Labour Organisation
MAPO Council for Anti-Trafficking in Persons
NGO Non-Governmental Organisation
NRC National Registration Card
RELA Ikatan Relawan Rakyat Malaysia (Malaysia People’s
Volunteer Corps)
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RM Ringgit (the currency unit in Malaysia)

RSD Refugee Status Determination
RSM Rohingya Society of Malaysia
SUHAKAM National Human Rights Commission of Malaysia
UDHR Universal Declaration of Human Rights
UN United Nations
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNTOC UN Convention against Transnational Organised Crime
USD United States Dollar
WHO World Health Organisation
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Introduction
1. INTRODUCTION
1.1. Purpose and Structure of This Report
Burma is not our land anymore though I was born there.1
Stateless, discriminated against, treated unequally, excluded and

persecuted, the Rohingya are one of the most vulnerable communities in
the world. Originating from Myanmar, hundreds of thousands of Rohingya
have fled the country in search of safety, security and prosperity -
conditions that remain elusive to the majority who have made lives for
themselves upon new shores.
The human rights challenges that the Rohingya face originate in Myanmar,
but are also prevalent in other countries. Discrimination and unequal
treatment are central to the human rights violations suffered by the
Rohingya. This report is part of a series which provides an overview and
analysis of the human rights situation of stateless Rohingya in various
countries.
The purpose of this report is to highlight and analyse the discrimination

and inequality faced by the Rohingya in Malaysia and to recommend steps
aimed at combating discrimination and promoting equality of the
Rohingya. The report explores long-recognised human rights problems,
and also seeks to shed light upon some less well-known patterns of
discrimination against the Rohingya.
The Equal Rights Trust has been working on the human rights of Rohingya
since 2008, approaching the issue from the unified human rights
perspective on equality.2 In January 2010, we published a short report
1 Interview BD 20, with a Rohingya man, Cox’s Bazar, Bangladesh, 4 October 2012.
Throughout this report, names and/or personal characteristics of individuals have
been withheld either at the request of interviewees or because the research team
determined this to be necessary in the interest of the safety and/or privacy of the
individuals concerned and/or others who may face reprisal.
2The unified human rights perspective on equality is expressed in the Declaration
of Principles on Equality, developed and launched by the Equal Rights Trust in
1
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entitled Trapped in a Cycle of Flight: Stateless Rohingya in Malaysia, in

which patterns of detention, trafficking and deportation were described
for the first time, based on original testimony.3 In March 2011, the Trust
and the Institute of Human Rights and Peace Studies, Mahidol University
(IHRP) began working together on a project aimed at strengthening the
human rights of stateless Rohingya both within Myanmar and beyond.
Grounded in research conducted in six countries (Bangladesh, Indonesia,
Malaysia, Myanmar, Saudi Arabia and Thailand), this project is an
endeavour to increase the human rights protection of the Rohingya
through advocacy, capacity building and coalition building at national,
regional and international levels.4
This report comprises four parts. Part 1 sets out the conceptual
framework which has guided the authors’ work and the research
methodology. It then provides an overview of the Rohingya and concludes
with an analysis of some of the common trends, themes and challenges
that have emerged from the research in all project countries. Part 2
provides an overview and analysis of the international, regional and
national legal and policy framework relevant to the discrimination,
inequality and related human rights violations and challenges faced by the
Rohingya in Malaysia. Part 3 focuses on patterns of discrimination and
inequality affecting the Rohingya in Malaysia. It is important to note that
Part 3 focuses on a few select issues, and is not a comprehensive overview
of all forms of discrimination and inequality limiting the enjoyment of
human rights for the Rohingya in Malaysia. Part 4 presents conclusions
and recommendations.
2008, following consultations with 128 human rights and equality experts from 47
countries in different regions of the world. See Declaration of Principles on
Equality, Equal Rights Trust, London, 2008.
3Equal Rights Trust, Trapped in a Cycle of Flight: Stateless Rohingya in Malaysia,
London, 4 January 2010.
4 For more about the project “Strengthening Human Rights Protection for the
Rohingya”, visit the Equal Rights Trust website at: http://www.equalrightstrust.
org/rohingya/index.htm.
2
Introduction
1.2. Conceptual Framework and Research Methodology
This report takes as its conceptual framework the unified human rights
perspective on equality which emphasises the integral role of equality in
the enjoyment of all human rights, and seeks to overcome fragmentation
in the field of equality law and policies. The unified human rights
perspective on equality is expressed in the Declaration of Principles on
Equality, developed and launched by the Equal Rights Trust in 2008,
following consultations with 128 human rights and equality experts from
47 countries in different regions of the world. According to Principle 1 of
the Declaration:
The right to equality is the right of all human beings to be

equal in dignity, to be treated with respect and
consideration and to participate on an equal basis with
others in any area of economic, social, political, cultural or
civil life. All human beings are equal before the law and
have the right to equal protection and benefit of the law.5
The Declaration proclaims that the right to equality extends to guarantee

equality in all areas of human life normally regulated by law, and should
be addressed holistically. This approach recognises the
interconnectedness of inequalities arising in different contexts, which
makes it necessary to take a comprehensive approach to combat
manifestations of discrimination arising in all areas of life.
The unified human rights perspective on equality is central to the

Rohingya issue. In Myanmar, the Rohingya are a stateless, ethnic, religious
and linguistic minority and in other countries, they are stateless irregular
migrants, refugees and often undocumented persons. As such, they are
vulnerable to many forms of discrimination, exclusion and human rights
abuse.
Another key aspect of the project is its regional focus. The long-term and
widespread nature of the Rohingya crisis means that while recognising the
5 See above, note 2, Principle 1, p. 5.
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individual responsibility of states to protect the human rights of all

persons within their territories and subject to their jurisdictions, a just and
sustainable solution is only likely if the key states demonstrate a collective
commitment to protect the Rohingya. The regional nature of the issue
presents both opportunities and challenges. The opportunity is that if
states act collectively, the burden on each state will be eased and such an
unprecedented process would serve as a blueprint for future regional
cooperation; the challenge is to address the causes of irregular migration
flows and ensure greater coordination among states and an increased
willingness to protect the Rohingya.
This report looks at Malaysia’s place in the regional picture of stateless

Rohingya displacement and insecurity. It focuses both on recent refugees
and the long-staying population. The report is informed by 20 semi-
structured interviews and 2 focus-group discussions with stateless
Rohingya refugees, including refugee leaders, living in Kuala Lumpur and
Penang and the surrounding areas. Interviews with individual experts and
with governmental and non-governmental organisations who work on the
Rohingya issue also inform this report, as well as on-going and informal
discussions with Rohingya refugees over the course of the research. While
the majority of interviews took place between July 2012 and December
2012, the report is up-to-date as of June 2014.
Interviews focused on equality and non-discrimination and on patterns of

discrimination in relation to five key issues: statelessness and lack of legal
status; migration and displacement patterns; liberty and limits to freedom
of movement; the right to work and related livelihood issues; and
children’s rights. A comprehensive literature review surveying research
and information on the Rohingya and on Malaysia’s legal and
administrative frameworks relevant to refugees, stateless people and
migrants, also informs the report.
A significant research challenge has been the fast evolving situation,

driven by political changes in Myanmar; violence against the Rohingya
since 2012-2013; and the resultant mass flight of Rohingya refugees. The
Equal Rights Trust published an emergency situation report in June 2012
4
Introduction
and a follow-up report in November 2012.6 Furthermore, the researchers

responded to the changing context by adapting the research focus and
conducting additional research.
1.3. The Rohingya
The Rohingya are an ethno-religious minority group from the Rakhine

region, which today is encompassed within the borders of Myanmar and is
adjacent to Bangladesh. There is an estimated population of between one
and 1.5 million Rohingya in Rakhine State. Much of the population is
concentrated in the three townships of North Rakhine State – Maungdaw,
Buthidaung and Rathedaung – where the Rohingya are in the majority.7
Other smaller minority communities of Rohingya are scattered throughout
Rakhine State.8 To a large extent, Rohingya have been contained in
Rakhine State, through successive government policies. However, small
numbers of Rohingya have settled in Yangon, the capital of Myanmar, and
other places in Myanmar.
1.3.1. Ancestral Roots
The Rohingya have historical, linguistic and cultural affiliations with the
local populations of Rakhine State, as well as with the Chittagonian people
across the border in Bangladesh.9 The Rohingya are Muslims. They also
draw their cultural heritage from diverse Muslim populations from the
Persian and Arab world that passed through or settled around the
important trading hub along the coast of Rakhine State over the
6 EqualRight Trust, Burning Homes, Sinking Lives: A situation report on the violence
against stateless Rohingya and their refoulement from Bangladesh, London, June
2012.
7 The Rohingya have long been the majority ethnic group in these three townships,
as recorded in Burma’s official Encyclopaedia (1964). The reference is notable as
it uses the term Rohingya, which is now officially rejected by the Government of
Myanmar.
8 Since the violence of 2012, many Rohingya from these communities have become
internally displaced and confined to camps.

9 East Pakistan before Bangladesh's independence and India before partition.
5
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centuries.10 The Rohingya trace their ancestral roots in the Rakhine region
back several centuries – since long before Myanmar came into existence as
the clearly demarcated post-colonial nation-state of today. These roots
also go back to long before racial and ethnic categories became settled in
accordance with those that are recognised in today’s Myanmar.11 Despite
this, the history of the Rohingya and their Muslim ancestors is today
largely rejected in Myanmar. The Rakhine region and its ancient historical
sites are of important cultural significance to Myanmar’s Buddhist
populations. Historical analyses have, thus, tended to focus primarily on
the Rakhine region’s Buddhist past, as opposed to its multi-faith and multi-
ethnic past.12 Histories of the Islamic influences in Rakhine State have
largely been viewed with suspicion in Myanmar.13
1.3.2. Ethnic Identity
The term Rohingya is derived from the word “Rohang” which is an old
name for Rakhine State.14 Hence the term Rohingya has come to mean
10 See for example Ba Tha, “Rohingya of Arakan”, Guardian Monthly Rangoon, Vol
III no 5, May 1960; and Ba Tha, “Rohingya Fine Arts”, Guardian Monthly Rangoon,
Vol VIII, Feb 1961. These articles are significant because they were published in
Myanmar’s (then Burma) national magazine and were on the Rohingya in Rakhine
(then Arakan) State.
11 There are 135 national ethnic groups that have been recognised by the
Government of Myanmar after the promulgation of the 1982 Citizenship Law,
based on selective historical records.
12See, for example, Gutman, P., Ancient Arakan, 1976, available at: http://hdl.
handle.net/1885/47122.
13See, for example, Shwe Zan and Aye Chan, Influx Viruses, The Illegal Muslims in
Arakan, Arakanese in United States, August 2005, available at: http://www.net
workmyanmar.org/images/stories/PDF15/Influx-Virus.pdf.
14 For analysis of the origins of the term “Rohingya” see Charney, M.W., Buddhism
in Arakan: Theories and Histiography of the Religious Basis of Ethnonyms, submitted
to the Arakan History Conference, Bangkok, 2005, available at: http://www.kala
danpress.org/index.php/scholar-column-mainmenu-36/58-arakan-historical-
seminar/718-buddhism-in-arakantheories-and-historiography-of-the-religious-
basis-of-ethnonyms.html.
6
Introduction
Muslim from Rakhine State.15 The majority of people in Myanmar and the
Government of Myanmar claim that the Rohingya are not from Myanmar
but are migrants from Bangladesh.16 Thus the term Rohingya has become
contentious. The term is neither recognised by the Myanmar government
nor much of political society in Myanmar; they instead refer to the
population as “Bengali”, a term which suggests the Rohingya are migrants
from Bangladesh. ”Bengali” is thus strongly rejected by large sections of
the Rohingya community. Today, the term Rohingya is not allowed on
official documentation including identity cards, household lists and on the
census of March 2014.17 The international community holds that
individuals should have the right to self-identify, including as Rohingya.18
But the term “Rohingya” is rejected by the government and population of
Myanmar, who associate it with claims to be indigenous, to be recognised
as a “national ethnic group” of Myanmar, and consequently to have a right
to citizenship.
15 Interview MYA 8, with a Rohingya activist in Yangon, June 2013.

16For example, speaking at Chatham House in London in July 2013, President
Thein Sein stated “we do not have the term Rohingya”. Quoted in Inkey, M., “Thein
Sein talks at Chatham House”, New Mandala, 17 July 2013.
17 Prior to the census of March 2014, the Government of Myanmar agreed in
principal that whilst the category “Rohingya” would not be included in the list of
Myanmar’s ethnic groups in the census forms, the Rohingya would be permitted
to identify as “Other”, and would be allowed to declare their ethnicity to be
recorded in the census. A few days before the census, the Government went back
on this promise, ostensibly to appease Rakhine protestors, and decided that the
Rohingya would neither be allowed to qualify the term “Other” by self-identifying
as “Rohingya” in the space provided, nor would they be allowed to leave the term
“Other” unqualified. This meant the Rohingya were left with the option of either
identifying as “Bengali” or not participating in the census at all. Consequently, the
majority of Rohingya did not complete the census. It is unclear what the
repercussions of this will be. See UNFPA Myanmar, Statement: UNFPA concerned
about decision not to allow census respondents to self-identify as Rohingya, 1 April
2014.
18 Ibid.
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1.3.3. Arbitrary Deprivation of Nationality
The majority of Rohingya in Myanmar today have been deprived of their

nationality and are stateless. The arbitrary deprivation of their nationality
and the erosion of their legal rights has occurred alongside the denial of
their ethnic identity and history in the Rakhine region. This process has
taken place over many decades. Following Myanmar’s independence from
Britain in 1948, the Rohingya were largely allowed to participate in
national affairs and contributed both politically and culturally in the
nation-building process alongside other citizens of Myanmar.19 In 1962,
Myanmar fell under military rule, which was to last 49 years. During this
period, the process of stripping the Rohingya of their identity and rights
began. This process continues in the present day.
Whilst the erosion of the rights of the Rohingya is an on-going process,

there have been several significant events which have contributed to
today’s situation in which at least 800,000 Rohingya inside the country
have been rendered stateless.20 The first of these significant events was
Operation Nagamin which was launched in Rakhine State in 1978. The
stated purpose was to “designat(e) citizens and foreigners in accordance
with the law and tak(e) actions against foreigners who have filtered into
the country illegally.”21 During the operation, according to witness’
accounts, many Rohingya had their official documentation taken away
19 Some examples of this participation in nation-building, evidenced with copies of

relevant original documents including lists of Rohingya MPs, Ministers and other
political and state actors were compiled by the National Democratic Party for
Development for a submission to parliament, entitled Presentation for the native
inhabitants (whose faith is Islam) residing in the Rakhine State (Arakan State) as the
citizen by law and by natural or birth rights as well as the indigenous national of the
Republic of the Union of Myanmar, 4 July 2012 (on file with Equal Rights Trust).
UNHCR Myanmar, 2014 UNHCR Country Operations Profile, available at: http://
20
www. unhcr.org/pages/49e4877d6.html.
21 Myanmar Ministry for Home and Religious Affairs, “Naga Min Operation”, quoted
in Human Rights Watch, Burma: Rohingya Muslims: Ending a Cycle of Exodus?, 16

November 1977, p. 12.
8
Introduction
from them by inter-agency teams of inspectors.22 There were reports of

“brutalities and atrocities waged against the Muslim population.”23 The
news spread and over 200,000 Rohingya fled the country to newly
independent neighbouring Bangladesh.24 Mass forced repatriation from
Bangladesh followed.25 The legal status of the returnees was not
reinstated.
Subsequently, the military regime under General Ne Win promulgated the

1982 Citizenship Law depriving the Rohingya of the right to citizenship.
Entitlement to citizenship in Myanmar is primarily through membership
of the state-defined national races/ethnicities or Tai Yin Tha. Prior to
1982, the categories of Tai Yin Tha were broadly defined and open-ended.
After the 1982 law, a closed list of 135 national races/ethnicities was
published and the Rohingya (and a few other minority groups including
persons of Indian and Chinese origin) were excluded. Thus they did not
acquire citizenship automatically and by right. It must be noted however,
that under section 6 of the 1982 Law, persons who were already citizens
at the time the law came into force would continue to be so.26 Furthermore,
the law also provided for “Associate” and “Naturalised” citizenship, the
former being for those whose citizenship applications were being
processed at the time the 1982 Law was promulgated and the latter being
those who are not citizens but can establish that they and their
predecessors lived in the country prior to independence. Thus, all
22Interviews MYS 12 and UK 05, with two Rohingya elders living in Rakhine State
at the time of Operation Nagamin. Kuala Lumpur, July 2013 and London, March
2014.
23Scully, W.L. and Trager, F.N., “A survey of Asia in 1978 Part II (Feb 1979) Burma
1978: The thirteenth year of independence”, Asian Survey, Vol 19, no 2, 1979, p.
153.
24Smith, M., Muslim “Rohingya” of Burma, unpublished manuscript, 2005 (on file
with the Equal Rights Trust).
25Abrar, C.R., Repatriation of Rohingya Refugees, 1995, available at: http://reposit
ory.forcedmigration.org/show_metadata.jsp?pid=fmo%3A50.
26Section 6 Burma Citizenship Law, 1982, available at: http://www.refworld.org/
docid/3ae6b4f71b.html.
9
Equal Only in Name
Rohingya for whom Myanmar was home should have been able to
continue to enjoy/acquire Myanmar nationality either under section 6 of
the Act, or as naturalised or associate citizens. However, while most
Rohingya would be able to trace their ancestry at least to the colonial
period, the lack of adequate documentation, including as a result of
previous mass exoduses and discriminatory and arbitrary decision making
meant that the vast majority of Rohingya have not been recognised as
citizens since. Most significantly, during a nation-wide citizenship scrutiny
exercise in 1989, Rohingya who submitted their National Registration
Cards (NRC) to the authorities with the hope of receiving new Citizenship
Scrutiny Cards (CSC), were denied the new CSCs and their old NRCs were
also not returned.27
In 1992, the NaSaKa was established as an interagency border force by the

Ministry of Defence. It was placed under direct control of the military
intelligence chief, Khin Nyunt, and was commanded directly from Yangon.
With the establishment of the NaSaKa came a series of local directives and
policies that severely restricted the Rohingya’s movements and rights
within North Rakhine State. The Rohingya’s lack of citizenship status in
Myanmar became the anchor for an entire framework of discriminatory
laws and practices that laid the context for coming decades of abuse and
exploitation. These included stringent restrictions of travel outside of
North Rakhine State and to neighbouring villages within North Rakhine
State, restrictions on marriages and on having children within Rohingya
communities, and arbitrary taxation and forced labour. These policies and
practices have had a severe impact on both the health and education status
of the Rohingya which has disproportionately affected women and
children.28 NaSaKa implemented all measures taken towards population
control. Fleeing persecution under this law and policy framework, the
build-up of military forces in Rakhine State, and the abuses that
accompanied them, new waves of Rohingya fled Myanmar.
27 NRCs were issued under the Residents of Myanmar Registration Act, 1949.
28See Equal Rights Trust, Unravelling Anomaly: Detention, Discrimination and
Protection Needs of Stateless Persons, London, July 2010, Chapter 4.3.
10
Introduction
The period following the 2010 election has seen the further erosion of the
Rohingya’s rights. Whilst a large proportion of the Rohingya are stateless,
the Rohingya have continued to exercise some citizenship rights since
independence and before. They have voted in and have had candidates
standing in every election since 1936, including the 1990 and 2010
elections.29 It is unlikely that the Rohingya will be allowed to vote or stand
for election in 2015, indicating the further erosion of their rights since the
political reforms of 2010.30
1.3.4. Since the Violence of 2012
The Rohingya have been subject to multiple waves of mass violence since
at least 1978. These waves of violence have been perpetrated by a mixture
of the Myanmar security forces and groups of civilians, primarily
Buddhists from Rakhine State.31 In June and October 2012, waves of mass
violence broke out in Rakhine State, which resulted in death, forced
displacement, the destruction of homes and properties, and the loss of
livelihoods.32 More localised outbreaks of violence have continued
throughout Rakhine State since 2012. Both Buddhist and Muslim
communities in Rakhine State were affected by the violence, but the
casualties and victims were overwhelmingly Muslim and mostly Rohingya.
Evidence collected by human rights organisations demonstrated that
Myanmar security forces took part in the violence and stood by as violence
took place.33
29 See above, note 19.

