– Irene Fernandez, Executive Director, Tenaganita, May 9, 2012
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..”: that is the first sentence in the Universal Declaration of Human Rights. As a member of the United Nations,Malaysiahas proclaimed to hold this Declaration to the highest standards, to protect & promote respect for these rights and freedoms, and to actively secure effective recognition of these rights for all persons. “Inherent, universal, inalienable rights” applies, of course, to migrant workers too. It applies to all 2.6 million migrant workers inMalaysia. This is a basic premise that we call on the Malaysian government to accept. Should they not, we ask them, 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 inMalaysia. Tenaganita, has consistently and loudly voiced deep concerns over the inherent and critical problems in the system of recruitment and employment of migrant workers in Malaysia, and of many aspects of Malaysia’s immigration policies that are in harsh violation of fundamental rights and that restricts access to justice. The tragedy is that we have raised these issues (backed by civil society and unions, nationally and internationally) for the past 2 decades, without seeing much in the way of the Malaysian government actively making significant changes to the system in order to protect the rights of migrant workers. The State has unfortunately found it more useful to attack the news-bearer. Does shooting the messenger change the facts on the ground?
Fact: Approximately one out of three workers in Malaysia is a migrant worker. Labour policies therefore have wide reaching consequences on the rights of workers inMalaysia where a significant number of workers are open to exploitation, abuse and violence reflecting modern day forms of slavery.
Fact: Two countries within ASEAN, Indonesia and Cambodia, have frozen the recruitment and placement of domestic workers from their country to Malaysia.
It is understood that that is in response to numerous reports of serious rights abuses against domestic workers here in Malaysia. The Malaysian government, however, remains numb to action, and has not brought about any form of comprehensive legal mechanism to actively protect and promote the rights of domestic workers (who also have inalienable rights). When the majority of countries at the International Labour Organisation (of whichMalaysiais a member to) voted in resounding support for the Domestic Workers Convention (known as ILO Convention 189)Malaysiaabstained (despite having over 200, 000 domestic workers currently in the country and active plans to recruit more). Is this a reflection of the State’s position that it does not want to recognize nor actively protect the fundamental rights of domestic workers?
Fact: In the latest Memorandum of Understanding (MoU) between Malaysia and Indonesia on domestic workers, there are escape clauses built in that once more place the domestic worker in a vulnerable state.
The Malaysian government did agree to a separate bank account for domestic workers, one-day off a week, and for passports to be kept with the worker herself. There are, however, follow up clauses which state that the one-day off can be converted into “overtime” and passports can be kept for ”safe keeping” by the employer. It is like the right hand gives and the left hand takes it away. The rights to rest and to hold one’s passport disappears. Article 24 of the UDHR states “everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”. Why is there resistance on the part of the Malaysian government to not do everything in its power to ensure that the full enjoyment of those rights for domestic workers as spelled out in Article 24 are protected and promoted?
Fact: Four years ago, Tenaganita and the Malaysian Bar, along with several other members of civil society, submitted a memorandum to the Malaysian government which consisted of a comprehensive policy on the recruitment, placement and employment of and model contract for migrant workers in Malaysia.
The comprehensive policy would be the basic framework for the development of laws and mechanisms to actively protect and promote the rights of migrant workers in the country. This open and direct call for this policy was made to the State in recognition of the widespread and serious human rights violations against migrants inMalaysia. Four years later, the Malaysian government has still yet to respond to this call from civil society and the Malaysian Bar.
We have instead seen increased measures to institutionalize practices that have crippled the rights and dignity of migrants. One such example is the amendments made to the Employment Act in December 2011 to also define “outsourcing companies” and “labour contractors” as “employers”. Outsourcing companies and labour contractors have been key factors in the trafficking of persons for labour inMalaysia, a fact that the State is aware of. The State also pushed through this amendment in spite of strong protests from Unions and civil society. This is a classic case of failed governance to address human trafficking and to protect the human rights of workers.
Fact: In 2011, Tenaganita handled the cases of 453 migrants in Malaysia, who were predominantly victims of labour trafficking, including migrant workers, refugees and domestic workers. The top key violations were: unpaid wages; arrest, detention & deportation; denial of days of rest; overtime wages not paid; absence of a contract signed between the employer and the employee.
These forms of violations reflect both the abuse of labour rights and the state of ‘forced labour’ that these migrants were in while in Malaysia. These forms of violations are also not random acts by abusive employers. The non-recognition of domestic workers in the Employment Act, the widespread abuses by outsourcing companies, the non-recognition of the rights of refugees to work, the denial of undocumented workers to access redress (regardless of how they became undocumented), the sluggish actions by the State to actively prevent human trafficking, abuse, violence – all these realities converge in a hot, bubbling cauldron of human rights abuses that migrants are thrown into.
