The impact of securitization of Rohingya refugee by Indonesia and Malaysia

The entry of Rohingyas into Indonesian territorial territory without having the official identification identity either from home country or from international organization then it is a threat to Indonesia. Indonesian sovereignty becomes threatened because these people have not yet identified their identity, background, and motive of arrival. The state needs to be aware of this because state sovereignty is at stake.

Furthermore, after the Rohingyas successfully entered Indonesian territory and succeeded in occupying one of Indonesia's mainland inhabited by local residents then the next threatened object is the society itself. This is the case when the dominance of the Rohingyas is increasingly perceived by society as the case of the dominance of Vietnamese refugees in Galang Island against local people in various sectors including the economic sector. Social jealousy will arise and trigger friction between refugees and the community.

Not only that, Indonesia's diverse condition whether it is tribe, religion, background is very vulnerable to the occurrence of sheep fighting conflict. Provocation on the issue of discrimination of Buddhists in Myanmar against the Rohingya Muslim minority triggered tensions between Buddhists and Muslims in Indonesia. As experienced by some Buddhists who experienced terror and even in Padang Buddhists are prohibited from conducting religious activities. Tri Wahyuni. Ibid.

The tendency of Muslim solidarity to fellow Muslims (especially hard-line Muslims) is very high in Indonesia. Even the Indonesian government itself is required to immediately pressure the government of Myanmar to not commit acts of violence against Rohingya residents who are in Rakhine. So that is threatened by the arrival of Rohingya refugees to Indonesia is the community itself. In this case the author sees there are two possible social threats that can be generated. The first is the poor of Indonesia and the second is the Buddhist in Indonesia, especially the Buddhists are a minority compared to Muslims.

In the end, however, in response to strong international and domestic criticism of the statement issued by the TNI Commander, the Indonesian government immediately evaluated the policy it had submitted. Related parties such as Foreign Minister Retno LP Marsudi and Yusuf Kalla stated that the Government of Indonesia is willing and will soon provide assistance to the refugees entering Indonesian territory. According to Yusuf Kalla that in addition to helping refugees survive to Indonesian waters, the Indonesian government also ensures that it will help resolve the Rohingya conflict with communities in Myanmar, Kalla's hope is that no Rohingyas will ever evacuate from Myanmar to create tribal and state peace. Nurmulia Rekso Purnomo. Indonesia Pastikan Indonesia Akan Bantu Pengungsi Rohingya. Diakses dari http://www.tribunnews.com/nasional/2015/05/19/wapres-pastikan-indonesia-akan-bantu-pengungsi-rohingya

The government's claim that Rohingya refugees are threat against the civil society claim that refugees are not a threat. But the idea from civil society more accepted by the public that there is so much support given by the various elements of society towards Rohingya refugees. Although it is really debatable how the Rohingya refugees in Indonesia whose number is less than 1000 could become a burden for Indonesia whose population is reaching 250 million people spread around 14,000 islands in the whole archipelago. Even the total number of all refugees and asylum seekers in Indonesia (approximately 14,000, UNHCR) is still relatively a small number for Indonesia.

Pressure from related parties such as UNHCR, IOM, human rights, national organizations and some communities, the government again re-evaluated the policy that initially followed up the arrival of Rohingya refugees with military approaches carried out by the TNI as the guardian of state security by expelling refugee ships and tightening security Sea. Pressure from various elements can lead the government to change the policy of willingness to provide assistance and willing to accept Rohingya refugees in Indonesian territory for one year. Thomas Vargas' statement that Rohingya refugees is not a threat gives little faith to the Indonesian government willing to accommodate Rohingya refugees with funding, stewardship, joint responsibility by relevant parties such as UNHCR and IOM.

There are two factors causing Indonesia to receive Rohingya refugees eventually. First caused by external factors, international pressure where the issue of Rohingya into the international media spotlight and much reported about human rights. The two internal factors, namely the first solidarity of Muslim Indonesians who share a common religious identity with Rohingya refugees who continue to encourage the Indonesian government to take immediate action against the refugees. Next, that is, the element of humanity. Among the fishermen who participated in helping the refugees, some stated that they decided to help the Rohingya refugees as a result of compassion as fellow human beings and fellow Muslims. TNI Melarang Nelayan Aceh Membawa Pengungsi Rohingya Ke Wilayah RI. Diakses dari http://www.bbc.com/indonesia/berita_indonesia/2015/05/150518_tni_larang_nelayan_rohingya The pressure from both domestic and international causes the Indonesian government to finally provide assistance to the refugees.

Moreover, Indonesia has been blamed for the East Timor incident, Indonesia is considered a violator of human rights in the decade 90s. Pelanggaran HAM di Timor Leste. Diakses dari http://www.dw.com/id/pelanggaran-ham-di-timor-leste/a-2935465 As a result the state took pains to restore the good image of Indonesia in the eyes of the International. Rohingya is an opportunity and opportunity for the Indonesian government to show that Indonesia is a fair and civilized humanity.

