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V.  Protection Failures and Obstacles to Redress

Indonesian migrant domestic workers facing abuses during recruitment, while waiting in pre-departure training centers, or when working in Malaysia have few options for seeking protection and little hope for redress.  The Indonesian and Malaysian governments abdicate most monitoring and protection functions to labor suppliers who may be either negligent or abusive themselves.  The Malaysian government’s blind enforcement of stringent immigration laws means that women escaping from abusive situations can be detained and deported without any access to services or legal aid.  Even women who obtain help from the Indonesian embassy or NGOs are still stymied in their quest for justice by Malaysian immigration and labor laws as well as labor agents who are able to vanish at critical moments and escape punishment.

In the wake of the Nirmala Bonat case in May 2004, the Indonesian and Malaysian governments announced several initiatives for addressing abuses against migrant domestic workers.  These proposals include establishing a bilateral labor agreement on domestic workers, improving the quality of pre-departure training, and creating expanded support services for victims of abuse. 

Bilateral Labor Agreements

The severe abuse of Nirmala Bonat, an Indonesian domestic worker, sparked the governments of Indonesia and Malaysia to commit to negotiating a MoU specifically for domestic workers during the summer of 2004.  The content of the new MoU had yet to be decided at this writing, and it remained unclear whether it would provide substantive protections addressing the abuses that domestic workers encounter at all stages of the migration cycle or whether, instead, it would legitimize the inadequate systems and flawed policies currently in place.  Currently, the government generally relies upon profit-oriented labor agencies to monitor workplace conditions, even though these agencies are often accused of abuse and exploitation themselves. 

Malaysia and Indonesia brokered a Memorandum of Understanding (MoU) governing labor migration between the two countries in 1998 and signed another one on May 10, 2004.  Both MoUs specifically exclude domestic workers, and Malaysia’s Minister of Human Resources told Human Rights Watch that a separate agreement would need to be drawn up for “unskilled” workers.¹²⁶  Migrant workers in construction, factories, and plantations are all covered by the May 10, 2004 agreement, with only domestic workers classified as “unskilled” by the two governments. 

In addition to excluding domestic workers, the MoU signed on May 10, 2004, fails to provide several critical protections for other types of migrant workers.  The MoU permits employers to hold the passports of migrant workers and prohibits migrants from organizing through unions or other labor associations. It covers recruitment, medical checkups, and transportation, leaving out important areas like conditions of work and sanctions for employers and labor agencies that abuse migrant workers.¹²⁷  This MoU has marginal improvements over its 1998 predecessor such as the issuance of identity cards recognized by Malaysian authorities to migrant workers.  These identity cards facilitate workers’ movement within Malaysia, but without the right to hold their passports, workers still face restrictions on their movement across international borders.  The MoU also specifies that round-trip airfares should be jointly paid by Indonesian labor recruiters and Malaysian employers and that migrant workers should earn a minimum salary of U.S.$10 per day.¹²⁸

Migrant rights’ advocates have called for stronger protections for migrant workers through bilateral agreements at the same time as they have acknowledged the weakness of these agreements.  Bilateral agreements have few mechanisms for enforcement and redress, and unequal power relationships between countries of origin and destination make it difficult to produce fair agreements that truly protect migrant workers.  Human Rights Watch interviewed several Indonesian government officials who noted that Indonesia felt inhibited from negotiating too hard as they feared that Malaysia would turn elsewhere for cheap labor.¹²⁹  Several NGOs and Indonesian government officials supported the idea of negotiating a binding treaty on regional labor standards that would help prevent this problem.

Response of the Indonesian Government

The Indonesian government has begun to respond to reports of abuse of Indonesian domestic workers through new policies and provision of support services.  For example they have drafted legislation on the protection of migrant workers and have established a coordinating ministerial body on migrant workers.¹³⁰  Returning migrant workers showing signs of abuse or trauma at the international airport in Jakarta are taken to a special ward at Sukanto Hospital for treatment.  The Ministry of Manpower and Transmigration has placed increased emphasis on pre-departure training programs.

These reforms remain woefully inadequate compared to the scale and intensity of the problems.  Several different ministries are taking up initiatives related to the protection of migrant workers, but coordination is weak.  Bureaucratic hurdles and lack of meaningful oversight also contribute to a system that permits labor agents to freely exploit migrant workers without fear of sanction.  Government corruption at all levels remains an impediment to preventing and responding to abusive labor practices.  Although the Indonesian government has drafted legislation to protect overseas workers, the delay in assigning a government ministry to sponsor the bill has stalled parliamentary debate and enactment of the law.

