The 2015 Humanitarian Crisis

In May 2015, the Andaman Sea and Bay of Bengal witnessed a major humanitarian crisis. It began with the discovery of mass graves of smuggled migrants on the border of Thailand and Malaysia. Thai police found more than 175 graves along commonly used smuggling routes, which prompted national and regional action to combat people smuggling and trafficking.[1] People smugglers subsequently began to divert their routes from on-land travel across Thailand to more dangerous transportation by boat directly to Malaysian shores.[2] As local authorities threatened to intercept these boats, smugglers opted to flee by abandoning the migrants at sea.[3] This inevitably led to the crisis where approximately 8,000 people were left abandoned in overcrowded boats without food or water.[4]

These people had faced extreme discrimination, poverty and unemployment in Bangladesh and Myanmar.[5] They turned to people smugglers to arrange their transport to countries such as Malaysia, Thailand and Indonesia in the hope of a better life.[6] However, many found themselves floating at sea with little means to survive. Nations struggled to reach a solution to the problem, initially pushing back the migrants but ultimately accepting them on a temporary basis. It is estimated that 370 people died as a result of poor conditions on board and mistreatment by smugglers.[7]

Smuggled migrants are but one category of irregular migrants. Others include trafficked persons as well as those who have entered the country on their own accord. These categories of irregular migrants often overlap, making it difficult to distinguish one from another. A further complication is the fact that Malaysia has not ratified the 1951 Convention relating to the Status of Refugees. As a result, refugees are generally considered to be irregular migrants and can fall within various sub-categories (including smuggled migrants). Between 2010 and 2012, the Ministry of Home Affairs identified 1,029 cases of migrant smuggling into Malaysia. However, the actual figures are likely to be at least triple this estimation.[8] In fact, it is suggested that there are currently between two million and five million irregular migrants in Malaysia today.[9] These migrants are often economic migrants, who leave their countries of origin in search of employment opportunities.

The case of the Andaman Sea crisis is indicative of a failure of states to adequately address and prevent migrant smuggling within Southeast Asia. In particular, Malaysia has had considerable difficulty in stemming the flow of smuggled and irregular migrants. As a major destination and transit country for smuggled migrants,[10] Malaysia’s immigration policies significantly influence the flows of migrants in the region. In order to find a meaningful solution to this problem, Malaysia must improve domestic policies and regulation, as well as cooperate with its regional neighbours to address the root causes of irregular migration. This requires moving past the superficial, reflexive policies of securitisation and showing greater commitment to creating legitimate pathways into the country.

What groups do Malaysia’s policy responses need to consider?

Refugees and Asylum Seekers

In August 2016, the United Nations High Commissioner for Refugees (UNHCR) recorded 150,200 refugees and asylum-seekers in Malaysia.[11] The majority of these people originate from Myanmar and include the Rohingya Muslims who are one of the most marginalised minorities in the world.[12] They have been subject to considerable human rights violations since 1978.[13] Currently, it is estimated that up to 25,000 Rohingya refugees reside in Malaysia.[14] In addition, a substantial number of Tamil people from Sri Lanka and Middle Eastern refugees regularly arrive in Malaysia.[15] These figures illustrate Malaysia’s role as a major destination country for refugees, who frequently turn to migrant smugglers to escape persecution. However, the unsatisfactory nature of Malaysia’s refugee protection framework and the abuse experienced by refugees sometimes prompt these migrants to seek better protection in alternative countries. This problem of mistreatment appears to be prevalent – immigration officials, police officers, and paramilitary volunteer corps members are frequently accused of harassing migrants and refugees.[16] The possession of official UNHCR refugee cards has been said to provide little protection against abuse.

