Malaysia is one of East Asia's greatest economic success stories. Using newly-industrializing countries (NICs) as a model, Malaysia introduced rapid industrialization under the New Economic Policy in the 1970s. It shifted its development strategy to export-oriented industries with the establishment of many free trade zones, making the country the third largest producer of semiconductors in the world and among the ten leading exporters of consumer electronics.
Malaysia sustained an 8% Gross Domestic Product (GDP) growth rate over the past eight years. According to the World Bank statistics, between 1987 and 1993, Malaysia created 14 million jobs at a rate of 3.9% per annum.
As the New Economic Policy took shape, labor costs rose dramatically. This coincided with the business sectors hiring foreign workers, especially in the country's 3D (dirty, dangerous, demeaning) sectors, such as plantation, as a strategy to combat the labor costs. The government eventually legalized the importation of foreign workers for manufacturing, construction and service sectors. Moreover, due to sustained economic growth, an expanding middle class and increased employment of the local female workforce increased demand for foreign female domestic workers. The World Bank has estimated that the number of migrant workers in Malaysia has been increasing by 17,000 per annum, and that the proportion of migrant workers would soon reach one out of every six workers of the total working population in the country. Currently, there are about three million migrant workers from the Philippines, Indonesia, Thailand, Myanmar, Bangladesh and Sri Lanka. Malaysia stands as the largest importer of foreign workers in East Asia. It also exports laborers to Singapore, Taiwan, and Japan.
The pressure to accomplish rapid economic growth creates a predominantly vulnerable foreign labor force and the proliferation of business practices that violate their basic rights. In the absence of legislation protecting the rights of the migrant workers and with state sanction (even if it is tacit) of some of these practices, the average migrant worker has suffered at least one if not most of the problems explained below.
Subcontracting is a common business practice that seriously marginalizes migrant workers. Not only are the wages of migrants often siphoned off by intermediaries, but in the event of a violation of the terms and conditions of the contract it is very difficult for migrants to take action. This is because under such a practice it is very difficult to place the onus on the defaulting party. This problem is especially prevalent in the construction sector even though its incidence is also witnessed in the manufacturing and plantation sectors.
Other business practices which violate the rights of the migrant workers are the clauses in work
which prohibit migrant workers from unionizing, joining unions, or even forming an association.
Moreover, in blatant violation of the Passport Act of 1955, employers and recruiting agents
withhold passports and other documents of migrant workers in a bid to prevent them from
escaping from their place of employment. The defenselessness of the migrant workers in such a
situation increases their susceptibility to the abuses by employers and recruiting agents such as
nonpayment or deduction of wages, contract substitution, no compensation for accidents on the
work sites, and harsh and exploitative condition of work.
A common phenomenon for migrant workers who suffer harsh and abusive conditions of work is to run away to another job. This type of mobility is common among plantation sector workers. Paltry wages and arduous conditions drive these workers to the urban-based manufacturing, construction and service sectors, which offer comparatively better wages. The consequence of this inter-sectoral mobility however is that the migrant workers become undocumented and 'illegal' in the process, increasing their vulnerability to detention.
Accessibility to medical care for foreign workers is severely hindered owing to restrictions on undocumented migrants and double medical fees charged to foreign workers at government hospitals. Only workers employed by large companies have access to company doctors. Also, there is no policy with regards to maternity/pregnancy benefits. A case was documented involving a female Bangladeshi worker who discovered herself two months pregnant. The company continued to employ her, but refused to give her maternity benefits.
High accident rates are reported in factories and on plantations. Plantation workers are expected to handle hazardous pesticides. Not only are injuries very common, migrant workers often face unpaid wages during the period of their treatment and recovery.
There are serious problems regarding the detention of migrant workers in Malaysia, particularly regarding the appalling conditions of detention centers. Tenaganita's fact finding report in 1995 disclosed that more than 300 migrants (Filipinos, Indonesians, Bangladeshis) were detained and abused, and suffered from malnutrition and disease. The Malaysian government admitted to 42 deaths in one detention camp alone, primarily from beriberi.
Another common problem is that documented workers are detained for wrongdoings for which they are not at fault. Recruiting agents and other intermediaries in the home and host countries dupe migrant workers, yet escape any responsibility or legal recourse. For instance, Tenaganita handled a case in which Bangladeshis entered Malaysia legally with proper documents; however, they were then sent by their agent to work in factories other than what was designated in their contracts - in breach of the law. Furthermore, the agent had sold their passports. In such cases, migrant workers will be subjected to arrest by police on the spot for not carrying identification. Similarly, when workers go to the police station to lodge a complaint against the agent or employer for withholding their passport, they are simply arrested and detained.