Dismissing these cases as ‘isolated incidences’ does not change the reality. A State that proclaims to respect human rights would understand that these cases warrant urgent and immediate actions to address the laws, policies and practices by the State that create an environment for these cases.
Fact: Migrants access to redress and justice is debilitated under existing legislation and practices by the State where the right to stay and the right to work have been denied.
Firstly, in order to remain legally in Malaysia, migrant workers are required to have valid passports and work permits. The Immigration Act, however, gives full power to the “employer” to obtain, renew and cancel the work permit, while punishing the migrant for any violations of the work permit. This is clearly problematic when migrants seek to take cases against their employers, as their employers can (and commonly do) react by cancelling the work permit thereby rendering the migrant ‘undocumented’ and subject to arrest, detention, whipping (if they are male) and deportation.
The Immigration Act does have an allowance for workers to apply for a ‘special pass’, at the cost of RM100 per month, and it can only be renewed three times. If the case is not resolved within these 3 months, the migrant worker must return home.
Tenaganita’s experience during the past 15 years shows that due process takes more than 6 months, sometimes up to 6 years before a case is resolved. While the case is being investigated and brought to court for hearings, the worker is not allowed to work. The policy framework thus denies the worker’s right to stay to get redress and denies the worker’s right to work to support him/herself (and pay for the special pass) while the case is in court. On the other hand, Malaysian workers can continue to work while waiting for a resolution to their complaint (as rightly so). Such a policy thus not only denies the migrant worker due process but it is also discriminatory against migrants.
Furthermore, responses by enforcement departments to migrant cases filed with them are more often than not poor. Tenaganita files a police report in all cases that involves the withholding of passports of the workers by employers. This is done because the withholding of the passport belonging to someone else is a serious offence under the Passport Act and without their passport, the migrant worker faces threats to their security in the form of arrest, detention, whipping and deportation. 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 told the migrants to “file complains in the Small Claims Tribunal”. This lackadaisical attitude by enforcement officers towards the human security of migrants and the acceptance of this criminal act by employers should not be taken lightly by any quarters of the State.
Fact: Domestic workers defined as domestic servants meanwhile cannot seek redress for violation of rights except to claim for unpaid wages under the Employment Act simply because their rights are not recognized in the Act. The First Schedule of the 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”. The Minister has the powers to withdraw these exclusions and bring about equal treatment to domestic workers without making reforms to the Employment Act.
Why has the Minister of Human Resources not made the decisions to repeal the clause in the First Schedule, even when doing so would keep with the State’s commitments to respect, promote and defend the rights spelled out in the UDHR, the Convention on the Elimination of All Forms of Discrimination (CEDAW) and especially in General Recommendation 26 of CEDAW?
The above policies and practices by the State therefore increases the risk of human rights abuses against migrants, inhibits the migrants access to justice and allows employers of migrant workers to act with impunity.
Fact: When the registration into the biometric system through the 6P programme ended on August 31, 2011, the Minister of Home Affairs announced that 2.6 million migrant workers had come forward and registered. Out of this figure, half of this population (1.3 million workers) were undocumented.
In spite of the overwhelming response by undocumented workers to legalise their status, when the 6P ended on April 10, 2012, the Home Ministry revealed that by February of 2012, 94, 856 workers had opted to return home while about 300,000 had applied for work permits. Our question is: what has happened to the almost 1 million undocumented migrants who had registered and wanted to be legalized? Have the 340 government-approved agents submitted the applications or have the workers been cheated? We want answers from the Home Minister.
Malaysiaas a member of ASEAN, has put the spanner in the works and derailed the development of the action plan on migrant workers because it has not accepted the term “migrant workers”. The term ‘migrant workers’ should not be controversial or disputed; it is globally recognized and defined in the UN and ILO Conventions.
This petty objection is symptomatic of a larger, more critical problem in Malaysia: the refusal of the State to recognize neither the basic rights of undocumented workers nor the rights of families of migrant workers. While these rights are defined in the UDHR, the Convention to End All Forms of Discrimination Against Women (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 in regards to migrant workers so as to ensure more effective protection.Malaysiahowever continues to be the stumbling block to the development of an effective action plan for the promotion and protection of rights of mobile populations within ASEAN.
The challenge to this government and the political leadership is to not be arrogant but redeem itself with humility to the feedback from us, from civil society, from unions, from governments of source countries and from international institutions to ensure that we, as a nation, reach global standards in the protection of rights. We call on the Malaysian government to respond openly to this challenge.
We call on the Malaysian government, as members of the ILO, to begin this positive response by signing onto (and implementing) the various conventions that ensure decent work and decent wages for all workers, both migrant and Malaysian.
Today, in the 21st century, Malaysia has created an underclass of workers called migrant workers who 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 in this direction, and collaboratively create an environment that respects, protects, promotes and defends the rights and dignity of all workers, including migrant workers?