The securitization of Rohingya refugees by securitizing actors was unsuccessful. Not only it failed to change public opinion that it is a threat, but the failed securitization and the blow-up of the humanitarian issue in the Andaman Sea crisis in 2015 also caused the government to accelerate and finalized the long awaited Presidential Decree regarding refugees from abroad. It has been drafted for more than four years and it is designed to become the first domestic legal framework for refugees throughout the history of Indonesia.

The Government of Indonesia has passed Presidential Decree (Perpres) 31 December 2016: "Republic of Indonesia Presidential Decree 125/2016 regarding Refugees from Abroad". This regulation fills a legal vacuum which has long affected asylum seekers and refugees in Indonesia. It confirms Article 28G of the Indonesian Constitution, and Article 25 - 27 of Law No. 37 of 1999 on Foreign Relations. PERPRES - Refugee Protection Must Answer Key Issues Regarding Asylum Seekers and Refugees in Indonesia, http://hrwg.org/2017/01/25/perpres-refugee-protection-must-answer-key-issues-regarding-asylum-seekers-and-refugees-in-indonesia/

Febi Yonesta, Chair of SUAKA (NGO focusing on refugee protection and advocacy), confirmed that this regulation should become the key regulation and reference for all Indonesian government officials in relation to the treatment of asylum seekers and refugees within Indonesian jurisdiction. The new Perpres confirms the definition of refugees contained in the 1951 Refugee Convention, and does not continue to label asylum seekers as illegal immigrants. PERPRES - Refugee Protection Must Answer Key Issues Regarding Asylum Seekers and Refugees in Indonesia, http://hrwg.org/2017/01/25/perpres-refugee-protection-must-answer-key-issues-regarding-asylum-seekers-and-refugees-in-indonesia/

Other than the definition of refugees that is adopted from the convention and protocol, it also contains the coordination system and Standard Operation Procedure (SOP) of rescuing and transporting refugees stranded in the sea and taken to land as well as the possibility of special budget both national and local for refugee handling. It is clearly inspired by the failure of the government to quickly response the Andaman sea crisis in 2015. Although it is remaining to be seen if the regulation implementation will be effective or not.

Chapter 4. Malaysian Refugee Policy and Securitization of Rohingya Refugee by the State Actor

Malaysia is one of ASEAN countries affected by the Rohingya refugee problem who culminated in 2015 Andaman Sea crisis. Similar with Indonesia, Malaysia does not have any legal framework that specifically regulate refugees and asylum seeker. Refugees are considered as prohibited immigrants in the Immigration Act. Therefore, every person who enters Indonesia without official document would be categorized as illegal migrants and consequently would be charged with immigration administrative punishment.

These refugees previously stranded in their wrecked boat in the middle of the Andaman Sea had been the victims of a so called "human ping pong" policy of Indonesia and Malaysia (also Thailand), before they were saved by the local Acehnese fishermen in the coast of Aceh, the most northern province of Indonesia. After huge protests and pressures from international organizations and civil society around the world, the government of Indonesia, Malaysia and Thailand agreed to provide temporary protection for one year and took them in under a specific term that after one year they should be resettled to third country.

This chapter will analyse the securitization process of Rohingya refugee in Malaysia. How the Rohingya refugee issue is being brought up as a political and security issue that needs to be addressed immediately by the Malaysia government. Impacts caused by the influx of Rohingya refugee to Malaysia, whether it is economic, social or political and security, are presented by the government officials and military officers (securitizing actor) using speech act as an existential threat that could endanger the country. In this chapter I will also explore response of civil society regarding the securitization.

4.1 Malaysian Refugee Policy: Overview

Until this recent time, the laws governing immigration matters in Malaysia derived from the Immigration Act of 1959, which was subsequently revised in 1975. This law was later strengthened by the Immigration Act of 1963. Both of these legal instruments underlie any Malaysian Government policy in relation to the field of migration. If we look closely at the law, most of those who are profiled as asylum seekers and refugees are categorized as prohibited immigrants, with reference to their arrival patterns that are largely "unregistered". According to the Immigration Act of 1959 and the Immigration Regulation of 1963, those considered to be illegal immigrants among are: (a) Anyone who is unable to provide a clear and official account of their whereabouts in the country, (b) Anyone who has a mental disorder and all sorts of infectious diseases in which their presence is harmful to members of society, (c) Anyone who refuses to undergo a medical examination referring to Article 39A (I), (d) anyone who has been designated as a suspect in any country and for any reason and has not been granted legal freedom, (e) Anyone coming to Malaysia that will be involved in the prostitution business, whether as a user or a service provider, (f) anyone who seeks to bring a woman or other prostitution provider for immoral purposes. (g) beggars .......(l) Anyone forced to move by the state or other government in the process of repatriation for any reason, (m) Anyone who does not have official documents, (n) Families and descendants of prohibited immigrants. In Article 35 of the Immigration Act, it is mentioned that