It is also common for employers to withhold migrants' original documents - an offence under Malaysia's Passport Act of 1956. Consequently, in cases of raids and checks by authorities, migrant workers are arrested for not carrying original documents.
Tenaganita's experience indicates that women migrant workers, particularly domestic helpers, are the most vulnerable segment of the migrant work force. The experience of working with Indonesian and Filipina domestic helpers indicates a high incidence of the following practices which violate their labor rights and basic human rights:
No fixed hours of work. It is not uncommon for many domestic helpers to work until midnight and begin work again at the crack of dawn.
No off days. Many workers are denied a day off even once a month. Some get a day off once or twice a month, while a lucky few get a day off every week.
Two jobs. Many workers are forced to work in two places at a time. This may include working in the employer's home, as well as his/her office/factory/restaurant. In other cases, domestic helpers are forced to work in the homes of the relatives and friends of the employer.
In addition, domestic helpers, as other women migrants, are mandated to have periodic pregnancy and HIV tests, and will face immediate deportation if found positive on either/both counts.
Even though there is high incidence of abuse and harassment of women workers, it is more difficult for them to seek redress when they are employed as domestic helpers. Not only are they not covered by the Employment Act, but the isolation of workplace makes it extremely difficult for a domestic worker to lodge a legal complaint when she suffers from abuse precisely because she would face difficulty in either escaping and/or collecting of evidence. A case was reported about a maid who went to lodge a police report against her employer, but she was instead arrested for not carrying her passport, which was in fact withheld by her employer all along.
Given below are some cases that the group handled, which highlight some of the main problems encountered by women migrant workers in Malaysia and the frustrations and dilemmas experienced when seeking redress.
Violations: Wati, an Indonesian, had been employed by a doctor. She had been referred to Tenaganita by the social worker in a local hospital where she had been admitted in the Gynecological Ward for the delivery of her baby. Tenaganita's subsequent counseling with her revealed the following:
Actions for Redress: Action for redress taken by Wati with Tenaganita's support included lodging a police report for rape and physical assault. Legal assistance was also instituted to seek the return of Wati's personal belongings, unpaid wages, and travel documents from the employer, as well as compensation for repeated assault and battery, and paternity claims.
Outcome: Even though Wati had been interviewed by the police, the latter could only help in recovering a single travel document from the employer. The police maintained that the rape charge could not be established since there was no evidence left. The investigating officer also claimed that the police could not help in recovering the unpaid wages and other documents that the employer continued to hold in contravention of the law. Wati later indicated through the social worker at the hospital that she did not want to be further involved. In the meantime, she found new employers and did not wish to pursue her child's paternity case. As per Wati's wishes, the child was given away for adoption through the intervention of the hospital.
There are other cases involving sexual assault. Two such cases to which Tenaganita gave support involved allegations against the Croatian Ambassador and a high ranking Canadian World Health Organization (WHO) official.
Tenaganita continues its counseling services for migrant workers and help redress cases. Through this effort, it realizes that pursuing legal solutions for violations of rights of migrant workers is hindered by state policies and practices which override the law owing to rigid and biased positions taken by state agencies. They include:
Withholding of documents by the employer and canceling of work permit if action is taken by the employee in the event of abuse. Employers also tend to cancel the work permit when a worker suffers injury in the course of work. Consequently he/she becomes 'illegal'. This presents a problem on the worker's ability to stay in the country and pursue compensation.
Biased enforcement of the law, where the employer/agent escapes prosecution for wrongdoing while the migrant worker is penalized for situations beyond his/her control, (such as the withholding of documents by employers and subsequent arrest of migrant workers when checked by authorities).
Policies which deny the migrant worker accessibility to legal means of redress. An example is the policy of denying the detainee access or opportunity to hire the services of a lawyer while in detention, even if the cause of detention is not her fault.
Disregard for CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) on the part of the state when it comes to recognizing the rights of women migrant workers. This and the other rigid positions adopted by enforcement authorities seems to stem from xenophobic dispositions which tend to regard migrant workers solely as economic instruments, while disregarding them as social beings, let alone as persons with rights and privileges. It is also partly owing to the prejudice against foreign workers, and the propensity to brand them as the cause and source of all problems in the country.
The interests and rights of migrant workers are compromised for political considerations and the State's desire to maintain cordial diplomatic relations with other states, as in the case of Filipina domestic helper raped by an ambassador.
