Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

 

ACHR REVIEW
[ Special Issues for the 61st session of the United Nations Commission on Human Rights]

Embargoed for 2 March 2005
Review: CHR61/62/05
Mid-night knocks in Malaysia
Indonesian migrant workers are being arrested for improper documentation of their immigration status after a raid by Malaysian authority officers, outside Kuala Lumpur early March 1, 2005. REUTERS/Bazuki Muhammad

The mid-night knocks against the undocumented illegal migrants which began following the end of a four-month amnesty on the midnight of 28 February 2005 by the Malaysian government is unlikely to draw attention of the forthcoming 61st session of the United Nations Commission on Human Rights. Though the United Nations adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and appointed the Special Rapporteur of the Commission on Human Rights on the human rights of migrants, the migrant workers largely remain unwanted. The conditions of the undocumented migrant workers are worse.

Under Operation Tegas”, Malaysian police officers, immigration officials and reserve volunteers have been raiding building sites, plantations and restaurants - all popular work places for illegal migrants. The Malayisan government has reportedly deployed 25,000 frontline personnel in addition to 290,000 officers from the auxiliary police volunteer unit (RELA). They have the power to enter private property such as homes and stop and search members of the public without a warrant. They are also empowered to use fire-arms.

Migrant workers and their exploitation:

Estimates vary, but it is generally reckoned that there are between two and a half to three million migrant workers in Malaysia. Only one and a half million of them are legal. About 400,000 to 600,000 foreigners have already left following the announcement of three month amnesty from 29 October 2004. The three-month amnesty which was scheduled to end in December 2004 but was delayed until 31 January 2005 as a result of the Asian tsunami. But an estimated 200,000 to 400,000 undocumented workers remain.

The foreign workers are engaged in what Shamsuddin Bardin Malaysian Employers Federation Director termed as “three D jobs that Malaysians don't want - dirty, dangerous and difficult.” The exploitation and abuse of the migrant workers both by the employers and the immigrant officials are well-documented. 

On 28 February 2005, Indonesia’s Labour and Transmigration Minister Fahmi Idris stated that about 100,000 Indonesian illegal migrant workers who have not been paid wages are refusing to return home even in the face of an imminent crackdown. Most of those affected are domestic helpers while the rest are working in plantations, construction sites and factories. In early February 2005, the Indonesian embassy in Kuala Lumpur reportedly hired five lawyers to sue the employers who have been taking advantage of the amnesty to withhold the workers’ wages.  However, the action was withdrawn later after a meeting between Indonesian President Susilo Bambang Yudhoyono and Prime Minister Abdullah Ahmad Badawi.

Wrong prescriptions:

The crackdown is unlikely to address the problem of illegal migrants in Malaysia. The country needs foreign workers who contributed to the development of Malaysia as a successful economy. Around 11% of the workforce of Malaysia are foreigners.

As rightly stated by a coalition of Joint NGO Committee of Malaysia, the crackdown only targets undocumented migrant workers and not employers or recruiting agents. Therefore, it does not address the primary concern - the willingness of many Malaysian employers to break the law and take on foreign staff without work permits. The unwilingness of the Malaysian government to take action against those who employ without work permits facilitates exploitation and abuse at work places, non-payment of wages as highlighted by Indonesia’s Labour and Transmigration Minister Fahmi Idris and insufficient wages for survival. Many undocumented migrants are held as bonded labourers or sex slaves.

Malaysia has failed to take measures to reduce the number of undocumented migrant workers. Many employers, especially the contractors in the construction industry, in the small and medium industries and employers of domestic workers do not renew the work permits and thus the labourers become undocumented. If workers, especially domestic workers decide to run away to escape from abuse and violence have their work permits cancelled and thus become undocumented. The Immigration Department refuses to issue legal documents to migrants with pending court cases. The workers are only issued special passes for a maximum of three months, though it takes at least six months to settle a case through the court process. During the period of hearing, they are not allowed to have new work permit and remain under threat of arrest and imprisonment. They too become undocumented migrants.

As stated in our previous ACHR REVIEW, “undocumented persons in Malaysia irrespective of whether they are alleged illegal migrant workers or asylum seekers can face up to a five-year jail sentence, a RM10,000 (US$2,600) fine and six strokes of the cane under the Immigration Act, which was amended in 2002”. The Immigration Act also allows indefinite detention pending deportation. About 75% of the prisoners in Malaysia are foreigners. About 18,000 illegal migrant workers were whipped in 2003 and about 60,000 lashes given to the migrant workers. Another 16,000 undocumented workers are waiting to be whipped.

The “Operation Tegas” also fails to take into consideration the requirements of the vulnerable groups such as refugees, asylum seekers and victims of trafficking. On 1 February 2005, sixty-two Indonesians, including 27 from Aceh, were rounded up in a pre-dawn raid on a construction site south of Kuala Lumpur and were being held in Semenyih detention center. Many of the Acehnese were prevented from approaching the Office of the United Nations High Commissioner for Refugees as Malaysian police arrest them as illegal migrants. The government failed to live up to its promise of granting legal status to the Rohingya refugees from Myanmar. Such mass deportation also facilitates trafficking and violence including rape of the women.

The measures adopted by Malaysia against its officials are also draconian. Malaysian police have arrested a number of government officials on suspicion of selling residency permits to criminals involved in trafficking. The civil servants are being held under terrorism laws that allow indefinite detention without trial or charge. The use of anti-terror laws once again shows the lack of rule of law and due process of law. 

Conclusion:

According to news reports, out of seventeen employers who have been arrested for hiring undocumented workers, only two employers have been fined. 

It appears that Malaysian government seeks to punish those who are vulnerable to trafficking and thus end up being undocumented/illegal because of extreme poverty and persecution at home. Ultimately, unless the Malaysian companies/agents who are engaged are equally punished for employing alleged illegal workers, the exodus of illegal migrants and their exploitation are unlikely to end.

The response of the Malaysian government appears to address the concerns of the Bhumiputras, the majority Malays who have been given economic privileges under New Economic Policy to help them win a more proportionate share of the economy. As the Bhumiputras failed, the migrant workers are the new scapegoats. Now the RELA of the Bhumiputras has been given the power to use fire-arms without any training on the use of fire-arms while hunting the alleged undocumented migrants. But the rule of law and due process of law have always been alien to Malaysia under former Prime Minister Mahatir and it has changed little under the regime of Prime Minister Badawi. If the experience of mass deportation of March 2002 is any indication, flagrant human rights abuses are likely to be widely committed.

International community especially the Office of the High Commissioner for Human Rights, United Nations High Commissioner for Refugees and the concerned governments such as Indonesia, Philippines, Bangladesh, India etc must ensure that deportation is undertaken in a humane way with full respect for human rights and fundamental freedoms and that Malaysia provides consular access in accordance with the Vienna Convention on Consular Relations pertaining to those who are taken into custody.

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