"Any person reasonably believed to be a person liable to removal from Malaysia under this Act may be arrested without warrant by any immigration officer generally or specially authorized by the Director General in that behalf or by a senior police officer, and may be detained in any prison, police station or immigration depot for a period not exceeding thirty days pending a decision as to whether an order for his removal should be made" Article 35 of the Immigration Act 1959/63

Malaysia is not a country ratifying the 1951 Refugee Convention and the 1967 New York Protocol. In general, if we look at the above law, prohibited foreigners will be subject to administrative crime, even in some instances of forced deportation including those who actually have a profile as refugees and asylum seekers are not immune to this rule. There are two terminology used by the Malaysian Government in categorizing these people; they are illegal immigrants and prohibited immigrants. The first mentioned word becomes an example when the country was dealing with Indochina boat men around1979-1990s. The decision to manage Indochina refugee issues, particularly through the Comprehensive Plan of Action (CPA) program, together with Malaysia should be moderate toward refugees at the time. Together with Indonesia, Thailand and some regional countries, Malaysia provided temporary refuge or shelters to Indocina refugees for several years, before they were sent to a third country or undergo repatriation.

Ethnicity plays a very important role in the implementation of policy and law in this country. This can be seen from Malaysian acceptance of refugees who came with Muslim identities, such as Philippine refugees and Cambodian refugees who were Muslims during the Cold War. These refugees received considerable treatment compared to non-Muslim refugees. They have access to education, access to employment and access to other conveniences. In some ways they are no different from other Malaysian citizens Vitit Muntarbhorn, Op.cit., Page 119

The foundation for the policy of enforcement of the Immigration Detention Center or better known in Malaysia under the name of Depot is governed by several domestic legal instruments such as the Act of Prison (Act 537), the Prison Regulations and Immigration Regulations 2003. Global Detention Project, “Malaysia Detention Profile”, retrieved from page http://www.globaldetentionproject.org/countries/asia-pacific/malaysia/introduction.html, There are three categories related to detention at immigration detention centers in Malaysia, such as Prisoners (internment), suspects who are previously exposed to articles in the Immigration Act and those who will be deported. Ibid They include foreigners who are waiting for a judgment from a judge over the country's administrative offenses are also one of the detainees.

Similar to the Indonesian policy, Malaysia in its Immigration Act also imposes punishment, both in the context of charge and physical, against foreigners entering the country without official permission. We can see this from the Immigration Act article 6 (1C), stating that "fine not exceeding RM. 10.000 or .. imprisonment for a term not exceeding 5 years or . both, and shall also be liable to whipping of not more than 6 strokes ".

Malaysia is the favourite destination for Rohingya refugees. Malaysia has a long history of providing temporary asylum to groups of refugees and asylum seekers. Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report p. 13 Malaysia is not a State party to the 1951 Refugee Convention and its 1967 Protocol. It does not have a legal or administrative framework for managing refugees and has not setup mechanisms to process asylum seekers and refugees when they arrive in the territory.

The absence of a legal framework for refugees and asylum seekers in Malaysia is made more problematic 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 which 1.9 million are undocumented and in an irregular situation. Malaysian law does not distinguish between refugees, asylum seekers, and other irregular migrants.

Refugees and asylum seekers are regulated under the Malaysian Immigration Act 1959/63. Section 6 of the Act imposes a term of imprisonment not exceeding 5 years and whipping for anyone caught without an entry permit while Section 32 of the same Act allows for deportation of those convicted under Section 6. This act has been used by Malaysia to continue to arrest refugees and deport them back. This is in contradiction to the non-refoulement principle of the Refugee Convention.

Since UNHCR has been present in Malaysia in 1975, it collaborates with the Ministry of Foreign Affairs, Ministry of Home Affairs and the Immigration Department to respond to refugee issues. The absence of special government agency delegated to manage refugee has limited UNHCR efforts to solve the problems faced by refugees in Malaysia. 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.

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. 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.

UNHCR has been present in Malaysia since 1975 and cooperates with the Ministry of Foreign Affairs, Ministry of Home Affairs and the Immigration Department to respond to refugee issues. 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. As the Malaysian Government has devolved the protection and assistance responsibility to UNHCR, UNHCR monitors detention facilities and works to secure the release of refugees while supporting health, education, and community self-reliance programmes and promoting durable solutions for refugees and asylum-seekers. As the Malaysian Government has not set up mechanisms to process asylum-seekers and refugees when they arrive in the territory, UNHCR continues to undertake these registration and refugee status determination responsibilities on its own. 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.