Policies on Overseas Migrant Workers

The Indonesian government has a mixed record on legal protections for migrant workers.  It is one of the few countries in Asia that has ratified all of the fundamental ILO conventions, and has laws that specifically protect the freedom to organize.  However, despite the importance of remittances to its economy and the sheer numbers of workers that it sends abroad each year, it has not signed nor ratified the U.N. Migrant Workers Convention, and it has not ratified ILO migrant workers’ conventions.¹³¹

Indonesia regulates overseas labor migration through ministerial decrees, and has no specific legislation governing recruitment and sending procedures or specific labor protections for migrant workers.  The Ministry of Manpower and Transmigration has issued dozens of decrees relating to overseas work, but only two have substantive implications for the protection of migrant workers:  the 2002 Labor Ministerial Decree on the Placement of Migrant Workers Overseas and the 2003 Labor Ministerial Decree on Insurance.¹³²  These decrees focus on recruitment procedures and administrative aspects of insurance policies, and do not address human rights protections for migrant workers.  Advocacy groups in Indonesia have pointed out the weaknesses of these decrees, including vague provisions and lack of coordination among the eleven agencies charged with implementation.  As mentioned earlier in this report, the Indonesian government has yet to properly account for insurance fees it charged all Indonesian migrant workers.

Three different versions of a draft bill to protect overseas workers exist, but the timeline and eventual enactment of a migrant workers’ law remains uncertain.  The Indonesian parliament, a consortium of migrants’ rights groups called “KOPBUMI,” and the University of Brawijaya in Malang, East Java, have drafted three different versions of the legislation.  In order for Parliament to debate the bill, the president must assign a ministry to take the lead on the legislation.  President Megawati Soekarnoputri had not done so at this writing.  The draft versions of the bill cover recruitment, training, and conditions of employment.  The passage of a national migrant workers’ protection bill would be an important step forward in establishing legal protections for overseas workers.  Even if such a bill were passed, however, local and regional-level initiatives would also be needed, given the devolution of government power from the central to provincial and even district-level authorities in Indonesia following Soeharto’s resignation in May 1999.

The draft bills apply to all overseas migrant workers, including domestic workers, but fail to address many of the issues of discrimination and abuse well-known to Indonesian authorities and highlighted in this report.  For example, although one draft would require that prospective domestic workers receive a minimum of fifteen days of training, that same draft sets no maximum time limit on how long a worker may be kept in a pre-departure training or holding center.  The bills discriminate against younger, single workers by stipulating that workers must be twenty-one or married in order to migrate.  The drafts address the problem of unpaid wages, but do not set minimum standards for work hours, overtime, rest days, or compensation for workplace injuries.¹³³  The bills also fail to specify clear mechanisms for monitoring and enforcement.

Bilateral agreements between the governments of Indonesia and Malaysia remain another strategy for regulating labor migration, but, as explained earlier in this report, the MoUs exclude domestic workers and focus primarily on labor recruitment rather than outlining protections and minimum standards of employment for migrant workers.  Furthermore, mixed attitudes about labor migration on the part of the Malaysian government and the power differentials between sending and receiving countries heavily influence the type of policies that are passed.  As already discussed, Indonesia’s eagerness to maintain its status as Malaysia’s top supplier of cheap labor has made it a weak negotiator for labor protections.  At other times, national pride and frustration about continuing abuses against Indonesian migrant workers has propelled the government and some political parties to call for temporary bans on labor migration to countries where Indonesian workers face abuse, including Malaysia.  Such a step would punish economic migrants for governments’ failures to protect workers and possibly drive more workers to riskier methods of illegal migration.

Recruitment, Training, and Sending Practices

The government of Indonesia recognizes the need to improve recruitment and sending practices for migrant workers, but has been slow to implement such changes.  Key areas for reform include:  streamlining the lengthy and complicated recruitment and training process; more effectively monitoring and investigating labor recruiters’ practices; and eliminating corruption and falsification of documents.  An official from the Ministry of Women’s Empowerment acknowledged the problems with false documents and illegal migration, saying, “80 to 90 percent of the problems are internal—pre-departure.  Workers have a fake identity, they pay 100,000, or 120,000 rupiah [U.S.$12.19-14.63] to get ID cards, they change their age and even their names.  If we can solve these problems, maybe 50 to 60 percent of the problems would be solved.”¹³⁴ 

Much of the government’s response to abuse of Indonesian domestic workers in destination countries has focused on improving their training, with special emphasis on their language and work skills.¹³⁵  One government official explained their rationale, “We can understand why employers hit—[although] it’s not a good reason to hit.  The problem is not with the employer but with the girl, she is not trained or skilled.”¹³⁶  Such programs, though potentially providing workers with useful skills, do not address the culpability and attitudes of employers who behave abusively, nor strengthen measures to hold such employers and labor agents accountable.