Economic Migrants

The majority of economic migrants entering Malaysia originate from Indonesia and Bangladesh.[17] It has been reported that in the state of Sabah alone there are 569,000 Indonesian irregular migrants.[18] Indonesia experienced slow economic development in the 20^th century compared to Malaysia, which is one of the wealthiest countries in the region.[19] This economic inequality resulted in a constant flow of labourers travelling to Malaysia. They tend to travel through irregular methods due to a lack of understanding about the process for migration, a lack of protection by the Indonesian government and the presence of unregistered recruitment agents in rural areas.[20] The flow of Indonesian migrants has largely been absorbed into low-paying, low-skilled sectors. Indonesians currently occupy a large number of positions in the construction, plantation, and domestic work sectors.[21] In parallel to this constant influx of labourers, there has been a constant demand for cheap, undocumented labour by employers. Employers continue to employ illegal migrants despite the fines, prison sentences, and physical punishments because of the need for labour in these sectors.[22]

Bangladeshi migrants are the second largest group of undocumented migrants in Malaysia.[23] They frequently depart Bangladesh to escape widespread poverty and unemployment. These factors push migrants towards smugglers who are often brokers and unregistered agents.[24] Agents frequently target rural Bangladeshis and entice them with promises of a better life and higher incomes.[25] Many Bangladeshis agree to these irregular forms of migration, as formal structures and frameworks for legal migration are severely lacking in Bangladesh.[26] The movement of Bangladeshi migrants began in the mid-1980s, when Malaysia faced extreme labour shortages in many industries.[27] A bilateral labour export agreement was signed with Bangladesh to allow for the importation of foreign workers and thus address these labour demands. Despite the fact that the bilateral agreement was terminated four years after commencement, the number of Bangladeshi labourers entering the country has not diminished.[28] Migrants are still motivated to travel by offers of lucrative employment, and the continuing economic turmoil of the country. Lacking legitimate pathways into the country, desperate Bangladeshis had little alternative but to turn to people smugglers.

A (Dis) Orderly System?: Weak Foreign Recruitment Policies and Workplace Protections

Malaysia has historically dealt with irregular migrants through a dual approach: regulation of foreign labour recruitment, and the securitisation of irregular migrants and increased border control. Following the 2015 crisis, Malaysia appears to have directed greater effort towards securing the border and curtailing further incursions by smuggled migrants. These measures seem to have been relatively successful in reducing the rate of migrant smuggling. However, it remains doubtful whether greater immigration enforcement alone will be sufficient to address the issue of migrant smuggling in the long-term. There must be a complementary effort to improve current foreign recruitment policies and ensure that migrants are able to access regular methods of migration.

Foreign recruitment policies operate to lower the demand for undocumented foreign labour and thus curtail the unauthorised entry of migrants facilitated by people smugglers. The difficulty with implementing these policies in Malaysia is that it is a highly industrialised country with a large demand for foreign labour. This is particularly so in the plantation sectors.[29] There are an estimated 13 million job openings in sectors including agriculture and manufacturing.[30] The government has promised that it will continue to prioritise the employment of local workers over foreign labourers.[31] However, given the exponential increase in employment opportunities and employers’ desires to hire cheap low-skilled labour, it is likely that demand for irregular migrants will remain constant. Malaysia’s attempts at containing this demand through labour policies and bilateral agreements have been problematic. Between 1980 and 1990, Malaysia entered into many bilateral agreements with neighbouring countries to allow for legalised foreign recruitment. However, many of these agreements were terminated shortly after their commencement. One notable example is the aforementioned agreement with Bangladesh. Both countries have since entered into another Memorandum of Understanding in February 2016, but commencement of the program is still pending.[32]

Even with these agreements in place, migrant labourers are not guaranteed protection during their employment. They face the same workplace concerns as all other foreign labourers, including smuggled migrants.[33] These include issues relating to employer seizure of passports, wage disputes and language barriers that again encourage people to rely on smugglers.[34] In a 2010 Amnesty International report, it was stated that, “[l]oose regulation of agents, abusive labour laws and policies, and the practice of allowing employers to confiscate their workers’ passports allow trafficking to flourish.”[35] A similar conclusion may be drawn in relation to migrant smuggling. These migrants often encounter abuse and harassment in the course of their journey to Malaysia and upon arrival. There have been reports of migrants being held for ransom in squalid accommodation until relatives make payments to smugglers in exchange for their release.[36] If the necessary funds cannot be produced, they may be sold into forced marriages or to employers in Malaysia.[37]

Ministry officials have recognised the involvement of international criminal syndicates, and have increased enforcement efforts to curb these illegal activities.[38] However, this is a difficult task with local businesses and recruitment agencies also colluding in the importation of undocumented migrants.[39] To reduce the reliance on smugglers, it is evident that there must be better frameworks for legitimate labour migration as well as improved awareness of formal immigration procedures.[40] Without these reforms, migrants will continue to be susceptible to abuse by smugglers, as witnessed during the Andaman Sea crisis. However, the Malaysian government continues to prioritise policies of securitisation and border controls.