According to the data the authors obtained from the Malaysian Human Rights Institute (SUHAKAM, an abbreviation of Suruhanjaya Hak Asasi Manusia), Malaysia currently implements at least 17 Depots or Immigration Detention Houses to place those "troubled" people. 17 of these depot is able to accommodate at least 11.000 detainees. But if measured by the number of refugees and asylum seekers present in the country, which according to UNHCR in 2014 are not less than 140 thousand, certainly would not worth the available depot.

The dilemma between enforcing the law in its own sovereign territory and following the principle of non-refoulement in international customary law, is manifested in forms of human rights violations within the depot. On one hand the Malaysian Government provides temporary shelters for refugees and asylum seekers, but on the other hand they treat the refugees arbitrarily inside the depot. Similar to what happens in Indonesia, depot and RELA officers often perform physical interventions against them.

As a country that has not ratified the 1951 Refugee Convention and the 1967 New York Protocol, Malaysia does not currently have a domestic legal instrument that can accommodate forms of protection against refugees and asylum seekers. On the contrary, based on what is stipulated in the Immigration Act of 1959/63 and several sets of derivative laws, those profiled as refugees and asylum seekers are categorized as illegal immigrants and prohibited immigrants. According to the logic of this law, they "deserve" to get punishment.

One of the most commonly accepted penalties for these illegal immigrants is forcible deportation. This is almost certainly the case for illegal immigrants with economic motivation behind them, or we would call them economic migrants. Sasagu Kudo, “Securitization of Undocumented Migrants and the Politics of Insecurity in Malaysia” in 3rd International Conference on Sustainable Future for Human Security, 2012. Hal. 950-953 However, if further observed patterns have been happening, in some ways, Malaysia tends to comply with international customary law, especially regarding the rights of non-refoulement for those who are profiled as refugees and asylum seekers. A new problem arises when Malaysia has a double standard in viewing the issue of refugees. On one hand they try to respect international human rights values, but on the other hand they consider these "foreign" people a threat to the country.

Similar to what happens in immigrant detention centers in Indonesia, Malaysian depot officers often identify those detainees as harassers and threats to their country, so they deserve to be punished. With a position that from a political point of view is very weak, detainees often become the officers' target, including women and children. As SUARAM reports, due to the shortage of personnel in the detention house management, the Malaysian Government appoints RELA to take part in taking care of detainees in the depot. The presence of RELA in this Malaysian depot is directly proportional to the increasingly widespread forms of torture committed against detainees. SUARAM, Malaysia Civil and Political Rights Report 2008 Overview, p. 22-24

In practice, the Malaysian People's Volunteer Association (RELA) is a very scary specter; not only for those asylum seekers and refugees, but also for other immigrant groups who live illegally in Malaysia. The group has been most highlighted by some humanitarian activists and organizations for its role as an antagonist for asylum seekers and refugees in Malaysia.

In the depot, they like to torture detainees. Outside the depot they will search desperately for asylum seekers and refugees living in urban areas, to be sent into Malaysian depots. For this, the Malaysian Government will reward money coins for every "legal immigrant" they catch. Amnesty International, Abused and Abandoned: Refugees Denied Rights in Malaysia (London: Amnesty International, 2009) p. 10-12

As explained by Sasagu Kudo, RELA has authority to;

"where (they have) reasonable belief that any person is a terrorist, undesirable person, illegal immigrant or an occupier, to stop that person in order to make all such inquiries or to require the production of all such documents or other things as the competent authority may consider necessary" Sasagu Kudo, “Securitization of Undocumented Migrants and The Politics of Insecurity in Malaysia”, Paper forThe 3rd International Conference on Sustainable Future for Human Security, 2012, p. 950

4.2 Influx of Rohingya Refugee to Malaysia

As of end March 2017, there are some 150,845 refugees and asylum-seekers registered with UNHCR in Malaysia. Some 134,175 are from Myanmar, comprising some 57,619 Rohingyas, 39,591 Chins, 10,347 Myanmar Muslims, 4,497 Rakhines & Arakanese, and other ethnicities from Myanmar. There are some 16,670 refugees and asylum-seekers from other countries, including some 3,196 Pakistanis, 2,562 Sri Lankans, 2,025 Yemenis, 1,943 Somalis, 1,921 Syrians, 1,463 Iraqis, 1,041 Afghans, 684 Palestinians, and others from other countries. Some 67% of refugees and asylum-seekers are men, while 33% are women. There are some 35,941 children below the age of 18. UNHCR Malaysia, “Figures At A Glance”, https://www.unhcr.org.my/About_Us-@-Figures_At_A_Glance.aspx

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. However, community based organizations, Rohingya leaders and activists believe that the number is likely to be much higher. Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report, p. 15

