Malaysia’s Violent Inroads in Immigration Detention

On February 16, 2024, Saifuddin Nasution, the minister of Home Affairs, appears in the media in full army gear. Malaysia is at war, or more exactly his ministry is at war: a war against illegal immigrants, refugees, and undocumented persons. On that day, the minister shares the latest development in the police search for more than 130 southeast Asian refugees who escaped form a detention center in late February. A total of 131 men escaped from an immigration depot to the jungle, 101 were “recaptured” while two men were killed by road traffic. He continues to explain that while the search has stopped, the authorities will wait for the men until they have no choice but to come out of the forest due to near starvation to arrest them. He finally promises that an investigation will be conducted to find the “mastermind of the breakout.”

One of the Most Punitive and Arbitrary Systems in the World

This horror story is a recurring scenario in Malaysia where the normalization of violence against both documented and undocumented migrants, allows for the casual use of terms like “capture” and “hunt” by officials and the media. “Raids” against foreigners are the new normal, though the minister recently admitted that 80 percent of the detainees are in fact properly documented in response to a Human Rights Watch report. In 2020, Anwar Ibrahim, now the prime minister of Malaysia, compared the Rohingya genocide to that of Palestinians. Today, the Malaysian government is calling on Israel for its crimes, while at home it is illegally detaining and mistreating migrants and refugees.

According to Human Rights Watch’s March 2024 report, “Malaysia’s immigration enforcement regime one of the world’s more punitive, arbitrary, and harmful systems.” Malaysia has neither signed nor ratified the 1951 UN Refugee Convention and its 1967 Protocol. The confusion between refugees, asylum seekers or illegal migrants under the same category poses severe legal challenges. In absence of a coherent legal framework and adequate procedures to determine refugee status and provide recognition and protection to asylum seekers, undocumented migrants live in precarious conditions and perpetual fear of arrests and abuse. The relations between the Ministry of Home Affairs and the UN agencies (the Office of the United Nations High Commissioner for Refugees, or UNHCR, and UNICEF) are tensed and progress have yet to be translated effectively on the ground. HRW estimates 180,000 refugees and asylum seekers—including 100,000 Rohingya. However, unofficial estimates of undocumented migrants range from 1.2 to 3.5 million, and none of them have status.

Malaysia has long had problematic policies and practice toward migrants—refugees in particular. Systemic racism and institutional violence against migrants mostly from South and Southeast Asia have rendered the obtention of legal documentation extremely difficult. Migrants are preyed on by crime syndicates and ill-intentioned agents, while refugees find themselves in a legal limbo without papers, unable to study, work, marry, or travel. Relocation to third countries is also made difficult for Malaysia’s failure to deliver documentation to asylum seekers. The reality for refugees, low-wage (or no wage) domestic, and construction workers is dire.

The Politics of Immigration Policies

Malaysia’s politics is structured around the idea that only Malays are indigenous to the land (along with the Orang Asli in the peninsula and Orang Asal in Borneo), while other communities are considered as migrants, even the Chinese and Indians who settled in the peninsula as far back as the fourteenth or fifteenth centuries. In this ethnonationalist framework, Malays, who represent a small majority (a little over 50 percent, if Orang Asli is excluded), would be under threat of becoming outnumbered and losing their identity, economic and political power, and their religion (Islam).

Since its independence, Malaysia has had very conservative immigration policies toward all foreigners. In the late 1980s to early 1990s, the controversy over the government granting citizenship to a large number of illegal migrants in Sabah (Borneo- East Malaysia) for political gain, changing the state’s demographics, further triggered the Malay majority’s fear of losing its identity and privileges. Since then, the government has tried to tighten up its borders and rendered the obtention of documentation or citizenship even more arduous. The fantasy of “dangerous invasion” is deeply embedded in the Malay imagination, and the immigration and police department, mostly comprised of Malay civil servants, perceive themselves are the first line of defense against foreigners.

The ethnonationalist and xenophobic rhetoric is also a useful political chip for pro-Malay parties. Anwar’s democratic promises—stuck between a conservative opposition and his no less conservative ally, the United Malays National Organisation—have been sacrificed on the altar of populist politics. In a desperate and miscalculated attempt to win Malay support, Anwar’s government is multiplying pro-Malay moves. This electoralist strategy is counterproductive as the Malay majority is largely supporting the opposition—a growing support due to the absence of impactful economic reforms. The government’s democratic agenda and Anwar’s reformist reputation are also fading among the Pakatan Harapan (PH) coalition traditional supporters and civil society.