Regional Cooperation in Managing the Flow of Irregular Migrants

The growing visibility of irregular migrants between 1970 and 1980 prompted public concern that they were displacing locals from employment opportunities and access to public amenities. These fears eventually precipitated policies of securitisation, in which irregular and smuggled migrants were considered to be a threat to national security and the ethnic balance of the state. Greater emphasis was placed on border controls and the detection and removal of illegal migrants. These policies, in conjunction with the 2015 smuggling crackdowns, appear to have caused smuggling activities to subside in key routes.[41] There have also been no subsequent humanitarian crises of the magnitude experienced in 2015. However, migrants continue to be abandoned at borders by smugglers.[42] Such cases suggest that an immigration policy centring on securitisation and border enforcement is not sufficient and requires re-evaluation.

The Malaysian government initially responded to the negative public sentiment surrounding irregular migrants by implementing Operations Ops Nyah I and II. These operations were introduced in the 1990s and sought to prevent illegal entries and to arrest those found to have entered illegally.[43] Periodic crackdowns were also initiated, typically following an amnesty program that gave undocumented migrants an opportunity to depart the country without penalty.[44]

Despite these policies, the flow of irregular migrants into Malaysia remained unabated, particularly from Indonesia.[45] In the early 2000s, Indonesian labourers began demanding better working conditions and initiated riots across the country.[46] The People’s Volunteer Corps Malaysia (a volunteer-based paramilitary corps commonly referred to as RELA) was mobilised to address these issues and also to monitor the Thai-Malaysian border for incidences of people smuggling.[47] RELA continue to have an expansive role in Malaysian immigration control amidst criticisms of human rights abuses and violence towards refugees and undocumented workers.[48] Various other crackdowns have occurred throughout the last two decades that saw the detention and deportation of thousands of irregular migrants. After 1997, legislative and police action to combat irregular migration was strengthened and detention camps were established.[49]

One of the largest flaws of securitisation and border control policies is the fact that migrants often seek alternative routes to enter the country. Malaysia’s porous borders and geographical position make it possible for smugglers to seek out different entry points should one be closed as in 2015. As a result of the crackdowns, smugglers used alternative over-sea routes to transport people directly into Malaysia. Julia Mayerhofer, interim executive director of the Asia Pacific Refugee Rights Network (APRRN), explained that even if one route is blocked, “people will find another way, and that might be more dangerous and more risky for the people.”[50] This is because the push factors in source countries are still present, if not worsening.[51] In Myanmar, the persecution of Rohingya nationals has intensified and abuses of human rights occur frequently.[52] Thus, people who are desperate to leave the country may agree to alternative, increasingly dangerous smuggling routes. Another flaw is that Malaysia has struggled to prosecute smugglers and enforce its border control policies, which may show a lack of political will to properly address this issue.[53] It has been suggested that in order to increase the prosecution rate, smuggled migrants should not be criminalised, and should feel free to report smugglers without fear of being detained and deported.[54] These problems exemplify the inadequacies of a policy response dominated by stringent border control. The need to regulate the entry of migrants must be counterbalanced by measures to address the cause of irregular migration and create legitimate migration pathways.

