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VI. National and International Legal Standards

When Indonesian women who migrate for employment as domestic workers in Malaysia encounter abuses such as severe restrictions on their movement and ability to practice their religion; psychological and physical abuse, including sexual abuse; discrimination under the labor code; or excessively long working hours without regular pay or rest; they are experiencing violations of international human rights law.  These abuses also violate rights articulated in the national laws of Indonesia and Malaysia.

Indonesia and Malaysia have both committed to uphold human rights protections defined in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).175  They must ensure that domestic law and its enforcement comply with their international obligations to protect the rights of women and children and to guarantee equality under the law.  Both Indonesia and Malaysia have also ratified several ILO conventions, including the ILO Forced Labor Convention (No. 29), the Worst Forms of Child Labor Convention (No. 182), and the ILO Right to Organize and Collective Bargaining Convention (No. 98), and have obligations to protect the rights of workers as set forth in those treaties.  Research conducted by Human Rights Watch found that, in law and in practice, the rights of women migrant domestic workers are routinely flouted.

The Universal Declaration of Human Rights (UDHR) is the precursor of important international treaties that set forth human rights.  Although Indonesia and Malaysia have not ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), or the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), these are important sources of international law and human rights standards.  Some of their provisions reflect a significant degree of international consensus and evolving state practice.  In this sense, they provide guidance on how Indonesia and Malaysia might reformulate their legislation in respect to migrant workers.176

The Right to Just and Favorable Conditions of Work

International human rights law protects a spectrum of workers’ rights.  Articles 23 and 24 of the UDHR outline rights to just and favorable conditions of work, remuneration, freedom to form and join trade unions, rest, leisure, reasonable limitations of working hours, and periodic holidays.177  Article 11(d) of CEDAW delineates the “right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value” and article 11(f) describes the “right to protection of health and to safety in working conditions.”178  The CRC and several ILO Conventions outline protections for working children.179

Through their ratification of several International Labor Organization conventions, Indonesia and Malaysia also undertook international obligations to enforce labor rights protections for the payment of wages and to suppress forced labor.180  According to ILO Convention on Forced Labor, Number 29, forced or compulsory labor “shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”181  Malaysia has ratified the ILO Convention on the Protection of Wages, Number 95, which specifies that wages should be paid directly and regularly to workers, and that workers should be informed of the conditions of payments before beginning employment.182

By excluding domestic workers from several key employment protections, Malaysia’s labor laws fail to comply with international law.  The principal source of employment law in Malaysia is the 1955 Employment Act, which regulates terms and conditions of work.  The 1955 Employment Act includes “domestic servants” in the categories of employees covered by the Act, and protects them from irregular or late payment of wages, but specifically excludes them from provisions on rest days, hours of work, public holidays, annual leave, sick leave, and maternity protections.  Domestic workers are also excluded from termination, lay-off, and retirement benefits.183  Malaysia’s 1952 Workmen’s Compensation Act, which provides a mechanism for workers to receive compensation for workplace injuries and occupational illnesses, also excludes domestic workers.184

Employers in Malaysia routinely require Indonesian domestic workers to work fourteen to twenty hours a day, seven days a week, with no rest, in contravention of the human rights outlined in international instruments.  Article 24 of the UDHR states that “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.”  These work conditions also do not meet the minimum standards defined in Malaysian law for workers in sectors besides domestic work.  Malaysia’s 1955 Employment Act sets forth the following labor rights:  one rest day per week; a minimum thirty-minute break for each period of five consecutive hours of work; and limitations of work hours to eight hours per day (not to be spread over a period longer than ten hours in one day) and forty-eight hours per week.185

Many Malaysian labor agents and employers delay payment of wages to workers until the end of their standard two-year contracts, both denying the workers control of their wages and creating coercive conditions that make many domestic workers unable to leave their place of employment.  These practices violate both international law and Malaysian law.186  Domestic workers, including Indonesian migrant domestic workers, are protected under sections 18 and 19 of the Employment Act which stipulate that, “a contract of service shall specify a wage period not exceeding one month,” and that “[e]very employer shall pay to each of his employees not later than the seventh day after the last day of any wage period the wages, less lawful deductions, earned by such employee during such wage period.”  Many domestic workers never receive their full salary because their employers cheat them or because the mechanism for claiming unpaid wages through Malaysia’s Department of Labor is too long, cumbersome, and expensive.  Most Indonesian domestic workers that Human Rights Watch interviewed were not even aware of this option. 