Normalization of Institutional Violence against Orphans

Children have not been spared from the prejudice and violence against migrants. They have become proxies for the frustrations of state institutions tasked with stopping the influx of illegal migrants. The government has attempted to remove the last safeguard protecting children from statelessness by amending the constitutional provisions that automatically grant citizenship to “foundlings.”

The Malaysian constitution clearly shelters all abandoned children from statelessness. Specifically, the Second Schedule, Part II section 1(e) grants citizenship to every stateless person born in Malaysia by law as well as the Second Schedule, Part III, section 19(b), which grants abandoned children citizenship by operation of law. The category “foundling” includes any child found on Malaysian territory who has no known parents and does not have any other citizenship. If the constitution provides for abandoned children to be automatically granted citizenship, in practice, immigration under the Ministry of Home Affairs has been reluctant to apply this provision. Immigration officers often refuse to grant citizenship and impose subjective rules, throwing children and their guardians in an endless legal maze. The systematic abuse of authority has become systemic institutional violence against orphans and their guardians or adoptive parents, who are unable to obtain proper documentation for their children.

An undocumented child will not have access to school and education, medical care, and other basic public services. In absence of proper registration and legal protection, children are victims of trafficking and online baby selling. The opacity of orphanage location and management hinders the channeling of resources and makes children vulnerable to institutional abuse, and young women freshly out of orphanages are ideal prey for human traffickers and prostitution rings. Orphans are invisible and the state has abandoned its responsibilities toward them.

The Political Taboo of Teen Pregnancy and “Baby Dumping”

The number of abandoned children is closely related to the issue of teen pregnancy (see the Malaysia UNICEF report), child marriages (in 2018, 1,856 children were married), and incest. According to The ASEAN Work-Life Balance Project, the number of teenage births in 2018 is estimated to 7,700; around 4,500 cases or 25 percent involved out-of-wedlock pregnancy. This figure also raises another issue showing the vast majority of these girls were married before majority. Every year, about 14 in every 1,000 underage girls get pregnant, and this adds up to approximately 18,000 girls per year. Malaysia remains a very conservative society and teen pregnancy is a social taboo rarely talked about in the media. Because of the lack of sexual health and education and other support services offered to vulnerable pregnant women and girls, babies are abandoned in public places; according to the Ministry of Health, between 2020 and 2022, 256 babies were dumped in trash sites or public toilets. Other

statistics report an average of 10 babies per month between 2018 to 2021; 60 percent of these children are found dead. For children placed in public or private orphanages, documentation is also difficult to obtain due to the lack of resources or know-how of social workers; and once they turn 18, they are released to society while being legally marginalized, unable to integrate fully. 

Over 1,400 Children in Detention

Unaccompanied minors have been found during immigration raids in illegal migrant settlements. These children have lost their parents or become separated from their families during their journey or by the authorities. Authorities do not have the means to search for the children’s parents and are unable to reunite children with their families. These children are undocumented, orphans, or made orphans by the authorities’ lack of diligence and resources. Unaccompanied minors are being held in detention camps in precarious conditions. In an interview with the author, child rights activist Tini Zanuddin explains how there are currently two detention camps solely for children around Kuala Lumpur, and two more are being prepared. She explains that children do not have basic amenities, and her organization has been providing hygiene kits. The authorities do not have any plans to relocate these children or any strategies to solve the issue. Meanwhile, incessant raids continue to inflate the numbers of detained children.

Eighteen months after the victory of Anwar Ibrahim, child rights activists who had hoped for the situation to change are confused by the government’s drastic moves to undermine child rights. On the ground, the impact of civil society actions remains limited to emergency support and shelter services, while the impact of the international agencies is extremely limited due to a lack of proper understanding of the issue and any efforts thwarted by the Malaysian authorities. In the confusion, Malaysian orphans are impoverished, trafficked, and abused, young mothers are helpless, and adoptive parents and guardians fear for their children’s future.

Sophie Lemière is an adjunct fellow (non-resident) with the Southeast Asia Program at the Center for Strategic and International Studies in Washington, D.C.