In the aftermath of the 2015 Andaman Sea crisis, regional governments acknowledged the collective failure of states to act. There have been subsequent meetings to create a regional mechanism to prevent future crises and to implement necessary improvements. These movements are promising, however, it is unclear how they will manifest in regional policy. Following the crisis, Malaysia has engaged in cooperative border control measures with its neighbouring countries. A joint border agreement has been signed with the Philippines to patrol the border between the southern Philippines and East Malaysia.[55] In addition, Thailand has agreed to increased intelligence sharing and the possibility of erecting a wall along the Malaysian state of Kedah to curb the flows of illegal workers across the Thai-Malaysian border.[56] While such agreements are likely to slow the influx of migrants into Malaysia, there must be greater cooperation to improve the economic and humanitarian conditions in source countries.

Great Power Politics

Actors outside of the region shape Malaysian migration policy as well. The United States has been an influential player in Malaysia’s approach to irregular migrants. The U.S. releases an annual Trafficking in Persons (TIP) Report that is commissioned by the U.S. government and provides an annual snapshot of the circumstances of each country in relation to human trafficking. Malaysia has frequently been placed in the (worst) Tier Three ranking, damaging its global reputation and adding pressure to improve its conditions. In 2009, Malaysia was declared ‘one of the worst places for immigrants’ by the United States Committee on Refugees and Immigrants (USCRI).[57] In 2014, Malaysia was again deemed to be a Tier Three country after failing to properly address issues of trafficking and smuggling of persons for two consecutive years.[58] This ranking was controversially reversed in 2015. Malaysia was raised to the Tier Two Watch List despite its handling of the Andaman Sea crisis and amidst allegations of prevalent migrant abuse and trafficking.[59] Human rights proponents suggest that the upgrade may have been a result of the Trans Pacific Partnership (TPP) negotiations, as the U.S. Trade Promotion Authority Act prevented agreements being entered into between countries on the Tier 3 ranking, such as Malaysia at the time. It is said that the new ranking is more a triumph of trade politics, while conviction rates of smugglers and efforts to combat smuggling remain questionable at best [60].

Lessons from the Crisis

Migrant smuggling in Malaysia continues to be a complex and multidimensional issue. Following the 2015 Andaman Sea crisis, Malaysia’s response to migrant smuggling has been heavily dependent on securitisation and enforcement of border controls. The government has also entered into regional agreements for cooperation and intelligence sharing for the primary purpose of closing smuggling routes. While these policies are important, they must be implemented in conjunction with proper mechanisms for labour exchange and foreign recruitment, particularly with Bangladesh. In addition, the plight of the Rohingya people in Myanmar must be acknowledged and addressed. Malaysia must draw on the lessons learned from the Andaman Sea crisis and look towards a holistic, long-term solution to smuggling in Southeast Asia. Without proper attention to the root causes of migrant smuggling, it is inevitable that another humanitarian crisis will occur in the near future.

References

[1] Lego, Jera Beah H, ‘The Southeast Asian “Boat People Crisis” of 2015: Human (In)Security, Precarity, and the Need for an Ethic of Cohabitation’ (Working Paper Series No 181, Southeast Asia Research Centre, July 2016) 8.

[2] Benar News (2016), Malaysia Stays on US Trafficking Watch List <http://www.benarnews.org/english/news/malaysian/malaysia-tip-06302016154337.html>.

[3] Lego, above n 1, 8-9.

[4] Mcleod, Travers et al. (2016), The Andaman Sea refugee crisis a year on: what happened and how did the region respond? The Australian National University <http://regnet.anu.edu.au/news-events/news/6471/andaman-sea-refugee-crisis-year-what-happened-and-how-did-region-respond>.

[5] Ibid; Hiebert, Murray (2015), Tackling Southeast Asia’s Migrant Crisis, Center for Strategic and International Studies <https://www.csis.org/analysis/tackling-southeast-asia%E2%80%99s-migrant-crisis>.

[6] UNHCR The UN Refugee Agency, Bay of Bengal and Andaman Sea: Proposals for action (May 2015) <http://www.unhcr.org/protection/migration/55682d3b6/action-plan-2015-bay-bengal-andaman-sea.html>.

[7] Amnesty International (2015), Southeast Asia: Deadly journeys – the refugee trafficking crisis in Southeast Asia, Index number: ASA 21/2574/2015 <https://www.amnesty.org/en/documents/ASA21/2574/2015/en/>.

