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‘A receding tide in the face of a swelling wave’: Current human rights violations faced by the Sama Dilaut of Malaysia and breaches of international human rights law

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by Shaan Ali

‘If we are to be taken out of the water, we would die… we don’t know how to make any livelihood on land. It is as if we couldn’t breathe if we are out of the water…’

– Chieftain of the Sama Dilaut in Bohol, Philippines[1]

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 I.         INTRODUCTION

The Sama Dilaut are a nomadic, seafaring people who chart the waters and islands of the Sulu Archipelago off the south-western coast of the Philippines, as well as the various waters around the state of Sabah in Malaysian Borneo. A connection to the water is an integral aspect of their very way of life. During July 2013, I visited a group of Sama living on the waters around Mabul Island in Sabah. Assisting them in repairing their boats, playing with children and talking to them, I photographed elements of their everyday lives.

Although in Malaysia the terms ‘Bajau Laut’ or ‘Bajau’ are often used to identify the Sama, it is not how the people in question identify themselves, preferring the autonym ‘Sama Dilaut’.[2] Their exact heritage has not been dated exactly and for as long as either they or historians can remember, the Sama have always lived on boats, married on boats, found their livelihood with boats and died on boats.[3] Numerous interviews with different groups of Sama have echoed this relationship, suggesting that many Sama become dizzy and fall sick if they prolong their stay on land.[4] Additionally, because of their isolated lifestyles, many Sama are born outside the state system and are not registered, becoming stateless to both the Philippines and Malaysia.

Holding Malaysia accountable for breaches of these treaties is but one method of ensuring that the Sama are protected. However, while the aforementioned treaties seek to protect individuals, the Sama construct their identity as a group, often traveling as large extended clusters all belonging to the same community.[5] This is further cause for concern; the majority of human rights protected by international treaties apply to the rights of individual human beings, and not groups.[6] It is essential that human rights critically reflect lived realities, but unfortunately many Sama fall through gaps in the system.

 II.       INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

 Malaysia is yet to ratify the ICCPR. To put this into perspective, 167 states are parties to the treaty with Malaysia being one of 17 that have neither signed nor ratified it.[7]

Nonetheless, Malaysia ratified the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and the Convention on the Rights of the Child (‘CRC’) in 1995. With respect to CEDAW, Malaysia adopted reservations to a number of articles upon signature, preventing its full implementation. While an ideal first step towards protecting the rights of women, Malaysia’s progress is haltered by the fact that the Government has not incorporated CEDAW into national law.

With respect to the CRC, the Malaysian Government introduced the Child Act in 2001, accompanying a series of advancements to the field of education and primary healthcare for children.[8] Akin to its implementation of CEDAW, Malaysia initially held reservations to the CRC but has now withdrawn less than half of them and in 2011, signed two Optional Protocols to the CRC. However, inconsistencies still remain between civil law and Syariah law, most notably with respect to Article 1 pertaining to the definition of the child. Additionally, reservations are still maintained with respect to five core articles, most notably relating to non-discrimination (Article 2) and birth registration and the right to a nationality (Article 7).

 III.      VIOLATIONS OF THE RIGHTS OF RURAL WOMEN

 Contained within Article 14 of CEDAW, this obliges Malaysia to consider the particular problems faced by rural women and the significant roles they play in the economic survival of their families.

By virtue of their nomadic nature, the Sama determine their food needs on a day-to-day basis, a process largely managed by the female members of each community.[9] When supply of food is sparse, women and children are often relied upon to beg for money, leftover fruits and vegetables in a culture where mendicancy is not undignified but often synonymous with survival.[10] In addition to bearing the responsibility for providing for their family, Sama women also contribute to its economy through weaving simple mats that are then sold for minimal profit.[11] While not the largest source of income, the work of Sama women is an invaluable element in their community’s financial sustainability.