30 Interviews MYA 13 and MYA 15, with Rohingya politicians, Yangon, April 2014.
31See for example Human Rights Watch, All you can do is Pray, 2013, Appendix 1:
History of Violence and Abuse against Rohingya, available at: http://www.hrw.org
/node/114872/section/16.
32 No international investigation into the violence took place. Both government
and other figures relating to the violence and related casualties remain under
dispute due to the lack of a credible international investigation.
11
Equal Only in Name
This violence, together with the economic and social ostracisation of

Muslim and Rohingya communities in Rakhine State, lead to the
displacement of over 140,000 people into Internally Displaced Person
(IDP) camps within Rakhine State. Additionally, there has been a spike in
forced migration of Rohingya out of Myanmar, mostly on boats heading for
Southeast Asia and beyond. The exact numbers of Rohingya who have
undertaken this journey since 2012 are not known, however it is estimated
that from June 2011 to May 2012 approximately 9,000 people have
travelled in this way; from June 2012 to May 2013, this number is believed
to have risen to over 31,000 and it is estimated that during this sailing
season, since June 2013, at least 54,000 have undertaken the journey.34
Between June 2012 and May 2014, as many as 2,000 Rohingya are believed
to have gone missing at sea.35
Since 2012, grave concerns have been raised regarding the desperate
humanitarian situation for Rohingya and Muslim communities in
Myanmar, both within the IDP camps and in their home communities. The
health and nutrition status of Rohingya and other Muslim communities is
dire. International agencies providing humanitarian assistance to
Rohingya have had their efforts hampered by threats and violence against
them by local populations, and by restrictions being placed on their
activities by the Myanmar government and local authorities.36 Since 2012,
security grids have been extended to other areas in Rakhine State beyond
the three townships of North Rakhine State. Under the state of emergency,
restrictions of movement and population control similar to or even worse
than those in North Rakhine State have been imposed on other Rohingya
populations.37 As a result of this escalation in human rights violations
targeted at the Rohingya, their widespread and systematic nature, the role
34The Arakan Project, Rohingya Maritime Movements: estimates and trends for
departures up to 30 June 2014, unpublished document, July 2014 (on file with the
Equal Rights Trust).
35 Email correspondence with the Director of the Arakan Project, 2014.
36See UNOCHA Myanmar, Humanitarian Lifeline cut following violence against aid
agencies in Rakhine, April 2014.
37Interviews MYA 10 – 12 and 14, with UN and INGO staff in Yangon, March and
April 2014.
12
Introduction
played by state actors and the impact it has had on the population, the
international criminal law framework is emerging as an important and
relevant tool through which to address the situation.38
1.3.5. Overseas Rohingya
It is estimated that there are more than one million Rohingya living outside
Myanmar, many as migrants or refugees with no legal status. The Rohingya
have settled in South and Southeast Asia, the Middle East and beyond. The
largest concentrations of Rohingya are found in neighbouring Bangladesh
and in Saudi Arabia, with significant numbers in Malaysia, Thailand, India
and elsewhere. In addition to the steady flow of Rohingya refugees over
several decades, there have been several mass exoduses from Myanmar
into Bangladesh and beyond, including in 1978, 1992 and most recently
2012-2013 as a result of mass violence and persecution. Often these
Rohingya migrants are not recognised and are not protected as refugees.
Instead they are marginalised and excluded. Many live in poverty, often
working illegally with no documentation, and are vulnerable to
discrimination, violence, arbitrary treatment and exploitation.
1.4. The Rohingya in Malaysia
Although Malaysia is not a party to the 1951 Refugee Convention or its

1967 Protocol, the country has a long history of providing temporary
asylum to groups of refugees and asylum seekers.39 Such groups include
38 See for example, UN General Assembly, Report of the Special Rapporteur on the
situation of human rights in Myanmar, Tomás Ojea Quintana, Human Rights
Council, 25th Session, UN Doc. A/HRC/25/64, 2 April 2014, Para 51.
39 Under Article 1 of the 1951 Convention relating to the Status of Refugees,
refugees are persons who are unable to return to their country of origin due to a
well-founded fear of persecution on the basis of their race, religion, nationality,
political opinion or membership of a particular social group. The recognition of
refugee status is a declaratory act and the rights of refugees are invoked before
their status is formally recognised by a decision-maker. Therefore, we do not view
refugees and asylum seekers as two legally distinct categories of person. However
in this report the term “refugee” denotes persons who have had their status as a
refugee recognised by UNHCR under its mandate (UNHCR conducts refugee status
13
Equal Only in Name
Filipino refugees from Mindanao during the late 1970s and early 1980s
and Cambodian and Vietnamese refugees during the Indo-Chinese refugee
crisis in the late 1980s and 1990s. Malaysia also accommodated a small
number of Bosnian refugees in the early 1990s, as well as Indonesians
from Aceh Province in the early 2000s.
Currently, Malaysia hosts one of the largest urban refugee populations in

the world. As of 30 June 2014, some 146,020 refugees and asylum seekers
had been registered with the UN High Commissioner for Refugees
(UNHCR) in Malaysia: of these, the vast majority (over 135,025) are from
Myanmar, of which the two largest groups are ethnic Chins (51,450) and
Rohingya (37,850). Other groups include Myanmar Muslims (11,970),40
Arakanese/Rakhine (7,700), Burmese and Bamar (3,600), Mon (5,380),
Kachins (4,985), Karen/Kayin (4,645) and Shan (1,634).41 In addition,
there are smaller groups of refugees from Sri Lanka, Somalia, Syria, Iraq
and Afghanistan.42 Some 70% of registered refugees and asylum seekers
are men, and 30% are women; however, this balance appears to be
changing with an increase in the number of Rohingya families arriving in
Malaysia, as well as Rohingya women coming to marry or join their
determination in many countries – particularly those which have not ratified the
1951 Convention), whereas the term “asylum seeker” is used to refer to persons
whose claim for refugee status is still pending before UNHCR. This distinction is
made only to demonstrate the difference in the experiences and treatment of
refugees and asylum seekers in Malaysia in relation to their ability to access basic
rights.
40 The category “Myanmar Muslim” includes Muslims from all regions of Myanmar
of various ethnic backgrounds, who identify as such. Within this group there are
likely to be those who share the same ethnicity as “Rohingya” but who do not
identify as “Rohingya”.
41 Interview MYS 20, with UNHCR Malaysia Office, Kuala Lumpur, 12 May 2014 and
email correspondence with UNHCR Malaysia Office, 4 June 2014. Note that
“Burmese” refers to all persons from Myanmar who have not further identified as
belonging to a particular ethnic group, and “Bamar” are those who have identified
as belonging to the majority ethnic group of Myanmar.
42UNHCR Malaysia, Figures at a Glance, available at: http://www.unhcr.org.my/
About_Us-@-Figures_At_A_Glance.aspx.
14
Introduction
husbands, particularly since the 2012 violence in Rakhine state.43 Children

account for approximately 30,850 of the population of registered refugees
and asylum seekers.44 Of this, as of 31 May 2014, 9,761 were Rohingya
children. There have also been an increasing number of unaccompanied
minors, including children who entered the country unaccompanied, and
those who were separated from their parents as a result of detention.45
The breakdown of Rohingya children registered by UNHCR Malaysia is as
follows:46
Age Group Female Male Total

Below 5 2,102 2,222 4,324
6-9 829 968 1,797
10 – 12 514 601 1,115
13 – 17 749 1,776 2,525
Total 4,194 5,567 9,761
In addition to the registered population, there is a significant population

of refugees and asylum seekers who are yet to be registered with UNHCR.
UNHCR estimates this population to be approximately 35,000, of which
approximately 15,000 are Rohingya.47 However, community based
organisations, Rohingya leaders and activists believe that the number is
likely to be much higher.
The protection environment for refugees and asylum seekers in Malaysia

is made more difficult because of the large number of irregular migrants
who have entered Malaysia in search of better economic prospects. It is
estimated that there are some four million migrants in the country, of
43UNHCR Policy Development and Evaluation Service, But When will Our Turn
Come? A Review of the Implementation of UNHCR’s Urban Refugee Policy in
Malaysia, PDES/2012/02, May 2012, p. 9.
45 Email correspondence with UNHCR Malaysia Office, 26 August 2014.
46 Interview MYS 20, with UNHCR Malaysia Office, Kuala Lumpur, 12 May 2014.
47 Ibid.
15
Equal Only in Name
which 1.9 million are undocumented and in an irregular situation.48

Malaysian law does not distinguish between refugees, asylum seekers, and
other irregular migrants. Consequently, like other countries in the region,
policies towards the Rohingya and other refugees and asylum seekers are
focused more on border control, removal and deterrence, and less on
protection.
For most Rohingya fleeing persecution and violence, Malaysia is a country

of final destination, although some have used the country as a transit point
to reach Australia.49 Rohingya enter Malaysia by land and sea; unlike
neighbouring Thailand, Malaysia has generally allowed Rohingya refugees
arriving by boat to disembark on its territory. For example, Malaysia’s
decision in December 2013 to allow 40 Rohingya asylum seekers who
were rescued in the Bay of Bengal by a Vietnamese cargo ship, the MV
Nosco Victory, to disembark was commended by the international
community.50 Nevertheless, Rohingya who arrive by boat and are detected
by the authorities are subject to mandatory detention until UNHCR is able
to access and register them and secure their release.51
In addition to these more recent boat arrivals, Malaysia is also home to a

large population of informally settled Rohingya who have been in Malaysia
for two or three generations. They reside throughout Malaysia, with larger
communities in and around Kuala Lumpur, and in other states such as
Penang, Johor, Kedah, Kelantan and Terengganu. For years, this
population, and particularly those not registered with UNHCR, have been
48 UNHCR Human Rights Liaison Unit, Division of International Protection,

Submission by the United Nations High Commissioner for Refugees for the Office of
the High Commissioner for Human Rights’ Compilation Report – Universal Periodic
Review: Malaysia, March 2013. For a detailed analysis, see The Equal Rights Trust,
Washing the Tigers: Addressing Discrimination and Inequality in Malaysia, London,
November 2012, pp. 155-192.
49 There is little by way of reliable, comprehensive data on secondary movement
from Malaysia.
50UNHCR, UNHCR Lauds Malaysia for Accepting Persons Rescued at Sea, 19
December 2012.
51 See section 3.2.1 below for further information in this regard.
16
Introduction
navigating the insecurities and human rights concerns associated with

living and working in a country that considers them to be “illegal
immigrants”. Without the right to work and facing significant barriers in
accessing health care, education and other basic social services, the
Rohingya in Malaysia have been getting by for decades in the informal
labour sector, while experiencing constant harassment and the risk of
extortion, arrest, detention and in some cases, deportation (which, given
the persecution faced by Rohingya in Myanmar, would amount to
refoulement).52
1.5. Common Themes and Challenges
One of the advantages of conducting research in several countries has been

the ability to identify common trends, themes, issues and challenges.
Following are some of the key problems and issues which are faced
regionally.
1.5.1. Protracted Statelessness and Lack of a Legal Status
The statelessness and lack of legal status of the Rohingya in all research
countries is a common problem; statelessness and discrimination go hand-
in-hand and are mutually reinforcing. In Myanmar, the Rohingya have
been discriminated against for many decades. The arbitrary deprivation of
their nationality as a result of the implementation of the 1982 nationality
law and their consequent statelessness was an act of discrimination by
52 Deportation refers to a state’s removal of a migrant from its territory after the
migrant has been refused admission, or if the migrant has lost or otherwise failed
to obtain permission to remain on the territory. Deportation is to be distinguished
from refoulement, which is the act of forcibly returning persons to places where
they may face persecution or other serious human rights violations. Refoulement
also includes the act of sending refugees and asylum seekers to a country that does
not guarantee protection for refugees. The principle of non-refoulement is a norm
of customary international law. In Malaysia, “soft deportations” have been known
to take place along the Thai-Malaysia border where refugees, asylum seekers and
irregular migrants have been unofficially refouled, or deported from Malaysia,
often into the hands of smugglers and traffickers. See section 3.2.2 below, for
further information in this regard.
17
Equal Only in Name
Myanmar. Their statelessness has since been used to justify further

discrimination both in Myanmar and the countries to which they flee.
None of the countries of flight have ratified the international treaties which
protect refugees or stateless persons; thus, the majority of Rohingya who
should be recognised and protected as stateless persons and as refugees
are not; instead they are treated as irregular, economic migrants. The
resulting lack of legal status has a significant impact on their enjoyment of
rights including the rights to liberty and security of the person, education,
health and an adequate standard of living.
The situation is further compounded by the protracted displacement and

statelessness of the Rohingya. With each passing year and each new
generation, the disadvantage grows and the impact of malnutrition,
illiteracy, lack of access to labour markets and healthcare, vulnerability to
arbitrary arrest, violence and abuse, insecurity and forced migration
becomes greater. This protracted statelessness significantly impedes their
enjoyment of rights, whether in Myanmar or in countries of flight such as
Bangladesh, Malaysia and Thailand. While there is general international
consensus that Myanmar should grant nationality to the Rohingya and
repeal or amend its 1982 Citizenship Law, the international community
has been largely silent on the right to a nationality of stateless Rohingya
children born in other countries. The extent of this problem is hidden,
partly because UNHCR statistics record Rohingya who are in a refugee like
situation as “refugees” and not as “stateless persons”, despite the fact that
they do not possess a nationality, that their children are born into
statelessness and that the majority are not protected either as refugees or
stateless persons. The complex disadvantage of the Rohingya has thus
been perpetuated over many generations and in multiple countries.
Equally challenging is the impunity with which acute human rights abuses
have been inflicted against the Rohingya. Their protracted statelessness
and lack of legal status make them easy targets for state and non-state
actors alike. The mass violence in Myanmar of 1978, 1992 and 2012-2013,
the violent acts committed in the course of the forced repatriation of
Rohingya from Bangladesh since 1994, the sometimes fatal Thai “push-
18
Introduction
backs”53 of Rohingya boat people into the sea in 2009, 2011 and 2013, and
past practices in Malaysia of “deporting” Rohingya into the hands of
traffickers are all examples of actions undertaken with almost total
impunity.
1.5.2. Equality and Non-Discrimination
The pervasive inequality and discrimination faced by the Rohingya is

another fundamental challenge that must be addressed both within
Myanmar and in other countries. The disadvantage of the Rohingya within
Myanmar is entrenched by a system that discriminates against them on the
basis of their ethnicity, religion and statelessness. Whilst human rights
abuses against many ethnic minorities in Myanmar have been prevalent
under military rule and continue until today, the Rohingya have suffered
disproportionately. The disadvantage of the Rohingya outside Myanmar
stems from their lack of a legal status which is a direct result of, and
compounded by, their statelessness. While levels of discrimination
suffered by Rohingya in other countries vary both in degree and substance,
three factors generally contribute to such discrimination:
 most receiving countries have weak protection frameworks for

refugees and often conflate forced migration to escape persecution
with economic migration;
 states consistently fail to recognise the Rohingya as stateless, or to
respond to their protection needs as stateless persons; and
 states are unwilling to take decisive – or often any - protective
action either individually or regionally, as they fear it will become
a “pull factor” and result in more Rohingya seeking asylum. This
results in a regional “stalemate”.
There is a strong nexus between discrimination and other human rights

violations. The majority of human rights abuses against the Rohingya
53 “Push-back” refers to the practice of towing boats of refugees and irregular

migrants out to sea, often without adequate food and water and in some instances
without engines. “Helping on” refers to the similar but more humane practice of
intercepting boats at sea, not allowing them to land but moving them on to other
countries, often after providing them with supplies.
19
Equal Only in Name
either have a discriminatory basis or are exacerbated by discrimination.

For example, while bonded labour and land grabs were a common practice
affecting numbers of people during the Myanmar military regime, the
Rohingya of North Rakhine State were and continue to be more vulnerable
to these kinds of abuses. Similarly, while poverty is rampant in Cox’s Bazar
Bangladesh, the non-registered Rohingya refugees are in a worse position
than the general population as they have no legal right to work, and this is
exacerbated at times by the Bangladesh government’s refusal to permit
the operations of humanitarian actors.
1.5.3. Forced Migration, Trafficking and Smuggling
The majority of Rohingya, lacking documentation and unable to travel

freely within Myanmar and internationally, rely on the assistance of
smugglers to flee from persecution in Myanmar and also to make the
hazardous boat journey from Bangladesh to countries in South East Asia.
The smuggling and trafficking networks in the region are one and the same
and many Rohingya who start the journey with smugglers end up as
victims of trafficking and are forced into bonded labour on Thai and
Malaysian plantations and deep sea trawlers. Ties between
smuggling/trafficking rings and state authorities (immigration, police etc.)
in Thailand and Malaysia in particular have been widely reported.54
It must be noted that as the majority of Rohingya are refugees, the legality
of their entry into countries of asylum is irrelevant and consequently, the
distinction between trafficking and smuggling should be moot. However,
as stated above, the countries concerned do not have strong refugee
protection frameworks in place and Rohingya refugees are rarely
recognised as such. Consequently, the identification of victims of
trafficking has taken on a level of importance in the region which is in itself
an indication of the weakness of any existing national refugee protection
frameworks.
54See for example, above note 3; see also Reuters, “Preying on the Rohingya”,
Reuters, July 2013; Reuters, “Thailand’s clandestine Rohingya policy uncovered”,
Reuters, December 2013;BBC, “Burmese refugees sold on by Thai officials”, BBC
News, January 2013; Phuket Wan, “Thai Officials Linked to Rohingya Trafficking
Networks, Says Torture Report”, Phuket Wan News, April 2014.
20
The International Legal Framework
2. THE INTERNATIONAL LEGAL FRAMEWORK
2.1. A Regional Overview
While this report provides an overview of Malaysia’s national and

international legal obligations relevant to the Rohingya in Malaysia, the
international framework is also relevant to all countries. All states have an
obligation to protect the human rights of all persons who are in their
territory and subject to their jurisdiction. This includes the Rohingya.
These obligations are contained in international human rights treaties. As
this table shows, these treaties have been ratified to varying degrees by
the countries researched under this project (unless specified within the
table, the dates referred to are those of accession or ratification).
Bangladesh Indonesia Malaysia Myanmar Saudi Thailand

Arabia
ICERD55 11/6/1979 25/6/1999 23/9/1997 28/1/2003
ICESCR56 5/10/1998 23/2/2006 5/9/1999
ICCPR57 6/9/2000 23/2/2006 29/10/1996
CEDAW58 6/11/1984 13/9/1984 5/7/1995 22/7/1997 7/9/2000 9/8/1985
CAT59 5/10/1998 28/10/1998 23/9/1997 2/10/2007
CRC60 3/8/1990 5/9/1990 17/2/1995 15/7/1991 26/1/1996 27/3/1992
55 International Convention on the Elimination of all Forms of Racial

Discrimination, G.A. Res. A/RES/47/133, 1969.
56International Covenant on Economic, Social and Cultural Rights, G.A. Res 2200A
(XXI), 1976.
57 International Covenant on Civil and Political Rights, G. A. Res 2200A (XXI), 1976.
58Convention on the Elimination of All Forms of Discrimination against Women,
G.A. Res. A/RES/34/180, 1979.
59Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, G.A. Res. A/RES/39/46, 1987.
60 Convention on the Rights of the Child, G.A. Res. A/RES/44/25, 1989.
21
Equal Only in Name
CMW61 Signed only Signed only

7/10/1998 22/9/2004
CRPD62 30/11/2007 Signed only 19/7/2010 7/12/2011 24/6/2008 29/7/2008
30/3/2007
UNTOC63 13/7/2011 20/4/2009 24/9/2004 30/3/2004 18/1/2005 17/10/2013
UNTOC 28/9/2009 26/2/2009 30/3/2004 20/7/2007 17/10/2013

Trafficking
Protocol64
UNTOC 28/9/2009 30/3/2004 20/7/2007 Signed only
Smuggling 18/12/2001
Protocol65
In addition to treaty obligations, as member states of the United Nations,

all states are obligated by the UN Charter to promote “universal respect
for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion”.66 These human
rights and fundamental freedoms are specified in the Universal
61International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families, G.A. Res. 45/158, U/N/ Doc./A/RES/45/158, 18
December 1990.
62Convention on the Rights of Persons with Disabilities, G.A. Res. A/RES/61/106,
2006.
63United Nations Convention against Transnational Organised Crime, G.A. Res.
55/25, 2000.
64Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention against
Transnational Organised Crime, G.A. Res. 55/25, 2000.
65 Protocolagainst the Smuggling of Migrants by Land, Sea and Air, Supplementing
the United Nations Convention against Transnational Organized Crime, G.A. Res.
55/25, 2004.
66Article 55(c) of the Charter of the United Nations. According to Article 56 of the
Charter, it is the obligation of all member states of the UN to take “joint and
separate action in cooperation with the Organization for the achievement of the
purposes set forth in Article 55”.
22
Declaration of Human Rights (UDHR),67 many of which are also recognised

as principles of customary international law.68
2.2. Malaysia’s Obligations under International Law
As seen in the above table, Malaysia has ratified only three core
international human rights treaties, and has maintained reservations in
respect of each: (i) the Convention on the Rights of the Child (CRC);69 (ii)
the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW);70 and (iii) the Convention on the Rights of Persons with
Disabilities (CRPD).71 In March 2014, Malaysia rejected recommendations
to remove its reservations to these three Conventions and to accede to the
remaining key human rights conventions, including the International
Covenant on Civil and Political Rights (ICCPR), the International Covenant
on Economic, Social and Cultural Rights (ICESCR), the Convention Against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
67 Universal Declaration of Human Rights, G.A. Res. 217A (III), 1948.

