(EN) Joint NGO Memorandum concerning the Crackdown on Undocumented Migrants

29 Januari 2005 Print page

We oppose this crackdown and urge the Malaysian Government to reconsider the
effectiveness and implications of such operations, in particular that:

1. Such a crackdown will not help the Malaysian Government to reduce the
number of undocumented migrants in Malaysia as it does not deal with the root
causes of illegality

In relation to economic migrants, we wish to highlight that many of those who
are presently illegal did not enter borders of Malaysia illegally. Instead,
majority of them have become illegal while being in Malaysia because of the
following reasons, which should be attended to:

a) Exploitative conditions of work and non accountability of employers

These include non-payment of wages for the workers, insufficient wages for
survival, and abuses at workplaces.

b) False promises of work conditions by recruiting agents.

In numerous cases we have found that recruiting agents promise a particular
kind of work but arrange for other kinds of work with different conditions and
wages for migrants. They also promised lucrative wages that were not in line
with actual wages.

c) Migrant workers are brought in on tourist visas and then either left stranded
with no employment or subcontracted for temporary work with no work permits
or payments. The workers become bonded laborers.

d) Many migrants, especially women, are brought under social visit passes and
then either forced to work as bonded laborers or sex workers.

e) Employers, especially contractors in the construction industry, in the small
and medium industries and employers of domestic workers have not renewed the
work permits and thus become undocumented.

f) workers, especially domestic workers who face abuse and violence, then decide
to run away, have their work permits cancelled and thus become undocumented.

As there are few, if any, mechanisms to address these issues, migrant workers
run away from employers, thus becoming illegal.

In addition, there are also factors which prevent undocumented migrants from
getting legal documentation and/or from leaving the country:

a) Migrants with Pending Court Cases

The Immigration Department continues to refuse to issue legal documentation
to migrants with pending court cases. The workers are only issued special passes
for a maximum of three months, though it takes a minimum of six months to settle
a case through the court process. They are not allowed to work to sustain themselves,
are prevented from obtaining a new work permit and remain under threat of arrest
and imprisonment.

b) Punishment for Leaving the Country (in the Absence of an Amnesty Period)

In the absence of the special exemptions given to migrants under the amnesty
period, undocumented migrants are arrested upon departure under the Immigration
Act. This prevents them from leaving the country, even when they want to, contributing
to the high numbers of undocumented migrants in Malaysia.

In addition, we ask the Government to address these other root causes of illegality:

a) Corruption and collusion between trafficking agents and law enforcement
officers

Research among migrants indicates clearly that such collusion occurs, which
results in migrants being brought into the country illegally. This defeats the
purpose of the Government in deporting migrants.

b) Failure to take into account special circumstances of other vulnerable groups
(described below)

2. Formalised procedures have not been put in place to ensure that the needs
of specific vulnerable groups will be attended to – in particular, asylum
seekers, refugees, stateless persons and trafficked victims

a) Asylum Seekers, Refugees and Stateless Persons

Malaysia is host to thousands of asylum seekers and refugees – primarily
from Burma, Aceh and Philippines – who have fled their countries for fear
of persecution on the basis of race, religion, nationality, political opinion,
and membership of a particular group.

Malaysia is also host to thousands of stateless persons such as the Rohingyas.
Despite promises made in October 2004 that the Malaysian Government would grant
legal status to Rohingyas, such documentation processes have not been undertaken,
and until now, they are still being arrested.

A concession made by the Malaysian Government thus far as been to issuing Filipino
refugees with IMM13 passes. ToHoHhe status of those without IMM13 passes is
unclear, and they are still under threat of arrest, imprisonment, whipping,
detention, and deportation.

Forced deportation of these vulnerable groups is in breach of international
customary law, putting them at risk of serious human rights violations, including
extrajudicial executions, torture, arbitrary detention, and ‘disappearances’.

b) Trafficked Victims

Our records indicate that the number of trafficked victims, both women and
children, has increased over the years. This is indicated by the large numbers
of foreign women detained in 2004, during the raids conducted especially at
entertainment centres. However, the women were charged for overstaying or for
not holding relevant documents like passports. Thus the enforcement of the Immigration
Act goes further to only punish victims of trafficking and not the traffickers.
Special consideration should be taken of their complex situation.

3. Such a crackdown potentially promotes criminal activities such as the
use of human smugglers/ traffickers

If the matters described above are not dealt with, this crackdown will serve
only to promote human smuggling/ trafficking.

For example, asylum seekers, refugees and stateless persons are forced to remain
outside of their country of origin, which does not afford them adequate protection.
When they are deported from Malaysia, they are forced to seek the assistance
of human smugglers in order to survive. When they are unable to pay the fees
for being smuggled back into Malaysia, they have been sold as forced laborers,
under conditions that would constitute ‘slavery’. Women asylum seekers
and refugees are also particularly vulnerable to sexual harassment and rape
while being smuggled.

4. Such a crackdown with about half a million personnel to enforce the crackdown,
reflects that the government is mainly interested in “hunting “ down
migrant workers and not employers or recruiting agents.