Thus, Rohingya refugees become vulnerable to arrest for immigration offences and may be subject to detention, prosecution, whipping, and deportation, including refoulement. 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. Rohingya enter Malaysia by land and sea; unlike neighboring Thailand, Malaysia has generally allowed Rohingya refugees arriving by boat to disembark on its territory. Although the latest incident in the Andaman Sea showed that Malaysia forced back two boats full of refugees to the sea in May last year (2015). 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. Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report, p. 16

In Malaysia, thousands of Rohingya refugees are detained in IDCs throughout the country. Rohingya survivors from the May 2015 boat crisis reportedly remain detained in Belantik Immigration Detention Center, where access by the United Nations High Commissioner for Refugees (UNHCR) and service providers is extremely limited.

4.3 Rohingya Refugee as Existential Threat in Malaysia: Securitization Speech Act

Speech acts by the Malaysian official to securitize the Rohingya refugee as an existential threat can be seen from statements below. For example, the statement of Malaysia's Deputy Minister of Home Affair, Wan Junaidi Jafaar who was interviewed by the Associated Press responded to the Rohingya asylum seekers who came illegally to his country: The Guardian, “Malaysia Tells Thousands of Rohingya Refugees to go back your country”. Accessed on page http://www.theguardian.com/world/2015/may/13/malaysia-tells-thousands-of-rohingya- refugees-to-go-back-to-your-country,

"What else do you want? We have treated those (Rohingyas) who came illegally to our country humanely, but they cannot continue to flood the coastline.. We have to send a clear message that they are not welcome in this country" The World Post, “Refugee Crisis Looms As Malaysia, Thailand Turn Away Hundreds of Boat People” available on http://www.huffingtonpost.com/2015/05/14/boat- people-refugee-crisis_n_7282422.html.

"We have no more communists at the moment, but we are now facing illegal immigrants!!" Seth Mydans, “A Growing Source of Fear for Migrants in Malaysia”, New York Times, 10 December 2007-Zaidon Asmuni, Director General of RELA Malaysia

Furthermore, the Department of Prime Minister of Malaysia, Datuk Sri Shahidan Kassim stated;

"if we open the gates, the water will goes in and flood the countrythe problem is their presence here is a threat to our security, they are causing a lot of problems here.the government stand is very clear, we will not allow them to stay unless there is a specific agreement made with regards to this" Karen Arukesamy, “Refugee Not Welcome Here-Shahidan”. Thesundaily. 16

April 2015. Downloaded on page www.thesundaily.my/news/1387061.

These speech acts by the government officials intended construct that the arrival of refugees illegally will bring seriously enough impact to the security of the country. However, most of the securitizing actors I quoted above do not provide detailed explanations and sufficient evidence regarding the presence of refugees as a threat to their country. This is a characteristic of securitizing actor in their efforts to influence audience to have the same perception as the state does.

Economic Threat

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). Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report, p. 17

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. 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. Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report, p. 75

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. Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report, p. 17

Most of Rohingya refugees are living in urban area where they also interact with the locals and other refugee. Richard Towle, the UNHCR representative in Malaysia, said that the economic prosperity with a booming construction business and economy, Islamic culture and the large population of Rohingya in Malaysia are all pull factors. They receive many times better than before. In terms of security, although it's not easy with risks of arrests and exploitation, it's still significantly better than what they have left behind. Rohingya refugees see Malaysia as land of hope but face tenuous existence on margins, http://www.foxnews.com/world/2015/05/25/rohingya-refugees-see-malaysia-as-land-hope-but-face-tenuous-existence-on.html

Regarding the pilot project to provide Rohingya refugee with job opportunities, Nur Jazlan Mohamed, deputy minister of home affairs stated, "The aim is to give them the chance to work and earn a living, but at the same time we don't want to encourage more people to come here,". The pilot project may be expanded, but only to people already here. The long-term goal is to send them back. When Myanmar gives them the guarantee of safety and security, they can go back. This only gives a band-aid solution. Preeti Jha, Can Rohingya Refugees Finally Leave the Shadows?, http://foreignpolicy.com/2017/01/13/rohingya-refugees-can-finally-leave-the-shadows/

Social Threat

When the Rohingya refugee crisis occurred in 2015, Malaysia together with Indonesia agreed to offer them temporary shelter `provided that the resettlement and repatriation process will be done in one year by the international community'. Malaysia and Indonesia invited other countries in the region `to join in this endeavour'. Ministry of Foreign Affairs, Malaysia, Press Statement, http://www.kln.gov.my/web/guest/

press-release/-/asset_publisher/t3pS/content/joint-statement:-ministerial-meeting-onirregular-

movement-of-people-in-southeast-asia-english-version-only?redirect=%2Fweb%

For the resettlement, apart from the U.S., UNHCR Malaysia said that most other countries are not eager to take in Rohingya Muslims amid concerns that they could not integrate successfully because of religious values, community structures and language issues. Rohingya have not featured very significantly in numbers in resettlement programs although the number is increasing. UNHCR urged Malaysia to consider giving Rohingya protected status and work permits, which could help plug gaps in the workforce. But Malaysia fears that allowing refugees to stay permanently will just encourage more to come. Rohingya refugees see Malaysia as land of hope but face tenuous existence on margins, http://www.foxnews.com/world/2015/05/25/rohingya-refugees-see-malaysia-as-land-hope-but-face-tenuous-existence-on.html

