9thMay 2012
CLEARING MISCONCEPTIONS:
THE TRUTH ABOUT MIGRANTSIN MALAYSIA
“Whereas recognition of the inherent dignity and of the equal and inalienable rights ofall members of the human family is the foundation of freedom, justice and peacein the world..”: that is the first sentence of the Universal Declaration ofHuman Rights. As a member of the United Nations, Malaysia has proclaimed to holdthis Declaration to the highest standards, to protect & promote respect forthese rights and freedoms, and to actively secure effective recognition ofthese rights for all persons. “Inherent, universal, inalienable rights”applies, of course, to migrant workers too. It applies to all 2.6 million migrant workers in Malaysia. This is a basic premisethat we call on the Malaysian government to accept. Should they not, we askthem, as members of the international community, to explain why.
These discussions of fundamental rights and dignity of all persons, all workers, including all migrant workers must be had openly, frankly and publicly in Malaysia.Tenaganita, has consistently and loudly voiced deep concerns over the inherentand critical problems in the system of recruitment and employment of migrantworkers in Malaysia, and of many aspects of Malaysia’s immigration policiesthat are in harsh violation of fundamental rights and that restricts access tojustice. The tragedy is that we have raised these issues (backed by civilsociety and unions, nationally and internationally) for the past 2 decades,without seeing much in the way of the Malaysian government actively makingsignificant changes to the system in order to protect the rights of migrantworkers. The State has unfortunately found it more useful to attack thenews-bearer. Does shooting the messenger change the facts on the ground?
Fact: Approximately one out of three workers inMalaysia is a migrant worker. Labour policies therefore have wide reachingconsequences on the rights of workers in Malaysia where a significant numberof workers are open to exploitation, abuse and violence reflecting modern dayforms of slavery.
Fact: Two countries within ASEAN, Indonesia and Cambodia,have frozen the recruitment and placement of domestic workers from theircountry to Malaysia.
It is understoodthat that is in response to numerous reports of serious rights abuses againstdomestic workers here in Malaysia. The Malaysian government, however, remainsnumb to action, and has not brought about any form of comprehensive legalmechanism to actively protect and promote the rights of domestic workers (whoalso have inalienable rights). When themajority of countries at the International Labour Organisation (of which Malaysia is a member to) voted in resoundingsupport for the Domestic Workers Convention (known as ILO Convention 189) Malaysiaabstained (despite having over 200, 000 domestic workers currently in thecountry and active plans to recruit more). Is this a reflection of the State’s position that it does not want torecognize nor actively protect the fundamental rights of domestic workers?
Fact: In the latest Memorandum of Understanding(MoU) between Malaysia and Indonesiaon domestic workers, there are escape clauses built in that once more place thedomestic worker in a vulnerable state.
The Malaysiangovernment did agree to a separate bank account for domestic workers, one-dayoff a week, and for passports to be kept with the worker herself. There are,however, follow up clauses which statethat the one-day off can be converted into “overtime” and passports can be keptfor ”safe keeping” by the employer. It is like the right hand gives and theleft hand takes it away. The rights to rest and to hold one’s passportdisappears. Article 24 of the UDHR states “everyone has the right to rest and leisure, including reasonablelimitation of working hours and periodic holidays with pay”. Why is there resistance on the part of the Malaysiangovernment to not do everything in its power to ensure that the full enjoymentof those rights for domestic workers as spelled out in Article 24 are protectedand promoted?
Fact: Four years ago, Tenaganita and the MalaysianBar, along with several other members of civil society, submitted a memorandumto the Malaysian government which consisted of a comprehensive policy on therecruitment, placement and employment of and model contract for migrant workersin Malaysia.
Thecomprehensive policy would be the basic framework for the development of lawsand mechanisms to actively protect and promote the rights of migrant workers inthe country. This open and direct call for this policy was made to the State inrecognition of the widespread and serious human rights violations againstmigrants in Malaysia.Four years later, the Malaysian government has still yet to respond to thiscall from civil society and the Malaysian Bar.
