Asylum seekers and refugees in Malaysia are often subjected to judicial canings, long periods of incarceration and arbitrary arrest, according to reports from within the country’s immigration detention system.

And human rights groups also argue that Malaysia has a terrible record of refoulement — the forcible return of asylum seekers to countries where they face persecution.

The disquiet comes as the federal government announced on the weekend it had inked a deal with the Malaysian government to ease the strain on its overloaded immigration detention system.

The agreement, which will see 800 Australia-bound asylum seekers redirected to Malaysia (where they will be landing at the “back of the queue” for processing), is the latest in the federal government’s ongoing regional solution to boat arrivals. In return Australia will up its humanitarian intake and accept 4000 UNHCR-assessed refugees from Malaysia over the next four years.

The arrangement has raised triggered concern among refugee advocates and human rights groups, particularly over Malaysia’s human rights record. They argue that Malaysia is not a signatory of the UN Refugee Convention — a key reason given for why the federal government has not revisited Nauru as a processing option. In 2009, several UN Human Rights Council members expressed “concerns” surrounding refugees and asylum seekers held in detention in Malaysia.

As recently as last year Amnesty International reported that more than 6000 refugees are caned in Malaysia every year. Earlier this year, Malaysia’s Home Secretary Hishammuddin Hussein disclosed to parliament that 29,759 people had been caned between 2005 and 2010 for immigration offences.

Under Malaysian criminal law, caning can be used as a punishment for more than 60 offences — including immigration violations as well as violent crimes such as r-pe, kidnapping and armed robbery. The maximum number of strokes that can be dealt out to prisoners 24, although that can be increased if a prisoner has committed multiple offences.

Immigration offences in Malaysia include illegal entry and forging of immigration documents such as passports and visas.

In its 2010 report A Blow to Humanity: Torture by Judicial Caning in Malaysia, Amnesty interviewed several people who had been subjected to caning. One interviewee, 29-year-old Mohd Ghazali, said he had never experienced such pain as the three strokes of the cane he recieved:

“My body shivered. Everything went black because of the pain. It hurt so much my butt starting shaking all by itself.”

Another, Hussain, said it “felt like an electric shock”:

“I don’t have the words for it… I only got one and I couldn’t take it. I was thinking, how do people who get more take it.”

Amnesty say the Malaysian government does not punish or deter officials from using the cane, “on the contrary, it trains officers how to conduct caning and pays them a bonus for each stroke”.

Malaysia is not a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits corporal punishments such as caning as torture.

Human rights groups and advocates are also concerned with how long asylum seekers have to wait in Malaysia for their claims to be processed. As ABC Radio reported this morning, asylum seekers aren’t allowed to work in Malasyia and are often forced to find illegal employment while dodging immigration police.

Asylum seekers are judged people of concern in Malaysia and are issued cards by the UNHCR allowing them to live in the community while their refugee applications are processed. Human Rights Watch have reported Malaysia’s volunteer police force RELA arresting and detaining or extorting bribes from asylum seekers who hold these cards.

The UNHCR has also said it is still working to ensure that asylum seekers and refugees are protected against refoulement in Malaysia, a key legal principle that protects people from being returned to a place of persecution. Immigration Minister Chris Bowen has said that Malaysia has vowed not to send asylum seekers back to where they have come from.

The “Malaysian solution” marks the latest in a series of agreements the federal government hopes will form a regional approach to asylum seekers and people smuggling.

Last week it was revealed that the Department of Immigration and Citizenship is considering reopening Papua New Guniea’s Manus Island detention centre to help alleviate its overloaded detention system. And earlier this year Bowen signed a deal with the Afghan government to allow for the return of nationals who had failed in their claims for asylum.

The Afghan agreement has been the subject of some controversy. Not long after it was initially signed, Afghan Refugee Minister Jamaher Anwary appeared to step away from the agreement claiming it did not allow for forced returns.

Last month Afghan MP Al Hajji Mohammad Mohaqiq, a prominent representative of the Hazara ethnic group, also voiced his opposition to the deal, while former Refugee Minister Abdul Rahim has called for the MoU to be scrapped.

Meanwhile, the federal government’s plans to build a regional processing centre on East Timor appear to have been put on the back burner. There have been conflicting reports about the willingness of the East Timorese government to house the processing centre, as well as the readiness of the small nation to accept the bid.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey