Malaysia is one of Asia's biggest employers of foreign labour. But recently, cases of deaths, abuse and forced labour have come to light. What is going on? Who is protecting these migrant workers?
<b>Constitutional prohibition</b>
<p>The Federal Constitution in Article 6(1) orders that "no person shall
be held in slavery". The prohibition is absolute and applies to both the
public and the private sectors. What constitutes slavery is, however, nowhere
defined.</p>
<p>In legal and political discourse, "slavery" refers to the social
status of persons who were purchased in the slave market or held as captives
or prisoners of war or were descendants of any of the above. They were regarded
as the property or chattel of their "owners" and could be bought and
sold like any worldly acquisition.</p>
<p>Slaves provided free and involuntary labour and services. They had no right
to refuse work or to abandon their masters or to receive compensation beyond
the basic necessities of life. In most societies, they had no right to citizenship
or to the attributes of citizenship like education or vote. Often, they had
no right to marry.</p>
<p><b>Forced labour</b></p>
<p>The International Labour Organisation defines forced labour as "all work
or service which is extracted from any person under the menace of any penalty
and for which the said person has not offered himself voluntarily". In
Malaysia, Article 6 clauses (2), (3) and (4) ban all forms of forced labour
subject to three exceptions.</p>
<p>First, according to Article 6(2), Parliament may by law provide for compulsory
service for national purposes. This means that parliament can mandate military
service for all citizens or order persons convicted of crimes to perform community
service. It can require participation in a Rukun Tetangga or a peace corps-type
of scheme. Doctors, lawyers, other professionals and students can be compelled
to serve national institutions for a stated period.</p>
<p>The power to create such laws belongs to the federal parliament and not to
state assemblies or to the executive. Further, the compulsory service that is
legislated must be for "national purposes". It cannot be tailored
to serve the specific interests of a statutory body or local authority. For
instance, many universities, as part of their disciplinary code, wish to impose
"community service orders" in lieu of fines on students who flout
the university’s regulations. But the ban on forced labour in Article 6(2) prevents
imposition of such a punishment.</p>
<p>Perhaps one way the constitutional hurdle can be circumvented is for disciplinary
rules to be amended to empower disciplinary boards to offer the convicted student
a choice between a community service order and a traditional penalty. If the
student has a choice, then he is not "forced" and the constitutional
prohibition is not attracted.</p>
<p>Second, Article 6(3) states that work "incidental to" the serving
of a sentence of imprisonment imposed by a court of law shall not be taken to
be forced labour. This means that prisoners in jail can be forced to work and
to perform prescribed, manual tasks.</p>
<p>How far this power goes has never been litigated. It would certainly violate
international law if prisoners are exploited as cheap or free labour to toil
in the nation’s farms, factories and mines in order to produce inexpensive products
for the local or international market. Article 6(3) does not give a blank cheque
power to use prisoners as beasts of burden. It only permits work "incidental
to the serving of a sentence of imprisonment".</p>
<p>Third, if under the authority of law the functions of one public authority
are transferred to another, Article 6(4) permits the compulsory transfer of
employment of workers from the first public authority to the second.</p>
<p>It must be noted, however, that Article 6(4) shields only the public sector.
In the private sector, there is no automatic transfer of service. If a business
or enterprise is bought over by new owners, the workers of the enterprise must
be afforded a choice. They have no duty to continue employment with the new
owner. As Article 6(2) forbids forced labour, it would be unconstitutional for
one employer to compel his employees to work for another employer: Barat Estates
v Parawakan (2000).</p>
<p><b>Slavery’s modern forms</b></p>
<p>No legal system today explicitly permits slavery. Yet, everywhere, this pernicious
phenomenon persists in clandestine or indirect forms. It is estimated that nearly
27 million people around the world live under some of the following conditions
that are similar to slavery:</p>
<p><LI> Human trafficking. Each year an estimated 600,000 to 800,000 men, women and
children are trafficked against their will across international borders. They
are tricked, lured by false promises, smuggled into countries or brought in
on false pretexts.
<LI> Child labour. According to a recent estimate of the International Labour Organisation,
100 million children are exploited for their labour. <br>
<LI> Sexual slavery. Around the world, millions of women and children (of both
sexes) are forced into prostitution and pornography. A number of industries
thrive on commercial sex. Girls as young as 10 are sold into prostitution. <br>
<LI> Exploitation of domestic helpers. In countries of the North and the South,
domestic helpers are deprived of the ordinary safeguards of employment law.
They have no fixed hours of employment, no holidays, no EPF, Socso or medical
benefits.<br>
<LI> Exploitation of foreign workers. Many employers do not feel the need to grant
to menial workers from abroad, the rights available to local workers.<br>
<LI> Debt bondage. Indentured servants and tenant-farmers in a debt bondage are
known to exist in most societies. In some communities, wives and children are
put up as hostages for debts. If the obligation is not fulfilled, the hostages
become slaves.<br>
<LI> Wage slavery. In many economies there is no minimum wage. Due to poverty and
high rates of joblessness, workers are forced to accept pitifully low wages.<br>
<LI> Sale of children. Around the world, the poor often sell their children to
prevent starvation.<br>
<LI> Child soldiers. Innocent children are often used in armed conflicts. Even
if they survive the war, the trauma of violent conflict singes them for life.
<p>It is clear, therefore, that slavery-like practices remain pervasive in the
21st century. International initiatives are needed to investigate and prosecute
these abominations.</p>
<p><i>Dr Shad is Professor of Law at UiTM. Comments: feedback@thesundaily.com</i>
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