We have insteadseen increased measures to institutionalize practices that have crippled therights and dignity of migrants. One such example is the amendments made to theEmployment Act in December 2011 to also define “outsourcing companies” and“labour contractors” as “employers”. Outsourcing companies and labourcontractors have been key factors in the trafficking of persons for labour in Malaysia,a fact that the State is aware of. The State also pushed through this amendmentin spite of strong protests from Unions and civil society. This is a classiccase of failed governance to address human trafficking and to protect the humanrights of workers.
Fact: In 2011, Tenaganita handled the cases of 453migrants in Malaysia,who were predominantly victims of labour trafficking, including migrantworkers, refugees and domestic workers. The top key violations were: unpaidwages; arrest, detention & deportation; denial of days of rest; overtime wagesnot paid; absence of a contract signed between the employer and the employee.
These forms ofviolations reflect both the abuse of labour rights and the state of ‘forcedlabour’ that these migrants were in while in Malaysia. These forms of violationsare also not random acts by abusive employers. The non-recognition of domesticworkers in the Employment Act, the widespread abuses by outsourcing companies,the non-recognition of the rights of refugees to work, the denial ofundocumented workers to access redress (regardless of how they became undocumented), the sluggish actions by the State toactively prevent human trafficking, abuse, violence - all these realitiesconverge in a hot, bubbling cauldron of human rights abuses that migrants arethrown into.
Dismissing thesecases as ‘isolated incidences’ does not change the reality. A State thatproclaims to respect human rights would understand that these cases warranturgent and immediate actions to address the laws, policies and practices by theState that create an environment for these cases.
Fact: Migrants access to redress and justice isdebilitated under existing legislation and practices by the State where theright to stay and the right to work have been denied.
Firstly, inorder to remain legally in Malaysia, migrant workers are required to have validpassports and work permits. The Immigration Act, however, gives full power tothe “employer” to obtain, renew and cancel the work permit, while punishing themigrant for any violations of the work permit. This is clearly problematic whenmigrants seek to take cases against their employers, as their employers can(and commonly do) react by cancelling the work permit thereby rendering themigrant ‘undocumented’ and subject to arrest, detention, whipping (if they aremale) and deportation.
The ImmigrationAct does have an allowance for workers to apply for a ‘special pass’, at thecost of RM100 per month, and it can only be renewed three times. If the case isnot resolved within these 3 months, the migrant worker must return home.
Tenaganita’sexperience during the past 15 years shows that due process takes more than 6months, sometimes up to 6 years before a case is resolved. While the case is being investigated andbrought to court for hearings, the worker is not allowed to work. The policy framework thus denies the worker’sright to stay to get redress and denies the worker’s right to work to supporthim/herself (and pay for the special pass) while the case is in court. On the other hand, Malaysian workers cancontinue to work while waiting for a resolution to their complaint (as rightlyso). Such a policy thus not only deniesthe migrant worker due process but it is also discriminatory against migrants.
Furthermore,responses by enforcement departments to migrant cases filed with them are moreoften than not poor. Tenaganita files a police report in all cases thatinvolves the withholding of passports of the workers by employers. This is donebecause the withholding of the passport belonging to someone else is a seriousoffence under the Passport Act and without their passport, the migrant workerfaces threats to their security in the form of arrest, detention, whipping anddeportation. Without their passports, and facing these very real threats,migrants find it extremely difficult to leave their employers and seek justice.In many instances, this puts the migrant in a state of forced labour. Despite the seriousness of this, the police,however, do not act on these police reports. In some instances, they have toldthe migrants to “file complains in the Small Claims Tribunal”. Thislackadaisical attitude by enforcement officers towards the human security ofmigrants and the acceptance of this criminal act by employers should not betaken lightly by any quarters of the State.