The need for state support is further emphasised by the position of Sama women within the social hierarchy; found to be one of the most marginalised communities, Sama women combine a mobile lifestyle with one of begging, exposing them to a multitude of hazards on the streets as they move from city to city.[12] The role played by these women undeniably goes directly to the heart of Article 14 and yet the Malaysian Government has done little to recognise, support or address their efforts – inaction amounting to a violation of its international human rights obligation.

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IV.       VIOLATIONS OF THE RIGHT TO BIRTH REGISTRATION AND NATIONALITY OF CHILDREN

 Article 7 of the CRC provides children with the right to a legally registered name and birth nationality. Although significant improvements have been made to accessing birth registration, many Malaysian children from indigenous and minority communities continue to face difficulties. Unlike many other countries, Malaysia does not have a ‘free-at-all-stages’ birth registration system.[13] Already burdened by a vicious cycle of poverty, this is but the first barrier for the Sama engaging their children’s rights under Article 7; many simply do not have the necessary capital to register each of their children. However, this is not the final hurdle the Sama face in this respect. Navigating the rigid and excessively bureaucratic system for registrations further narrows the ability of many Sama parents to obtain registration. These include the distance and cost of travelling to National Registration Departments, evidentiary requirements for ‘late’ registrations, i.e. those conducted after 42 days from birth, and different processes for children whose parents are undocumented, have died or cannot be traced.[14]

It is perhaps for these reasons that Malaysia maintains a reservation with respect to Article 7, aware that its full implementation would require an overhaul of its current system. In Malaysia, failure to obtain a birth certificate can have far-reaching consequences, ranging from a denial of healthcare to social services. However, the right to registration and nationality is relevant for the operation of another provision held without reservation and of particular importance, namely the right to an education under Article 28.

Many children from stateless or disadvantaged communities do not have access to formal education given the fact that government schools do not accept non-Malaysian or undocumented children.[15] As a right of all children everywhere, education is not the privilege of a few and its importance is reinforced by the Millennium Development Goals.[16] Sama children who cannot enrol in government schools because of these restrictions must rely on education provided through informal learning centres that are generally poorly financed, under-resourced and only able to provide basic education.[17]

Another solution has presented for the Sama by way of the ‘Bajau Laut Floating School’, established by the Borneo Child Aid Society Sabah (‘BCAS’).[18] Because a further obstacle for Sama children attending school is their nomadic lifestyle, the school is located on a barge, allowing children to attend a school that can move with them.[19]

Unfortunately, the ability of such a solution to educate Sama children has been severely limited for political reasons and in 2011, the Semporna District Officer instructed the BCAS to close their learning centres allegedly due to an investigation into operating permits – research has since revealed that mounting political opposition to non-Malaysian children receiving an education may have informed the decision.[20]

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V.        CHALLENGES OF THE INTERNATIONAL HUMAN RIGHTS LAW REGIME

Being a ‘human rights activist’ or a ‘defender of human rights’ connotes a certain glory and righteousness that unchecked can slow the advancement of its emancipatory potential and thus, it is important to continue asking whether human rights, in specific contexts, is contributing to the solution or part of the very problem.[21] In other words, one danger of the international human rights law regime is that advocates and practitioners adopt a ‘professional narcissism guising itself as empathy’ in their strive for a ‘better world’.[22]

 – Prioritising the state over the stateless

For the Sama, the risks of falling through the gaps are pronounced. Given their seafaring lifestyle, the Sama have traditionally had little need for identity documents. Many frequently cross state boundaries between the waters of the Philippines and Malaysia, now making up a large portion of stateless individuals living in Sabah.[23]

While the magnitude of statelessness globally has growing acknowledgement,[24] it is yet to fully emerge as an agenda for international development.[25] The Sama are led to believe in possible avenues for citizenship, but as is evident, these do not actually eventuate. Unable to adequately represent themselves, their issues become entrenched rendering them voiceless; consultation then becomes little more than a ‘modified top-down interventionist’ solution masked as ‘community participation’.[26] Statelessness is an issue for the international community more largely and is not unique to the Sama. According to the UNHCR, statelessness is a phenomenon affecting approximately 12 million people worldwide.[27] By virtue of the state-based nature of international human rights law, stateless individuals face uncertainty as to the treaties applying to them and the rights they subsequently hold, systemically leading to further marginalisation and exclusion.[28]