68 International Law Commission, “Draft Articles on Diplomatic Protection with
Commentaries”, 58th session, Yearbook of the International Law Commission, Vol.
II, Part Two, 2006, p. 49.
69 Malaysia has made the following reservations to the Convention on the Rights
of the Child: Article 2 (non-discrimination); Article 7 (name and nationality);
Article 14 (freedom of thought, conscience and religion); Article 28(1)(a) (free and
compulsory education at the primary level); and Article 37 (freedom from torture
or other cruel, inhuman or degrading treatment or punishment and arbitrary
detention). Malaysia has also stated that the application of the CRC at national level
is subject to its compatibility with the Federal Constitution.
70Malaysia maintains reservations to Article 9(2) (nationality of children); Article
16(1)(a) (right to enter into marriage); Article 16(1)(c) (rights during marriage
and dissolution); Article 16(1)(f) (guardianship); Article 16(1)(g) (same personal
rights between spouses); and Article 16(1)(h) (same property rights for spouses).
Malaysia has also stated that the application of CEDAW in Malaysia is subject to
compatibility with the Federal Constitution and Syariah (Islamic) law.
71Malaysia maintains reservations to Article 15 (freedom from torture, or cruel,
inhuman or degrading treatment or punishment) and Article 18 (freedom of
movement and nationality) of the CRPD.
23
Equal Only in Name
(CAT) and the International Convention on the Elimination of All Forms of

Racial Discrimination (ICERD).72
As a member state of the Association of South East Asian Nations (ASEAN),

Malaysia is a signatory state to the 2012 ASEAN Human Rights Declaration,
a non-binding document which nonetheless is a reflection of the human
rights consensus in the region.73 Malaysia is also an active member of
regional human rights bodies such as the ASEAN Inter-governmental
Commission on Human Rights (AICHR) and ASEAN Commission on the
Promotion and Protection of the Rights of Women and Children (ACWC).74
In 2015, Malaysia will assume the chair of ASEAN.
Under these instruments, Malaysia has a legal duty to protect the rights of
refugees and stateless persons on its territory and subject to its
jurisdiction. This naturally includes the Rohingya.
2.3. Equality and Non-Discrimination
As stated in Article 1 UDHR, “All human beings are born free and equal in
dignity and rights”.75 The rights to equality and non-discrimination are
central and foundational principles of international human rights law and
are enshrined in all of the core international human rights treaties. The
principle of non-discrimination on grounds of race is also a peremptory
norm of customary international law.
72Human Rights Council, Report of the Working Group on the Universal Periodic
Review of Malaysia – Addendum, UN Doc. A/HRC/25/10/Add.1, Paras 8-10.
73 ASEAN Human Rights Declaration, 19 November 2012.
74 For more information on AICHR, see: http://www.asean.org/communities
/asean-political-security-community/category/asean-intergovernmental-commi
ssion-on-human-rights-aichr. For more information on ACWC, see: http://
www.asean.org/communities/asean-socio-cultural-community/category/acwc.
75 See above, note 67, Article 1.
24
The ASEAN Human Rights Declaration also entrenches the right of all
persons to equality and non-discrimination.76 Importantly for the
Rohingya, the right to equality is a universal right to which everyone is
entitled, regardless of their nationality or lack thereof. While states are
permitted to distinguish between citizens and non-citizens in some
specific circumstances, as the UN Committee on the Elimination of Racial
Discrimination (CERD) has stated, this is to be seen as an exception to the
principle of equality and consequently must be narrowly construed “so as
to avoid undermining the basic prohibition of discrimination”.77
Malaysia’s domestic legal and policy framework related to non-

discrimination and equality remains weak and falls short of international
standards.78 Malaysia’s Federal Constitution contains two key provisions
relating to non-discrimination and equality - Articles 8 and 12. Article 8(1)
states that “All persons are equal before the law and entitled to the equal
protection of the law”, while Article 8(2) provides that “There shall be no
discrimination against citizens [emphasis added] on the ground only of
religion, race, descent, place of birth or gender.” Article 8 therefore
protects the right to equality of non-citizens, but not their right to non-
discrimination.79 Article 12 of the Federal Constitution guarantees to all
citizens protection from discrimination in respect of education, and Article
5 recognises the right of all citizens to be brought before a magistrate
without unreasonable delay and within 24 hours of arrest; non-citizens,
on the other hand, may be held for up to 14 days.80 Further discriminatory
76 See above, note 73, Articles 1-3.

77 UN Committee on the Elimination of Racial Discrimination, General
Recommendation No. 30: Discrimination against Non Citizens, UN Doc. CERD/C/64/
Misc.11/rev.3, 01 October 2002.
78For a comprehensive analysis of equality and non-discrimination in Malaysia,
see Equal Rights Trust, Washing the Tigers: Addressing Discrimination and
Inequality in Malaysia, Equal Rights Trust Country Report Series: 2, London,
November 2012.
79Ibid., see pp. 229-241 for a discussion of the other limitations of Article 8 of the
Federal Constitution.
80 See section 3.2 for a further discussion.
25
Equal Only in Name
provisions against non-citizens can be found in Articles 9 (prohibition on

banishment and freedom of movement) and 10 (freedom of speech,
assembly and association).
Given Malaysia’s weak domestic legal framework related to non-

discrimination and equality, it is perhaps unsurprising that the Rohingya
and other refugee and asylum seeking groups face pervasive and
systematic discrimination and inequality in the country. Additionally,
while national laws such as the Child Act 2001 in principle apply to all
children, in practice, they have not been extended to non-citizen
children.81
Discrimination against the Rohingya also exists at societal level; on the one
hand, there is a degree of tolerance for refugees and foreign nationals as
they help meet the country’s demand for cheap labour in industries that
Malaysian nationals have traditionally been reluctant to work in, such as
construction, palm oil plantations or in factories. On the other hand,
refugees and irregular migrants experience discrimination, xenophobia
and racism from local communities. Although the Rohingya receive some
degree of support and sympathy from local Muslim groups and
government actors, discrimination against them nevertheless remains
pervasive.
This discriminatory treatment of the Rohingya in Malaysia has a serious

impact on their enjoyment of other human rights, including their right to
liberty and security of the person, education, work and an adequate
standard of living, and the highest attainable standard of health, as further
elaborated in subsequent sections of this report.
81 See section 3.3 for more information on the Child Act.
26
2.4. Statelessness and Refugee law
To be stripped of citizenship is to be stripped of worldliness;

(…) A man who is nothing but a man has lost the very
qualities which make it possible for other people to treat
him as a fellow man (…) they could live and die without
leaving any trace, without having contributed anything to
the common world.82
This was written over 60 years ago by the philosopher and writer Hannah
Arendt, who was herself stateless. She was speaking about the plight of
Europe’s stateless in the aftermath of World War Two, but could as easily
have been writing about the Rohingya today. In The Origins of
Totalitarianism, she points to the most grotesque implications of
statelessness – both for the stateless individual and for the society that he
or she lives in. A few years after the publication of Arendt’s seminal book,
the 1954 Convention Relating to the Status of Stateless Persons was agreed
by the United Nations. The 1954 Statelessness Convention defines a
stateless person as someone “who is not considered as a national by any
state under the operation of its law”.83 This definition is now part of
customary international law,84 and thus applies to states which have not
ratified the 1954 Convention, including Malaysia.85
82 Arendt, H., The Origins of Totalitarianism, Harcourt, Brace and Company,

California, 1951.
83United Nations Convention Relating to the Status of Stateless Persons, 360
U.N.T.S. 117, 1954, Article 1(1).
84 See above, note 68, p. 49.
85 For authoritative and detailed guidance on interpreting the Article 1(1)
definition of statelessness, see UNHCR, Handbook on Protection of Stateless
Persons, 30 June 2014. This Handbook is essential reading for persons engaged on
the issue of statelessness. It resulted from a series of expert consultations
conducted by UNHCR. The text on interpreting the Article 1(1) definition of
statelessness draws on the UNHCR, Expert Meeting - The Concept of Stateless
Persons under International Law, 2010 in Prato, Italy, that the Equal Rights Trust
participated in. The Summary Conclusions of this meeting are available at:
http://www.unhcr.org/refworld/docid/4ca1ae002.html.
27
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The Malaysian Constitution does provide for the granting of Malaysian

nationality to stateless children born in the country. However, this
provision has never been implemented with regard to the Rohingya or
other stateless populations in the country.86
Although Malaysia is not party to the 1951 Convention Relating to the

Status of Refugees and its 1967 Protocol,87 some of its provisions are
principles of customary international law, notably the principle of non-
refoulement which provides that:
[N]o Contracting State shall expel or return (“refouler”) a

refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened.88
Article 14(1) of the UDHR enshrines the right of everyone to “seek and to
enjoy in other countries asylum from persecution.” As a member state of
the United Nations, Malaysia is obligated by the Charter of the United
Nations to promote “universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion”.89 The human rights and fundamental freedoms
referred to in Article 55 (c) of the UN Charter are specified in the UDHR, 90
and include this right. Furthermore, while the UDHR is not a binding
document, it is a reflection of the moral consensus of the international
community and is the basis for the human rights treaties that followed. For
example, Article 22 of the CRC protects the rights of asylum seeking and
refugee children, and places a duty on states to protect them and cooperate
with the UN in this regard. Lastly, the ASEAN Human Rights Declaration
also recognises that “[e]very person has the right to seek and receive
86 See section 3.3.1 for a discussion on this point.

87United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150,
1951.
88 Ibid., Article 33.
28
asylum in another State in accordance with the laws of such State and
applicable international agreements”;91 and that:
[E]very person has the right to a nationality as prescribed

by law. No person shall be arbitrarily deprived of such
nationality nor denied the right to change that
nationality.92
However, despite its obligations under international law, Malaysia has not
enacted any domestic legislation or adopted policies for the identification,
registration and protection of refugees and stateless persons. In the
absence of a domestic refugee law framework, the Immigration Act
1959/1963 serves as the cornerstone of the Malaysian immigration
system and emphasises a system of border control and deterrence. Under
the Immigration Act, all refugees, asylum seekers and stateless persons are
classified as “illegal immigrants”,93 are therefore liable to arrest,
prosecution, detention and financial penalties, and may also be subject to
whipping (a form of torture, cruel, inhuman, or degrading punishment
usually reserved for adult men)94 and refoulement. These punishments can
apply to all irregular migrants, regardless of whether they are children,
pregnant women, the sick, or the elderly. At the same time, persons who

92 Ibid., Article 18.
93 Immigration Act 1959/1963, Act 153. An “illegal immigrant” is defined in the
Immigration Act as someone who: enters or leaves Malaysia through irregular
means; remains in Malaysia without legal/official permission; overstays their
visa/pass/permit; or who does not abide by the terms of their visa/pass/permit.
94Ibid., Section 6(1) provides that entering and staying in Malaysia without a legal
pass or permit is punishable by a fine not exceeding RM 10,000 and/or a maximum
of 5 years imprisonment, and up to 6 strokes of the cane. Caning is used as a
punishment for immigration offences in Malaysia. The Malaysian government
confirmed in a written response to a parliamentarian that between 2010 and June
2013, 13,851 foreigners were caned for violating the Immigration Act 1959/63.
See DAP Malaysia, “Call for review of judicial caning”, DAPMalaysia.org, 5 July
2013.
29
Equal Only in Name
provide employment95 or housing96 to “illegal immigrants” and those who

harbour them97 are similarly liable to arrest, prosecution, detention and
financial penalties.
But in practice, the situation is less clear cut. Notwithstanding the

provisions of the Immigration Act, the Malaysian government for the most
part turns a blind eye towards the presence of refugees and asylum
seekers in the country, on the condition that the international community,
specifically UNHCR, assumes responsibility for their protection and
assistance.
In this administration based on the elements of humanity,

the government allows any illegal immigrants who received
recognition from the UNHCR to stay temporarily in
Malaysia until resettled to a third country. We do not know
the period they can stay in Malaysia for the time being
because this involves national security matters. The easiest
95Ibid., Section 55B(1) states that anyone who provides employment to an “illegal
immigrant” is liable to a minimum fine of RM 10,000, up to a maximum of RM
50,000 and/or a maximum of 12 months’ imprisonment for each employee.
Section 55B(3) increases this penalty to a minimum of six months and maximum
of five years imprisonment, and up to six strokes of the cane where an individual
employs more than five “illegal immigrants” at any one time.
96 Ibid., Section 55E(1)(2) provides that anyone who permits an “illegal immigrant”
to enter or remain at any premises is liable to a minimum fine of RM 5,000, up to

a maximum of RM 30,000 and/or a maximum of 12 months imprisonment for each
“illegal immigrant” found at the premises. In the case of a second or subsequent
conviction, the penalties are increased to a minimum fine of RM 10,000 up to a
maximum of RM 60,000.
97 Ibid., Section 56(1)(d) provides that anyone who harbours a person who s/he
knows or has reasonable grounds for believing to be an “illegal immigrant” is liable
to a minimum fine of RM 10,000, up to a maximum of RM 50,000 for each person
harboured. Where a person has harboured more than five “illegal immigrants”, the
person will also be liable to imprisonment for a minimum of six months and
maximum of five years, as well as six strokes of the cane.
30
thing to say is that the government is “closing one eye” on

the matter.98
To this effect, the Malaysian government has allowed refugees and asylum
seekers registered with UNHCR to remain in the country pending
resettlement to a third country99 and the principle of non-refoulement has
generally been respected for this population.100 Further, there is a tacit
acknowledgement that because the Rohingya are stateless, they cannot be
deported from Malaysia.101 Additionally, although the Immigration Act
denies their right to work, it is estimated that over 60,000 refugees do
work on an irregular basis in Malaysia and although their places of
employment are often well known establishments, law enforcement
officers turn a blind eye.102
This grudging tolerance of refugees and asylum seekers is reflected in

policies and practices that offer some limited, de facto protection to those
registered with UNHCR, but which are either not codified or not made
publicly available. As a result, they have not been consistently applied
98Interview MYS 5, with the Director of Immigration Enforcement Malaysia,

Putrajaya, 3 August 2012.
99Interview MYS 2, with officers of the National Security Council, Prime Minister’s
Office of Malaysia, 5 July 2012. Please note that this National Security Directive has
not been made publicly available.
100 However, there have been instances where the Malaysian government has
refouled refugees recognised by UNHCR or whose asylum claims have been
pending before the agency. The most recent example was the refoulement of two
Sri Lankan refugees and one asylum seeker on 26 May 2014. See Asia Pacific
Refugee Rights Network, APRRN Condemns the Refoulement of Two Sri Lankan
Refugees and an Asylum Seeker by Malaysia, 29 May 2014; and Human Rights
Watch, Sri Lanka: Refugees Returned from Malaysia at Grave Risk, 28 May 2014.
101 Interview MYS 1, with Secretary for Crisis Management and National
Intelligence, National Security Council (MKN) at the National Security Council
office, Putrajaya, 5 July 2012.
31
Equal Only in Name
throughout the country, particularly by frontline officers, and may also be

easily reversed by the government.103
As such, the situation for refugees and asylum-seekers in Malaysia remains

extremely precarious and they face constant risk of arrest, detention,
financial penalties and judicially imposed caning. Those who have not
been able to register with UNHCR are at greater risk of refoulement.
Refugees and asylum seekers, including the Rohingya, are also vulnerable
to extortion by the police and immigration officers. There are also
significant barriers in accessing healthcare and children are not permitted
to attend government schools.
There have been ad-hoc attempts to regularise the presence of Rohingya.