Fact: Domesticworkers defined as domestic servants meanwhile cannot seek redress forviolation of rights except to claim for unpaid wages under the Employment Actsimply because their rights are not recognized in the Act. The First Schedule ofthe Employment Act, under Employee (5) states “ he is engaged as a‘domestic servant’ - provisions section 12, 14, 16, 22, 61 and 64 and Parts IX,XII and XIIA are not applicable”. TheMinister has the powers to withdraw these exclusions and bring about equaltreatment to domestic workers without making reforms to the Employment Act.
Why has theMinister of Human Resources not made the decisions to repeal the clause in theFirst Schedule, even when doing so would keep with the State’s commitments torespect, promote and defend the rights spelled out in the UDHR, the Convention on the Elimination of All Forms ofDiscrimination (CEDAW) and especially in General Recommendation 26 of CEDAW?
The abovepolicies and practices by the State therefore increases the risk of humanrights abuses against migrants, inhibits the migrants access to justice andallows employers of migrant workers to act with impunity.
Fact: When the registration into the biometricsystem through the 6P programme ended on August 31, 2011, the Minister of HomeAffairs announced that 2.6 million migrant workers had come forward andregistered. Out of this figure, half ofthis population (1.3 million workers) were undocumented.
In spite of theoverwhelming response by undocumented workers to legalise their status, whenthe 6P ended on April 10, 2012, the Home Ministry revealed that by February of2012, 94, 856 workers had opted to return home while about 300,000 had appliedfor work permits. Our question is: what has happened to the almost 1 millionundocumented migrants who had registered and wanted to be legalized? Have the 340 government-approved agentssubmitted the applications or have the workers been cheated? We want answersfrom the Home Minister.
Malaysia as a member of ASEAN, has put thespanner in the works and derailed the development of the action plan on migrantworkers because it has not accepted the term “migrant workers”. The term‘migrant workers’ should not be controversial or disputed; it is globallyrecognized and defined in the UN and ILO Conventions.
This pettyobjection is symptomatic of a larger, more critical problem in Malaysia: therefusal of the State to recognize neither the basic rights of undocumentedworkers nor the rights of families of migrant workers. While these rights aredefined in the UDHR, the Convention to End All Forms of Discrimination AgainstWomen (CEDAW) and the Convention on the Rights of the Child (CRC), all of whichMalaysiais a party to, it is critical that these rights are explicitly spelled out inregards to migrant workers so as to ensure more effective protection. Malaysiahowever continues to be the stumbling block to the development of an effectiveaction plan for the promotion and protection of rights of mobile populationswithin ASEAN.
The challenge tothis government and the political leadership is to not be arrogant but redeemitself with humility to the feedback from us, from civil society, from unions,from governments of source countries and from international institutions toensure that we, as a nation, reach global standards in the protection ofrights. We call on the Malaysiangovernment to respond openly to this challenge.
We call on theMalaysian government, as members of the ILO, to begin this positive response bysigning onto (and implementing) the various conventions that ensure decent workand decent wages for all workers, both migrant and Malaysian.
Today, in the 21stcentury, Malaysia has created an underclass of workers called migrant workerswho are open to extreme forms of exploitation that reflects modern day slavery.Will the Malaysian government work with us to stop us from hurtling further inthis direction, and collaboratively create an environment that respects,protects, promotes and defends the rights and dignity of all workers, including migrant workers?
End.
Signed:
Dr. Irene Fernandez
Executive Director
Tenaganita
Notes:
Article in The Jakarta Post: http://www.thejakartapost.com/news/2012/05/07/malaysia-not-safe-indonesian-migrant-workers.html
"Tenaganita Executive Director Slammed for Speaking Ill of the Country", The Star (8th May) http://thestar.com.my/news/story.asp?file=/2012/5/8/nation/11249852&sec=nation
"Anifah: Fernandez irresponsible", The NST (9th May) http://www.nst.com.my/nation/general/anifah-fernandez-irresponsible-1.81964?localLinksEnabled=fale
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