Abuses against female migrant domestic workers
In our 2004 report, “Help Wanted: Abuses against Female Migrant Domestic Workers in Indonesia and Malaysia,” Human Rights Watch documented a wide range of human rights abuses against domestic workers, including labor rights violations such as excessively long working hours, lack of rest days, and unpaid wages; violations of freedom of movement and freedom of association; and physical and sexual abuse. Migrant domestic workers are excluded from section XII of Malaysia’s Employment Act of 1955, which would otherwise ensure they were entitled to one rest day per week, a limitation of work hours to eight hours per day and forty-eight hours per week. Grave obstacles prevent many domestic workers from reporting abuses or seeking redress through the Malaysian justice system. These include employers’ practices of forbidding domestic workers to leave the home, the government’s inadequate monitoring of workplace conditions, and gaps in Malaysia’s employment and immigration laws. Inadequate government oversight of profit-motivated Malaysian labor agencies contributes to the abuses. In many cases, labor agents are guilty of abuses themselves or actively obstruct domestic workers’ access to information or help. Human Rights Watch urges Malaysia to renew its efforts to create a Memorandum of Understanding (MOU) with Indonesia on migrant domestic workers. In May 2004, the Malaysian government signed an MOU with Indonesia regarding migrant workers. However, this MOU excluded domestic workers. The two governments stated they would create an MOU on migrant domestic workers within three months, but more than a year later, there has been little, if any, progress.
- Amend the employment and immigration laws to provide migrant domestic workers full protection under the law;
- Strengthen guidelines for labor agencies, expand oversight of the work of such agencies (including by surprise inspections), and implement enforcement mechanisms that include imposition of substantial penalties on agents who abuse workers or otherwise violate the guidelines;
- Protect domestic workers’ rights to rest, freedom of movement, and freedom of association; and
- Develop an MOU with Indonesia specifically on domestic workers that contains a standard contract with provisions on hours of work, rest days, and pay; systems for monitoring training centers and places of employment; and plans on cooperation to provide services to survivors of abuse.
We request the opportunity to comment upon the draft MOU before it is finalized. Human Rights Watch has reported on migrant worker issues in other countries and we are prepared to offer suggestions based on international labor standards and the experience of other countries.
Abuses associated with enforcement of the Immigration Act
Human Rights Watch is also concerned about the ongoing expulsion of undocumented migrants from Malaysia. The enforcement of the punitive Immigration Act of 2002 has had negative consequences for both Malaysia’s human rights record and its economic growth. In particular, there is a pressing need to screen for individuals in need of protection – such as refugees, abused migrant workers, and trafficking victims – and to exempt them from the Act’s penalties. Through the intervention of the United Nations High Commissioner for Refugees (UNHCR), Malaysian authorities have released over 500 refugees and persons of concern who have been arrested under the Immigration Act. Human Rights Watch commends the Malaysian government for its cooperation in these cases. However, as of May 16, 2005, UNHCR still sought the release of over 1100 individuals in detention who had been determined to need international protection and should therefore be released from immigration proceedings. Of these, over 400 are currently being prosecuted, and approximately 60 have been prosecuted and sentenced to caning, imprisonment, and fines. Such penalties are disproportionate and cruel, and become even more offensive when applied indiscriminately to persons who were forced to flee to Malaysia to escape persecution and other human rights violations in their own countries. Similarly, trafficking victims and migrants who have been subjected to abuse from their employers risk being prosecuted under the immigration laws instead of receiving assistance. For example, a Nepalese worker, Mangal Bahadur Gurung, had a labor complaint pending, yet was arrested, prosecuted, whipped, and served part of a ten-month sentence before an aid group helped secure his release. Unlike Gurung, others in similar predicaments may never be identified. In many cases, trafficking victims and abused migrant workers may be afraid to report abuses to the police and immigration authorities out of fear of detention and deportation. SUHAKAM, the national human rights commission, has noted that many foreign women currently in Malaysia’s prisons are actually trafficking victims.
· Amend the Immigration Act of 2002 to remove provisions for disproportionate or cruel penalties, including long-term imprisonment and caning;
· Release from detention and immigration proceedings all refugees and others who have been determined by UNHCR to be persons in need of international protection, according to the UNHCR mandate;
· Institute screening procedures, in cooperation with trafficking experts, SUHAKAM, or NGOs, to identify trafficking victims and abused migrant workers who require assistance; and
· Implement commitments made in 2004 to Rohingya refugees, including issuing renewable temporary stay permits, enabling their acquisition of work permits, and providing access to education.
Thank you for your attention to these matters and we look forward to your response. Sincerely, LaShawn R. Jefferson Executive Director Women's Rights Division Brad Adams Executive Director Asia Division Cc: Y.A.B. Dato' Sri Haji Mohd. Najib bin Tun Haji Abdul Razak, Deputy Prime Minister Y.B. Dato' Haji Azmi Bin Khalid, Minister of Home Affairs Y. Bhg. Tan Sri Abdul Gani Patail, Attorney-General Y.B. Datuk Wira Dr.Fong Chan Onn, Minister of Human Resources Y.Bhg. Dato’ Hj. Jamal bin Kamdi, Director-General, Immigration Department