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?
Reading the title only, it all sounds
very good for the promotion and protection of the rights of migrant workers but
a deeper consideration of the said declaration itself reveals that it does very
little for the protection and promotion of rights as everything declared is to
be subject to the laws, regulations, and policies of the respective Asean member
countries.
<P>In the preamble, it explicitly states recognising further the
sovereignty of states in determining their own migration policy relating to migrant
workers, including determining entry into their territory and under which conditions
migrant workers may remain.</P><P>By the usage of the words subject to the laws,
regulations, and policies of respective countries, which is repeated several times
in the document, the declaration basically allows that status quo be maintained
as it is now in a particular country. Any advancement and protection when it comes,
and if it comes, with regard to rights of migrants will depend on the particular
member country and the Asean Declaration really does nothing about determining
what or when or even whether anything will change for the better.</P><P>Laws and
regulations are written documents and as such it is clear whereas policy is a
vague creature. What is the policy of Malaysia with regard to migrant rights?
No one can at any time for sure say what it is. Some say that it is what the prime
minister, relevant minister or director-general of immigration state in their
speeches and statements. But this can and does change all the time, and one will
find it next to impossible to try and claim rights based on such policies.</P><P>It
may have been reported in the media but then one can always turn around and say
that the media got it wrong and it was not what was meant. We need to get our
governments to lay down written policies (that are accessible to the public) for
us to be really clear on what a government’s policy on a subject matter really
is. In Thailand, the Cabinet made resolutions and this made policy clear but this
is not so in Malaysia, and even if there were such resolutions, it has been kept
away from the public.</P><P>A close reading of the declaration will reveal that
they are only talking about migrants from Asean sending countries and specifically
those that are documented or those that become undocumented later by no fault
of theirs.</P><P>In the case of Malaysia, this declaration would not even cover
the some 170,000 Nepali migrants, being the second largest nationality group of
migrants workers, or those from countries like India, Bangladesh, Pakistan and
other non-Asean countries.</P><P>Undocumented migrants generally are also not
covered and the only group of undocumented workers covered is made clear by the
usage of the words [those that] have subsequently become undocumented, and with
regard to families of migrants, it only addresses family members already residing
with them, not new members of the family of migrants that may come to be in the
future of that said receiving country.</P><P>As such the millions of undocumented
migrants, some of whom are really refugees, be it from Burma, Aceh , Southern
Thailand and Southern Philippines, are not covered with regard to rights in this
declaration.</P><P>The extension of access of consular functions and diplomatic
assistance of member Asean countries when an Asean migrant is arrested or committed
to prison or custody or detained in any other manner, under the laws and regulations
of the receiving state seem to be a good thing especially when in that receiving
country there is no embassy and/or consulate of the country from where the affected
Asean migrant originates.</P><P><B>Undocumented workers</B></P><P>As mentioned
earlier, the declaration does not talk about rights of the about two to five million
undocumented migrants in our country. Officially, the number of documented migrants
in Malaysia is about 1.8 million, but interestingly a recent AFP report in October
2006 reiterated yet again that Malaysia’s 10.5 million strong labour force
is made up of 2.6 million foreign workers.</P><P>Undocumented migrant workers
are the most victimised of the lot, but sadly the declaration clearly states that
it is not concerned with the documentation of these group of workers when it stated:
Nothing in the present declaration shall be interpreted as implying the regularization
of the situation of migrant workers who are undocumented</P><P>In some Asean countries
like Thailand, migrant workers from Burma enter, find employment and then register
themselves with the relevant government bodies. Likewise, Malaysian migrant workers
in Singapore also get the job first and are then registered by their employers
as workers.</P><P>An ordinary Malaysian worker gets employed, and then only does
his employer informs/registers the said worker with the Employees Provident Fund
(EPF), for Social Security (SOCSO). The income tax department is also informed
by the Employer. A similar system, where the obligations are placed on the employer
(rather than the worker) would also work for migrant workers and that will solve
the problem of documentation, and will result in much more cost saving for the
receiving country.</P><P>In fact, in South East Asia we should be striving for
an Asean community of peoples, an Asean community of workers and we should be
trying to do away with all these sending and receiving agents and government pre-employment
documentation procedures. The Asean worker should be allowed to enter any Asean
nation freely, but maybe on a restricted entry permit of two to four weeks, being
the time for him to secure a job, and if he fails to do so, then he may be required
to leave generally, but this should not be the case for those who are refugees.</P><P>In
Thailand, I believe, if a worker is not satisfied with his employer or his working
conditions, he can leave and be allowed to stay in the country for a defined time
during which he should find new employment. It is a good practice that Malaysia
should also seriously consider.</P><P><B>Consensus, not majority decision</B></P><P>The
biggest problem with Asean is that decisions are made by consensus and not by
majority vote and this is a fact that cripples and impedes Asean from moving forward
in the field of promotion and protection of rights. For example, if the majority
of the Asean member nations are not happy with what is happening in Burma and
want to make a statement of protest about Burma, Asean cannot do so because Burma
(a member of Asean) objects. That’s why there may be gross human rights violations
committed by some Asean member country, and Asean makes no statement or comment.
Similarly the fact that some members of the Asean are not members of the World
Trade Organisation prevents Asean from going into the WTO meetings and negotiating
as a block for the good of the Asean people.</P><P>I believe that it is this problem
that has brought about this very weak declaration that has an impressive title
and nothing more. It does not even set minimum standards or guarantee basic rights
of workers. Maybe, the soon to be Asean Charter may be able to set some standards
and require strict compliance by all member nations within a stipulated time frame.
We shall have to wait and see.</P><P>As it is, there really seems to be no sense
for this declaration to have the secretary-general of Asean to submit annually
a report on the progress of the implementation of the declaration to the summit
through the Asean Ministerial Meeting. What is he going to report, save that each
of the Asean member states have complied what is required of them in accordance
with the requirement of their respective countries laws and regulations and policies.
There were really no specific requirements that had to be complied by Asean member
nations within any stipulated time frame.</P><P>To be fair, there is an indication
that an Asean instrument on the protection and promotion of the rights of migrant
workers is to be developed but alas no time frame was set, and even if such an
instrument is developed it must have in place a monitoring system, a complaints
procedure and an adjudicating body with penalising powers that should be accessible
to everyone, including the migrant workers and their families and not just Asean
member states. We already have UN and ILO conventions dealing with the rights
of workers, migrants or otherwise; and also migrant workers and their families
that could very easily be adopted in toto or used as a basis for this upcoming
Asean instrument.</P><P>For the protection and promotion of the rights of migrant
workers, we cannot be dealing with just the documented but also undocumented migrants.
For refugees from member Asean countries now in other Asean nations, something
more may be required, especially since most refugees are seeking asylum and protection
from the wrath and possible persecution of their own country of origin.</P><P>The
instrument must also advocate the equality of persons and equal protection of
the law in all Asean countries of all persons and all workers from member nations
and even other countries.</P><P>One group of workers that are presently left out
in the employment laws of most nations is domestic workers and this new Asean
instrument must provide for clear rights for this group of neglected workers.
In Malaysia today, it is reported that there are about 320,000 domestic workers
and as such this is no longer an insignificant or small number.</P><P>Asean’s
concern about the protection and promotion of the rights of migrant workers must
be applauded but the declaration that emerged on Jan 13 was a far cry from what
one would have expected from a group of nations that describe themselves as a
caring and sharing community.</P><P><I>Source: http://www.malaysiakini.com/opinionsfeatures/62462</I>
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