January Edition: Content

Welcome! In this issue, we will be covering recent legal developments in the ASEAN region: the plight of the Rohingya refugees, the Philippines' latest telecommunications legislation & law enforcement issues it raises, and the evolution of Malaysian employment law.

The plight of the Rohingya: an introduction to Southeast Asian refugee law

In 2012, the west coast of Myanmar broke out in ethnic violence waged on the minority Rohingya Muslims by the Rakhine people. Since then, states all over Southeast Asia have experienced an influx of Rohingya asylum-seekers as they are violently & forcibly displaced (Reuters), a situation worsened by the government’s 2017 campaign against the designated terror group Arakan Rohingya Salvation Army (ARSA); Council on Foreign Relations explains. Under the current military junta, whose members facilitated many of the 2017 village purges, the exodus of Rohingyas has heightened, per the South China Morning Post. In 2023, the UN High Commissioner for Refugees reported an "alarming" rise in the death toll of Rohingyas attempting to flee by sea the previous year. There are two layers to the legal status of the Rohingya. The first is their domestic status. Even within Myanmar, access to civil documentation (such as birth certificates) conferred upon a Rohingya person is severely restricted, making them legally stateless from birth. From Operation Dragon King in 1978 to Operation Clean & Beautiful Nation in 1991, numerous attempts have therefore been made by the Myanmar government to expunge the Rohingya on the basis that they are technically “foreigners.” The second is the rights and protections afforded them as refugees. The role of refugee law is to protect the human rights of people who otherwise would not receive these protections from their own country. Because there is no one jurisdiction that the Rohingya can resort to for aid, they are left in the hands of international law — meaning that they are protected largely by peremptory norms, not any legally binding obligations. An example of this is non-refoulement (the norm that no person can be deported to their home country if they face significant risk of death or imprisonment there). It is codified in the 1951 Refugee Convention, but has been largely ignored by countries like Bangladesh when it comes to the Rohingya. The Southeast Asian stance is ambiguous at best due to the principle of non-interference in fellow members’ domestic affairs. Notably, 4 ASEAN members, including Malaysia & Thailand, have not ratified the Refugee Convention or adjacent protocols. This means that these countries are under no obligation to integrate protection for refugees into local law. Hence, although some administrations are in fact relatively sympathetic towards the Rohingya — especially Muslim countries like Indonesia — the legal pitfall in this situation is that decisions on the Rohingya will ultimately be left to the discretion of individual host states.

The Philippines' Sim Card Registration Act, explained

Mobile phone scams are commonplace in the Philippines, which has, according to Reuters, a 61% smartphone penetration rate. A new law under the administration of President Ferdinand Marcos Jr. proposes to cut back on this problem by regulating public telecommunications entities (PTEs). This year, under the SIM Card Registration Act (SCRA), PTEs can no longer simply issue and activate a SIM card, but must first register it with official identification information which a “competent authority” can access freely upon request; Baker McKenzie explains. Minors & tourists are also subject to the registration requirements, albeit slightly modified. This is not the only provision which expands what the government can do in the name of law enforcement; per the South China Morning Post, a provision of the SCRA allows law enforcement to falsify their identity (for example, caller ID) when using a registered SIM card to contact another person. Police deception is not normally problematic or unconventional. It is legal in many countries for the purpose of identifying criminals during interrogations or long-term entrapment operations. However, critics of the SRCA say that it is too vague, leaving room for interpretation should the law be abused by police actors or challenged in court. Advocates for the SRCA, on the other hand, commend it as a necessary step to detect and deter fraud early (Nikkei Asia). As of January 4, over 11.2 million individuals have already completed the SIM registration process, though not without its initial hitches. Analysts predict that this will hamper the already shaky trust of the general public in government-owned agencies to use and manage their data confidentially (The Straits Times). It hence remains to be seen whether the Philippines will join other Southeast Asian countries in tightening its data protection laws, outlined here by Norton Rose Fulbright, and whether its attempt to crack down on cybercrime will clash with the need to protect consumers’ confidentiality.

Evolution of employment law in Malaysia

What defines an employee? As the diverse circumstances of modern employment begin to blur the distinction between an employee and a mere self-employed independent contractor, Malaysia has found it necessary to revise its definitions in order to extend the law to all who require employment protection. Per the Employment (Amendment) Act 2022 which took effect on January 1 2023, Malaysia is now primarily using the “degree of control” test — whether the employer figure controls when, how & the duration for which an individual does an assigned task. Additionally, the person must have been provided with tools, materials, or equipment to do the job before they can be considered an employee. This echoes a guideline in Hall v Lorimer, a case from Britain — which Malaysian common law largely derives from — stipulating a checklist approach to help the courts determine employment status, including the question of where job equipment is sourced. The new laws also include the unique provisos that an employee must perform regular work “integral” to the employer’s business, and the income from that regular work must make up the bulk of their income. Other significant changes have been made under the statute. These include a paid paternity leave of one week for new fathers and a reduction of the work week from 48 to 45 hours; Malaysiakini explains. Retailers have formally complained (Free Malaysia Today) about the law, especially the expansion of eligibility for overtime payments to employees earning RM4,000 per month (about USD $1000) & below. However, the new rules have ultimately been implemented to align Malaysia’s laws further with the working standards laid out by the International Labor Organization (ILO). Only time will tell if the Employment (Amendment) Act actually succeeds in promoting the welfare of employees, as the Malaysian Trades Union Congress (MTUC) has already received reports that employers are utilizing loopholes in the Act to exceed the 45 hour requirement.

Partnership content: Lawyerforyer

LawPulse ASEAN is proud to announce our first formal partnership with a like-minded student organization. Access their content and find out more about them below: Lawyerforyer is a non-profit educational platform based in Singapore. We understand first-hand how daunting and complex the legal industry may seem to young aspiring lawyers, and as such, we pride ourselves on demystifying it. On our social media accounts, we are dedicated to providing simplified, bite-sized information on the legal industry for our audience’s easy comprehension. Examples are our specially curated criminal law series, our weekly “Expand Your Horizons” legal news updates, and many more. It is our sincere hope that we can provide our followers with a deeply immersive yet effortless exploration of the legal industry, and we continue to work hard to expand and upgrade the content we churn out. As always, feeding the curious minds of our youth is our utmost priority.

(Not So) Ludicrous Litigation

Welcome to (not so) Ludicrous Litigation, in which we cover infamous legal cases and explain the rationale behind them! This month, we bring you Nettleship v Weston, a case involving a driving instructor who sued their student. 

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