State policy disallowing the formation and joining of trade unions by migrant workers, even though the law itself allows the migrant workers to join unions.
Discriminatory mandatory periodic medical tests for pregnancy and HIV and immediate deportation if found positive, with no chance for appeal.
These practices suppress the pursuance of legal means of redress, and therefore are a flagrant denial of the fundamental right of any worker to seek restitution.
The registration period for legalizing undocumented workers ended in December 1996. During this amnesty period, the employers who submitted a work permit application on behalf of migrant workers to the Immigration Department would be issued a "Yellow Card," which is an acknowledgment that the work permit has been approved. With this, migrant workers are legally able to work, but only until their employers pay up the levy before the expiration of the Yellow Card, which was August 15, 1997, in order to complete the process for the work permit.
When the deadline for the August "Yellow Card" renewal deadline approached many migrant workers, especially those in construction and small and medium factories, were either thrown out on the streets, or arrested and detained for carrying a photocopy of their work permit approval letters instead of the original document. Tenaganita had handled 160 such cases for migrant workers during the period. The essential problem of this amnesty is that responsibility is placed entirely on the employers to process for legalization on behalf of migrant workers. Many cases involved false promises by the employers to process the work permit in order to collect money from the worker to pay the levy. Migrant workers found out only later that their employer never actually applied for a work permit. For instance, according to one of the complaints handled by Tenaganita, forty-four workers in one company paid their employer - totalling over RM60,000 - to obtain work permits during the amnesty period last year. Early this year, the company closed its office and left the workers to fend for themselves. The workers found out that they had not been registered with the Immigration Department. There are similar cases, in which migrant workers paid their employer believing that their employer registered for the work permits, and were suddenly dismissed with their wages left unpaid. In cases like this, workers are unable to lodge a complaint at the Industrial Relations Department or the Labor Department because their visa status remains "illegal."
Tenaganita made a statement on August 11 and demanded that Immigration Department and Labor Department create a mechanism for workers to lodge complaints and formal channels of redress. They also called for another amnesty for undocumented workers, but allowing the workers to register themselves instead of entrusting their employer.
On September 17, 1997, the Minister of Health, Datuk Chua Jui Meng, announced that a 15 year contract was sealed between the Foreign Workers Medical Examination Monitoring Agency (Fomema) and the government, in order to control the spread of communicable diseases allegedly brought about by migrants. Through a privatization program that was developed without consultation with migrants and under a shroud of secrecy, the Malaysian government handed over the right to examine, monitor and decide the health of foreign workers to Fomema. According to the privatization agreement, Fomema would introduce a system of monitoring and supervising the medical examination of about 1.7 million legally registered foreign workers in the country and provide the government with an annually updated health record of foreign workers.
According to Tenaganita's analysis, aside from the larger concern that this privatization project entails a monopolistic nature, it is evident that the foreign migrant workers have nothing to gain from this exercise; on the contrary, the following points indicate that migrants will be worse off under the scheme:
Costs: Tenaganita suspects that the price of medical examination fees will be much higher than under the current practice.
Confidentiality: The Department of Immigration and the Ministry of Health (which will be on-line with the Fomema database) will have access to the annually updated health records of foreign workers, breaching all ethics of doctor-patient confidentiality. Also, with this information, the workers can either be deported, as in the case for HIV, or segregated and discriminated from the community.
Since the announcement of the formation of Fomema by the Minister of Health in September, Tenaganita have had discussions with Fomema as well as the Malaysian Medical Association (MMA) and have asked for clarifications. Also, Tenaganita have issued a press release on October 15, 1997 in which it urges the government to abort the idea.
This report was compiled from the following sources:
Fernandez, Aegile (Tenaganita, Malaysia) , "Migration - Malaysian Perspective," Asian Migrant, Vol. 9, No.4, 1996.
Verghis, Sharuna, "Privatization of Medical Examination of Foreign Workers in Malaysia: Who Benefits? Who Loses?", in Caram News, Issue #2 - October 1997.
Tenaganita, "Case Study: Malaysian National Approaches to the Legal Protection of Women Migrant Workers," paper submitted at the Regional Lobby and Documentation Training on Migrants' Human Rights, February 16-22, Hong Kong.
Tenaganita, "Deadline for the Yellow Card, August 1997" (Press release, August 15, 1997).
Tenaganita, "A Mechanism for Profit or Care?" (Press release on Fomema Sdn. Bhd., October 15, 1997).