Freedom from Discrimination

International law prohibits discrimination on the basis of such distinctions as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.187  International law and the Constitution of Malaysia also guarantee equality before the law and the entitlement of all persons to equal protection of the law.188  The Indonesian Constitution provides that, “[e]ach person has the right to be free from discriminatory treatment on any grounds and has the right to obtain protection from such discriminatory treatment.”189  The section on unjustifiable disparate impact immediately below demonstrates how exclusion of domestic workers from employment laws and bilateral agreements is a form of discrimination violating Malaysia and Indonesia’s obligations under international law.

Unjustifiable Disparate Impact:  Domestic Workers’ Exclusion from Legal Protections

Malaysia’s employment laws and its bilateral agreements with Indonesia exclude domestic workers from many of the legal protections extended to other workers.  These exclusions reflect discrimination against a form of work that is is usually performed by women and girls and involves tasks associated with traditional female domestic roles such as cleaning, child care, and cooking.  Women domestic workers are often at particular risk of abuse because of the isolated nature of their work.  The lack of legal protections for domestic workers both compounds these risks and prevents victims of abuse from seeking redress through the law.

Facially neutral laws, regulations, policies, and practices can have a discriminatory impact.190  The CEDAW Committee has not directly articulated its interpretation of discriminatory impact on the basis of sex, but has indirectly done so in its definition of gender-based violence as "violence that is directed against a woman because she is a woman or that affects women disproportionately."191  Thus, a law, policy, or human rights abuse that has an unjustifiable disparate impact on a group distinguished by sex, and which has the effect of limiting their enjoyment of human rights, could be read as discrimination within the meaning of CEDAW. 

The exclusion of domestic workers from the majority of Malaysia’s labor protections, while a facially neutral policy, has a disparate impact on women migrants since the vast majority of domestic workers in Malaysia are migrant women workers.  No legitimate reasons exist for these exclusions, meaning that the unequal protection of domestic workers in Malaysian law constitutes impermissible disparate impact discrimination.192  These exclusions prevent women domestic workers from enjoying their right to freedom from discrimination in the field of employment, as articulated under Article 11 of CEDAW, including in rights to job security and all benefits and conditions of service; equal remuneration, including benefits; paid leave; and health and safety in working conditions.193

Around the world, exclusions of domestic work from employment protections represent the formalization of social biases and gender stereotypes into law.  Male work in the public sphere is often considered the norm for defining the type of employment deserving legal protection.  Female work in the private sphere is typically not valued as an economic activity or acknowledged as work requiring public regulation. 

The Right to Health and the Right to Privacy

International law protects the right to the highest attainable standard of physical and mental health.194  Malaysia and Indonesia must uphold the right to have medical care and necessary social services as set forth in article 25(1) of the UDHR.195  Article 12(1) of CEDAW prohibits discrimination against women in the field of health care and obliges states to ensure equal access to health care services.196  Indonesian domestic workers have little or no access to adequate health care when confined in training centers for indefinite periods, or when working in Malaysia.  The conditions in the training centers and their employers’ homes often negatively affect Indonesian women workers’ health.  Women interviewed by Human Rights Watch reported deprivation of adequate amounts of food or sleep, injuries from physical and sexual abuse, and anxiety and depression often associated with the confinement and abuse they encountered.

The 1998 United Nations Guidelines on HIV/AIDS and Human Rights (U.N. Guidelines) interpret the right to privacy as encompassing, “obligations to respect physical privacy, including the obligation to seek informed consent to HIV testing.”197  The practice of health care providers in Indonesia giving the results of pregnancy and HIV tests and other medical exams to labor recruiters rather than directly to prospective migrant workers, and without the workers’ consent, violates their rights to privacy. 198    

Women interviewed by Human Rights Watch said that they did not know they were tested for HIV, and therefore did not provide informed consent, and they generally received no pre- or post-test counseling.  The U.N. Guidelines advise that “public health legislation … [should] ensure, whenever possible, that pre- and post-test counseling be provided in all cases,” because counseling helps ensure the voluntary nature of HIV testing and contributes to the effectiveness of subsequent care or HIV prevention.199  Malaysia and Indonesia should ensure that all HIV testing be accompanied by informed consent and by pre- and post-test counseling.

Forced Labor and Trafficking

International law prohibits forced labor and trafficking in persons.  The UDHR, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol), CEDAW, the ILO Forced Labor Convention, and the ILO Worst Forms of Child Labor Convention are the principal sources of international law that define and prohibit these practices.200  Indonesia and Malaysia must uphold the rights set in the treaties it has ratified:  CEDAW and the Forced Labor Convention.  Indonesia has also signed the Trafficking Protocol.