Section 55 of the Immigration Act provides for Ministerial discretion to
exempt any person or class of persons from the penalties under the Act;
this discretion was exercised in 2006, when the Malaysian government
attempted to introduce IMM13 permits for Rohingya refugees.104
However the registration process was extremely problematic,
administered without coordination with UNHCR and abandoned after 17
days amid allegations of corruption and fraud.105 The government
subsequently commissioned a study to assess the feasibility of setting up
a residence and work permit scheme for Rohingya refugees.106 However,
103 See sections 3.2 and 3.3.3 for more information in this regard.
104 IMM13 permits are a type of temporary residence permit. They can be issued
at the discretion of the Minister of Immigration under section 55 of the
Immigration Act, and can be utilised to provide the holder with the right to engage
in lawful employment and to register their children in government schools.
However, they are rarely issued to UNHCR persons of concern in peninsular
Malaysia and can also be cancelled at the Minister’s discretion. IMM13 permits are
issued for a fee of RM 90, and must be renewed annually at an additional cost of
RM 90 per renewal. The permit was previously given to Bangsamoro refugees
fleeing the armed conflict in Southern Philippines starting from the early 1970s as
well as to Acehnese refugees after the tsunami of 2004.
106 Ibid.
32
it confirmed in September 2013 that there were no plans to issue IMM13

permits to Rohingya in the near future.107
2.5. The Role of the UNHCR
As already noted, Malaysia is not party to the 1951 Refugee Convention

and its 1967 Protocol or to the 1954 Statelessness Convention. In the
absence of a domestic framework providing for the registration and
protection of refugees and stateless persons in Malaysia, UNHCR is
responsible for providing registration, status determination,
documentation, and facilitating durable solutions for “persons of
concern”,108 including the Rohingya. The agency also conducts best
interest determinations for children, provides assistance in the areas of
health, education and livelihoods, and intervenes to secure the release of
refugees and asylum seekers who have been arrested and detained.
Notwithstanding these significant responsibilities and despite its presence

in the country since 1975, the agency has no formal agreement with the
Malaysian government to conduct its operations in Malaysia and lacks a
designated interlocutor in government.109 Although UNHCR works with
the Ministry of Foreign Affairs, Ministry of Home Affairs and Immigration
Department on refugee issues, the lack of a specific government agency or
body that assumes responsibility for coordinating with UNHCR and other
stakeholders on refugee issues has constrained efforts to increase
protection space in Malaysia.110 Notwithstanding this, UNHCR continues to
maintain a large office in Kuala Lumpur and the government has continued
to accredit UNHCR country representatives. However, tensions do remain;
for example, government officials interviewed for this report claimed that
UNHCR serves as a “pull factor” for refugees in Malaysia and questioned
107 Ali, S.A.S., “Isu

Pelarian Rohingya; Tidak Rancang Keluar IMM13”, Berita Harian,
13 September 2013.
108 “Personsof Concern” are persons whose protection and assistance needs are of
concern to the UNHCR.
33
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why the agency was not providing shelter and material support to the
refugee population, as well as the slow rate of resettlement of recognised
refugees.111
Since the end of 2013, asylum seekers as well as recognised refugees are
issued a UNHCR card containing their picture and basic bio-data, whereas
this was previously only issued to recognised refugees. The cards are
identical except that those issued to refugees state that the holder is a
“pelarian” (refugee) according to UNHCR’s mandate, while cards issued to
asylum seekers state the holder to be a “pencarisuaka” (asylum seeker)
whose status is still being assessed/determined by the agency. UHNCR
card holders have de facto protection against arrest, detention and
refoulement.112 Additionally, UNHCR identity card holders generally
receive a 50% discount off foreigner healthcare rates at government
hospitals.113
However, unregistered asylum seekers are in a far more precarious

position and often have no documentation, apart from possibly a card
issued by a community-based organisation that they belong to. The
Rohingya may be unregistered for numerous reasons: while some refugees
may have elected not to seek UNHCR registration, others have simply not
been able to register with the agency due to practical problems such as
physical access to the office in Kuala Lumpur. Indeed, refugee respondents
living in other states in Malaysia, particularly those who are unwell or
unable to afford the cost of travel, expressed frustration over difficulties in
reaching the UNHCR office in Kuala Lumpur, and stressed that their lack of
UNHCR registration places them at greater risk of arrest and subsequent
detention when travelling.114

112 See section 3.2 for further elaboration.
113 See section 3.3.3 for more information on access to healthcare.
114Focus Group Discussion MYS F-2, with Rohingya Society of Malaysia, Penang,
12 August 2012.
34
One of the key protection issues faced by the Rohingya is the long waiting
period for UNHCR registration and refugee status determination (RSD).
Some Rohingya refugee respondents reported that those who arrived in
Malaysia before 2003 waited for approximately one year, while those who
arrived after 2004 experienced significantly greater delays, sometimes
several years, to be registered or interviewed for RSD.115 UNHCR has
acknowledged that although registration and the issuance of refugee cards
for the Rohingya is “ongoing”, it is dependent on its organisational
capacity. Rohingya who have been arrested and detained, those with
serious medical issues or persons seeking derivative status116 are
prioritised by UNHCR for registration, though there can still be significant
delays in this process.117 UNHCR has pointed out that limitations in their
institutional capacity impact their ability to register all asylum seekers:
current UNHCR registration waiting times for all nationalities stand at
about 2-3 years.118
UNHCR also initiated two mobile registration drives in Kuala Lumpur –

one in 2009 and the other at the end of 2013 – that the Rohingya were able
to access. However, the numbers of Rohingya registered as a result of this
drive were limited, due in part to communication difficulties between
UNHCR and the communities.119 The table below shows a breakdown of
total numbers of Rohingya registered by UNHCR each year since 2009.
115 Ibid., Focus Group Discussion MYS F-1, with Rohingya Society of Malaysia, Kuala
Lumpur, 15 July 2012.

116 Derivative refugee status is given to family members/dependents of a
recognised refugee in accordance with the right to family unification. Individuals
who obtain derivative status enjoy the same rights and entitlements as other
recognised refugees. For more information on persons eligible for derivative
status and UNHCR’s procedures for conferring such status, see UNHCR, Procedural
Standards for Refugee Status Determination under UNHCR’s Mandate, Unit 5,
available at: http://www.unhcr.org/43170ff81e.pdf.
118 Ibid.
119 Ibid.
35
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Year of Registration Total Rohingya Persons Registered

2009 3,265
2010 2,900
2011 3,319
2012 4,570
2013 9,720
2014 (As of 15 May 2014) 3,386
The long waiting times, together with difficulties in getting information

from UNHCR about the registration and RSD processes, have
unsurprisingly led to frustration among the Rohingya community.
Rohingya respondents referred to what they perceive as bias on the part
of UNHCR, with a general sense among those interviewed that other
refugee communities from Myanmar such as the Chin, Mon and Rakhine
face shorter waiting times for UNHCR registration, RSD and
resettlement.120 There was also a perception among Rohingya
respondents that they have had a lower priority for resettlement than
others because of an unwillingness of resettlement countries to accept
Muslim refugees after 11 September 2001.121
There is some historical merit to the Rohingya perception of differential

treatment; throughout the 2000s, UNHCR Malaysia’s resettlement strategy
was based on the assumption that longer-established Rohingya
communities were better suited to local integration, while resettlement
was the most appropriate durable solution for the Myanmar Chin
population. This approach was “effectively abandoned” at the end of the
decade when a senior UNHCR official remarked that different protection
services and access to resettlement had “become untenable to justify”.122
UNHCR has also noted, however, that while the majority of Rohingya in
Malaysia now regard resettlement as the only viable durable solution,123
some Rohingya families remain reluctant to be resettled, preferring
120 See above, notes 114 and 115.

121 Ibid.
123 Ibid., p. 16.
36
instead to remain in Malaysia where they have better established social

structures and where Islam is the main religion of the country. Indeed,
several but not all, Rohingya respondents stated that if given the chance,
they would prefer to remain in Malaysia, provided they were allowed to
work and enjoy other fundamental rights. As a Rohingya refugee leader
explained:
I would prefer to live in Malaysia instead of the United

States because the U.S. is not an Islamic country. I’ve stayed
in Malaysia for 16 years and know how to speak, read and
write well in the Malay language. I did not get everything
that I wanted but still I stayed in Malaysia on Islamic
grounds. We also discourage our members from going to
non-Muslim third countries.124
UNHCR has been holding community information sessions on the

resettlement process and what it means in the hope of encouraging more
Rohingya to resettle. In 2013 and up until May 2014, UNHCR submitted a
total of 3,211 Rohingya for resettlement, while 624 Rohingya departed for
a resettlement country.125

37
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3. PATTERNS OF DISCRIMINATION AND INEQUALITY
The unwillingness to recognise the protection needs of stateless Rohingya

in the country has meant that long staying populations and new arrivals
continue to face human rights violations, including discrimination. A weak
domestic legal framework that does not differentiate between irregular
migrants and refugees or asylum seekers means that Rohingya are
vulnerable to arrest and detention, have no work rights and face
significant challenges accessing other basic social services. Despite
Malaysia’s accession to the CRC, a reservation to Article 2 continues to
undermine Rohingya children’s access to education and healthcare.126
3.1. Displacement and Migration Patterns of the Rohingya in

Malaysia
Malaysia, geographically and politically, plays an integral role in the

migration of Rohingya seeking asylum. Malaysia has both long staying
Rohingya communities and recent boat arrivals that have either come
through Thailand directly to the shores of Malaysia, or as a result of push-
backs and denial of entry by Thailand and Singapore.
3.1.1. New Arrivals: The Sea Journeys of Rohingya “Boat People”
In recent years, following the internal violence in Rakhine state in 2012,

countries in the region have seen a sharp increase in the number of boat
arrivals from Myanmar. Rohingya men, women and children fleeing
persecution, mainly from Sittwe and Maungdaw, either arrive on the
shores of Malaysia directly (through the northern islands of Penang and
Langkawi), or overland from boat arrivals in Thailand. In 2012-2013, there
were also an increasing number of boats intercepted by the Malaysian
126 See above, note 60. According to Article 2 of the Convention on the Rights of the
Child, “States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any
kind, irrespective of the child's or his or her parent's or legal guardian's race,
colour, sex, language, religion, political or other opinion, national, ethnic or social
origin, property, disability, birth or other status”.
38
Patterns of Discrimination and Inequality
Maritime agencies following push-backs from Thailand and boats arriving

directly from Rakhine state.127
Rohingya Arriving by Boat to Thailand and Overland to Malaysia
Most Rohingya who arrive by boat come indirectly through Thailand. Their
journey most often begins in small fishing boats that leave Sittwe and
Maungdaw; from here, they may stay briefly in Bangladesh or transfer
directly to larger vessels that carry them across the seas towards Thailand
and Malaysia. The exact numbers of Rohingya who have undertaken this
journey are not known but estimates are available.128 Although each
journey is different, there exist some common elements:
The normal route is from Rakhine where in the hands of

agents they go out in a small boat (which can only hold
around 20-50 persons) for about two nautical miles, where
a big boat waits for them. People are transported to the
bigger boat and it can take two to four days to assemble
everybody on the bigger boat. Finally, they start the
journey. The fastest journey I have come across is four days
to Thailand. But in some cases it can take anything between
seven to 20 days because they sometimes lose their way (...)
If they are arrested by Thai authorities then they are in the
jail for a long time. In some cases they are robbed and fall
into the hands of traffickers who keep them in the
trafficking camps for a long time.129
127 See section 3.2.1 for a discussion on this issue.

128For estimates see section 1.3.4 above. It is important to note, however, that
these estimates also include Bangladeshi nationals who have increasingly
undertaken the same journey as a result of tightening immigration controls at
Kuala Lumpur International Airport, though their numbers are believed to be
significantly less than the Rohingya. Skype interview with Chris Lewa, Director of
the Arakan Project, 12 May 2014.
129Interview MYS 18, with Rohingya Society of Malaysia, Kuala Lumpur, 19
February 2014.
39
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Persons who survive the boat journey, manage to avoid detention in

Thailand and are able to pay their smugglers/traffickers, are then taken to
Malaysia:
After they are released from the traffickers they will be

taken by car across the border. But during the journey in
some places they have to get down and walk for a few hours
to avoid meeting the authorities. People will be waiting
there for them and they get into the car again. They bypass
the checkpoints; that’s why they walk in the jungle. Still in
some cases they are arrested. Once they cross the border
they usually enter Malaysia through Kedah and Perlis
states.130
For those who are detained in Thailand, they remain in detention for
prolonged periods and if released, use the same route described above to
enter Malaysia once released to brokers.
Boats Arriving Directly on the Shores of Malaysia
The number of boats arriving directly on the shores of Malaysia has been
minimal. In 2013, only four boats arrived in Penang, Langkawi131 and
Kuala Selangor (without being intercepted). However, this figure only
includes boats that have come to the attention of the authorities, with
potentially more boats having arrived undetected.
Rohingya on these boats mainly come from Sittwe and Kyauk Phyu,132 the
coastal town that witnessed extensive violence and destruction in October
130 Ibid.
131A group of 450 Rohingya landed in northern Malaysia on the shores of
Langkawi Island after a two week boat journey. See BBC News Asia, “Hundreds of
Rohingya refugees reach Langkawi, Malaysia”, BBC News, 31 December 2012.
132 Many of Muslims displaced by the violence and destruction in Kyauk Phyu and
surrounding areas identify as “Kaman”, some of whom also fled to Malaysia by the
same route. It should be noted that many refugees from Kyauk Phyu had first fled
to IDP camps in Sittwe in October 2012 and did not sail directly from Kyauk Phyu.
40
2012 and thereafter.133 The number of boat departures from Sittwe and
Kyauk Phyu decreased in the lead up to the national census in Myanmar in
March 2014, likely due to the hopes of the Rohingya that they would be
included in the census. However, following an escalation of violence and
announcement that the Rohingya would not be allowed to identify as
Rohingya in the census,134 boat movements have picked up again with two
new boats from Sittwe arriving in Malaysia. The first boat arrived in
Penang on 10 April 2014, carrying 129 people.135 All persons on board
were subsequently arrested by immigration authorities and the case has
been transferred to the Anti-Trafficking in Persons (ATIP) Unit.136 The
second arrival was on 9 May 2014 in Kuala Perlis with 101 persons on
board.137 As of 31 May 2014, all persons on board this boat were
subsequently arrested by the Malaysian immigration authorities and
remain in detention awaiting release by UNHCR.138
Following is a description of a boat journey taken in 2012 to reach

Malaysia:
I paid a Bangladeshi agent and left Teknaf by boat towards

Malaysia. However, the boat got lost in the Indian Ocean
133 Human RightsWatch identified 811 destroyed structures on the eastern coastal
edge of Kyauk Phyu following arson attacks reportedly carried out on 24 October
2012. See Genocide Watch, Burma: New Violence in Arakan State by Human Rights
Watch, 24 October 2012.
Buncombe, A., “With ‘Rohingya’ not an option on census forms, Burma’s new
134
democracy is facing an identity crisis”, The Independent, 2 April 2014.

136Ibid., UNHCR was given access to detainees in late April 2014. Out of the 129
individuals, 56 were charged at the Butterworth Magistrates Court. The remaining
73 persons are children who, as of May 2014, were detained in the Ajil
Immigration Detention Centre. A request has been made by UNHCR for their
release. For a further discussion, see section 3.2.2.
137 Ibid.
138 Ibid.
41
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and was stopped by the Indian Navy. I was sent to a

detention camp on Andaman Island for two months.
After two months, I was put on a packed fishing boat that

came from Malaysia. There were 297 men and three
children aged about 10 years old on the boat. The nonstop
journey took five days and four nights. We finally reached
Pantai Merdeka in Kedah and waited for agents to bring us
down. Unfortunately, we were all arrested by the Malaysian
Maritime Enforcement Agency and were sent to the police
station in Sungai Petani, Kedah.
We were remanded for two months while waiting for the

court hearing. I heard that usually the remand is just for
two weeks, but this time it was longer due to the fact that
some agents were trying to negotiate our release for a sum
of money. The negotiations failed and we were finally
brought to court, charged with illegally entering the
country and sentenced to three months jail. After serving
my sentence, I was sent to a detention camp in Melaka.
UNHCR sent some people to register me and I was finally
released.139
Rohingya persons endure squalid conditions on board these vessels. As a

result of a lack of food, unsanitary conditions, violence by brokers and
dangerous conditions at sea on board unseaworthy vessels, many
Rohingya either do not survive the journey or survive with serious
physical health repercussions and severe psychological trauma.140 As
stated by one interviewee:
It was an old fishing boat. There were 208 Rohingya on

board and around 70 Bangladeshi and one driver. It was
139 Interview MYS 9, with Rohingya refugee youth, Penang, 24 October 2012.
140Szep, J. and Grudgings, S., “Reuters Special Report: Thai authorities implicated
in Rohingya Muslim smuggling network”, Reuters Special Report, Thailand, 17 July
2013.
42
crammed tight with people on the boat. We were like cattle

crammed onto a lorry. There was not enough space to lie
down. Just to sit scrunched up. It was difficult even to find
enough space to eat. Every two days, we were given a small
portion of rice and every day we were given two to three
cups of water. It wasn’t enough. We brought very light food
ourselves to sustain us. Like small packets of sugar and
sauce. On board, we were not treated badly and we were
never beaten.141
Changing Trends in New Arrivals
Over the course of 2013 and early 2014, there have been noticeable
changes in the demographics of new Rohingya arrivals, with women and
children now making the journey.142 It is estimated that women and
children make up between 5 to 15% of persons abroad overall.143 This
includes a growing number of unaccompanied minors. Although reasons
for this change may be numerous, it is a likely result of the increasing
violence in Rakhine state, resulting in women leaving to reunite with their
husbands already in Malaysia.144 Additionally, there have been a number
of women and a smaller number of child brides who have arrived by boats
through Thailand to enter into marriages arranged by their parents or
future husbands, with the latter often paying for their journey to
Malaysia.145 With the increasing number of women making this journey,
there have been reports of incidences of rape on board these vessels.146
141Interview MYS 11, with a 25 year old Rohingya man who had recently arrived
in Malaysia, Kuala Lumpur, 15 December 2012.
The Director of the Arakan Project as quoted in Associated Press, “Desperate
143
Rohingya children flee to horrors and despair”, Taipei Times, 4 May 2014.
Lee, Y.K., “Malaysia: Rohingya refugees left with nowhere to go”, Green Left
146
Weekly, 2 July 2013.
43
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Another significant changing trend is the health implications that arise

from the boat journey and conditions in trafficking camps. An increasing
number of newly arrived young Rohingya males aged 16-25 now have
severe physical health conditions such as “paralysis possibly caused by
poor diets and long-term confinement”.147
Other Means of Arrival
Although boat arrivals are the most common way for Rohingya asylum
seekers to get to Malaysia, some are able to access other options including
travel by air:
I left home because of the constant harassment by the

Myanmar authorities and local people. My father initially
did not allow me to go but relented and gave me RM 9,000
(USD 2,800) to pay agents in Bangladesh. This was
insufficient because the asking fee was RM 13,000 (USD
4,050). However, the agent agreed to allow me to go,
disguised as a “son” of another female refugee… From
Dhaka we flew to Cambodia. Upon arrival my Bangladeshi
passport was taken away and I was separated from the
others. From Cambodia I made my way by car to Bangkok,
and then onwards towards the Thai - Malaysia border, a
journey which took two days and two nights. Then I made
my way by foot across the border into Malaysia where a car
was waiting for me and took me to Kuala Lumpur. The
agents kept me there until they found somebody in Penang
who knew my father. The agents demanded RM 600 (USD
186) for my release. After the money was paid by my
father’s friend, I was released and put on a bus to Penang.148
147UNHCR, In Malaysia, Rohingya arrivals hope to end cycle of abuse, exploitation

by smugglers, 5 May 2014.
148 Interview MYS 6, with 14 year old Rohingya refugee, Penang, 24 October 2012.
44
3.1.2. Long-term Population: Overland Routes to Malaysia
Although the long-term Rohingya population in Malaysia may be traced

back to the 1980s, a large proportion of the current population made their
journey through varying routes in the early to mid-1990s following the
exodus in 1991-1992.149 In December 1993, UNHCR Malaysia registered
some 5,100 Rohingya.150
Most of the long staying Rohingya refugees who were interviewed for this
report were originally from Maungdaw in Rakhine State. Almost all of
them came to Malaysia during 1993-1995 and have been living in the
country for approximately 20 years.151 Most made the journey from
Bangladesh by air through “brokers” who obtained some form of
identification documentation, visa or passport for them:
We would board an airplane from Dhaka, Bangladesh to fly

to Bangkok and get to the Malaysia airport. We used a
Bangladeshi passport. We got the passport by paying an
agent in Bangladesh. If we had no identification documents,
we were free to do the passport. The entire process
including creating a passport, travel documents, visas and
flight tickets from Dhaka to Kuala Lumpur cost
approximately RM 12, 000 (USD 3,740).152
For those who could not afford the air ticket, they would make the journey
overland from Rakhine to Yangon and then through to Thailand and finally
Malaysia. The journey, although easier than travelling on the open seas,
was often much longer, crossing numerous borders and townships, and
not without its own set of challenges:
149 See above, note 3 for more information.