The Indonesian government continues to allow labor recruiters (PJTKI), to manage most of the recruitment and training process without oversight.  For example, when the government recently introduced a new requirement that migrant workers receive a pre-departure orientation on their rights, it gave principal responsibility for conducting the orientations to labor recruiters instead of a government agency or migrant rights NGOs.¹³⁷  Human Rights Watch interviews with Indonesian migrant domestic workers indicate that many labor agencies do not provide these pre-departure orientation programs, confiscate workers’ belongings and contact information they possess, and mislead them about their rights and obligations in Malaysia.  Competition between labor agencies to send domestic workers to Malaysia as soon as their paperwork is processed can lead them to cut out steps like providing required pre-departure orientations.

The Indonesian government must also address the quality of training, the living conditions at training centers, the conduct of staff and security guards, and workers’ freedom of movement while waiting to migrate abroad. 

Inadequate Victim Services

The Indonesian government bears responsibility for protecting migrant workers whose rights are violated and for helping them to obtain redress.  The Indonesian government has begun to provide temporary shelter at its embassy for migrant workers and to channel resources into creating crisis centers for victims of violence in Indonesia, including returning migrant workers.  However, most of these services are small in scale and represent isolated, ad hoc efforts to address services for migrant workers.  Adequately addressing the needs of migrant workers who have been cheated, exploited, or abused requires a strong, well-coordinated response supported by sufficient resources and political will.

The Indonesian embassy in Kuala Lumpur and the Indonesian consulates in other parts of Malaysia provide services to migrant workers, and are currently working with some NGOs like the International Catholic Migration Commission (ICMC) to improve their services for victims of trafficking.  The embassy in Kuala Lumpur provides Indonesians in Malaysia with temporary shelter if necessary, helps them to get their passports back from employers or labor agents, issues new travel documents, pays for medical treatment, and provides legal aid for workers who pursue civil lawsuits or cases in the criminal justice system against their employers.

According to an official at the Indonesian embassy in Kuala Lumpur, 753 women workers took shelter at the Indonesian embassy in 2003.  Of these, 402 had run away from their employers, 153 were victims of trafficking into forced prostitution, thirteen had been physically abused, twenty-two experienced high levels of stress, one had been raped by a labor agent, and four had been raped by their employers.¹³⁸

The current level of services does not meet the needs of the hundreds of women domestic workers who flee to the embassy each year.  The temporary shelter is small and overcrowded, the high numbers of women seeking shelter and aid at any given time means they often must wait several months before their cases are fully processed, and there are no counseling or psychological services, a critical service given the abuse many have suffered.  Runaway domestic workers, although consulted, are often excluded from negotiations regarding their case.  One attaché described the process for handling labor disputes, “We have a tripartite system involving the embassy, agency, and the employers.  We sit together to discuss the situation.  The worker only sits in sometimes, we know better than her, she will interrupt the negotiations.”¹³⁹

The Indonesian embassy does not attempt to reach domestic workers who are still working for their employers.  Some important actions it could take would be to institute monitoring mechanisms, create resource centers for domestic workers, enable the formation of domestic workers’ associations, or refer workers to health services.  The Indonesian embassy also has an important role to play as an advocate for Indonesian migrant workers’ rights with the Malaysian government.

Treatment of Migrant Workers upon Return to Indonesia

Government policies intended to aid migrant workers may actually hurt them.  One example is the designation of terminal three at the Soekarno-Hatta Jakarta International Airport for returning migrant workers.  Returnees, migrant workers’ families, and migrant workers’ NGOs have reported extortion by unscrupulous airport employees who suspect that returning workers have large sums of cash.  One Indonesian government official said, “The concept is to protect returning migrant workers.  But really they go from the mouth of the tiger to the mouth of the crocodile.”¹⁴⁰  At this writing, the Minister of Manpower and Transmigration was advocating channeling migrant workers through an airport terminal in Ciracas, which would further isolate migrant workers from other travelers.  Absent protections and rigorous monitoring, such a policy could put migrant workers at risk for extortion, artificially low exchange rates that deprive them of a portion of their earnings, and higher transportation fees back to their homes.  Currently, government and NGO representatives have set up some monitoring systems at terminal three to inform returning workers about their rights, and to identify workers who require immediate medical care upon return.  These workers, many of whom have suffered severe physical abuse or sexual assault, are sent to Sukanto Hospital.

