Explainer II: “The Political Decision is to Release Them”: The 12-Year Struggle to End Child Immigration Detention in Malaysia

New Naratif’s two-part explainer looks into the issue of child immigration detention in Malaysia. Building on the first article, this explainer examines the Home Affairs Minister’s announcement that he will release children from detention centres, the historical struggle to end child detention, the forces hindering change, and the steps government, civil society, and readers can take towards protecting all children regardless of migration status.

On February 15, 2023, Home Affairs Minister Saifuddin Nasution publicly announced that he would release children from immigration detention centres to non-governmental welfare organisations. 

“What is the political decision?” the Minister said during a parliamentary press conference. “It is to take them out.” 

Child rights advocates celebrated the announcement as it reaffirms the vital message that no child belongs in immigration detention centres. 

But this announcement leaves many questions wanting, as this is not the first time a Malaysian minister or official has signalled the need to release children from immigration detention centres. Past cabinet members and government officials have made similar governmental pledges and plans since discussions to seek and implement alternatives to detention (ATD) for children started twelve years ago. But none have translated into concrete action or change.  

After twelve years of struggle, will this government finally fulfil its responsibilities to all children and put a complete halt to Malaysia’s child detention practices? Why has change been so elusive in the last decade? What steps do the government, civil society, and readers need to take to further protect former child detainees and children on the move at large? Building on New Naratif’s explainer that mapped out the myriad harm of child detention, we now turn to these three questions and the messy world of people, politics, and protection.

Will the Malaysian government finally put an end to child detention?  

The first thing to note about the Malaysian government’s latest commitment to release children is that it holds promise for child detainees. This is because the public commitment is notably coming from the Home Minister himself, who directly oversees immigration detention centres and issues of national security, thereby illustrating political leadership and willingness to do good on his part. 

Since making the announcement, the Home Minister told the press that he had spoken to Prime Minister Anwar Ibrahim about the issue and is now looking into legal grounds for the release. We also know that the Home Minister and his officers have continued to dialogue with civil society representatives and the Ministry of Women, Family, and Community Development (MOWFCD). The government is now laying the groundwork to submit a working paper to the Malaysian Cabinet in preparation for the release. 

As part of efforts to lay the groundwork, the Home Minister released information on April 15, 2023, that a total of 1,030 children, including teenagers, preteens, and toddlers, are reportedly held in Malaysia’s immigration detention centres. Almost half of the detained children are girls. Around 34% of them are unaccompanied or separated minors. Unaccompanied children are those unaccompanied by their parents, designated caregivers, and relatives, while separated children are separated from their parents and designated caregivers but may still be accompanied by a relative or other adult family members. 

As reported in Explainer I, a conservative average of 1,300 children are detained annually for unspecified durations. “Regardless of any justification, the presence of children in immigration is very inappropriate, and a way out of this should be worked on immediately,” the Home Minister wrote during the month of Ramadan on his Instagram page and reaffirmed his stance that children should be out of detention.

While all these messages are promising signs, it is equally important to note that the announcement does not translate into a clear pledge, plan, or program to end child detention altogether. At this stage, the Home Minister has committed to releasing children currently in immigration detention centres but stopped short of saying that all children will be exempted from arrest and detention in the future.

Furthermore, there is also a lack of clarity at this stage around these schemes’ inclusion or exclusion criteria: will all children, regardless of age, nationality, migratory background, and documentation status, be included in the release? 

Involved in talks with the Home Minister and his office, Dr Hartini Zainudin from Yayasan Chow Kit told me that the Minister is looking into a few rounds of releases, rather than a single comprehensive release, with unaccompanied and separated children being one of the first groups to be released. This means we currently do not know whether children detained with guardians–be they refugee and asylum-seeking children, stateless children, or other children–would be eventually released. Nonetheless, the advocate tells me that consultations between the government and several NGOs on a comprehensive release guided by the child’s best interest are underway.  

There are reasons, however, to be cautiously optimistic about the Home Minister’s words, as past high-ranking government officials have issued similar pledges. Yet, none have resulted in the release or protection of children on the move. 

Twelve years ago, 2011, the Human Rights Commission of Malaysia (SUHAKAM) initiated some of the earliest discussions with the Malaysian government around the grave situation of children in immigration detention. The discussion was led by SUHAKAM, UN bodies, and civil society organisations like the International Detention Coalition, SUKA Society, and Yayasan Chow Kit. Soon after that, it was followed by years of advocacy, governmental dialogue, and civil society organising. 