150 Ibid.
152 Ibid.
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I came to Malaysia after first trying to live in Thailand. I left

my hometown in Maungdaw for Sittwe and then Yangon after
the turmoil of 1988. In Yangon I found other Rohingya people
wanting to escape Myanmar and we made our way into
Thailand with the help of a Rohingya couple. Once in Thailand,
I worked as a roti seller for the couple in Bangkok. Things were
alright for a while until I was arrested in 1993 and deported
back to Myanmar. In 1994 I decided to try my luck again, but
this time I decided to make my way to Malaysia. I crossed the
border into Malaysia through Padang Besar [north of
Malaysia] on 31 December 1994. From there I moved to Alor
Setar [Kedah] and then to Butterworth in Penang.153
During the late 1980s and early 1990s, freedom of movement for Rohingya
in Myanmar was significantly better, with most being able to obtain some
form of documentation to travel overland. Following the establishment of
the NaSaKa in 1992, this freedom of movement was significantly curtailed,
and passports and other documentation was harder to come by.154
Maritime movements however started picking up in 2006 as Malaysia
became a preferred destination (over Saudi Arabia).155
Most of the long-staying populations reside all over the country, in urban
towns where job opportunities are rampant, such as Penang, Kuala
Lumpur and Johor. Having lived in Malaysia for many years, they have
picked up the local language and some now set up community-based
organisations and schools to assist new arrivals and Rohingya children
who have no access to local schools.156
Until recently, it has been very uncommon for Rohingya women to leave
Myanmar, and the arriving refugee population has been mostly single
153Interview MYS 8, with a long staying Rohingya Refugee man, Penang, 22

October 2012.
46
young men or men with wives and families in Myanmar. Having settled
and procured a stable job in Malaysia, some made arrangements for their
wives to make the journey from Myanmar; others, having lived more than
15 years in Malaysia, married local Muslim women or Indonesian migrant
women. In both instances the presence of second and third generations of
Rohingya born and living in Malaysia is significant. These generations,
despite being born in Malaysia and having never been to Myanmar, are
considered to be “illegal immigrants”, and continue to remain in a state of
protracted statelessness.
3.2. Arrest, Detention and Deportation
As irregular migrants in a country that does not recognise the rights of

refugees and asylum seekers, the Rohingya in Malaysia experience
constant threats to their liberty and security when entering, living and
working in and travelling through the country. Their very presence is
rendered illegal by discriminatory legislation that does not recognise their
protection needs. Their vulnerability to punitive measures aimed at
controlling immigration, as well as the exploitation of this vulnerability by
state authorities, is constant and pervasive. Such punitive measures not
only include arrest and prolonged, arbitrary detention, but may also
encompass extortion and harassment by law enforcement officials on a
regular basis.
The Equal Rights Trust has published detailed Guidelines to Protect

Stateless Persons from Arbitrary Detention, which are based on principles
of international law. Drawing on an analysis of international standards, the
Guidelines state that detention would be arbitrary unless it is:
(i)[P]rovided for by national law; (ii) carried out in pursuit

of a legitimate objective; (iii) non-discriminatory; (iv)
necessary; (v) proportionate and reasonable; and (vi)
carried out in accordance with the procedural and
substantive safeguards of international law.157
157Equal Rights Trust, Guidelines to Protect Stateless Persons from Arbitrary

Detention, June 2012, Guideline 25.The Guidelines further elaborate on each of the
above elements of the arbitrariness test (Guidelines 26-30), provide guidance on
47
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As noted in section 2.4 above, despite the absence of formal legal

recognition of their status under the Malaysian legal system, refugees and
asylum seekers who are registered by UNHCR hold a form of de facto status
that allows them some degree of protection against arrest, detention and
refoulement, though this is not consistently applied. Such protection is
understood to derive from various sources, none of which have been
codified into law or made publicly available. These include:
i. written directions issued by the Attorney-General’s Chambers in

2005 stating that it would refrain from prosecuting holders of
UNHCR documentation;158 and
ii. written standard operating procedures issued by the immigration
department, including a directive that once the authenticity of a
UNHCR card has been verified, the card holder may be released.
According to a respondent from the Malaysian immigration department,

the effect of these directions and standard operating procedures is that
persons registered with UNHCR may only be arrested and detained in
order to verify the authenticity of their documents, or if they have
committed a criminal offence.159 However because the directions and
standard operating procedures are not codified into legislation, they are
not uniformly applied and are subject to change at the government’s
discretion.160
the implementation of alternatives to detention (Guidelines 31-36), stipulate the

standards that should be adhered to when detaining a person (Guidelines 37-44),
and articulate special considerations relating to vulnerable persons and groups
(Guideline 45-51). See also UNHCR, Handbook on Protection of Stateless Persons,
30 June 2014, Paras 112–115.
International Federation for Human Rights (FIDH) and Suaram, Undocumented
158
migrants and refugees in Malaysia: Raids, Detention and Discrimination, March

2008, p. 9.
160See above, note 46. For example, at the time of writing this report, UNHCR has
been unable to secure the release of non-Myanmarese UNHCR- registered refugees
and asylum seekers from immigration detention depots since November 2013.
The reasons for this change in government policy are unknown.
48
The process through which Rohingya and other refugee and asylum
seekers are arrested and detained is complicated, and can be summarised
as follows:
 If a police officer comes into contact with a UNHCR registered

refugee or asylum seeker, they may release them once a UNHCR
card is produced, or may choose to bring them to the police station
to verify if their UNHCR cards are genuine.
 If brought to a police station, they will be released if the
authenticity of a UNHCR card is confirmed. If confirmation is not
provided by UNHCR, or if the individual is not registered with
UNHCR, the police officer will usually proceed to arrest them for
offences under the Immigration Act. At this point, a police report
will be filed, including details of the date of arrest and the name,
age and gender of the individual.
 Once arrested and an investigation file opened, the individual will
be taken to a police lock-up or transferred directly to one of the
country’s immigration detention depots. They may then be held for
14 days for investigation before being brought before a
Magistrate,161 or may be detained for removal purposes without
the right to be produced before a Magistrate.162
 During this period, if necessary, the investigating officer will liaise
with UNHCR to verify the authenticity of the UNCHR card. The
investigating officer will also refer the case to the Deputy Public
Prosecutor (DPP). If the authenticity of UNHCR cards can be
verified, the DPP will order the release of the refugee or asylum
seeker.
 Unregistered asylum seekers or those whose UNHCR cards cannot
be verified will be produced before a Magistrate. Legal
representation during court proceedings is rare, and
interpretation services in a language understood by the refugee or
asylum seeker is not always available; for this reason, refugees and
161 See above, note 93, section 51(1)(5)(b).

162 Ibid., section 34.
49
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asylum seekers have reported pleading guilty to immigration

offences despite not understanding the charges.163
 Those whose UNHCR cards are authenticated before the court
proceedings, are given a discharge not amounting to an acquittal
and may either be released or sent to immigration detention
depots where UNHCR will subsequently apply for their release.
 Those who are not registered with UNHCR are not able to present
an asylum application as no government entity is mandated to
conduct RSD. They are likely to be convicted under the
Immigration Act, sentenced to prison and upon completion of this
sentence, transferred to immigration detention centres for
deportation. UNHCR will only be able to access them once they
have completed their prison sentences.
As evident from the above summary, the ability of registered refugees and
asylum seekers to avoid arrest and detention is largely dependent upon
law enforcement agencies being able to authenticate registration with
UNHCR. In recognition of this, the government and UNHCR have been
piloting the use of a database, compiled by UNHCR and shared with
enforcement agencies that contains the basic bio-data (identical to the
information found on the UNHCR refugee and asylum seeker card) of all
registered “persons of concern”. The intention is that if enforcement
officers are able to conduct their own verification by using the database,
registered refugees and asylum seekers would no longer have to wait for
enforcement officers to contact UNHCR and for UNHCR to provide
verification of their registration.164 The database is also being utilised by
government hospitals before approving the 50% discount for health care
costs.165
163 See for example, Amnesty International, Abused and Abandoned: Refugees
Denied Rights in Malaysia, June 2010, ASA 28/010/2010; and Amnesty
International, A Blow to Humanity: Torture by Judicial Caning in Malaysia,
December 2010, ASA 28/013/2010.
165 Ibid.
50
However, the roll out and use of the database by law enforcement officers
has been slow for various reasons including logistical challenges.166 In the
meantime, the government is planning its own biometric data collection
exercise, through which it will maintain its own database of refugees and
asylum seekers registered with UNHCR. No further details were available
at the time of writing as discussions around the mechanics and
implications of the initiative were ongoing. However, a government
respondent has confirmed that refugees registered under this initiative
will not be given any employment or stay rights and, while the database
could well be a duplication of UNHCR’s efforts, once rolled out, arrests of
UNHCR registered refugees and asylum seekers would become
unnecessary. The database could also make it more difficult for
enforcement officers to engage in extortion of this population.167 While it
is too early to comment on the biometric data collection exercise and
database, special care must be taken to ensure that this process protects
confidential information, respects the right to privacy and is not subject to
fraudulent and corrupt practices.
Once detained, Rohingya and other refugees and asylum seekers face
multiple violations of their human rights. There are currently 14
immigration detention depots in Malaysia168 and conditions are reported
to fall far below international standards with overcrowding, poor
sanitation, insufficient access to food, water and healthcare, as well as
reports of violence and abuse.169 Once a refugee or asylum seeker is sent
to the immigration detention depot, the time it takes for UNHCR to secure
166 Ibid.
167Interview MYS 21, with government representative from the Prime Minister’s
department, Kuala Lumpur, 28 May 2014.
168The 14 detention centres are in Ajil, Belantek (closed as of end 2013 for
renovations), Bekenu, Bukit Jalil, Juru, Kemayan, Kuala Lumpur International
Airport, Langkap, Lenggeng, Machap Umbo, Pekan Nenas, Semenyih, Semuja, and
Tanah Merah. There are detention depots in all states except Perlis. (See National
Human Rights Commission of Malaysia (SUHAKAM), Roundtable on Alternatives to
Immigration Detention, 12 November 2013, Kuala Lumpur, p. 6.)
169See above, note 158. See also Amnesty International, Malaysia: Submission to
the UN Universal Periodic Review, October - November 2013.
51
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their release increases considerably. UNHCR has generally good access to

immigration detention depots, but has not been allowed access to two of
them, resulting in a protection gap. Furthermore, even in the other 12
detention depots, the process of identifying, verifying and then seeking
formal approval for the release of refugees and asylum seekers from
detention is time consuming.170 As one respondent during a focus group
discussion in Penang explained:
Detention camps usually are far from the UNHCR refugee

office. Imagine if a Rohingya was detained in Juru, Penang,
then the UNHCR officers have to come from Kuala Lumpur
to manage the releasing process. But this process is time
consuming because UNHCR officers will conduct
investigations and interviews in advance and this process
cannot be performed once or twice only. They need to
commute and this certainly takes time and the Rohingya
people had to wait in the detention camp for a long time. In
addition, the UNHCR officers also have other commitments
and they also need to go to other depots and detention
camps in other states to resolve the same issues.
The situation arises when a Rohingya has been detained

and has to go through the normal legal process because he
does not have the card. The court will sentence him to
prison and sometimes he will get whipped. Then, this
Rohingya will be sent to a detention camp after the sentence
has expired. If they have relatives or friends, their relatives
outside will tell the RSM (Rohingya Society of Malaysia)
about it. RSM will then report this to the UNHCR. The
UNHCR will also visit the detention depots from time to time
to ensure that no Rohingya are being detained.
Usually, the process takes four months or more. Some of the

arrested Rohingya would have wives and children and
other dependents. If they got arrested for one to four
52
months, who would to bear the cost of living of their

families?171
Apart from the mechanisms for release of UNHCR “persons of concern”,

there are no other alternatives to detention either in law or in practice for
refugees or asylum seekers. Thus, the only way out of detention for many
is voluntary repatriation, which in the case of the Rohingya would violate
the principle of non-refoulement. This, coupled with the government’s
policy of conducting regular immigration raids as a means of reducing the
undocumented population in Malaysia, has resulted in immigration
detention depots becoming overcrowded and expensive to run. In January
2014, the Ministry of Home Affairs revealed that the daily food, medical
and administrative cost of detaining about 68,000 irregular migrants in
ten detention centres across Malaysia amounted to nearly RM 5.1 million
(approximately USD 1.5 million) per day.172
In addition to detention, threats to the Rohingyas’ liberty and security also

arise in the form of harassment and extortion by law enforcement
personnel in Malaysia. As one Rohingya respondent from Kuala Lumpur
explained, “these enforcement officials assume that we are outsiders and
we do not need to be treated in a good way; they can hit and throw us
because no one cares”.173 Respondents also stated that in previous years,
members of the Ikatan Relawan Rakyat (RELA), a volunteer police force,
were significant perpetrators of abuse and harassment of the Rohingya
and other refugee communities. However, in April 2012, after RELA
members reportedly beat a Nigerian student to death,174 Parliament
passed the Malaysia Volunteer Corps Bill 2012 which stripped RELA

172 Gangopadhyay, A., “Crackdown on Illegal Immigrants Strains Malaysian
Finances”, The Wall Street Journal South East Asia, 8 January 2014.
New Straits Times, “7 RELA Members Remanded over Nigerian Man’s Death”,
174
New Straits Times, 1 April 2012.
53
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members of the power to arrest and carry firearms.175 Since then, reports
of violence and harassment by RELA have declined considerably. However,
extortion and harassment by other enforcement officers continues, with
refugees (including UNHCR card holders) reportedly being forced to pay
bribes to avoid arrest and detention.
3.2.1. Malaysian Responses to Anti-Rohingya Violence in Myanmar

since June 2012
Following the increasing incidents of violence in Rakhine state in June

2012, a spike in Rohingya boat arrivals was reported in the region, though
mostly to Thailand. In Malaysia, on 9 March 2013, 138 Rohingya men,
women and children were rescued from a boat that was on the verge of
sinking; in the same month, another 117 Rohingya (including 24 children)
were rescued from a sinking boat in that same location.176 From 1 January
2012 to 31 March 2013, 17 boats with 3,066 persons on board were
reportedly intercepted by Malaysian authorities.177 Of these boats that
arrived in Malaysia, almost all were victims of Thailand’s “help-on”
policy.178
In this regard, Malaysia has played a humanitarian role by continuing to

accept boats that have been “pushed-back” or “helped-on” by
neighbouring countries, providing rescue assistance as well as initial
medical services, food and water. At the end of 2012, Malaysia opened its
borders and rescued 40 Rohingya men stranded for about one week on
board a Vietnamese vessel in the south of Malaysia after Singapore denied
entry for the boat to dock; this decision by Malaysia to allow the Rohingya
175Free Malaysia Today, “RELA to be Stripped of Guns, Power”, Free Malaysia

Today, 17 April 2012.
176Star News Online, “MMEA rescues 117 Rohingyas off Muka Head”, Star Online,
27 March 2013.
177See above, note 46. In 2012, UNHCR Malaysia was notified of six boats carrying
1,064 persons; in 2013, 11 boats carrying 2,002 persons.
178 See above, note 53 for an explanation on the “push-back” and “help-on” policies.
54
to disembark was commended by the international community.179

Although initially detained, all 40 Rohingya on board this vessel have since
been released.180 Similarly, with other boats rescued in 2012-2013, all
Rohingya on board, who were registered by UNHCR, were subsequently
released from detention;181 however, detainee access to UNHCR remains
tightly controlled by immigration officials in charge of the depots. In some
immigration depots, UNHCR are only given access to those who have been
pre-identified by the authorities as being Rohingya; it is unclear what
screening mechanisms are used to “screen in” Rohingya and to “screen
out” those who are of Bangladeshi nationality and what safeguards are in
place for those in the latter group. Similarly, respondents interviewed for
this report did not have information on any push-backs or refoulement of
Rohingya boat arrivals since 2012 but were unable to verify that these
incidents did not occur.182
The Malaysian government has recognised the escalating violence in

Rakhine state, the broader systemic, widespread persecution of Rohingya
in Myanmar, and their protracted statelessness.183 However, it has taken a
very cautious response to the sudden influx of boat arrivals during this
period. Although it is commendable that Malaysia has allowed Rohingya to
disembark and access UNHCR,184 the government response has stopped
short of providing any long term solution for this population. Rohingya
asylum seekers rescued at sea continue to languish in detention centres
serving sentences for violating immigration laws while they wait for
UNHCR to register them and secure their release.
179See above, note 50. See also Star News Online, “Rohingya stranded on vessel
brought to Johor”, Star Online, 20 December 2012.
181 Ibid.
182 Ibid.
183The Brunei Times, “Malaysia, Indonesia share concerns over Rohingyas”, The
Brunei Times, July 2013.
184See Star News Online, “Minister in Prime Minister’s office response on the
Rohingya situation in Malaysia, Parliament: Malaysia ‘most humane’ to refugees,
says Shahidan”, Star Online, 8 April 2014.
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3.2.2. Human Trafficking and Smuggling
The Anti-Human Trafficking and Smuggling Framework
Human trafficking and smuggling is an issue of concern in the ASEAN

region, and there is considerable political support for anti-trafficking
action in countries in the region including Malaysia in terms of the
ratification of international treaties; the implementation of domestic laws
and national plans of action; and international and regional cooperation.
Malaysia is party to the UN Convention against Transnational Organised
Crime (UNTOC) and its Protocols on Trafficking and Smuggling.185
Malaysia also has obligations under CEDAW and CRC to take appropriate
measures to suppress trafficking in women and children respectively.186
At a regional level, Malaysia is part of the Bali Process187, which is an Asia
Pacific regional process which addresses human trafficking and
smuggling.
According to the UNTOC and its protocols, “trafficking in persons” is

defined as:
[T]he recruitment, transportation, transfer, harbouring or

receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of vulnerability or of
185 See above, notes 63, 64 and 65.

186 See above, note 58. According to Article 6 of the CEDAW, “State Parties shall
take all appropriate measures, including legislation, to suppress all forms of traffic
in women and exploitation of prostitution of women”. See also above, note 60.
According to Article 35 of the CRC, “States Parties shall take all appropriate
national, bilateral and multilateral measures to prevent the abduction of, the sale
of or traffic in children for any purpose or in any form”.
187The Bali Process on People Smuggling Trafficking in Persons and Related
Transnational Crime is a voluntary forum, and includes members such as the
UNHCR, the IOM, the United Nations Office of Drugs and Crime, observer countries
and international agencies. For more information about the Bali Process, visit the
Bali Process website: http://www.baliprocess.net/.
56
the giving or receiving of payments or benefits to achieve

the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include
(…) forced labour or services, slavery or practices similar to
slavery.188
The “smuggling of migrants” is defined as:
[T]he procurement, in order to obtain, directly or indirectly,

a financial or other material benefit, of the illegal entry of a
person into a State Party of which the person is not a
national or a permanent resident.189
While smuggling is considered to be a consensual agreement between the

migrant and the smuggler, trafficking involves force or coercion on the
part of the trafficker, thus the trafficking frameworks tend to contain
wider provision for protective mechanisms.190 This hierarchical
protection system is not necessarily based on levels or experiences of
exploitation, but rather on technicalities that exclude large populations of
vulnerable migrants. In practice, the categories of trafficking and
smuggling overlap and interplay. Migrants who enter into agreements
with smugglers are not aware that they will end up being trafficked. Of the
migrants using the same irregular migration routes and agents, some will
end up trafficked and some will not.
At the national level, Malaysia enacted the Anti-Trafficking in Persons Act

2007, later amended in 2010 to be the Anti-Trafficking in Persons and
Anti-Smuggling of Migrants Act (ATIPSOM).191 This provides penalties for
trafficking, as well as measures for the protection and support of victims

190Bhabha, J. and Zard, M., “Smuggled or Trafficked?” Forced Migration Review 25,
Refugee Studies Centre, 25 May 2006.
191 Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Act 670),
as amended in 2010.
57
Equal Only in Name
of trafficking. It also establishes the Council for Anti-Trafficking in Persons

(MAPO). ATIPSOM has been criticised for its inadequate definition of
human trafficking,192 and for conflating trafficking and smuggling while
failing to ensure that persons who have been smuggled are adequately
protected, even if they are refugees.193 Although there are anecdotal
reports that persons involved in trafficking or smuggling of Rohingya have
been prosecuted under ATIPSOM, there is no publicly available
information on whether such prosecutions have resulted in convictions.
There is also no publicly available information on whether Rohingya
victims of trafficking have benefited from any of the victim assistance
provisions under ATIPSOM.
In 2008, credible reports emerged of immigration officials’ involvement in

the selling of Burmese refugees, including children, to traffickers along the
Thai-Malaysia border.194 In 2009, the U.S. Senate Committee on Foreign
Relations released a report highlighting concern over the “detention and
brokering of Burmese and other migrants in Malaysia and along the
Thailand-Malaysia border allegedly with the knowledge, if not
participation, by some Malaysian Government officials” and the continued
extortion by captors for persons in detention in Malaysia.195 Following
these reports and a downgrade to Tier 3 on the U.S. State department
trafficking list in 2009, Malaysia intensified efforts to develop a
comprehensive legal framework to tackle trafficking. The above practices
have since been stopped and according to UNHCR Malaysia, there have
been no confirmed reports of forced deportation of asylum seekers from
Myanmar to the Malaysia-Thai border since mid-2009.196
192Trafficking under ATIPSOM is defined as situations in which a person is

exploited by means of “coercion”, which in turn is defined as the use or threats of
physical harm and the “abuse of the legal process”.
193 See above, note 78, pp. 266-267 for an analysis of the weaknesses of the Act.
194United States Department of State, Human Rights, and Labour, 2008 Human
Rights Report: Malaysia, 25 February 2009.
195 United States Senate, Committee on Foreign Relations, Trafficking and Extortion
of Burmese Migrants in Malaysia and Southern Thailand, 3 April 2009, p. 7.