The Indonesian government, though taking steps to better regulate labor migration, still shrugs off responsibility for workers who migrate through unlicensed labor agents.  As one official from the Ministry of Manpower and Transmigration said, “We are not directly responsible for problems in Malaysia or overseas.  We help workers indirectly by providing skills.  Workers who go illegally make problems for themselves.  If they have problems, who will take care of them?  Nobody cares for them.”¹⁴¹

Response of the Malaysian Government

The government of Malaysia has demonstrated interest in addressing abuse against migrant domestic workers following the public outcry surrounding the Nirmala Bonat case.  The police arrested Bonat’s employer and she was charged in the sessions court with four counts of voluntarily causing grievous hurt.  The government issued a formal apology to Bonat and the people of Indonesia.  The Ministry of Human Resources has committed to negotiating the proposed MoU on domestic workers by the fall of 2004.

These initiatives, encouraging as they are, do not address systemic problems posed by Malaysia’s immigration and employment laws.  Malaysia’s stringent immigration policies make it extremely difficult for Indonesian domestic workers to seek help or pursue remedies through the legal system.  The Malaysian government often treats foreign workers like potential criminals and has spent little time or resources on strengthening protections for migrant workers facing discrimination, abuse, or exploitation.

Absence of Mechanisms for the Protection of Indonesian Domestic Workers

The legal framework for protecting migrant domestic workers is vague.  As one official from the Malaysian Ministry of Human Resources said:

Laws for domestic workers and migrants are not clearly defined….  Maids are not really protected….  This issue is difficult to monitor.  They are one by one [in individual households], how can we monitor?  It is up to them to report.  To get an organization to monitor maids is unlikely.  Who is going to do that?¹⁴²

There is no legal minimum wage in Malaysia, and Indonesian domestic workers are among the lowest paid workers in the country.  Most migrant workers in other low-wage sectors, such as food stalls and factories, earn at least 700 Malaysian ringgit (U.S.$184) per month, as do Filipina domestic workers.  Indonesian domestic workers typically earn 350-400 ringgit (U.S.$92-105) per month.

Domestic workers are specifically excluded from many provisions in Malaysia’s Employment Act of 1955, including those regulating hours of work, days off, and termination of contracts.¹⁴³  They are also excluded from the Workmen’s Compensation Act.  Domestic workers do have entitlements to their wages and can bring complaints about unpaid salaries to the Labor Department in the Malaysian Ministry of Human Resources.  The few domestic workers who find refuge in the Indonesian embassy or with an NGO and therefore have access to free legal aid can file a complaint with the Labor Department for unpaid wages, and they can turn to the police or the Ministry of Home Affairs in cases of physical or sexual assault.  As discussed later, immigration requirements prevent most workers from pursuing these options.

The Immigration Department has a small Housemaid Unit in the Foreign Workers Department for dealing with domestic workers, consisting of one full-time official and his director, who also has responsibility for other migrant workers.  The Immigration Department has policies punishing labor agencies and employers who abuse domestic workers:  they strip labor agencies of their operating licenses and deny employers permission to hire domestic workers.  Despite these measures, the Immigration Department has few strategies for monitoring or investigating cases of abuse and has less than twenty blacklisted labor agencies.¹⁴⁴  One official admitted to Human Rights Watch, “We seldom get complaints from maids.  They don’t know how to come to the immigration office or to the embassy.  The only way they know is through the labor agency.”¹⁴⁵  As detailed in the next section, labor agents often ignore domestic workers’ pleas for help or force them back into abusive or exploitative situations.

Regulations that apply to other migrant workers often exclude domestic workers.  For example, domestic workers will be excluded from a required post-arrival orientation program that Malaysia is introducing for all other migrant workers consisting of thirty hours of Malaysian law, thirty hours of Malaysian culture, and thirty hours of Malay language.¹⁴⁶  A Malaysian immigration official said that a post-arrival orientation for domestic workers is up to the labor agency, but they likely will be unwilling to conduct such programs because of competition between agencies to shorten waiting periods for employers waiting for domestic workers.¹⁴⁷

The governments of Malaysia and the Philippines have negotiated a standard contract for Filipina domestic workers with several strong protections; however, no similar provisions exist for Indonesian domestic workers (see appendix B for the standard contract used for Indonesian domestic workers and appendix D for the standard contract used for Filipina domestic workers). 

