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Migrant labor rights are human rights

Malaysia must respect migrant workers as they do any other workers

Migrant labor rights are human rights
Joachim Francis Xavier, Kuala Lumpur

December 26, 2011

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For the many Malaysians who depend on foreign domestic workers, it is good news that the 28-month ban barring new Indonesian domestic workers from taking up employment here has been lifted. Malaysian households now employ over 230,000 domestic workers, 90 percent of whom are from Indonesia. The domestic workers care for children and elderly, and do various domestic chores that most Malaysians are no longer willing to do. The ban by the Indonesian government was imposed in June 2009 after a series of high-profile abuse cases reported in the media of both countries. This sparked anti-Malaysia riots in Jakarta and strained relations between the two neighbouring countries. Then in October this year, Cambodia announced that it would suspend the sending of new domestic workers to Malaysia following several reports of deaths of young Cambodian women under suspicious circumstances. Both bans had a debilitating effect on Malaysian households. At the same time, employment in Malaysia provides a lifeline to many young women and their families, who otherwise are unable to make ends meet in their own countries. This is so even when the wages in Malaysia for domestic workers (US$130-$200) remains among the lowest in the region. With the lifting of the ban by Indonesia on December 1, following a new agreement between the two countries, up to 50,000 Indonesian young women are expected to enter Malaysia beginning February 2012. The Cambodian ban remains in effect. So how bad has the situation been in Malaysia that it warranted such a drastic measure by Indonesia and Cambodia? For many years now, the media and civil society have documented a stream of horrendous cases of abuse and deaths involving migrant domestic workers. One such case in 2004 involved a 19-year-old Indonesian, Nirmala Bonat, who was burned with a hot iron on her breast, scalded with hot water and beaten by her housewife employer. Images of her disfigured face and scared body sent shockwaves through both countries and galvanized a wave of anger. It did not help that the criminal case against her employer stretched for four years before the court meted out an 18-year jail sentence to the perpetrator. In 2011, Tenaganita, a migrant-rights group based in Kuala Lumpur, reportedly rescued 41 Cambodian young women. Many of them suffered physical abuse and were overworked, some were sexually abused, and some were malnourished. Human Rights Watch in their report entitled “They Deceived Us At Every Step” documented 28 cases of abuse including psychological abuse, rape, bonded labor and cheating. Many more went unreported. Also in 2011 there were nine recorded cases of “mystery deaths” involving Cambodian domestic workers. These deaths raised alarms at the Cambodian embassy in Kuala Lumpur and eventually in Phnom Penh. To be fair, the Malaysian government has acted, and continues to act, on individual cases. However, what it has failed to do is to act upon the gaping holes in its labor and immigration laws, coupled with lackadaisical enforcement. For a start, domestic workers are not legally recognized as workers but as servants under the Employment Act of 1955. Thus, the more than 230,000 domestic workers are conspicuously excluded from enjoying all the rights a regular worker would enjoy, including important provisions regulating work hours and days off. What exacerbates the situation is that access to legal redress is curbed by the operations of the Immigration Act of 1959, which permits employers to unilaterally terminate the work permit of a migrant worker. This is almost always done whenever a migrant worker lodges an official complaint with the Malaysian authorities, resulting in deportation even before the case comes up for hearing in the courts. NGOs have over the years documented numerous cases where even pending court cases are derailed solely because the Immigration Department denied permission for migrant workers to stay and complete the trial. The ban by Indonesia put the Malaysian government under severe pressure, as the Malaysian public also openly voiced their dissatisfaction over the ban. Since then, the two governments began working on an amended memorandum of understanding. Under the new agreement, Malaysia has agreed to Indonesia’s demand for the workers’ right to hold their own passports rather than submitting them to their employers, to have one day off per week and to have standard contracts. There are also reports that Malaysia has agreed to a minimum wage. It is possible that Cambodia will also receive similar concessions. Talks are slated to take place with the Cambodian government for a similar MOU in January 2012. While these reforms are certainly welcomed, more needs to be done. Considering that Malaysia is one of the biggest recipients of foreign labor in Asia and that it sits on the UN Human Rights Council, it is high time the government bring itself to carve out a labor policy premised on respect for basic human rights. As it stands, whatever piecemeal concessions made thus far appear to have been done only under severe pressure by foreign governments and by Malaysian civic groups, resulting in a disjointed, inconsistent and fickle foreign labor policy. The Catholic Church is not aloof to the plight of migrant domestic workers. In 2004, the Vatican issued the instruction “Erga Migrantes Caristas Christi,” in which Blessed John Paul clearly stated that “… foreign workers are not to be considered merchandise or merely manpower. Therefore they should not be treated just like any other factor of production. Every migrant enjoys inalienable fundamental rights which must be respected in all cases.” Like other Malaysians, many Catholic families need migrant domestic workers in their homes and kitchens. This offers Catholic employers an opportunity to be witnesses of the Gospel by making reasonable labor demands of their workers, paying a just wage and respecting the worker’s right to privacy, freedom and relationships. Joachim Francis Xavier is a legally trained social activist who has worked for the Catholic Diocese of Penang for over 10 years. He now serves as chairperson of the Malaysian bishops’ Episcopal Commission for the Pastoral Care of Migrants and Itinerants.
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