196 Email correspondence with UNHCR Malaysia, 6 July 2014.
58
However, there continue to be reports of complicity by immigration

officers in facilitating trafficking, including by allowing vulnerable
undocumented migrants across borders.197 A senior Malaysian civil
servant explained:
The challenges are in terms of enforcement, especially at

border entry points, especially in Bukit Kayu Hitam. There
are enforcement officials at the border who cooperate with
the agents to bring in these Rohingya refugees. Imagine
that for each refugee brought into Malaysia, they will be
paid with a commission of between RM 500 - RM 1,500 (USD
155 – USD 465) per person. Imagine if 10 people are
brought in in a week? These lucrative deals are enticing the
enforcement people to work with the agents. There are even
police officials who want to benefit by working with these
agents. The element of corruption in enforcement has made
it difficult to address this problem.198
As a result of continued non-compliance with minimum standards in

elimination of trafficking, Malaysia has again been downgraded to Tier 3
by the U.S. State Department in its 2014 Trafficking in Persons Report.199
Smuggling and Trafficking of New Boat Arrivals
Rohingya incur large smuggling debts and the exploitation of such debts
once they reach Malaysia has often amounted to situations of
trafficking.200 Due to the lack of a domestic framework for the protection
197United States Department of State, Office to Monitor and Combat Trafficking in

Persons, 2013 Trafficking in Persons Report: Malaysia, 2013.
198Interview MYS 3, with anonymous government official, Kuala Lumpur, July
2012.
199See United States Department of State, 2014 Trafficking in Persons Report -
Malaysia, 2014.
200 See above, note 197. In conducting research for this
report, we found that many
stakeholders do not perceive Rohingya arrivals in Malaysia to be victims of
59
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of refugees, including legal status or the ability to obtain work permits, the
Rohingya and other refugee groups are also made vulnerable to
trafficking.
When smuggled to Thailand en route to Malaysia, Rohingya are held in

camps until the brokers fee is paid off. It is at this point that the line
between smuggling and trafficking becomes blurred; smuggled Rohingya
refugees fall into the hands of traffickers who hold them hostage in
appalling conditions, in trafficking camps mainly in the jungles of Thailand
near the Thai-Malaysia border while waiting for the money to be paid by
families and relatives. There is limited information on what happens to
Rohingya who are unable to pay traffickers. Reports indicate that before
June 2012 some were sold to fishing boats in Thailand or rubber
plantations to work off their debt,201 whilst others ended up as cooks or
guards at these trafficking camps and women were sold in forced
marriages.202 Here, experiences of abuse and exploitation with no legal
recourse have been well documented.203 After June 2012, it appears
Rohingya are less likely to be sold and instead traffickers/brokers hold
them until the money is paid by families or friends.204 An unknown
number have perished in the hands of these traffickers.
Conditions in these trafficking camps are a serious cause for concern. Most
make-shift camps contain bamboo cages with mud floors that get flooded
in the rain. Conditions are inhumane; and as a result of the long stay,
trafficking because they have engaged the services of smugglers to bring them into
the country. Others, however, argue that some Rohingya, including those who have
had to suffer the consequences of being unable to pay brokers’ fees, may qualify as
victims of trafficking and a more nuanced approach is needed to individually
screen and assess arrivals.
201 Ibid. See also notes 128 and 129 above.
See above, note 128. See also Szep, J. and Marshall, A., “Reuters Special Report -
202
Thailand secretly dumps Myanmar refugees into trafficking rings”, Reuters, 5

December 2013.
203 Ibid.
204 Ibid. See also above, note 129.
60
Rohingya develop neurological and skin diseases from the cramped,

unhygienic conditions and poor nutrition.205 It has been reported that
Rohingya in these camps only receive one meal a day, and that the water
is dirty and insufficient. They are forced to squat for long periods of time.
Women are especially vulnerable, with reports of rape and gender based
violence commonplace. Reports have also emerged of men and young boys
being beaten, abused and sometimes killed by the traffickers. Others
simply go missing.206
Without adequate food and nutrition for three to four months, Rohingya in
these trafficking camps starve to death or develop various neurological
illnesses.207 Often family members who pay off these debts after many
months have received their loved ones on the verge of death.
I just saw a case, a few weeks ago, a man he has a brother

here (…) he could not pay the money and for a few months
he was held by the traffickers, then finally they manage to
raise the money and pay RM 6,000 and he was released in
Penang. From there he was brought to RSM and he was very
thin and his whole body had pus, and his situation became
very bad. They admitted him to the general hospital but he
passed away that night itself. You see he only stayed with
his brother for one day, he was only free for one day and
they had to pay RM 6,000 for that.208
The amount of money demanded by the smugglers/traffickers has

increased significantly as a result of recent crackdowns by Thai authorities

Grudgings, S., “Exclusive: Trafficking abuse of Myanmar Rohingya spreads to
206
Malaysia”, Reuters, 5 March 2014.

207Ibid. See also Marshall, A.R. and Lefevre, A.S., “Reuters Special Report: Flaws
found in Thailand's human-trafficking crackdown”, Reuters, 10 April 2014.
61
Equal Only in Name
and coverage by the international media.209 In 2006, the amounts

demanded were approximately USD 800 per person (which included an
embarkation fee of about USD 300); in early 2014, interviews of new
arrivals by community leaders reveal that the rate had gone up to about
USD 2,000-2,200 per person.210 Children usually have to pay much less
than adults.
As a result of media coverage of these camps and the crackdown on

traffickers by the Thai authorities, it appears that traffickers may now be
setting up base in the northern states of Malaysia.211 Several raids by the
Malaysian authorities have found Rohingya men living in squalid
conditions with their hands bound together by metal chains. These
trafficking bases are mainly within apartment buildings. No information
was found on whether anyone was arrested and convicted under ATIPSOM
as a result of these raids.
Interviews by Reuters revealed “a trafficking network on a far bigger scale

than authorities have acknowledged so far”.212 It appears that many of
these traffickers are themselves Rohingya, as well as Malaysian and Thai
nationals.213 The porous northern border and lack of enforcement has
resulted in Malaysia now potentially being a haven for these trafficking
syndicates.
Last Friday we received one woman with three of her

children. She left Sittwe with her husband and their four
children (of 12, eight, two and one year). They came to
Thailand by boat. The traffickers asked for money and they
didn’t have enough money for all of them. So they took their
12 year old son away from them for 10 days. They had no
209See above, note 207. See also Sparks, J., “Nightmare island where traffickers
imprison Burma's Rohingya”, Channel 4, 8 August 2013.
212 Ibid.
62
idea where their son was taken to. After 10 days without
their son, the woman, her husband and the remaining three
children were taken together to the border. The traffickers
separated the woman and her three children from her
husband.
The woman and her three small children were taken in a

car to Alor Setar, Kedah. They were kept for one week in
Alor Setar; only given one meal at around four or five in the
morning. The children were fed nothing more. She fainted
two or three times. The children cried because they were
hungry. She said maybe the traffickers felt bad for them so
they released her in Alor Setar after one week. She walked
and found a school where the school teachers and some
Rohingya members heard her story, collected some money,
bought her a bus ticket and sent her to UNHCR. She suffered
so much and she still does not know where her husband and
son are; whether they are alive or dead. She was crying so
much. Their situation is very difficult.214
3.3. The Exclusion of Rohingya Children
Malaysia ratified the Convention on the Rights of the Child in February

1995.215 Of the many principles enshrined in the CRC, five are particularly
relevant to this report; namely, the right to non-discrimination (Article 2);
that in any action taken, the best interests of the child shall be a primary
consideration (Article 3); the right to life, survival and development
(Article 6); the right to an identity, including nationality (Article 7); and
respect for the views of the child (Article 12). It is significant therefore that
Malaysia has made reservations with regard to both Article 2 and 7.216

215Malaysia also ratified the CRC optional protocols on the sale of children, child
prostitution, and child pornography and on the involvement of children in armed
conflict.
216 See above, note 69 for a list of Malaysia’s reservations to the CRC.
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Equal Only in Name
Importantly for the Rohingya, the CRC does not permit significant
differences in treatment based on the status (or lack thereof) of a child’s
parents. Furthermore, as stated above, Article 22 of the CRC entrenches
the right of the child to seek asylum and obligates states to protect child
asylum seekers and refugees in accordance with principles of human
rights and humanitarian law. Article 22 also obligates states to cooperate
with the efforts of the UN and other competent INGOs and NGOs in this
regard.
After becoming party to the CRC, Malaysia enacted new laws, notably the
Child Act 2001 to bring domestic legislation in alignment with the CRC.217
The Child Act provides for the physical and psychological protection of
children and penalises the abuse, neglect, abandonment or exposure of a
child to physical and/or emotional injuries.218 The Child Act recognises in
its preamble that:
[E]very child is entitled to protection and assistance, in all

circumstances without regard to distinction of any kind,
such as race, colour, sex, language, religion, social origin or
physical, mental or emotional disabilities or any other
status.
However, in practice, the Malaysian government has been reluctant to

extend the protection mechanisms contained in the Child Act to non-
citizen children.
Malaysia was due to submit a State Party Report to the UN Committee on

the Rights of the Child in 2012, but it is yet to do so. During the CRC
Committee’s last review of Malaysia’s compliance with its obligations
under the CRC, specific concerns were raised over the lack of protection
217 Child Act 2001 (Act 611).

218Ibid. The Act also establishes a National Council for the Protection of Children
to monitor and advise on child protection issues, as well as National Child
Protection Teams to coordinate services to families and children in need of
protection.
64
for, and discrimination faced by refugee and asylum seeking children in

the country.219
While Malaysia has several important obligations relevant to Rohingya

children, this report looks at three in particular – the right to an identity
(including birth registration and nationality), the right to education and
the right to the highest attainable standard of health. Though Malaysia has
put in place several initiatives that partially address these rights, in
practice they have not reached many of the vulnerable children in
Malaysia, including refugees, asylum seekers and irregular migrants.
While access to these three sets of rights is relevant to both the long-
staying population and new arrivals, the section below focuses primarily
on the position of the long-staying Rohingya community. This population
has lived in the country for decades and as a result of difficulties accessing
such rights, their problems have carried over to new generations who
were born in the country.
3.3.1. The Right to an Identity – Birth Registration and Nationality
The 1961 Convention on the Reduction of Statelessness requires states

parties to grant their nationality to anyone born on their territory who
would otherwise be stateless.220
Article 7(1) of the CRC provides a similar though less specific obligation by
asserting that every child has a right to birth registration and to acquire a
nationality, without saying which state is responsible. Interpreting
Articles 3 and 7 of the CRC together, UNHCR has stated that:
[A] child must not be left stateless for an extended period

of time: a child must acquire a nationality at birth or as
soon as possible after birth. The obligations imposed on
Committee on the Rights of the Child, Concluding Observations, Malaysia, UN

219
Doc. CRC/C/MYS/CO/1, June 2007, Paras 32, 83, and 85.

220United Nations Convention on the Reduction of Statelessness, U.N.T.S. 989,
1961, Article 1(1).
65
Equal Only in Name
States by the CRC are not only directed to the State of birth
of a child, but to all countries with which a child has a
relevant link, such as through parentage or residence.221
However Malaysia has entered a reservation to Article 7 of the CRC and in

March 2014, the government rejected recommendations by the UN Human
Rights Council to remove this reservation. Article 8 of the CRC also
obligates all states to protect and assist children who have been illegally
deprived of their identity (including nationality), with a view to re-
establishing speedily his or her identity – an obligation relevant to
Malaysia with regard to stateless Rohingya children born on its territory.
Further, the ASEAN Human Rights Declaration recognises the right of
every person to a nationality and prohibits the arbitrary deprivation of
nationality.222
Although Malaysia is not a party to the 1961 Convention, as mentioned in

section 2.4, its domestic law contains a protection against statelessness
that conforms to the Convention standard. Article 14 of the Federal
Constitution, when read with Part II of the Second Schedule of the
Constitution, provides that any child who is born within the Malaysian
Federation is, by operation of law, a Malaysian citizen if he or she “is not
born a citizen of any country” and cannot acquire citizenship of another
country by registration within one year of birth. In 2010, the High Court
affirmed this constitutional right in the case of Lee Chin Pon & Anor v
Registrar-General of Births and Deaths.223 However, this provision has
221 UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child's Right to Acquire
a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of

Statelessness, 21 December 2012, HCR/GS/12/04, Para 11. See also, UN Human
Rights Council, Human rights and arbitrary deprivation of nationality: report of the
Secretary-General, 14 December 2009, UN Doc. A/HRC/13/34, Para 36; and UN
Human Rights Council, Arbitrary deprivation of nationality: report of the Secretary-
General, 26 January 2009, UN Doc. A/HRC/10/34, Para 64.
223Although this case was not reported and therefore is of limited applicability in
terms of precedent, lawyers representing the applicants have produced an in-
depth case summary and analysis of the decision, noting that “[t]he decision is also
authority for the more general and widely applicable principle that any child who
66
never been implemented to grant Malaysian nationality to stateless

Rohingya children born in the country.
The Births and Deaths Registration Act 1957 provides for the registration
of every child born in Malaysia. Although the country has made significant
progress in improving access to birth registration, children from refugee
and asylum seeking communities continue to face challenges. UNHCR card
holders are generally able to obtain birth certificates for their new-borns;
however some refugee leaders have reported that persons without a
UNHCR card can face difficulties in obtaining birth certificates as
registration officers sometimes require a UNHCR card to be presented
before a birth certificate is issued.224 Furthermore, the fear of arrest and
detention for their irregular status has meant that some refugee parents
choose not to register the births of their children.225 As with Malaysian
citizens, birth registration is free if done within 14 days of birth, following
which fees for late registration are applicable.226 The processes and
documentation required for “late” registration of births can also be
difficult for some refugees and asylum seekers to navigate given language
and literacy barriers. Birth certificates issued to non-Malaysian children
are stamped with the words “bukanwarganegara” (meaning “non-
citizen”), therefore rendering them unable to access government schools.
Because Article 14 of the Federal Constitution has not been extended to

benefit Rohingya children, the majority of Rohingya children born in
is born in Malaysia on or after Malaysia Day has the constitutional right to be

recognised as a citizen of Malaysia, provided he or she is not born a citizen of any
other country”. (See Mah, R. and Hwa, C.L.Y., Citizenship for Adopted Children – A
Malaysian Perspective, available at: http://www.mahwengkwai.com/citizenship-
for-adopted-children-a-malaysian-perspective/#The_High_Courts_decision.
224Child Rights Coalition Malaysia, Status Report on Children’s Rights, December
2012.
225 See section 3.3.3 below.
226UNHCR, UNHCR Birth Registration Brochure, available at: http://www.unhcr.
org.my/upload/Brochure_BirthRegistration.pdf.
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Malaysia – barring those who have one Malaysian parent227 - are unable
to acquire nationality. As a result, statelessness is perpetuated through
the generations and children are left vulnerable to a lifetime of
discrimination and exclusion. Significantly, such children are themselves
branded “illegal migrants” despite being born in the country. In addition
to not being able to assert their fundamental rights including a right to
education and the highest attainable standard of health, they are also at
risk of being detained and deported under the Immigration Act.
3.3.2. The Right to Education
As stated by Rohingya participants in a focus group discussion, “what we

want is for the Rohingya parents to be able to work officially, while
children can go to school to secure the future of generations to come”.228
Article 28 of the CRC guarantees the right of all children to education, and
states have an obligation to provide compulsory and free primary
education to all (irrespective of legal status),229 and to take steps to make
secondary education free and accessible to all children.230 However,
Malaysia maintains a reservation to Article 28(1)(a) (free and compulsory
227 Malaysia does not grant citizenship by birth (jus soli), but instead uses the
concept of jus sanguinis (descent) as the foundation for citizenship. Article
14(1)(b) Part II(1)(a) Second Schedule of the Federal Constitution provides that a
child born in Malaysia is a citizen by operation of law if at least one of his/her
parents is at the time of birth either a citizen or permanently resident in Malaysia.
However, if the parents’ marriage is unregistered, Part III of the Second Schedule
of the Federal Constitution provides that “references to a person’s father or to his
parent, or to one of his parents, are in relation to a person who is illegitimate to be
construed as references to his mother.” Therefore a child born to a Malaysian
father and non-Malaysian mother whose marriage has not been legally registered
will acquire the citizenship of his/her mother.
229 See above, note 60, Article 28(1)(a).
230 Ibid., Article 28(1)(b).
68
education at the primary level). Notably, Article 31 of the ASEAN Human

Rights Declaration adopts the same approach as the CRC.231
Although Malaysia has attained almost universal primary education for its
citizens and is on its way towards achieving universal secondary
education, the ability of refugee, asylum seeking and other irregular
migrant children to access education in Malaysia is severely limited as they
are not allowed to register in government-funded public schools. For
children who cannot enrol in government schools and whose parents are
unable to afford the cost of private schools, their only option is to access
the parallel education system provided through informal learning centres
established by refugee communities or NGOs. The Rohingya Society of
Malaysia, for example, has established its own Madrasah (religious) school
in Kuala Lumpur, with the support of PERKIM, a Malaysian Muslim NGO.
Although PERKIM has generously donated funds, a van, materials and food
to the school, this is insufficient to meet the cost of running the school.
UNHCR also provides some financial support for other community
learning centres throughout the country. However, these learning centres
are generally poorly financed, overcrowded and under-resourced, and are
only able to provide basic education for children. Many teachers at the
learning centres are refugees or asylum seekers; they are usually provided
with only minimal remuneration and do not always have the necessary
qualifications and/or experience to teach. There is no recognised
certification for students attending these centres.
In June 2010, the Deputy Prime Minister announced that non-Malaysian

children, irrespective of race, religion or location, will be given an
alternative education. However, he qualified this by saying that this
education would not be along the lines of a formal education under the
national education system.232 Unlike Thailand or Indonesia, Malaysia has

232 Star News Online, “Govt. to Ensure Stateless Children get Education: DPM”, Star
Online, 20 July 2010.
69
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not implemented any form of Equivalency Programme as an alternative

for children who cannot access formal education systems in Malaysia.233
3.3.3. The Right to the Highest Attainable Standard of Health
Article 24 of the CRC obligates states to ensure:
[T]he right of the child to the enjoyment of the highest

attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health. States
Parties shall strive to ensure that no child is deprived of his
or her right of access to such health care services.234
Article 29 of the ASEAN Human Rights Declaration similarly provides:
Every person has the right to the enjoyment of the highest

attainable standard of physical, mental and reproductive
health, to basic and affordable health-care services, and to
have access to medical facilities.
The primary healthcare service in Malaysia provides government

hospitals in all districts with community and mobile clinics in certain rural
areas. A significant number of private healthcare services are also
available in most major towns. The government of Malaysia has made
significant progress in developing the primary healthcare systems in the
country in terms of cost, access and quality. However, refugees, asylum
233An Equivalency Programme is an alternative form of education that provides

learning opportunities of comparable quality to formal education, and is
recognised with official certification. For more information on Equivalency
Programmes, see UNESCO Bangkok, Report on the Joint UNESCO and UNICEF
Regional Workshop on Equivalency Programmes and Alternative Certified Learning,
2011.
234See above, note 60, Article 24(1). In addition to this general duty, Article 24 (2)
and (3) specify the obligation to diminish infant and child mortality, develop
primary healthcare, combat disease and malnutrition, ensure pre-natal and post-
natal care for mothers, provide health education, develop preventative healthcare
and abolish traditional practices detrimental to the health of the child.
70
seekers and undocumented persons, including children, continue to face

difficulties in accessing these healthcare services.
In 2007, the UN Committee on the Rights of the Child recommended that

“children without official documentation should be allowed to access basic
services, such as health and education, while waiting to be properly
registered”.235 Despite this, many refugee and asylum seeking Rohingya
children still continue to be deprived of their right of access to such health
care services.
Government health care facilities are accessible to non-Malaysian

residents at a significantly higher cost.236 In June 2005, UNHCR Malaysia
and the Ministry of Health entered into a formal agreement (a copy of
which has not been made publicly available) according to which all
refugees recognised by UNHCR were to be given a 50% discount on fees
charged to foreigners for healthcare services at government hospitals.237
In order to obtain these discounted fees, refugees must present their
UNHCR cards and in some instances a letter from UNHCR stating that they
are “persons of concern” who are eligible for the discount. Even with the
50% discount however, Rohingya refugees are still unable to afford
healthcare, especially since they are unable to work legally in the country.
Another problem is that, in theory, the law requires valid documentation

recognised by the State to access any government healthcare facilities.