In search of alternatives to child detention, a series of roundtable discussions, government working groups, ministerial-level depot visits, government-led and CSO-led studies, media engagement, and public outreach campaigns took place between 2011 – 2018. All this sustained labour eventually culminated in one of the first public and governmental expressions to stop locking children up for migratory offences in 2019. 

“Children do not belong at depots and should not be detained for immigration offences as long as there is a better alternative,” Deputy Prime Minister Wan Azizah said in July 2019. She also said that she would work in concert with the Home Ministry towards ending child detention in Malaysia.

In November 2019, Malaysia signed the ASEAN Declaration on the Rights of Children in the Context of Migration and its Regional Plan of Action. To promote the child’s best interests, signatories agreed that “states should work to develop effective procedures and alternatives to child immigration detention.” 

The former Deputy Prime Minister’s words did not translate into much until two years later, in April 2021, when a new Malaysian Cabinet approved a small-scale and limited Alternative-to-Detention (ATD) pilot project. An ATD is a set of formal or informal measures that ensures people are not detained because of their migration status.

During the same year when the ATD pilot was approved, Malaysia was elected as a member of the United Nations Human Rights Council for the term 2022-2024. Among the country’s pledges was to improve its social service system for children through various initiatives, including the ATD pilot, in the name of ensuring children “grow and achieve their full potential in a family environment”. 

The approved ATD pilot programme was designed specifically to release unaccompanied and separated children from immigration detention into NGO-run temporary shelters and family-based care. Under the SOPs of the pilot programme, two NGOs were to be involved. Yayasan Chow Kit was to provide shelters while SUKA Society would provide the case management of the child to identify the best outcomes aligned with the child’s best interest. The plan was for five children to be released on a rolling basis based on vulnerability. However, Phase 1 of the programme only included children who could be repatriated and sent back to their countries of origin, which meant the exclusion of refugee and stateless children, including Rohingya children, who have no country to return to.

Excluding refugee and stateless children with families, the ATD pilot programme’s limited scope signals that the inclusion and exclusion criteria of the current government’s upcoming release plan will need to be closely scrutinised. If refugee and stateless children with families are not included in the upcoming releases, are they to continue languishing in detention’s harsh conditions?

In February 2022, the government ministries approved Standard Operating Procedures (SOPs) for the ATD pilot project. Nonetheless, as of June 2023, two years since the cabinet approved the ATD project, not a single child has been released.

Despite twelve years of dialogue, statements of intent, an ATD pilot programme approval, and laborious advocacy work from civil society organisations, the Malaysian government has yet to make any tangible progress towards ending the arrest, detention, and forced repatriation of children.

Over the decade of delayed action, more than 15,000 children saw the walls of immigration detention.

Rather than words alone, what would thus set this government apart is its political ability to successfully operationalise their words beyond ink, paper, and pledges into action towards ending child immigration detention.

Why has meaningful change been so elusive?

To make concrete change a reality, we must then also try to understand the forces inhibiting change. What has prevented moving from words to deeds and from virtue signalling to virtue realisation in the last decade? Four intertwining forces could have been at play: (a) law and governing categories, (b) fragmented governance, (c) the capacity challenge, and (d) the democratic deficit.

Law and Governing Categories:
Pendatang Asing Tanpa Azin (PATI)

Change has perhaps first been elusive because of how many of us from both state and society of Malaysia have come to view the person on the move in Malaysia in black-and-white terms, as either the legitimate (“legal”) pendatang or the illegitimate (“illegal”) pendatang.

While the legitimate pendatang are those who have a valid visa to enter or remain, the illegitimate pendatang is anyone, regardless of age, vulnerability, or migratory circumstances, who has entered without authorisation or overstayed their visas and thus deemed punishable for migratory transgressions under Malaysia’s Immigration Act of 1959/63.

But such a binary and shallow view of the person of the move means that no regard is taken for their age, vulnerability, or migratory circumstances. As such, anyone without migration documents, including unaccompanied or separated children, children with families, stateless children (who could also be born to Malaysian citizens or permanent residents), children with disabilities, refugees fleeing persecution, people with severe illnesses, migrant workers cheated by employers or predatory intermediaries, and victims of torture, all run the risk of arrest and detention as they are indiscriminately labelled as the illegitimate pendatang or Pendatang Asing Tanpa Izin (PATI). 