Malaysia is both main destination and transit countries, while Indonesia is mainly a country of transit for refugees intending to travel to Australia. UNHCR, `2015 UNHCR Regional Operations Profile - Asia and the Pacific', 2015, http://www.unhcr.org/pages/4a02d8ec6.html. Besides 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 navigating the insecurities and human rights concerns associated with living and working in a country that considers them to be "illegal immigrants". Equal Rights Trust, Equal Only in Name: The Human Rights of Stateless Rohingya in Thailand, October 2014, accessed from http://www.equalrightstrust.org/content/equal-only-name-malaysia-full-report, p. 17

Political and Security

The Rohingya refugee crisis poses domestic challenges for Malaysia. On one hand, the growing presence of Rohingya refugees could worsen the social, economic and political problems associated with illegal immigrants in Malaysia.

Malaysian Prime Minister Najib Razak says violence against Rohingyas is no longer an internal Myanmar issue, as it has triggered an exodus of refugees that could shake the country's territory. According to Najib, the condition could be used by armed groups of Islamic State of Iraq and Syria and Levant (ISIS or ISIL) groups to infiltrate through Rohingyas.:

"OIC Member States are aware that terrorist organizations such as Daesh (the term for ISIS) can try to take advantage of this situation," Malaysia Minta OKI Bantu Setop Kekerasan terhadap Rohingya, https://m.tempo.co/read/news/2017/01/20/118837891/malaysia-minta-oki-bantu-setop-kekerasan-terhadap-rohingya

The Home Affairs Ministry has also indicated that health and security problems could arise as a result of the Rohingya refugee influx. David Han Guo Xiong, Rohingya Refugee Crisis Tests Malaysia, July 3, 2015, http://www.fairobserver.com/region/asia_pacific/rohingya-refugee-crisis-tests-malaysia/

In June 2013, ethnic clash between between Buddhist and Rohingya workers in Malaysia occurred in Selayang and the Klang Valley. Four dead as Myanmar violence spills into Malaysia: police, Jne 5, 2013, http://www.reuters.com/article/us-malaysia-myanmar-violence-idUSBRE9540BA20130605 The incidents showed that accepting Rohingya refugees is a risky step that could cause social instability and threaten Malaysia's national security.

The Rohingya issue shows that the "irregular migrant" label is one which states in the region use individually and collectively to avoid their obligations to displaced persons within their sphere of responsibility. By avoiding the term `refugees', states are constructing the Rohingya in terms of national security rather than `human' security. Susan Kneebone, The Labeling Problem in Southeast Asia's Refugee Crisis, August 12, 2015, http://thediplomat.com/2015/08/the-labeling-problem-in-southeast-asias-refugee-crisis/

The new militancy among the Rohingya could be a serious headache for Malaysian authorities, given the huge size of the Rohingya community there. If Rohingya living in Malaysia are recruited into an insurgency based on the Bangladesh side of the border with Myanmar, it could become a diplomatic headache. But if a more militant Rohingya group emerges, with ties to some of the Bangladeshi extremists in a repeat of the RSO-HUJI-B collaboration in 1999, the involvement of Malaysia-based Rohingya could produce more Rohingya with combat training and military skills and the extension of violence beyond Myanmar. IPAC Report 37: How Southeast Asian and Bangladeshi Extremism Intersect, 8 May 2017, accessed from http://www.understandingconflict.org/en/conflict/read/60/How-Southeast-Asian-and-Bangladeshi-Extremism-Intersect

In an unrelated incident, an Indonesian was arrested in Malaysia in December 2016, apparently hoping to undertake a terrorist attack inside Myanmar to avenge violence and discrimination against Rohingya Muslims there. The arrest underscores the danger that the new insurgency might raise misguided hopes among other Indonesian and Malaysian extremists that they at last had a new partner for jihad operations. It could also encourage efforts to reach out to its leaders or actual attacks in the belief that these would aid the Rohingya cause. IPAC Report 37: How Southeast Asian and Bangladeshi Extremism Intersect, 8 May 2017, accessed from http://www.understandingconflict.org/en/conflict/read/60/How-Southeast-Asian-and-Bangladeshi-Extremism-Intersect

4.4 Malaysian Government Policy Response

Prime Minister Najib Razak through his Twitter account instructed the APMM (the Royal Malaysian Navy and Malaysian Maritime Enforcement Agency) to seek and save the Rohingya asylum seekers around their waters. This directive came after a massive international urge particularly to Indonesia, Malaysia and Thailand to be a little "humanist" and provide temporary protection for Rohingyas. Channel News Asia, “Malaysian PM Najib orders search-and- rescue om/news/asiapacific/malaysian-pm-najib- orders/1862148.html, However, this does not substantively reduce the forms of speech act by his ministers and deputy or political elites, as forms of representation of discourses in the country.