– Uncertainty regarding the boundaries of state obligation

The lack of clarity in international human rights law regarding extra-territorial obligations is particularly problematic for the Sama. For instance, those living in Malaysian waters may be subject to the protection of the ICCPR, even though Malaysia has not ratified the treaty. This is because of a potential cross over of Philippines’ extra-territorial obligations if the test of ‘effective control’ over the territory in question can be met. The Human Rights Committee has interpreted the ICCPR to have a broadened impact in this way, acknowledging that a state must ensure the rights of the treaty to anyone who meets this test, even if not situated within its territory.[29] With less emphasis on territory and more emphasis on the state’s relationship with the individual affected, members of the Sama may be able to enforce treaty obligations, despite their physical location.[30]

Emphasis on jurisdiction over a person rather than over a territory is further ideal given that it prevents the inevitable discrimination against non-nationals that would accompany the inverse.[31] Additionally, the territorial approach is likely to lead to the creation of detrimental loopholes where no human rights law would apply.[32] Nonetheless, it must be remembered that a vast portion of Sama are not citizens of the Philippines, and for them, any extra-territorial jurisdiction is unlikely to apply regardless.

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VI. CONCLUSION

 It is essential that meaningful engagement take place between the Sama and local authorities, municipalities and councils in moving forward with real solutions to actual issues. Moving beyond the formulation of policies that are disconnected from the plight of the actual people suffering displacement, real consultation is perhaps the first step in ensuring that the rights of the Sama are protected.

A large part of the problem is the State’s unwillingness to ratify the ICCPR. Mounting political pressure may change this in years to come, as was seen prior to Malaysia’s involvement in the ASEAN Declaration of Human Rights in 2012. As a regional human rights obligation, however, it does not carry the weight of an international treaty and the Declaration has been criticised for containing language inconsistent with international law.[33] Within domestic legislation, the disparity with respect to the progress of law reform is concerning. On issues such as Islamic Family Law, reforms are slow and yet the Peaceful Assembly Bill banning street protests was drafted and passed in a matter of weeks.[34] While Malaysia has a plan to bring the nation to a globally ‘developed’ status, the lack of political accountability stands as a large drawback.[35] This is particularly unfortunate considering the example of the strong opposition to the education of non-Malaysian children, regardless of consideration for the difficulties they face in obtaining citizenship and registration.

Nonetheless, the issue at hand is finding a solution that moves beyond being territorial, involving a complex integration of the different aspects of life for the Sama.[36] This would perhaps be more in line with Sama philosophy, where there exists no separation between the ‘sea’ and ‘people’, between ‘culture’ and ‘nature’.

 

Shaan R. Ali is a Juris Doctor student at the University of Melbourne. This piece is an edited version of a longer assessment submitted for the subject ‘International Human Rights Law’.  The photographs were taken by Shaan R. Ali in and around Sabah, Malaysia. The full unedited piece can be located at http://www.shaanraliphotography.wordpress.com/ and Shaan’s photography page can be located at http://www.facebook.com/shaanraliphotography

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[1]Regina Macalandag, ‘Otherizing the Bajao: A Spatial Imagery of State Exclusion and Societal Otherization’, (2009) International Institute of Social Studies (Graduate School of Development Studies, The Hague Netherlands), 34.

[2] Helen Brunt, ‘Stateless Stakeholders: The Case of the Sama Dilaut in Sabah, Malaysia’ (2013) University of Sussex.

[3]Vago Damitio, ‘Bajao: Sama Dilaut of Tawi-Tawi Sea-Gypsies’ 4 January 2013 <http://vagodamitio.com/badjao-sama-dilaut-of-tawi-tawi-sea-gypsies/>.

[4]Ismail Ali, ‘Since birth till death, what is their status: A case study of the sea Bajau in Pulau Mabul, Semporna’, (2010) 1 Journal of Arts Science & Commerce 156.