Unlike Indonesians, Filipinas are entitled to a minimum wage of U.S.$200 per month, a mandatory rest day once a week, a limit of ten working hours per day, and payment of their wages in cash every month.  Filipina domestic workers may keep their passports in their possession.  The contract further stipulates that workers should be provided transportation to and from Malaysia, access to health care services, and employer assistance to send remittances to designated beneficiaries regularly.  Employers have the obligation to treat the worker in a “just and humane manner” and to refrain from physical violence under all circumstances.¹⁴⁸  Malaysia should establish a similar standard contract for Indonesian migrant domestic workers.

Abuses by Labor Agents in Malaysia

I think the Malaysian agent didn’t protect my life properly.  The treatment from the agent is uncivilized….  Most of the maids here at the [Indonesian] embassy were afraid to run to the agent so they came here.  If the employer does something bad to the maid, the agent does not care or pay attention to the problem, even if the employer rapes the maid.  I know many cases like this.  If the employer hits them, and they write to the agent, the agent blames them and hits them too.  The agent can’t be believed—the agent and the employer are the same.
─Interview with Tita Sari, age twenty-four, domestic worker, Kuala Lumpur, Malaysia, February 26, 2004

The Indonesian and Malaysian governments have charged labor agents with much of the responsibility for recruitment, placement, and monitoring the treatment of migrant domestic workers.  After passing through the training centers in Indonesia, or traveling directly to Malaysia through an illegal agent, women migrant workers often stayed with Malaysian labor agents for a period typically ranging from one day to two weeks before moving to their employers’ homes.  In some cases, if they had problems with their employers or if their employers rejected them, they would return to the Malaysian agent to wait for another placement or to be sent back to Indonesia.  They also returned to the agency on their way home upon completing the standard two-year contract.

Many of the domestic workers that Human Rights Watch interviewed reported that Malaysian labor agents confiscated their belongings, failed to give them information about where they could turn for help, and intimidated them so they would act submissively with their employers.  Amsia Widodo said, “I spent two days at the agency in Malaysia.  There were a lot of problems.  They always yelled at me.  The agent took my belongings and my Koran.  He took my good clothes and gave me bad clothes.  He wanted to burn the Koran.”¹⁴⁹  Labor agents typically instructed women domestic workers to work hard and to avoid complaining, even when they were in situations considered to be forced labor.

Malaysian labor agents perpetrated many of the same abuses against Indonesian domestic workers as their Indonesian counterparts, for example, restrictions on their freedom of movement and psychological and physical abuse.  Many women reported that labor agents in both Malaysia and Indonesia insulted them, forcibly cut their hair, or took their prayer materials and Koran from them.  Yustiani Suharti, a twenty-five-year-old domestic worker at the Indonesian embassy recounted the particularly horrific experiences she had at the office of a Malaysian labor agency:

We had to use our headscarves to clean dog shit.  If I did not clean perfectly, the trainer would hit us.  I have a friend…the agent got angry with her and hit her.  He locked her in a dark room─I don’t know how long.  We would get a punishment where we had to crouch up and down 250 times.  People were hit every day….  The trainer asked us to hit the friend washing the plates because she had lied to the trainer.  We had to hit both of her cheeks and say, “you lied, you lied.”  On other days we were hit with a wooden stick.  There were four women from Cambodia and they didn’t understand Malay.  They didn’t greet the trainer.  He locked them into the back room and hit them with the rattan cane and poured water on them.  Every day something happened.¹⁵⁰

Indonesian women domestic workers reported that Malaysian labor suppliers failed to remove them from abusive situations, sometimes even blaming the worker for the abuse.  Atikah Titi, who ran away from her  employer because she was forced to work almost twenty hours a day in a food stall owned by her employers instead of cleaning their house said: “the agency took me back…and told me not to fight with the employer.  They told me to just say sorry and if I make a mistake to just be silent.”¹⁵¹  Nur Hasana Firmansyah, who was sexually harassed by her employer and who had to call her agent three times before he picked her up, noted that the agent sent another domestic worker in her stead, knowingly putting the replacement worker in an unsafe environment.¹⁵² 

Human Rights Watch interviewed a Malaysian labor supplier who said that many workers called him complaining about heavy workloads.  He said he was unsympathetic to most of their claims, but would intervene if they were not getting at least six hours of sleep or three meals a day.  He added that he sent workers back to their employers “for their own good,” shouting at them if need be, so they could earn money for their families.¹⁵³  

In other cases, Malaysian labor agents did not help workers obtain unpaid wages.  Twenty-one-year-old Dita Endang, a domestic worker who had returned from Malaysia in November 2003, told Human Rights Watch:

I earned 370 ringgit [U.S.$97.37] per month.  I received 2,000 ringgit [U.S.$526.31] from my employer [after two years of employment].  The labor agencies checked, and they told me that I should have received more money.  But the labor agents didn’t take action.  They only told me after I had returned to Indonesia.¹⁵⁴

Many labor agents perpetrate abuses against migrant domestic workers or are complicit in the abuses committed by employers.  These labor agents profit from the labor of domestic workers and have little incentive to remove them from abusive workplace conditions.  The Indonesian and Malaysian governments should create guidelines for the practices of these labor agencies, monitor them regularly, and penalize them for infractions.  The governments should prosecute labor agents accused of abuses against domestic workers according to the law. 