[8] Rahim, Rohania Abdul et al (2015), ‘Combatting Smuggling in Persons: A Malaysia Experience’ in 18 EDP Sciences 01004, 01004-2, 4.

[9] Human Development, Social Protection and Labour Unit, East Asia and Pacific Region, ‘Immigration in Malaysia: Assessment of its Economic Effects, and a Review of the Policy and System’ (Report, World Bank, 2013) 4; Kaur, Minderjeet (2016), Minister: Employers complicit in influx of illegal migrants, Free Malaysia Today <http://www.freemalaysiatoday.com/category/nation/2016/10/18/minister-employers-complicit-in-influx-of-illegal-migrants/>.

[10] Kassim, Azizah & Ragayah Hg. Mat Zin (2011), ‘Irregular Migrants and the Law’ in 38 Philippine Journal of Development 85, 86.

[11] UNHCR UN Refugee Agency (2016), Figures at a Glance <http://www.unhcr.org.my/about_us-@-figures_at_a_glance.aspx>.

[12] Ibid; Parnina, Syeda (2013), ‘The Crisis of the Rohingya as a Muslim Minority in Myanmar and Bilateral Relations with Bangladesh’ in 33(2) Journal of Muslim Minority Affairs 281, 281.

[13] UN News Centre (2016), Myanmar must address ‘serious’ human rights violations against minorities – UN rights chief <http://www.un.org/apps/news/story.asp?NewsID=54268#.WAWzaI-rhBc>.

[14] Parnini, above n 15, 289.

[15] Ibid.

[16] Allard, Tom (2009), Malaysia’s traffickers prey on refugees, The Sydney Morning Herald <http://www.smh.com.au/world/malaysias-traffickers-prey-on-refugees-20090703-d7tz.html>; Novelli, Porter (2011), Malaysian Public Information Campaign, Post-implementation report: May 2011, Australian Government Department of Immigration and Border Protection, FOI Document 12 <http://www.border.gov.au/AccessandAccountability/Documents/FOI/2012-018673_Document13_Released.pdf#search=people%20smuggling%20Malaysia>.

[17] Human Development, Social Protection and Labour Unit, East Asia and Pacific Region, above n 13, 125.

[18] Kassim, Azizah (2009), ‘Filipino Refugees in Sabah: State Responses, Public Stereotypes and the Dilemma Over Their Future’ in 47 Southeast Asian Studies 72, 72.

[19] Hosen, Muhamad (2005), ‘Governance of Indonesian Labour and Migration to Malaysia: An Overview’ in 39(2) Review of Indonesian and Malaysian Affairs 31, 31, 34-5.

[20] International Organization for Migration (2010), Labour Migration from Indonesia: An Overview of Indonesian Migration to Selected Destinations in Asia and the Middle East, 17 <https://www.iom.int/jahia/webdav/shared/shared/mainsite/published_docs/Final-LM-Report-English.pdf>.

[21] Ibid.

[22] Kaur, Amarjit (2006), ‘Order (and Disorder) at the Border: Mobility, labour migration and border controls in Asia’ in Kaur, Amarjit & Ian Metcalfe (eds), Mobility, Labour Migration and Border Controls in Asia. Palgrave Macmillan: New York, 23, 36.

[23] Karim, Zehadul, et al (2015), ‘Bangladeshi Migrant Workers in Malaysia: Their Socio-Cultural Background and Work-Adaptability’ (Paper, International Islamic University Malaysia) 4-5.

[24] Ullah, Ahsan (2009), ‘Theoretical Rhetoric About Migration Networks: A Case of a Journey of Bangladeshi Workers to Malaysia’ in 51(3) Journal of International Migration 152.

[25] Ibid.

[26] Ibid.

[27] Ibid 152; Pillai, Patrick (1999), ‘The Malaysian State’s Response to Migration’ in 14(1) Sojourn: Journal of Social Issues in Southeast Asia 178, 180.

[28] Ullah, above n 27, 152.

[29] Augustin, Robin (2016), ‘Prepare now to comply with high TPPA labour obligations’, Free Malaysia Today <http://www.freemalaysiatoday.com/category/nation/2016/10/19/prepare-now-to-comply-with-high-tppa-labour-obligations/>.