In the various statements made by Ministers and leaders have been to threaten
workers to leave the country. According to news reports, so far, seventeen employers
have been arrested for hiring undocumented workers and only two employers have
been fined. On the other hand, 75% of our prisons are filled with foreigners,
18,000 migrant workers have been whipped, 60,000 lashes given and 16,000 are
waiting to be whipped.

This form of enforcement is unbalanced, punitive and unjust.

5. There is high potential for human rights abuses to occur through such
mass-scale operations

Considering the magnitude of the operations, as well as the real fears of migrants
in facing arrests, imprisonment, whipping, detention, and deportation, we anticipate
flagrant abuse of human rights.

The Government has also declared its intention to prosecute and whip migrants.
We hold that whipping constitutes torture and is a breach of human rights.

The inclusion of civilian groups such as RELA, with promises of cash payments
made to them for each undocumented migrant ‘caught’, speaks volumes
of the attitude of the Malaysian government in viewing and treating others.

This is not a sport and bounty hunting should not be encouraged here. Migrants,
regardless of immigration status, are human beings and not animals.

We are further alarmed by news reports that sections of RELA will be issued
firearms. Such a move will only increase the possibility of abuse of powers
and create a form of vigilantism that brings about racism and violence, critical
injuries or even death.

The mass scale of the arrests also suggests that there will be large numbers
of people classified as asylum seekers, will be detained while their cases are
being processed. Our experiences shows that migrants who have been arrested
are often not permitted to call relatives, friends, and relevant organizations
(such as the UNHCR and NGOs) to inform them of their arrest. This may result
in legal migrants, asylum seekers, refugees, stateless persons, and trafficked
victims being forcefully deported.

Furthermore, we are concerned that detention conditions, particularly due to
overcrowding, will deteriorate considerably.

Lastly, we are concerned that mass expulsion may create humanitarian crises
at points of deportation, as occurred in Nunukan during the 2002 deportations.

6. Deportation to countries affected by the recent tsunami contributes to,
rather than alleviates, the difficulties faced by Tsunami-affected States

Considering the destruction and instability caused by the recent Tsunami in
December 2004, we urge the Government not to forcefully return migrants to affected
countries. This places additional unwanted burden on local populations, humanitarian
organizations and Governments struggling to overcome the difficulties caused
by the tsunami.

In fact, if migrants are registered to work, instead of deporting them, the
remittances sent to their families will contribute in a very positive way in
the reconstruction of the lives of the affected families and communities. This
will be a proactive way of disaster support.

In relation to the above, we recommend that:

1. The crackdown be cancelled. The Malaysian Government needs to consider more
effective structural reforms to adequately solve the issue of illegality.

2. Since Malaysia still requires migrant labor as stated by a number of employer
associations and registration has begun at sending countries, the government
should begin a re-registration exercise here. This would save tremendous costs
in the enforcement of the crackdown, reduce human rights violations and facilitate
speedier recruitment of workers.

3. The Malaysian Government considers its existing obligations, including:

a. To observe the principle of non-refoulement in international customary
law

b. To protect asylum seekers and refugee children, in line with Article
22 of the Convention on the Rights of the Child which Malaysia has ratified

c. To protect trafficked women and children

d. To address structural problems related to trafficking and bonded labour
in line with the Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery, which Malaysia has
ratified.

Endorsed by:

1) Alaigal

2) Aliran Kesedaran Negara (ALIRAN)

3) All Women’s Action Society (AWAM)

4) Amnesty International Malaysia

5) Campus Ministry Office, Penang Diocese (CMO)

6) Center for Orang Asli Concerns (COAC)

7) Child Development Initiative (CDI)

8) Community Development Centre (CDC)

9) Education and Research Association for Consumers, Malaysia (ERA)

10) Group of Concerned Citizens

11) Indigenous People’s Development Centre (IPDC)

12) Justice and Peace Commission, Penang Diocese (J&P)

13) Kumpulan ACTS

14) Labour Resource Centre (LRC)

15) Malaysia Youth & Student Democratic Movement (DEMA)

16) Malaysian Local Democracy Initiative (MALVU)

17) Malaysian Trades Union Congress (MTUC)

18) Migrant Workers Support Centre, Penang (MWSC)

19) National Human Rights Society (HAKAM)

20) Partners of Community Organisation, Sabah (PACOS)

21) Penang Diocesan Youth Network (PDYN)

22) Penang Office for Human Development (POHD)

23) Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)

24) Persatuan Sahabat Wanita Selangor (PSWS)

25) Pertubuhan Jamaah Islah Malaysia (JIM)

26) Police Watch and Human Rights Watch (PWHRW)

27) Pusat Aktivis Gerakan Reformasi Malaysia (PAGER)

28) Pusat Komunikasi Masyarakat (KOMAS)

29) Semparuthi Iyakkam

30) Sisters in Islam (SIS)

31) Solidarity for Aceh

32) SOS (Save Ourselves)

33) SOS Damansara (Save Our School)

34) SOS Selangor (Save Our Sungai Selangor)

35) Suara Rakyat Malaysia (SUARAM)

36) Tenaganita

37) United Chinese School Committees’ Association of Malaysia(UCSCA)

38) Women’s Aid Organisation (WAO)

39) Women’s Candidacy Initiative (WCI)

40) Women’s Development Collective (WDC)