Malaysia has few requirements for obtaining a license to become a labor recruiter. All Malaysian employment agencies must get a license from the Ministry of Human Resources.  If they want to recruit foreign workers, they must also get an immigration license from the Ministry of Home Affairs.  As one official from the Ministry of Human Resources noted, “The criteria for a license are not very strict…[we just ensure] it’s not a fly-by-night company.  It’s more on the financial part, we make sure there’s a deposit.  It is not so much on their knowledge about maids.”¹⁵⁵  In cases where the Malaysian government discovers abuses by these agencies, they can revoke the licenses.  Licenses must be renewed periodically, but there is no system for monitoring agencies regularly.¹⁵⁶  Given recurring reports of abuse by these agencies, including those documented in this report, increased regulation and monitoring of labor suppliers is critical for the protection of migrant workers’ rights.

Obstacles to Filing Complaints and Prosecuting Offenders

The few domestic workers who have the luck to find an NGO or make their way to the Indonesian embassy may file a complaint against their employer for abuse and for unpaid wages.  However, these complaints take months and sometimes years to process, as do criminal prosecutions.  Indonesian workers must apply for a “special pass” to stay in Malaysia while these cases are processed at the prohibitive cost of 100 ringgit (U.S.$26.31) per month.  They are also prohibited from working during this time, effectively giving most workers no choice but to return to Indonesia and to give up any chance of redress.  Most Indonesian domestic workers who do not have the aid of an NGO or the embassy typically do not know about any of these options, and Human Rights Watch interviewed several domestic workers who were not aware they could turn to the Indonesian embassy for help.

Domestic workers who wish to file complaints against their employers or pursue criminal cases must get special passes because their temporary work permits and entry visas are tied to their employers.  If they leave their employer, even for reasons of abuse, they lose their legal status and may be imprisoned, fined, and deported under Malaysia’s immigration laws.  If a domestic worker wishes to change her employer legally, she must first return to Indonesia and then return on a new temporary employment visa.  An immigration official gave the following explanation for this policy, “We don’t allow maids to transfer employers.  We don’t want everybody to get it easy.  If she doesn’t like one employer, then the maid can just run away to another job.  We have to monitor the ins and outs of maids.”¹⁵⁷

These visa policies left many domestic workers whom Human Rights Watch interviewed with few options for redress.  If they chose to stay in Malaysia and pursue the case, they had to cope with an indefinite stay in which they would be confined to a shelter, unable to earn money.  After escaping from traumatic situations, most wanted to return immediately to friends and family in Indonesia.  These considerations prevented prosecutions even in cases where the police had arrested an abusive employer and the domestic worker had free legal aid.  Ani Rukmonto, who had been severely physically abused, decided to drop the charges against her employers as the process was too lengthy.  She told Human Rights Watch:

The police brought me to the embassy after I was released from the hospital.  I heard the employer was in jail.  But after I signed a kind of paper to release her, she is not in jail.  If the case proceeded in court, it would take too long.  [According to the contract], the employer was supposed to pay me for two years, but in the end she only agreed to pay for one year and it is still being cut four months.  From the agreement, I will get only 3250 ringgit [U.S.$855.26].  I want the employer in jail.  I am not satisfied with the outcome because my body and my head hurt.¹⁵⁸ 

Other domestic workers receiving assistance from NGOs or the Indonesian embassy chose not even to report some abuses.   Because Malaysia’s immigration laws prevented them from working after they had escaped their employers or labor agents, many domestic workers wished to return to Indonesia immediately in order to begin working again.  Others cited loneliness in the shelters.  These women and girls told Human Rights Watch they did not divulge all of their experiences because they feared they would be pressured into staying in Malaysia longer to pursue a case.  One resident at the temporary shelter in the Indonesian embassy who had suffered humiliating mistreatment and abuse at the hands of a Malaysian labor agent said, “I didn’t talk about these conditions to the embassy.  If I talked about it, the embassy would tell the Malaysian government to close the agency.  I was afraid my return to Indonesia would be delayed.”¹⁵⁹