[30] Sipalan, Joseph (2014), Amend Employment Act to cover foreign workers, says Professors Council, Malay Mail Online <http://www.themalaymailonline.com/malaysia/article/amend-employment-act-to-cover-foreign-workers-says-professors-council>.

[31] Kaur, Minderjeet (2016), Minister: Employers complicit in influx of illegal migrants, Free Malaysia Today <http://www.freemalaysiatoday.com/category/nation/2016/10/18/minister-employers-complicit-in-influx-of-illegal-migrants/>.

[32] Sakhawat, Adil (2016), Malaysia to recruit workers in 3 sectors, Dhaka Tribune <http://www.dhakatribune.com/business/economy/2016/10/19/23182/>.

[33] International Labour Organization (2016), Review of the government-to-governement mechanism for the employment of Bangladeshi workers in the Malaysian plantation sector, xv <http://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/documents/publication/wcms_459065.pdf>.

[34] Ibid.

[35] Amnesty International (2010), ‘Trapped: The Exploitation of Migrant Workers in Malaysia’ (Report, Amnesty International) 6.

[36] Hector, Charles (2015), U.S.: Don’t Let Trade Trump Human Rights <http://charleshector.blogspot.com.au/2015/07/us-dont-let-trade-trump-human-rights.html>.

[37] Ibid.

[38] Ibid.

[39] Augustin, above n 32.

[40] Human Development, Social Protection and Labour Unit, East Asia and Pacific Region, above n 13, 121.

[41] Arulldas, S (2016), No human smuggling at border since January, says diplomat Malay Mail Online <http://www.themalaymailonline.com/malaysia/article/no-human-smuggling-at-border-since-january-says-diplomat>.

[42] Cochrane, Liam (2016), Smugglers abandon group from Myanmar on Thai-Malaysia border, ABC News <http://www.abc.net.au/news/2016-08-03/people-smugglers-abandon-group-on-thai-malaysia-border/7686516>.

[43] Kudo, Sasagu (2013), ‘Securitization of Undocumented Migrants and the Politics of Insecurity in Malaysia’ in 17 Procedia Environmental Sciences 948, 949.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Ibid 952

[48] Ibid 953.

[49] Ibid 948.

[50] Yi, Beh Lih (2016), Denied work, Rohingya trapped in limbo in Malaysia, Thomson Reuters Foundation <http://news.trust.org/item/20160830030159-sjx0j/>.

[51] Hector, Charles, above n 39.

[52] Thomson Reuters Foundation (2015), People smugglers exploring new routes to Malaysia after Thai crackdown: Aid groups, The Straits Times <http://www.straitstimes.com/asia/se-asia/people-smugglers-exploring-new-routes-to-malaysia-after-thai-crackdown-aid-groups>.

[53] Jalil, Melati (2016), Malaysian NGOs Demand Government Action on Human Trafficking, BenarNews <http://www.benarnews.org/english/news/malaysian/human-trafficking-07262016174656.html>.

[54] Whelan, Jennifer, et al (2016), ‘Abused and Alone: Legal Redress for Migrant Domestic Workers in Malaysia’ in Indonesia Law Review 11.

[55] Caballero-Anthony, Mely (2005), Regional Security in Southeast Asia: Beyond the ASEAN Way, Institute of Southeast Asian Studies, 59.

[56] McGahan, Kevin (2008), Managing Migration: The Politics of Immigration Enforcement and Border Controls in Malaysia, ProQuest, 176.

[57] Kassim, Azizah & Zin, Ragayah (2011), ‘Policy on Irregular Migrants in Malaysia: An Analysis of its Implementation and Effectiveness’ in Discussion Paper Series No 2011-34, Philippine Institute for Development Studies, 18, 3.

[58] Whiteman, Hilary (2015), Who’s fighting human trafficking? U.S. releases rankings, CNN <http://edition.cnn.com/2015/07/27/world/us-trafficking-tip-report-2015/>.

[59] Ibid.

[60] Whiteman, above n 61.