Put simply, what is the spillover effect of such an ingrained nothing-in-between, black-and-white view of the pendatang? Children and vulnerable groups are locked up in immigration detention. 
Against the backdrop of reductive yet ingrained and consequential categories of governance, detention and migration-related reforms thus become a Sisyphean task for advocates, including those within the government, who hope to change the circumstances of those already condemned as a threat at the outset simply because they do not possess pieces of paper.

Fragmented Governance:
The Power Struggle in Government?

Advocates working on ATD reforms over the last decade also theorised that perhaps fragmented governance played a role in delaying reforms. Even amidst ATD pledges and project approvals, meaningful change may have also been elusive because government ministries, elected members of parliament of the same governing party, and the civil service may sometimes work in contradiction rather than in concert in ways that do not favour the best interest of the child. The issue of fragmentation is further compounded by how Malaysia has seen four Prime Ministers come to power in the last six years. 

A powerful bloc, the civil service in Malaysia has a history of being a quasi-independent voice of its own when it comes to implementing, mediating, or thwarting governmental projects and programmes from above. This means that even if a top official or elected ministries–including the Prime Minister–are in favour of change, they often need to delicately ensure that they gain buy-in from the civil service to follow-through and implement reforms. 

This was the case when previous ministers and MPs from the Pakatan Harapan (PH) government (2018-2020) tried to push for internal governmental reforms to resolve homegrown statelessness–de facto Malaysians born in Malaysia but unable to receive citizenship status due to discriminatory reasons–who faced significant resistance from the civil service in the Home Ministry. This was revealed in a recent SUHAKAM report on statelessness. Proposed SOPs from top ministers to simplify the documentation and application process for stateless Malaysians in Peninsular Malaysia, who are mostly communities of Indian descent, faced pushback from the civil service in the Home Ministry. The authors theorised that this was likely because segments of the civil service saw the issue of statelessness as a racialised “too Indian, too many Indians trying to get citizenship” issue. 
Was this the case for ATD-reforms as well? Perhaps, but only fine grained studies of the Malaysian bureaucracy could tell us whether and to what extent this was indeed the case.

The Capacity Challenge

Another discourse that sometimes thwarts child protection discussions with sympathetic officials, particularly from the Welfare Department, goes as such: We would like to help and protect all children, regardless of nationality and documentation status, but how can we care for “others” if we do not have the capacity to care for “our own”?

There is indeed much left wanting about Malaysia’s child protection system, but it’s equally important to contextualise the issue in a broader perspective and rethink challenges as opportunities for institutional growth and development.

First, a total of 9 million children live in Malaysia. Some 1,300 children are detained in a year,  and some 48,000 refugee and asylum-seeking children live in Malaysia. Thus, the number of detained children represents only 0.01% of the total children population in Malaysia, and the number of refugee and asylum-seeking children is only 0.5%. 

Second, even if capacity is an issue today, the reality of vulnerable children on the move then creates a collective opportunity to build a more integral child protection infrastructure together. Partnering up with experienced child rights and child welfare organisations like SUKA Society and Yayasan Chow Kit to launch ATD programs isn’t only an opportunity to protect children, it is also a learning opportunity for cross-germination of ideas and best practices between governmental and non-governmental case workers for further institutional growth and development. 
Other intergovernmental organisations, such as UNICEF and UNHCR, may also be willing and able to provide the knowledge, experience, and tools to support governmental capacity expansion. Partnering will also be in line with current efforts to improve the welfare protection system through the ongoing parliamentary push to pass the Social Work Profession (PKS) Bill, which aims to professionalise, recognise, and regulate social work in Malaysia.

The Democratic Deficit

The last force inhibiting detention-related reforms can be coined as “the democratic deficit”: the lack of democratic infrastructure and spaces for all of us to engage in a meaningful and constructive way about the issue of detention at large or child detention specifically. The deficit is linked to three issues: (a) the lack of transparency and detention access, (b) the historical silencing of dissent, and (c) restricted opportunities for public engagement. 

Lack of Transparency and Detention Access

Disaggregated and consistent data about detention centres aren’t available. While the government occasionally releases data disaggregated by age, gender, and nationality, data such as medical vulnerabilities, disabilities, migratory background, employment background, cause of undocumentation, or length of detention are not publicly available. Civil society organisations and the UNHCR are also not allowed to visit or monitor these centres. Only the Human Rights Commission of Malaysia (SUHAKAM) has access to these centres, but they cannot visit unannounced. Without concrete and sustained information, it then becomes hard to democratically discuss these issues.