Jun Kuncoro, an attaché at the Indonesian embassy in Kuala Lumpur, said that embassy officials tried to negotiate the best financial settlements possible for domestic workers since the backlogged judicial system and rigid immigration laws led many of them to drop their cases.  He told Human Rights Watch, 

Malaysian courts take a long time.  I don’t blame the maid, just sitting in the temporary shelter, not doing anything, just mingling with other unwanted people.  They tend to withdraw the case.  If we go to court, how to prove it?  In our experience, it is a long-winded process and we pay a lot for the lawyer.  We almost have nothing, so we focus on negotiation.¹⁶⁰

Enforcement of the Immigration Act

Malaysia’s immigration laws deter many domestic workers from reporting abuse, escaping exploitative situations, or pursuing redress if they have found refuge in the Indonesian embassy or an NGO shelter.  Employers or labor agents hold onto women migrant workers’ passports, and police and immigration officials may arrest and detain any foreign worker without valid documents.  The government of Malaysia strictly enforces its punitive immigration laws, with the stated purpose of deterring illegal entry into the country.  One official told Human Rights Watch about the system:  “U.S. immigration has entry control, but no exit control.  But us, we have entry and exit control.  Migrants cannot simply go out, they will be punished. After they finish the sentence [for violating immigration laws], we put them in a temporary detention center pending their removal.”¹⁶¹ 

Human Rights Watch interviewed a seventeen-year-old domestic worker who had been confined to her employer’s house, verbally and physically abused, and cheated out of her full salary.  She said, “My employer kept my passport.  I was scared to run away without my passport.  I wanted to run away, but I was afraid the Malaysian government and security would catch me.”¹⁶²  Another domestic worker had escaped from her employer’s house and was staying hidden in the home of a friend at time of her interview with Human Rights Watch.  She said:

It’s very hard here.  I know the laws, and that’s why I’m scared.  I hear rumors, if we don’t have a passport then if we get caught by the police, they put us in the lockup, then they put us in the jungle in very scary places.  I had a male relative here.  When there was an operation [immigration raid], he ran to the jungle and lived many days there.  If I go out in the morning or evening I feel scared, so it is better not to go out.¹⁶³

According to NGOs and the Indonesian embassy, the police often fail to distinguish workers who are escaping situations of abuse or trafficking victims from other types of undocumented migrants.  These individuals are doubly victimized by being detained in sometimes appalling conditions and deported without any access to support services or redress. 

Malaysia’s enforcement of immigration laws extends to domestic workers, both those still employed and those who have escaped from their employers.  One Malaysian immigration official told Human Rights Watch that the Immigration Department conducts raids to check whether domestic workers have permits, though he would not reveal how often they do these “random checks.”  He explained that they also arrest women who have run away from their employers and are working in restaurants, karaoke bars, or as sex workers.  “Our enforcement is quite active.  Lots of Indonesians and Filipinas come to be a housemaid, they run away, and they get caught.  We put them in a detention camp and send them home.  We blacklist the maid.”¹⁶⁴ 

Police and immigration authorities who arrest domestic workers without valid work permits and travel documents often fail to screen them to find out whether they are escaping situations of trafficking or other forms of exploitation or abuse.  Language barriers further hinder workers from explaining their situation.  One immigration official was aware of this problem, saying, “Normally when they’re caught, they go to the police station first.  But the maid can’t speak well, can’t explain what happened.  Bahasa Malaysia and Bahasa Indonesia are different, the maids speak very slow.”¹⁶⁵ 

Migrant workers’ advocates, migrant workers, and government officials confirmed that, once arrested, there is usually no opportunity for a migrant worker to contact a lawyer or even to obtain the services of a translator.  Migrant workers may not have an opportunity to present their side of the story and are then subject to harsh punishments.  Aegile Fernandez, program director at Tenaganita, a prominent NGO working with migrant workers, said:

When taken to court, they are not given a chance to speak.  They are instructed by the DPP [deputy public prosecutor] that if they plead guilty, they will receive a shorter sentence.  They all plead guilty.  According to the Immigration Act, the charge is for entering illegally, but mostly they come legally [and then fall out of status].¹⁶⁶ 