236 According to the Malaysian Ministry of Health, a Malaysian citizen is charged
only RM 1 (USD 0.32) for outpatient treatment, and a non-Malaysian citizen is
charged RM 15 (USD 4.80) for that same treatment. Similarly, an expecting mother
who delivers in a government hospital will have to pay RM 3 (USD 0.96) for ward
charges, RM 10 (USD 3.20) for a normal delivery charge or RM 100 (USD 32.10)
for a caesarean delivery if she is a Malaysian citizen. However, a non-Malaysian
citizen will have to pay at the very least RM 40 (USD 12.30) for ward charges, RM
500 (USD 153) for a normal delivery charge or RM 1,000 (USD 306) for a caesarean
delivery. For this and more related information, see: http://www.moh.gov.my/
index.php/pages/view/163.
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This, according to a 2006 circular from the Ministry of Health, should also
include UNHCR refugee cards.238 However hospital personnel are legally
obliged to report unregistered persons to the police or immigration
authorities, who may then arrest and detain such persons upon
completion of treatment.239 As expressed by a Director of a public
specialist hospital in Penang:
Actually, all these procedures are the same as for other

patients. We at the hospital never sided or have bias against
anybody. We are indeed responsible for providing health
services to all including the needy, especially in emergency
cases. Furthermore, we have an understanding with the
WHO, UNICEF and UNHCR which means we must accept
anyone who comes to us for health care. After that, other
normal procedures will be implemented such as checking
documents, charging for the treatment and so on.
Yes, we have cooperation with both the Immigration

Department and the police. For those foreigners who do not
have documents, we have to report them to the
Immigration Department for further action. We must
report, otherwise we will be blamed if anything untoward
happened. However, medical treatment must be given to
them even if they do not have documents.240
As of late March 2014, there have been reports from NGOs and refugee
communities that the personnel of Kuala Lumpur General Hospital (the
main government hospital accessed by refugees and asylum seekers in
Kuala Lumpur) have been reporting unregistered asylum seekers to the
immigration authorities.241 Unregistered asylum seeking pregnant women
238 See above, note 46. Note that the circular makes no mention of asylum seekers.
239 See above, note 93, section 56.
240 Interview MYS 4, with Hospital Director, Penang, 1 August, 2012.
241 Health Equity Initiative, Press statement: Stop the Arrest and Detention of Asylum
Seeking Women Accessing Maternal Health Care, 3 April 2014.
72
admitted to the hospital were informed that they would be sent to

detention upon delivery of their babies despite paying the hospital fees. In
some instances these women were sent with their new-born babies to
detention centres while in other instances the mother was separated from
the child, who remained in the hospital.242 Despite hospital authorities
asserting that these women were given treatment, the implications of
separating a new-born from its mother as well as sending new-borns and
persons who are in recovery to detention centres may be very harmful to
the wellbeing of mothers and children, and violate the principle of the best
interest of the child. There were about 15-20 such cases reported by NGOs
and community organisations to UNHCR in the span of one month.
However, as reported by UNHCR, Mother and Child clinics do provide

services to pregnant Rohingya women, whether documented or not.
UNHCR has been able to provide translation services at some of these
clinics that are attended by a large number of refugee women. The agency
does believe that many Rohingya can access antenatal and postnatal
healthcare, but acknowledges that access remains a challenge for those
who lack finances or have to travel long distances to clinics.243
Not all health care personnel choose to adhere to this law and in some rare
cases smaller government clinics accept the community card as a form of
documentation, and provide treatment at the full non-citizen rate.244
However, for many Rohingya communities the fear of arrest and the
possibility of detention and deportation is a very real deterrent that
impedes access. Accessing private health care services where personnel
rarely report undocumented persons to the authorities is also rarely an
option due to the exorbitant costs for these services.
The inability to access maternal care and general healthcare has had
serious consequences for refugee and asylum-seeking Rohingya children.
In assessing the nutritional status of Rohingya children in Kuala Lumpur,
researchers found that of 87 children sampled for the study about 27%
242 Ibid.
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were underweight, 11% stunted, 16% thin, 18% had low birth weight and
12% had received no immunisation.245 Apart from nutritional deficits,
fever (68%) and flu (62%) were the most common childhood illnesses
reported, with 75% of the children with these illnesses not receiving any
medical treatment.246
Specifically for new arrivals, communities have reported various stages of

paralysis among youth between the ages of 16-18,247 which they believe
was caused by nutritional deficiency and being held in confined spaces
during the perilous journey to Malaysia.248 These cases have since been
identified as beriberi, due to poor nutrition, which can easily be treated
with intake of vitamin B1 (thiamine).249 Unfortunately Malaysian hospitals
have failed to diagnose this as the disease is no longer apparent in
Malaysia.250 Although generally these youth are receiving treatment from
government hospitals, their long-term care has been mostly managed by
community members, who lack the resources to do so.
3.4. Denial of the Right to Work and Resulting Vulnerabilities
Article 27 of the ASEAN Human Rights Declaration asserts that:
Every person has the right to work, to the free choice of

employment, to enjoy just, decent and favourable
conditions of work and to have access to assistance schemes
for the unemployed.
In addition, Article 27 also provides for the right for workers to protect
their interests in accordance with national laws, including the formation
Mohd Shariff, Z. and Tan, S. T., “Nutritional status of Rohingya children in Kuala
245
Lumpur”, Malaysian Journal of Medicine and Health Sciences, 7 (1), 2011,pp. 41-49.
246 Ibid.
250 Ibid.
74
of trade unions. Malaysia has also ratified all the fundamental ILO
Conventions except for the Abolition of Forced Labour Convention and the
Freedom of Association Convention.251
Foreign migrant workers (as opposed to expatriate workers) from

selected countries in Malaysia are only allowed to work in the
manufacturing, construction, plantation, service and domestic help
sectors.252 As refugee and asylum seekers have no legal status in Malaysia,
they are regarded as having the same legal status as irregular migrants;253
without any right to work in the country. As noted in section 2.4 above,
persons who employ, house or harbour irregular migrants are also subject
to severe penalties.
Notwithstanding the legal framework, in practice, refugees and asylum

seekers do take up informal employment and authorities have for the most
part turned a blind eye to this. However because they have no legal right
to work, many Rohingya will turn to informal work that is hazardous,
poorly paid and with no protection. The most common forms of
employment for men, especially in urban areas, are work on construction
sites, restaurants and work within local municipalities where they sweep
roads and collect garbage.254 Some long stay Rohingya men work in the
markets where they sell vegetables; whereas most new arrivals work on
the paddy fields up north or on fishing boats along the East Coast of
Malaysia:255
251Malaysia has ratified 17 ILO Conventions, of which 15 are currently in force,

one is to be enforced and one was denounced in 1990. See International Labour
Organization, ILO Ratifications for Malaysia, available at: http://www.ilo.org/dyn/
normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102960.
For more information, see Malaysian Investment Development Authority,
252
Employment of Foreign Workers: Immigration Procedures, available at: http://

www.mida.gov.my/env3/index.php?page=employment-of-foreign-workers.
253 See above, note 93, section 8(3)(k), under which they are defined as “prohibited
immigrants”.
255 Ibid.
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Equal Only in Name
We do all kinds of work as general labourers, small traders,

and assistants at grocery stores, restaurants, markets and
hand phone shops; collecting discarded items and so on. But
we prefer to work in construction as a labourer where we
may get RM 50 or RM 60 (USD 16-19) a day.256
In the construction sector, the skilled Rohingya will earn

about RM 50 (USD 16) a day and some will even get up to
RM 70 (USD 20). Those who are not skilled, for example
those who work in the wholesale market and restaurants,
will usually get a salary ranging from RM 20 to RM 30 (USD
6 -10) per day.257
Rohingya women on the other hand generally tend not to work; or obtain
a small income by selling small household or food items.258 With the
increasing number of women entering Malaysia, this trend may change
over time.
Work in these conditions is extremely challenging – the hours are long,

conditions are hazardous and unsanitary, with little to no benefit.
Rohingya refugees and asylum seekers are vulnerable to arrest and
detention at workplaces especially during raids as the law prohibits them
from working; this further impedes on earning a wage:
They will be happier if they can be allowed to work legally.

Payment is either done by the hour or daily. If there is an
operation, they will miss out on that day’s salary.
Sometimes this can be up to one week if there are many
operations being carried out during that time. For example,
last year, many Rohingya were not able to work for almost

76
a month at the Selayang wholesale market because of

operations being carried out.259
For some Rohingya, employment is either not permanent or they are part-
employed with many days without work and pay. The potential to be
abused and exploited is very high as they have no legal recourse or
complaints mechanisms. Many work below the minimum wage levels,
earning below RM 800 (USD 250) a month, whilst others are often cheated
by employers who fail to pay their wages. On the job accidents resulting in
serious physical injuries and sometimes even death are common as
employers fail to put in place any health and safety procedures for
refugees, asylum seekers and irregular migrants. These workers are also
often dismissed without compensation as they become a liability.260
In September 2013, news reports indicated that the Malaysian

government was considering allowing registered refugees awaiting
resettlement to work legally in the country.261 The move, announced by
the Ministry of Home Affairs, was to address the labour shortage in certain
sectors – namely the construction and plantation sectors – and to reduce
the number of irregular migrants currently working in the country.262
Although this move is potentially a step in the right direction, it is
important that the appropriate procedures and mechanisms are put in
place to ensure that employment is properly regulated and refugees are
adequately protected and not exploited in the process. As the law does not
clarify their current legal status, this will be a challenging task. At the time
of writing however, there have been no further reports of this move.
UNHCR has also raised proposals with the Malaysian government on the

260See above, note 78, p. 160. For more information, see also Tenaganita, Clearing
Misconceptions: The Truth About Migrants In Malaysia, 9 May 2012; and
International Rescue Committee, In Search of Survival and Sanctuary in the City:
Refugees from Burma in Kuala Lumpur, December 2012.
261Star News Online, “Getting refugees to fill labour needs”, Star Online, 15
September 2013.
262 Ibid.
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Equal Only in Name
development of a framework to allow refugees the right to work.263 These

proposals, distinct from the IMM13 initiative,264 urge the Malaysian
government to grant registered refugees awaiting resettlement access to
legal work. However, the government has yet to respond to these
proposals.
During the UN Human Rights Council Universal Periodic Review for

Malaysia, it was recommended that Malaysia should “allow refugees and
other migrants to seek employment while they await resettlement or other
durable solutions.”265 The Malaysian government responded by rejecting
this recommendation in its entirety.266
3.5. Other Rights
3.5.1. Access to Adequate Housing
Rohingya communities live in various states across the country, mainly

situated in areas where there are employment opportunities – largely
within urban areas or areas with factories and plantation sites. As a
consequence of an inability to work formally, finding adequate housing can
be a challenge with communities living in low cost housing areas, in
squalid conditions and with many persons living under the same roof. The
lack of legal documentation also makes it difficult for refugees to rent
houses as landlords often require some identification document and proof
of ability to pay.267 Refugee communities also report that they are often
required to pay rentals that are approximately 20 % higher than the usual
market rate.268

264 See above, note 104 for more information on the IMM13 initiative.
265Recommendation 146.28 by the United States. For more information see UPR
Info, 2RP: Responses to Recommendations and Voluntary Pledges, Malaysia
Universal Periodic Review, Second Review, Session 17, 12 February 2014.
266 See above, note 72, Para 9.
78
For new Rohingya arrivals, access to shelter and housing is a main priority
and a challenge. New arrivals, having survived the arduous journey, now
face the challenge of living in an environment without any legal
protection. In general, there are very few shelters in Malaysia, whether
government- or privately run. Government-run shelters are generally not
accessible to refugees, asylums seekers and other non-citizens, while
spaces at NGO shelters are extremely limited. For the most part, there is
an over-reliance on community members who assist, where possible, in
providing temporary housing for new arrivals. However, this means that
living conditions are crowded, unsuitable for new arrivals with severe
physical and mental trauma, and there is a heightened risk of violence
especially for children and women.
3.5.2. Marriage and Family Life
According to Article 19 of the ASEAN Human Rights Declaration, a person

of full age and with consent has the right to marry, start a family and
dissolve a marriage, as prescribed by law. The National Registration
Department conducts registration of non-Muslim marriages in Malaysia,
and the process is largely similar for citizens and non-citizens, except that
foreign citizens are required to produce a letter from their government
before they are able to marry in Malaysia.269 Muslim marriages are
governed by the Islamic Family Law (Federal Territories) Act 1984 which
states that a marriage can only be solemnised in the presence of, or with
permission of a Registrar as appointed by the State Ruler (Yang di-Pertua
Agong), and within a prescribed period of time for late registration.270
What this means therefore is that registration of Rohingya marriages is

usually done within their communities. Communities assert that they are
unaware of any Malaysian local religious authorities who are willing to
authorise Rohingya marriages. As until recently, most Rohingya who have
269Civil marriages are governed by the Law Reform (Marriage and Divorce) 1976.
For more information see the website of the National Registration Department of
Malaysia, available at: http://www.jpn.gov.my/en/servicesmarriageordivorce.
270 Islamic Family Law (Federal Territories) Act 1984, section 28.
79
Equal Only in Name
made the journey to Malaysia were men, marriages have often taken place
between Rohingya men and local Muslim women, or, more commonly,
Indonesian migrant workers. According to one group, about 2 000
marriages between Rohingya men and Indonesian migrant women have
been registered with the community.271
I met [my wife] in 2003. She was a factory worker from

Medan, Indonesia who had been working in Penang since
2000. After a short romance, we got married in 2004 in Alor
Setar, Kedah. We were married by a respected Rohingya
ulama272 who is also a hafiz.273 The ceremony was short and
followed all the usual religious requirements of a Muslim
marriage, except that it did not have any formal
registration or legal documentation. My marriage was
finally registered in 2007 by the Rohingya Information
Centre (RIC) and we were given a marriage certificate
issued by the RIC. However, my marriage was not
sanctioned by the Malaysian Syariah law as the RIC
certificate has no legal standing in Malaysia; my marriage
was also not registered with the Indonesian Consulate.274
The consequence of this is that Rohingya marriages are not recognised by

the State, resulting in complications when trying to register the births of
children. This is further complicated by the fact that migrant workers in
Malaysia are not allowed to marry or have children and will be
immediately deported upon discovery.275 As a result, Rohingya men who

272 A Muslim scholar.
273 A person who has completely memorised the Quran.
274Interview MYS 7, with 38 year old Rohingya who is married to an Indonesian
Migrant worker in Malaysia, Penang, 22 October 2012.
275 Immigration policy on employment of foreign workers and domestic helpers in
Malaysia. For more information see: http://www.imi.gov.my/index.php/en/main
-services/foreign-worker.
80
marry migrant workers are reluctant to register marriages with the State
as they fear their wives will be deported.
We have two children – boys, ages six and four. Our children
have birth certificates, one with a registration number and
one without. The birth certificates state that the father is
from Myanmar and the mother from Indonesia. Although
they are now attending pre-school classes nearby, we are
worried that they will have no future in Malaysia, as they
are not allowed to attend public schools. The only
alternative would be to send them to an NGO run school but
they will not obtain any formal certificates. Private school
is not an option because it is very expensive. Although I
know the process is difficult, I have to migrate to Australia
to give my children a better future. I was told by friends that
only my wife will be allowed back to Indonesia; not myself
nor our children.276
In an exception to this rule, the Selangor State government has provided

guidelines under Syariah law on the registration of marriages for Muslim
UNHCR cardholders in the state.277 The guidelines detail the necessary
documentation required for registration,278 the application form and the
relevant Islamic Affairs Offices where this registration can be done. A
marriage certificate will be issued following proper registration. So far
there has been no indication that other states will follow suit.