Historical Silencing of Dissent

For those who openly or critically ask if the status quo of detention works, is right, or is humane, they also risk becoming silenced or harassed by authorities through Malaysia’s restrictive media laws. The late activist Irene Fernandez, founder of Tenaganita and a PKR Supreme Council member, once wrote a seminal report in 1995 on migrant abuse and torture in detention centres, only to be arrested and charged in court for “maliciously publishing false news.” Between 1995 – 2003, she was forced to appear in court 300 times to defend herself. 

When Al-Jazeera published a critical documentary about the plight of undocumented migrants detained during Covid-19 in 2020, their office was subsequently raided, and the Bangladeshi migrant featured in the film was deported. Finally, when activist Heidy Quah spoke out about the ill-treatment of refugees in detention centres in 2020, she was charged under the Communications and Multimedia Act (CMA) for her “intent to annoy” others, although she was later given a discharge not amounting to acquittal. 

Restricted public dialogue spaces

Against the backdrop of information scarcity and restricted media spaces, the public cannot openly talk about issues of detention. Without enough space for dialogue, detention issues then become low on the public agenda, as shown in New Naratif’s past survey, which, therefore, also lowers the issue on the agenda of voter-sensitive electoral representatives. At the same time, if hate towards migrants goes on loudspeaker through disinformation or through politicians, this could then go unchallenged by concerned citizens or media workers, thereby perpetuating a climate of xenophobia against refugees and migrants, which also inhibits the quest for detention reforms.

What more needs to be done?
Release, Refrain, and Restore Measures

Notwithstanding the challenging forces at play, what then would ideal, protection-oriented, and inclusive measures for children on the move look like in Malaysia? Over a series of informal conversations, child rights advocates have generally pointed me to action along the broad lines of Release, Refrain, and Restore.

• Release: Action that leads to the progressive and full release of all children, regardless of age, migratory status, or background, without separating them from their families and loved ones.
• Refrain: Action that leads to the sustained prohibition of the immigration detention of children in policy or practice or for detention to only be used as an extreme measure of last resort for short-term periods.  
• Restore: Action that further protects all children regardless of migration status and helps them reclaim their childhoods. 

All these protection-oriented actions are aimed at preventing or responding to exploitation, abuse, neglect, harmful practices, or violence against all children, regardless of migration status.

Release

Much of governmental talk and pledges in the last twelve years have revolved around the action line of release—the release of children, particularly unaccompanied and separated minors.

While these pledges are still meaningful should they be successfully implemented, we must note that no matter age or migratory background, regardless of whether they are alone or with family members, all children will always be vulnerable to the physical, developmental, and psychological harm of immigration detention. Similarly, all of them also have rights to live, learn, and seek leisure like other child peers.

Instead, progressive efforts need to be taken to ensure that all children, regardless of migration status, are eventually released without separating them from their families and loved ones.

In legal terms, release efforts can also be grounded in the force of law. Although the Immigration Act criminalises all forms of undocumented migration, regardless of age, vulnerability, or migratory background, Section 27 (1)(ii) allows the Immigration Director-General to release any person from immigration detention discretionarily.

Section 55 of the Child Act also provides the Minister, in this case, the Minister of Women, Family and Community Development, the power to also designate and establish any “place, institution or centre” as a “place of refuge” for a child’s care and rehabilitation.

Put simply, the Immigration Act thus allows the child to be released, while the Child Act allows for the Ministry of Women, Family and Community Development to create a place of refuge for these children. Taken together, they provide legal grounds for the government ministries to immediately act in concert to ensure that all children are taken out of immigration detention as soon as possible to a safe location.

Refrain

Release measures would only make sense if they were paired with refrain policy and practice measures that permanently prohibit the immigration detention of children without migration status. Otherwise, the government would be looking at vicious cycles of detention and releases that would be costly and unproductive while continuing to put children in harm’s way.

Under the law, the Immigration Act also allows for this to happen as Section 55 provides the Ministry of Home Affairs discretionary powers to “exempt any person or class of person” from the provisions of the Act. This means all children, including accompanied and unaccompanied children, can be designated as an exempt group altogether. As both a release and refrain measure, such an exemption order then gives rise to the child’s legal right to remain in the country. 