Under the Immigration Act, they can then be sentenced to whippings (in the case of men ages eighteen to fifty-five), imprisonment, and fines.  In 2003, 42,935 foreigners were arrested under these laws, and almost half were Indonesian.  Nine thousand of those sentenced were caned.¹⁶⁷  Indonesian domestic workers who are determined to have entered the country illegally are subject to imprisonment and fines.  These punishments are followed by indefinite detentions in the temporary immigration centers until they are deported.  Malaysian authorities may detain and deport domestic workers who have escaped from their employers and have therefore fallen out of status.¹⁶⁸

Conditions in Temporary Detention Centers

There were seventy-seven people in one room, all women.  There were seventy-one from Indonesia, from Kalimantan, Java, Timor.  Eight people gave birth in the prison and there were ten young girls.  We had vegetables and rice, it was not enough food, and I was hungry.  They gave us food twice a day.  The toilet was not clean….  They would beat people sometimes, [but] they never beat or yelled at me.  The Indonesian consulate did not want to help me.¹⁶⁹
─Interview with Sutiati Desi Ajeng, age thirty-seven, returned domestic worker who was detained and deported in 2003, Lombok, Indonesia, January 24, 2004

NGOs and the Malaysian Human Rights Commission (SUHAKAM) have reported that conditions in Malaysia’s temporary immigration detention centers are overcrowded, with substandard living conditions.  According to Human Rights Watch interviews with former detainees, NGO advocates who had visited the detention center, and SUHAKAM, the conditions in the detention center do not meet U.N. minimum standards for the treatment of prisoners.¹⁷⁰  In addition to overcrowding, detainees sleep on the floor and do not receive blankets or mattresses.  In one detention center, detainees reported inadequate supplies of drinking water and problems with nutrition as they ate the same meal of salted fish and rice every day.

Unless a detainee has a friend or family member willing to pay for their ticket home, it can be months before an individual’s embassy or the Malaysian government finally arranges for their deportation.  An official from Indonesia’s Ministry of Foreign Affairs told Human Rights Watch that 48,000 Indonesians had been deported since 2002.  She said, “It is difficult to get access, even our officers can’t get access [to visit the detainees].”¹⁷¹  Some of the detainees Human Rights Watch interviewed said that there were individuals who had been in the detention centers for more than a year.  Mohamed Haji Ismael, an official with Malaysia’s Department of Immigration said,

Women don’t have money right away.  Their embassy will call their relatives to see if they’ll help.  Sometimes there is a big operation that is handled by the police.  They arrest a mass of people.  It is not possible to charge all of them.  If we don’t charge them, we deport them.  We have fourteen days to charge them in court.  We have to make a police report, we can’t simply put them in the detention center.  I don’t know if there are people [for longer than one year] in the centers.  In my experience, they are stateless [for example, refugees from Burma], and there is no place to throw them.¹⁷²

Response of Civil Society

In contrast to the Indonesian and Malaysian governments, NGOs have consistently raised attention to the plight of Indonesian domestic workers in recent years.  In 2003, Indonesian groups collaborated to submit a report to the U.N. Special Rapporteur on the Human Rights of Migrants highlighting the abuses faced by Indonesian women migrating to the Middle East and Asia as domestic workers.¹⁷³  Many groups in Indonesia have expanded their outreach efforts to organize workers who have returned from abroad, and to provide services to those who suffered abuses. 

In Indonesia, several NGOs work on various aspects of migrant workers’ rights, including:  grassroots organizing, provision of health and legal services, research, and policy advocacy.  Two important networks include KOPBUMI, a federation of migrant workers’ organizations, and a coalition of women’s organizations called the Women’s Movement for the Protection of Migrant Workers (GPPBM). 

Relatively few organizations address the needs of migrant workers in Malaysia compared to the proliferation of initiatives in Indonesia.  In Malaysia, the NGO Tenaganita provides services to migrant workers, predominantly men working in construction and factories, although they have a unit that works specifically on domestic workers and trafficking victims.  Women’s Aid Organization provides shelter and other services to domestic workers fleeing abusive situations, and church-based groups around the country often provide support to domestic workers as well, though most of their work centers on Filipina domestic workers. 

NGOs in both Indonesia and Malaysia are active in regional networks that promote the rights of migrant workers in Asia, such as CARAM-Asia which focuses on migrant workers and health, and Migrant Forum in Asia.  NGOs throughout Asia have highlighted domestic workers’ rights as a priority area for action in numerous reports and meetings, including reports given to the U.N. Special Rapporteur on the Human Rights of Migrants, and a regional summit on foreign domestic workers held in August 2002 in Sri Lanka.  At the regional summit, 132 participants from twenty-four countries articulated what they believed should be the rights of migrant domestic workers and proposed policies and interventions in the “Colombo Declaration.”¹⁷⁴