Malaysia especially demanded an independent investigation led by ASEAN on various allegations of human rights violations against Myanmar's military. Malaysian Foreign Minister Anifah Aman also urged full humanitarian access to the now-isolated area, where more than 130,000 people are trapped for two months without outside assistance. Myanmar Hadapi Tekanan dari ASEAN Atas Krisis Rohingya, http://www.dw.com/id/myanmar-hadapi-tekanan-dari-asean-atas-krisis-rohingya/a-36829096 , 19.12.2016

Civil Society Respons

Different than Indonesia whose government decided to accelerate the passing of the domestic legal framework for refugee as a result of a failed securitization, Malaysian government decided to provide Rohingya refugees with the right to work. It is based on the reality that already happening in a long period in Malaysia that Rohingya refugee has been working illegally as a cheap labour for Malaysian industry. This is simply the case where the law of demand and supply in the labour market of the growing Malaysian economic is applied.

Malaysian Deputy Prime Minister Ahmad Zahid Hamidi said his country would start a pilot project on March 1, 2017 to address the Rohingya refugee issue. Malaysia will allow the refugees to work legally.

Zahid explained the program applies to refugees who have held the UN High Commissioner for Refugee (UNHCR) card and have undergone health and safety checks. The refugees will be employed in selected companies in the plantation and manufacturing industries. He stated:

"They will gain skills and income to earn a living before moving to a third country." Maret, Malaysia Izinkan Pengungsi Rohingya Bekerja, https://m.tempo.co/read/news/2017/02/02/118842505/maret-malaysia-izinkan-pengungsi-rohingya-bekerja

Currently this pilot project will provide working opportunities for 300 Rohingya refugees. The Malaysian government has stated plans to extend to all 56,000 registered Rohingya refugees who are currently living in Malaysia. Asia Pacific Refugee-Rights Network, Indonesia Fact Sheet March 2017, http://aprrn.info/pdf/Indonesia%20Factsheet_MAR%202017.pdf

According to the Minister of Home Affairs of Malaysia, this policy is expected to overcome the problem of human trafficking and prevent the exploitation of the Rohingyas to become illegal workers. Tenaganita Executive Director Glorene Fernandez praised the Malaysian government's position. He hopes this program is not limited to Rohingya refugees only. Preeti Jha, Can Rohingya Refugees Finally Leave the Shadows?, http://foreignpolicy.com/2017/01/13/rohingya-refugees-can-finally-leave-the-shadows/

Richard Towle, the UNHCR representative in Malaysia, stated that the plan is a "win-win" solution if everyone works together:

"We know that the refugees want to work. Most of them are working. And industries and business would really like to engage with them. What's missing is the lawfulness of it," Preeti Jha, Can Rohingya Refugees Finally Leave the Shadows?, http://foreignpolicy.com/2017/01/13/rohingya-refugees-can-finally-leave-the-shadows/

The job opportunities will provide vital protections for refugees who are helpless to abuse in a "largely invisible economy," as well as benefit Malaysia, which always depends on foreign cheap labor as an "affordable workforce."

Conclusion

In Malaysia and Indonesia, Rohingya refugees are perceived as a burden. Formulating their refugee policy based on the principle burden sharing and shared-responsibility approach, both countries feared that implementing the permanent legal framework by acceding to the main international refugee conventions and norms would be a pull factor for Rohingya refugee.

None of the host countries 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. They also do not have special agency for refugees.

This research demonstrates that the Rohingya refugee crisis (or the Andaman Sea crisis) in May 2015 has been securitized by the Indonesian and Malaysian governments.

In terms of legal perspective, they both view refugees as illegal migrants unless proven as a refugee by UNHCR. They both share the same perspectives of host country government who view refugee as a burden. They are concerned that provide more positive responses will be perceived as a welcome by refugees (pull factor) that can attract more refugees to come and consequently impact negatively to the host country economy.

The process of securitization taking place at the government level in both states involves a number of important actors such as Ministers and National Army through the speech act mechanism. The Government constructs or claims that the arrival of Rohingya refugees is burdening the state's finances and can lead to gaps between the local population and refugees that lead to the country's stability of security.