Restore 

Restore measures are also equally important as release and refrain measures in the quest to safeguard the welfare and future of all children regardless of migration status. They are aimed at further protecting children and helping them reclaim their childhoods. Taking a much longer-term perspective, these measures could take the form of partnerships with civil society organisations alongside longer-term law or institutional reforms.

The best interest determination of the child is the first immediate measure that needs to be taken upon a child’s release: a process that meaningfully determines the child’s care needs based on their individual realities. Put differently; it is a measure that meets the child where they are at. Given the contrasting and overlapping migratory realities of children in detention, this is an extremely important step as it recognises that children are not a monolith group, and their lived struggles and needs can be manifold and diverse.  

By completing a best interest determination process, governmental or non-governmental case workers can then seek ways to address the needs of the child, be they education, psychosocial support, healthcare, or family reunification in the case of unaccompanied and separated minors.

Protecting all children regardless of migration status is also in line with Malaysia’s Child Act of 2001, which states that all children should receive protection and assistance in all circumstances regardless of “race, colour, sex, language, religion, social origin or physical, mental or emotional disabilities or any other status”. A high court judge also recently ruled that the inclusion of the “race” and “social origin” clauses here includes non-citizen children.

Put simply; we need more status-blind but reality-centric child protection interventions. 

Measures in Thailand and Indonesia

In pursuit of long-term release, refrain or restore measures, Malaysia could also look at some promising practices that other countries with similar migratory situations in Southeast Asia have taken related to the child on the move: Thailand and Indonesia. Both Thailand and Indonesia host sizeable refugee populations, while Thailand is also a country with a large population of undocumented migrants.

While Malaysia has issued statements of intent and approved a small-scale ATD project in the last few years, both Thailand and Indonesia have taken much more concrete policy or legislative steps to protect the sojourning child from detention and beyond, even though both are not signatories to the 1951 Refugee Convention. 

A comparative table of the different steps that Malaysia, Indonesia, and Thailand have taken towards protecting the child on the move can be seen below:

Steps Taken Towards Protecting Children on the Move

COUNTRY	MALAYSIA	INDONESIA	THAILAND
Statements of Intent	2019: Malaysia signs onto the ASEAN Declaration on the Rights of Children in the Context of Migration & Plan of Action to develop alternatives to detention.  2019: Deputy Prime Minister Wan Azizah moots the idea of an ATD pilot and says that children do not belong in child detention.  2021: On World Children’s Day, Prime Minister Ismail Sabri affirms his commitment to an ATD and to protect all children, including refugee children. 2023: In February 2023, Home Minister Saifuddin publicly commits to releasing children.  2023: In June 2023, the Education Minister Fadhlina Sidek proposes to amend legislation to allow children without documentation to study at public schools.	2019: Indonesia signs onto the ASEAN Declaration on the Rights of Children in the Context of Migration & Plan of Action to develop alternatives to detention.	2016: Thai Prime Minister publicly affirms the need to end child detention at the New York Summit.  2019: Thailand signs onto the ASEAN Declaration on the Rights of Children in the Context of Migration & Plan of Action to develop alternatives to detention.
Small Scale Project Approval	2021 – 2022: An approved small-scale and limited ATD programme for unaccompanied and separated minors that has yet to be implemented.
Policy or Legislative Changes	None	2018: Policy that prohibits the immigration detention of all refugees and asylum-seekers, including children  2019: Education Ministry Circular Letter that grants refugee children some primary school access.  2016: Indonesia passes Presidential Regulation No.125, which creates protection opportunities and drawbacks.	1999 & 2005: “Education for all Policy of 1999” and “Cabinet Resolution on Education for Unregistered Persons of 2005” that allows all children regardless of status to access 15 years of education  2019-2020: 7 Thai government agencies sign MOU and SOP to implement ATDs that include child-first and family-first principles. Since 2019: Over 500 children and 150 parents released. 2019: Established the National Screening Mechanism for refugees to be implemented in September 2023.  2022: Anti-Torture Law passed
Other	None		Present: Identifying effective ATD models for Rohingya communities

Put simply, Malaysia has far lagged in its reform measures to protect the child on the move as compared to its neighbours. But this also means that the country has a few progressive reference points in the region to craft out meaningful reforms that can further protect children on the move.

This article is produced in cooperation with the Heinrich Böll-Stiftung e.V.