[5]Above n 4.

[6]Robert McCorquodale ‘Group Rights’, in D. Moeckli, S. Shah, & S. Sivakumaran (eds), International Human Rights Law (2nd ed, Oxford University Press, 2010) 333.

[7] ‘Article 19’, ICCPR Anniversary: Opportunity for Protection of Freedom of Speech (23 March 2012) <http://www.article19.org/resources.php/resource/3001/en/iccpr-anniversary:-opportunity-for-protection-of-freedom-of-speech>.

[8] ‘Status Report on Children’s Rights in Malaysia’ Child Rights Coalitition (2012) <https://www.crin.org/docs/Report_on_Childrens_Rights_.pdf>.

[9] Nimfa Bracamonte, ‘Evolving a development framework for the Sama Dilaut in an urban centre in the Southern Philippines’ (2005) Borneo Research Council  <http://www.thefreelibrary.com/Evolving+a+development+framework+for+the+Sama+Dilaut+in+an+urban…-a0147927929>.

[10]Ibid.

[11]Ibid.

[12]Ibid.

[13] Committee on the Elimination of Discrimination Against Women, Concluding comments: Malaysia, 35th Sess, UN Doc CEDAW/C/MYS/CO/2 (31 May 2006), 19.

[14]Ibid.

[15] Ibid.

[16] ‘Eight Goals for 2015’ United Nations Development Programme <http://www.undp.org/content/undp/en/home/mdgoverview/>.

[17] Committee on the Elimination of Discrimination Against Women, Concluding comments: Malaysia, 35th Sess, UN Doc CEDAW/C/MYS/CO/2 (31 May 2006), 20.

[18] Anthea Mulaka, ‘Sabah’s Stateless Children’ The Asia Foundation (8 December 2010) <http://asiafoundation.org/in-asia/2010/12/08/sabahs-stateless-children/>.

[19]Ibid.

[20]Above n 2, 35.

[21]Ibid, 105.

[22]Ibid, 121.

[23]Above n 2, 28.

[24]Jason Tucker, ‘The Humanitarian Side of Statelessness; Statelessness within the framework of the Millennium Development Goals’ (19 February 2013) <http://ssrn.com/abstract=2220802>.

[25]Lindsey Kingston, ‘Legal invisibility: Statelessness and issue (non) emergence’ (2010) 166 Social Science Dissertations.

[26]Above n 2, 36.

[27] ‘Statelessness: 12 Million People Worldwide Lack Citizenship’ United Nations High Commissioner for Refugees <http://www.unrefugees.org/site/c.lfIQKSOwFqG/b.7713537/k.C422/Statelessness_12_Million_People_Worldwide_Lack_Citizenship.htm>.

[28]Maureen Lynch, ‘Lives on Hold: The Human Cost of Statelessness’ (2005) Refugees International <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:5350>.

[29] Human Rights Committee, General Comment 31: Nature of the General Legal Obligations on States Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004), para 10.

[30]Sarah Joseph and Adam Fletcher, ‘Scope of Application’, in D. Moeckli, S. Shah, & S. Sivakumaran (eds), International Human Rights Law (2nd ed, Oxford University Press, 2010) 133.

[31]Ralph Wilde, ‘Legal Black Hole: Extraterritorial State Action and International Treaty aw on Civil and Political Rights’ (2005) 26 Michigan Journal of International Law 1, 26.

[32] Human Rights Committee, General Comment 31: Nature of the General Legal Obligations on States Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004), para 10, 137.

[33]‘ASEAN Members Sign Rights Declaration’ United Press International 18 November 2012 <http://www.upi.com/Top_News/World-News/2012/11/18/ASEAN-members-sign-rights-declaration/UPI-57581353254777/#ixzz31rVGbb44>.

[34] Committee on the Elimination of Discrimination Against Women, Concluding comments: Malaysia, 35th Sess, UN Doc CEDAW/C/MYS/CO/2 (31 May 2006), 9.

[35] Above n 2, 35.

[36]Above n 1, 13.

 

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