Securitization efforts by government actors who consider refugees threaten the country to get a political response from civil society groups. Human rights groups and refugee organizations made efforts to frame the issue by shifting the locus of state security issues to the level of human security issues. Through their public claims they embrace a public understanding that Rohingyas are not a real threat, but a group of refugees fleeing from their place of origin due to the discriminatory treatment of the government and the people of the country in need of protection and humanitarian assistance. For these civil society actors, the issue of Rohingya is a matter of human security, not a security threat to a country.

The repressive efforts undertaken by the state above are in fact consistent with the state's speech act on refugees and asylum seekers. The state through its political elites sees that refugees and asylum seekers are a threat to their security. There are three most prominent perceptions in the process of speech act by state elites, ie refugees as political threats, refugees as economic and refugee threats as social threats.

Massive pressures and responses from NGOs and international community around the world towards the ignorance and refusal of Malaysia, and Indonesia to accept and allow refugees to enter its territory has changed the position and policy of this affected countries. Malaysia and Indonesia at first doing securitization of the Rohingya refugee showed by the statements from the high ranking military and government officials. Afterwards they changed from the national security approach to human security approach by conducting humanitarian assistance to the Rohingya refugees.

Different than Indonesia whose government decided to accelerate the passing of the domestic legal framework for refugee as a result of a failed securitization and the media blow-up for the humanitarian crisis in May 2015, Malaysian government decided to provide Rohingya refugees with the right to work. It is based on the reality that already happening in a long period in Malaysia that Rohingya refugee has been working illegally as a cheap labour for Malaysian industry. This is simply the case where the law of demand and supply in the labour market of the growing Malaysian economic is applied. This difference is due to Malaysia's economic situation is relatively better than Indonesia and they need cheap blue-collar labour to support its growing economy. Although Indonesia's economy is also growing, it has abundant human resources for low income or blue-collar job. Therefore, it has no need for foreign workers.

Bibliography

1. Book

Achmad Romsan, dkk, 2003, Pengantar Hukum Pengungsi Internasional, Sanic Offset, Bandung.

Balzacq, Thierry. 2011. Securitization Theory: How security problems emerge and dissolve. London: Routledge

Buzan, Barry, Ole Wжver, and Jaap de Wilde. "Security: A New Framework for Analysis" (Boulder: Lynne Rienner Publishers, 1998).

Buzan, Barry. 1983. People, States, and Fear: The National Security Problems in International Relations. USA: The University of North Carolina Press

Budiardjo, Miriam. "Dasar-dasar Ilmu Politik." 2009 Gramedia Pustaka Utama: Jakarta.

Fiddian-Qasmiyeh, E., Loescher, G., Long, K., & Sigona, N. (Eds.). (2014). The Oxford Handbook of Refugee and Forced Migration Studies. OUP Oxford.

Marwati Djoened dan Nugroho Notosusanto. "Sejarah Nasional Indonesia IV." Jakarta: Balai Pustaka, 1992.

Missbach, A. (2015). Troubled Transit: Asylum Seekers Stuck in Indonesia. ISEAS-YUSOF ISHAK INSTITUTE.

Oelsner, Andrea. "(De)Securitization Theory and Regional Peace: Some Theoritical Reflections and a Case Study on the Way to Stable Peace." Badia Fieosolana: European University Institute, Working Paper RSCAS No. 2005/27.

Prasetia Ade, "Bantuan Dari Laut: Strategi Operasi Kemanusiaan TNI Angkatan Laut" Leutikaprio: Jakarta, 2015.

Team Dokumentasi Presiden RI 2003. "Jejak Langkah Pak Harto 29 Maret 1978 - 11 Maret 1983." Citra Kharisma Bunda: Jakarta.

Tirtosudarmo, Riwanto, "On The Politics of Migration: Indonesia And Beyond" LIPI Press: Jakarta, 2015.

2. Journal

Coastes, Eliane. 2013. "Myanmar's Religious Violence A Threat To Southeast Asia's Security." In http://www.eastasiaforum.org/2013/07/04/myanmars-religious-violence-a-threat-to-southeast-asias-security/, diakses tanggal 21 Oktober 2015.

Deo, Rajwant. 2013. "The Securitization Of Asylum Seekers In Canadian Political Discourse." Wilfrid Laurier University.

Hansen, Lane. "Reconstructing Desecuritization: the Normative-Political in the Copenhagen School and Direction for How to Apply It," Review of International Studies.

Huysman. "The Question of the Limit: Desecuritization and the Aesthetics of Horror in Political Realism," Millenium - Journal of International Studies.

Jacobsen, K. 1996, 'Factors influencing the policy responses of host governments to mass refugee influxes', International Migration Review, vol. 30, no. 3

Mathew, Penelope and Tristan Harley. 2014. "Refugee Protection and Regional Cooperation in Southeast Asia." The Australian National University.