277 Islamic Family Law (State of Selangor) Enactment 2003 (Enactment 2/2003)
for persons residing in the state of Selangor.
278 Ibid. Documentation includes: UNHCR card, conversion certificate if born a non-
Muslim, marital consent from UNHCR Malaysia and the Selangor Chief Registrar,
HIV test from any government clinic, length of stay verification, verification of
parents’ marriage, pre-nuptial course certificate if any, and for female applicants
death certificate/divorce letter of previous spouse/marriage.
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Equal Only in Name
3.5.3. Death and Burial
In general, the local religious authorities (JAKIM) and mosques facilitate a

Muslim burial for Rohingya. However, there have been reports that the
local village heads and imams have disallowed burials, often without
reason.279 Some communities also ask hospitals to take care of the burials
but families would have to pay about RM 1,600 (USD 500) for this to be
carried out. Most are unable to afford to pay such high burial costs. The
communities get no support from UNHCR or other NGOs in relation to
burials.280
In instances where no one claims the body, hospital authorities have made
arrangements for a burial:
On the matter of death, the hospital will deliver the remains

to the relatives, if there are any. If no one claims the body,
the hospital will inform UNHCR; and if UNHCR does not
claim, then the hospital will ask the cooperation of the
nearest Islamic Religious Department to perform the
prayers and burial services.281

280 Ibid.
82
Conclusions And Recommendations
4. CONCLUSIONS AND RECOMMENDATIONS
This report provides an insight into the human rights situation of both the
long-staying and recently arrived Rohingya population in Malaysia. While
the violence in Rakhine State since 2012 has placed more of a spotlight on
the multiple human rights violations, including protracted statelessness,
experienced by the Rohingya in Myanmar, Malaysia’s policies and
practices towards them remain for the most part unchanged. Although the
government has taken commendable steps to allow Rohingya to enter
Malaysia and to access UNHCR, further efforts can and should be taken to
achieve a more long-term and durable solution that benefits the country
while ensuring that the Rohingya are able to enjoy their fundamental
human rights. Malaysia is also striving to achieve developed nation status
by 2020 and to meet its targets under the Millennium Development Goals
by 2015. Ensuring the rights of non-citizens as well as Malaysian nationals
is integral to achieving these goals.
Many of Malaysia’s domestic laws and policy initiatives can be

strengthened to increase protection for the Rohingya, especially if
implemented in an effective and non-discriminatory manner. If Malaysia
acts on the recommendations below, it will become a safer destination for
Rohingya refugees. Concerns that this will result in an unmanageable
increase in new arrivals are legitimate and must be addressed. There is a
danger that any one country which – in isolation – strengthens its
protection framework for refugees will be disproportionately burdened as
a result.
While strengthening protection may bring new challenges, failing to do so

comes at a cost as well. The present status quo is damaging and
unsustainable. The individual human cost is documented by this report
and others. There are also national and regional costs to stability,
international relations and reputation. The present regional stalemate
only serves to worsen the situation over the long-term. Malaysia is well
placed to take a leadership position at the regional level to break this
stalemate by championing a rights-based response to the Rohingya issue
83
Equal Only in Name
and encouraging other states to do so as well. Given the regional

dimension of the issue, it is only if states take individual responsibility
while also working collectively to protect the Rohingya that effective
protection is likely to be achieved.
The Rohingya are a discriminated against stateless community, and the

majority of those who have fled Myanmar are refugees and should be
recognised as such. The lack of an adequate refugee and/or statelessness
protection framework in Malaysia has resulted in the Rohingya being
treated as irregular migrants with no access to basic human rights
protection. The failure to recognise the vulnerabilities of Rohingya as
refugees and stateless persons and to accordingly protect them has a
discriminatory impact on the Rohingya and their enjoyment of human
rights. Violations of the right to liberty and freedom of movement, as well
as the right to work, are everyday concerns for most Rohingya, and fear of
police harassment, arrest, detention and deportation affects their lives.
Without access to public schools and healthcare, there is also significant
concern among the settled Rohingya community that their children have
no future. Although Malaysia has for the most part allowed Rohingya boat
arrivals to disembark and access UNHCR, they must still endure arrest and
prolonged detention in overcrowded and ill-equipped detention facilities
which are highly damaging to their physical and mental health,
particularly for women, children and those who are already unwell or
traumatised.
Despite the human rights challenges in Malaysia, Rohingya do not face the
acute discrimination and persecution they experience in Myanmar.
Consequently, it is not surprising that of those interviewed, few expressed
the desire to go back to Myanmar. Many, particularly long-stayers and
those with strong community links, stated that they would prefer to
remain in Malaysia, particularly if they had better security and could work
without being arrested. Some also reported that remaining in Malaysia
was preferable to resettling in a third country such as the United States
where Islam is not the main religion. In specific terms, some form of legal
stay rights, the right to work and access healthcare, the right to register
the births of and educate their children and freedom from exploitation,
harassment, extortion, arrest, detention and deportation at the hands of
police and other authorities were common requests made by most
84
interviewees. Many expressed a hope that the government would

reinvigorate the IMM13 permit or some other form of legal stay right that
would offer more long-term security for them and their children in the
country, and which would also allow them to make more effective
contributions to the Malaysian labour force and economy.
Ultimately, the Rohingya in Malaysia want recognition as members of a

society with the ability to live in dignity and contribute to the communities
they live in. If they are unable to receive this in Myanmar, their aspiration
is that Malaysia, their adopted country, will offer them such futures. While
many accept their plight, they do have aspirations on behalf of their
children who they hope will have better, more stable futures.
In light of the information presented in this report, the following

recommendations are made:
Equality and non-discrimination – Malaysia’s domestic legal and policy

framework related to non-discrimination and equality remains weak and
falls short of international standards. Though the provisions of the Federal
Constitution include non-citizens in the constitutional guarantee of
equality, they exclude them from the guarantee of non-discrimination as
well as other key rights. The inequalities and discrimination faced by the
Rohingya in Malaysia have a fundamental impact on the enjoyment of all
of their other human rights. Such treatment of the Rohingya is untenable
and runs counter to international law.
Malaysia should treat the Rohingya without discrimination and ensure

their equal access to the protection and enjoyment of human rights. While
this can be achieved in part through the proper implementation of existing
laws and policies, it also requires changes to certain laws and policies
which are directly or indirectly discriminatory. Actions to strengthen the
rights of the Rohingya will also contribute to addressing the historic
disadvantage of the community. In particular, it is recommended that
Malaysia:
1. Review and repeal all discriminatory laws.

2. Ensure that all laws and policies are implemented in a non-
discriminatory manner.
85
Equal Only in Name
3. Adopt comprehensive and effective national equality legislation,

containing the essential elements for such legislation required
under international law and summarised in the Declaration of
Principles on Equality.
Statelessness and lack of legal status – The statelessness of the

Rohingya and their resultant lack of a legal status in Malaysia is a core
problem that impacts generally on the enjoyment of their human rights.
While the statelessness of the Rohingya is the result of discrimination in
Myanmar, the resultant lack of legal status in Malaysia is largely because
the country does not have a protection framework in place for stateless
persons. Although the punitive provisions of the Immigration Act and the
lack of a domestic framework for the protection of refuges and asylum
seekers place all persons of concern to UNHCR at risk, the statelessness of
the Rohingya places them at an even greater disadvantage:
1. As stateless persons, many long-staying Rohingya have no option

but to remain in Malaysia, and thus, while the insecurities and
difficulties faced by “economic migrants” maybe temporary, those
faced by the Rohingya are potentially life-long and even
intergenerational.
2. Stateless Rohingya who are unable to register with UNHCR or
whose claims for asylum are rejected are at risk of indefinite
detention.
Rohingya children born in Malaysia are also stateless because they have
no access to Malaysian nationality. Malaysia has made a reservation to
Article 7 of the CRC but still has obligations under Article 8 of the CRC as
well as its own Federal Constitution to protect those who have illegally
been deprived of their identity and nationality, and to accord nationality
to persons born in Malaysia who would not otherwise have a nationality.
Consequently, it is recommended that Malaysia should implement a

protective framework for the treatment of stateless Rohingya, provide
legal stay rights for stateless Rohingya, ensure that statelessness does not
result in further disadvantage and protect the rights of stateless Rohingya
children born in its territory, including, ultimately, through access to
nationality.
86
Refugees and asylum seekers – Rohingya arriving in Malaysia should

have access to registration and refugee status determination in order to be
recognised as refugees. Malaysia has a significant refugee and asylum
seeking population with which it is struggling to cope. Although UNHCR
Malaysia carries out registration, status determination, documentation,
and facilitates durable solutions for the Rohingya, the agency has
insufficient institutional capacity which has impacted on its ability to
effectively provide these services to the Rohingya and other persons of
concern.
Rather than maintain the status quo, a protection-based approach to

accommodating refugees will ultimately ease the burden on the system,
transforming irregular migrants with no stay rights or associated rights to
work into productive members of society who are no longer a burden on
the system.
In particular, it is recommended that:
1. UNHCR be granted access to all refugees including the Rohingya in

order to conduct RSD and fulfil its protection mandate.
Importantly, documentation provided by UNHCR to refugees and
asylum seekers should be recognised by all police and other
officers of the state as valid protection documents.
2. The Malaysian government should consider reintroducing the

IMM13 permits (or an equivalent) for Rohingya and other refugees
to allow them to work and grant them residence rights while
durable solutions are being sought for them. This would enable a
significant number of Rohingya to live a more secured and
dignified life in Malaysia and would also allow the country to
benefit economically from their presence.
3. Increased resources should be allocated to UNHCR Malaysia to

overcome delays in registration and register all Rohingya and
other asylum seekers, regardless of their geographic location.
Information concerning these processes as well as any initiatives
to achieve durable solutions should be made available to the
87
Equal Only in Name
Rohingya community so they are aware of their rights, obligations

and the likely time it will take UNHCR to process their applications.
4. Malaysian refugee and immigration policy should distinguish

between refugees, stateless persons and irregular migrants, and
respond to each group according to their specific protection needs,
within a wider framework of immigration control. In the absence
of specific laws recognising the rights and protection needs of
refugees and stateless persons, the discretion contained in section
55 of the Immigration Act should be utilised to enhance the stay
rights of these groups. In particular, they should benefit from the
rights to work and education, which are essential for their long-
term survival and development in a manner that is conducive to
individual dignity and not burdensome to the state.
5. Durable solutions must be sought for the Rohingya and all refugees
in Malaysia. International refugee norms assume three durable
solutions: repatriation, local integration, and resettlement. For the
Rohingya, repatriation will continue to not be an option as long as
the Rohingya suffer persecution in Myanmar. Globally, there are
very few opportunities for resettlement with demand far
outweighing supply. Only a small number of Rohingya who have
been recognised as refugees by UNHCR have been resettled to
third countries. Thus, the international community should provide
greater resettlement opportunities for Rohingya in Malaysia; this
would not only help ease some of the challenges faced by the
Malaysian government and UNHCR in managing this population,
but would also provide incentive to the Malaysian government to
permanently integrate Rohingya for whom resettlement is not the
best durable solution. This would include most Rohingya children
born in the country.
Liberty and security of the person – The irregular status of the Rohingya
in Malaysia has a significant impact on their enjoyment of the right to
liberty and security of the person as they are vulnerable to arbitrary arrest
and prolonged detention in damaging conditions that fall far below
minimum international standards. Although standard operating
procedures and directives have been issued clarifying that UNHCR card
88
holders should not be arrested or detained when the authenticity of their

cards have been verified, these are not codified into law and as a result,
have not been uniformly or consistently applied. Rohingya and other
asylum seekers who are not registered with UNHCR are at particular risk
of arrest, prolonged detention and deportation. Of particular concern is
that UNHCR does not have access to two of the 14 immigration detention
centres in the country.
Consequently, it is recommended that Malaysia’s immigration detention

policies are reviewed and brought in line with international law. The
Immigration Act should be revised to recognise the specific rights and
protection needs of refugees, stateless persons and asylum seekers,
including the right to liberty and security of the person. The whipping of
all irregular migrants should be abolished as a matter of urgency. The
government should establish a screening process to ensure that refugees,
stateless persons and asylum seekers, including their children, are rapidly
identified. Detention should be a measure of last resort and only used
where necessary, justified and proportionate, and alternatives to
immigration detention should be considered in the first instance. If
detention is necessary and justifiable, then it should be for the shortest
time possible and in conditions that at the very least meet international
minimum standards. The Equal Rights Trust’s Guidelines to Protect
Stateless Persons from Arbitrary Detention which are based on existing
international standards may be a useful resource in this regard.
The rights of the child – Rohingya children, particularly those born in

Malaysia, are entitled to protection. Malaysia is to be commended for its
significant progress towards achieving universal birth registration and
access to education for citizen children. Rohingya children should not be
left out of this process. Although Malaysian laws provide for all children to
be registered at birth, implementation of these laws should be
strengthened so that Rohingya parents are able to register their children
without impediments such as inability to pay hospital fees or fear of arrest
and detention. Malaysia should also ensure that Rohingya children with or
without documentation are able to access affordable health care, without
fear of arrest and detention as recommended by the Committee on the
Rights of the Child. Rohingya children should also have access to free and
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Equal Only in Name
formal education, and those attending informal learning centres should

have access to official examinations.
Further, Rohingya children should never be detained for immigration

purposes, and children and their families should be allowed to remain in
community-based alternatives to detention. Children should not be
separated from their parents, in line with the right to family unification. In
line with Malaysia’s obligations under the Convention on the Rights of the
Child, it must ensure that the best interests of the child should be a primary
consideration and detention is always used as a measure of last resort and
then for the shortest time possible. Finally, Malaysia should remove all of
its reservations to the CRC, in particular to Articles 2 and 7.
The right to access healthcare – The current cost of health care for
foreigners and the requirement for valid documentation to be presented
acts as a barrier for Rohingya to access government healthcare facilities.
The risk of arrest and detention that irregular migrants seeking treatment
at government hospitals face has a serious impact on their mental and
physical health and may potentially lead to broader public health concerns
if people are deterred from seeking medical assistance when needed.
It is recommended that the Ministry of Home Affairs and the Ministry of

Health review current policies on access to health care, so that all refugees,
asylum seekers, stateless persons and other irregular migrants are able to
seek and obtain affordable medical treatment without fear of arrest and
detention. Vulnerable individuals such as children, pregnant women,
nursing mothers, the disabled, the elderly, survivors of torture and victims
of trafficking, and terminally ill persons must be able to receive medical
treatment and should not be placed in detention during or upon
completion of treatment, particularly if the reasons for detention are due
to their irregular status.
The right to work and an adequate standard of living – The challenges

faced by Rohingya in accessing formal labour markets have a significant
impact on their lives, including access to basic rights. These challenges
have also increased Rohingya vulnerabilities to abuse and exploitation as
they are forced to pursue non-formal work as a means of making an
income. It is recommended that the Malaysian government effectively
90
address this by developing a comprehensive labour policy that enables

Rohingya and other refugees and asylum seekers to obtain work permits
to work legally without fear of arrest and exploitation. This policy should
also put in place protective mechanisms that provide for basic labour
rights according to international standards, pending a final durable
solution to their case. This initiative would also assist Malaysia in
addressing its labour shortages and benefit the country in its drive to
achieve developed nation status by 2020.
Smuggling and trafficking – Based on recent reports that a number of

trafficking and smuggling rings have relocated their camps from southern
Thailand to northern Malaysia, it is imperative that the Malaysian
authorities step up efforts to address this. It is recommended that Malaysia
make use of existing international, regional as well as its national
standards and frameworks to enhance protection for victims of trafficking
and to also ensure access to such mechanisms for the Rohingya and other
victims. Malaysia should ensure that any collusion between traffickers and
police and immigration authorities is immediately halted and perpetrators
brought to justice.
Response to anti-Rohingya violence - The response of Malaysia to the

2012-2013 boat people has not been adequate. While Malaysia has
generally allowed boat arrivals to disembark, its response has not been
grounded in a protection framework and the practice of subjecting boat
arrivals to mandatory prolonged detention is a violation of international
law. It can be difficult for any country to deal with such unpredictable
migration flows, and distinguishing Rohingya refugees from Bangladeshi
migrants also poses a challenge. However, Malaysia is urged to approach
this situation from a humanitarian and human rights perspective, to
ensure the integrity of its borders while also protecting the rights of all
vulnerable migrants including asylum seekers and stateless persons.
Malaysia is urged to continue to protect its sovereignty and borders in a

manner which increasingly also prioritises the human rights protection of
vulnerable persons. Such a human rights-based approach to sovereignty is
a difficult but achievable goal which will strengthen human rights
protection and serve as an example to other nations.
91
Equal Only in Name
Accession to human rights, statelessness and refugee treaties - A

significant step to improving the protection of refugees and stateless
people in the country, including the Rohingya, would be to accede to the
remaining key human rights treaties – namely, the ICCPR, ICESCR, ICERD,
CAT and CMW – but also to the Convention Relating to the Status of
Refugees and its Protocol, the Convention Relating to the Status of
Stateless Persons, and the Convention on the Reduction of Statelessness.
These conventions require state parties to protect the rights of refugees
and stateless persons and to reduce statelessness. Furthermore, they
provide the legal basis for UNHCR to exercise its protection mandate.
Accession to these treaties and the introduction of domestic law and
policy mechanisms for their implementation would be a significant
breakthrough in the protection of refugees and stateless persons. This is
likely to have a positive impact not only in Malaysia, but also in the ASEAN
region, which at present has a poor ratification record of these treaties. In
addition to benefiting individual stateless persons, asylum seekers and
refugees, accession will also bring benefits to Malaysia as these treaties
promote “responsibility sharing”, which can help Malaysia handle the
perceived burden of handling refugees.
Regional approach – As has been made evident throughout this report,

the Rohingya issue is a regional one which concerns a number of countries.
It is recommended that states in the region foster more collaboration and
seek to collectively address the issue, while also acknowledging their
individual responsibility in this regard. Importantly, any regional
approach should be grounded in human rights and humanitarian
principles of equality, non-discrimination and protection. Malaysia is well
placed to take a leadership role in promoting such an approach and should
use its place on regional mechanisms including ASEAN, AICHR, ACWC and
the Bali Process to good effect in this regard. Strategically, the rights of
Rohingya children may be a useful entry-point, and Malaysia is in a
position to lead by example by better implementing its existing policies on
universal birth registration and access to education, and also giving effect
to the provisions in the Federal Constitution that already provide for the
acquisition of nationality for stateless Rohingya children born in the
country.
92
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103

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EQUAL RIGHTS TRUST IN PARTNERSHIP WITH

THE INSTITUTE OF HUMAN RIGHTS AND PEACE

The Human Rights of Stateless

London, October 2014

© October 2014 Equal Rights Trust and

© Cover Design October 2014 Shantanu Mujamdeer / Counterfoto

© Cover Photograph Saiful Huq Omi

Design and layout Shantanu Mujamdeer / Counterfoto

All rights reserved. No part of this publication may be translated,

Equal Rights Trust

The Equal Rights Trust is a company limited by guarantee

I believe that Malaysia will recognise refugees (…)

2. THE INTERNATIONAL LEGAL FRAMEWORK 21

3. PATTERNS OF DISCRIMINATION AND INEQUALITY 38

4. CONCLUSIONS AND RECOMMENDATIONS 83

This report is published by the Equal Rights Trust, in partnership with

The multi-country project research team was led by Dr Sriprapha

The initial field research for Malaysia was overseen by Dr Sriprapha

Throughout the project implementation period, the Equal Rights Trust

The immense contribution of the Arakan Project, which generously gave

This report is the outcome of a partnership between the Equal Rights

ACWC ASEAN Commission on the Promotion and Protection of

RM Ringgit (the currency unit in Malaysia)

1.1. Purpose and Structure of This Report

Burma is not our land anymore though I was born there.1

Stateless, discriminated against, treated unequally, excluded and

The purpose of this report is to highlight and analyse the discrimination

entitled Trapped in a Cycle of Flight: Stateless Rohingya in Malaysia, in

1.2. Conceptual Framework and Research Methodology

The right to equality is the right of all human beings to be

The Declaration proclaims that the right to equality extends to guarantee

The unified human rights perspective on equality is central to the

5 See above, note 2, Principle 1, p. 5.

individual responsibility of states to protect the human rights of all

This report looks at Malaysia’s place in the regional picture of stateless

Interviews focused on equality and non-discrimination and on patterns of

A significant research challenge has been the fast evolving situation,

and a follow-up report in November 2012.6 Furthermore, the researchers

1.3. The Rohingya

The Rohingya are an ethno-religious minority group from the Rakhine

1.3.1. Ancestral Roots

internally displaced and confined to camps.

1.3.2. Ethnic Identity

15 Interview MYA 8, with a Rohingya activist in Yangon, June 2013.

1.3.3. Arbitrary Deprivation of Nationality

The majority of Rohingya in Myanmar today have been deprived of their

Whilst the erosion of the rights of the Rohingya is an on-going process,

19 Some examples of this participation in nation-building, evidenced with copies of

in Human Rights Watch, Burma: Rohingya Muslims: Ending a Cycle of Exodus?, 16

from them by inter-agency teams of inspectors.22 There were reports of

Subsequently, the military regime under General Ne Win promulgated the

In 1992, the NaSaKa was established as an interagency border force by the

1.3.4. Since the Violence of 2012

29 See above, note 19.

This violence, together with the economic and social ostracisation of

1.3.5. Overseas Rohingya

1.4. The Rohingya in Malaysia

Although Malaysia is not a party to the 1951 Refugee Convention or its

Currently, Malaysia hosts one of the largest urban refugee populations in