National-level provisions proscribe forced labor.  Article 6(2) of the Malaysian Constitution states that “[a]ll forms of forced labour are prohibited.”201  Forced labor is defined by the ILO Forced Labor Convention 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."  "Menace of any penalty" was explained by the ILO Committee of Experts as a penalty that "need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges."202 

In many of the cases described above, labor agents and employers engaged in practices that created a “menace of penalties,” including threats and physical abuse; confiscation of passports; and withholding of wages.  By diverting salaries directly into inaccessible bank accounts, leaving domestic workers penniless for two years, or making irregular payments, employers and labor agents contributed to conditions that made workers economically dependent.  Workers face the loss of up to two years of earnings if they protest their workloads or if they decide to escape from abusive situations.

Neither Indonesia nor Malaysia has domestic legislation specifically addressing trafficking, but as of this writing, Indonesia is developing an anti-trafficking law.  Trafficking is defined in the Trafficking Protocol as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.  Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.203

Human Rights Watch interviewed nine women who could be classified as trafficking victims given the deception and coercion involved in their recruitment and the situations of forced labor in which they were placed.  These women were deceived about the type of work they would perform in Malaysia, the salary they would receive, or the terms and conditions of their work.  The lack of information and protections in the labor migration process places many economic migrants at risk of trafficking into situations of forced labor.

Freedom of Movement and Freedom of Association

International law protects both the right to freedom of movement and freedom of association.  Article 13 of the UDHR provides for the right to liberty of movement and the right to return to one’s country.204  In addition to its legal basis under treaty law, the right to return has increasingly been recognized as a norm of international customary law.205   

Article 20 of the UDHR elaborates the right to freedom of association.206  This right is further elaborated by several ILO Conventions, most notably the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (Convention No. 98), two of the ILO’s fundamental conventions.207  Indonesia has ratified both of these conventions, and Malaysia has ratified the latter.208  Malaysia’s Constitution protects the right to freedom of movement and the right to freedom of assembly only for citizens.209

Bilateral agreements between Indonesia and Malaysia permit employers to hold workers’ passports, significantly restricting their freedom of movement and the right to return to their own country.  These MoUs also prohibit migrant workers from joining trade unions and forming associations.  Malaysia and Indonesia have failed to ensure that their domestic legislation and bilateral agreements conform to their obligations under international law.

The forced confinement of domestic workers is not necessary for purposes of national security, public order, public health or morals, or the rights and freedoms of others.  Consequently, the widespread practice of restricting domestic workers from leaving training centers or their workplace and confiscating their travel documents constitute violations of international human rights law.  Confinement in training centers and the workplace prevents women domestic workers from enjoying other rights, such as the right to the highest attainable standard of health, freedom of association, and the right to return to their country.  Combined with labor rights violations and abuse, forced confinement is also psychologically abusive, isolating domestic workers from support networks or escape options and fostering dependency and feelings of powerlessness.

Restrictions on Indonesian domestic workers’ movements prevent them from associating with other domestic workers, or from contacting religious organizations, NGOs, or other types of support and advocacy groups.  In contrast, the Filipino government has negotiated a standard contract with the Malaysian government that guarantees the right for Filipina domestic workers to have at least one day off.  Migrant Filipina workers have used the day off to meet with one another. They have formed strong associations in which they can turn to each other for social support and information, and through which support services, including health care and legal aid, can more easily be channeled.  The Malaysian government violates the right of Indonesian domestic workers to freedom of association by not legislating and enforcing freedom of movement, rest days, and the right to organize.

Freedom from Violence

International human rights law establishes the right to life, security of person, and the right to be free from torture and other forms of cruel, inhuman, and degrading treatment.210  In the Declaration on the Elimination of Violence Against Women, the United Nations stated that governments have an obligation to “prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by states or by private persons.”211  A state’s consistent failure to do so amounts to unequal and discriminatory treatment, and constitutes a violation of the state’s obligation to guarantee women equal protection of the law.212

Sexual harassment may also be considered a form of gender-based violence and discrimination prohibited under CEDAW and directly impacts equality in employment.  The ILO’s Committee of Experts considers that sexual harassment falls within the scope of the ILO Discrimination (Employment and Occupation) Convention.  The CEDAW Committee has commented that sexual harassment includes:

unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment and promotion, or when it creates a hostile working environment.213

The CEDAW Committee recommends that governments institute effective complaints procedures and remedies for survivors of gender-based violence.  These include:

(i) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including, inter alia, violence and abuse in the family, sexual assault and sexual harassment in the workplace;

(ii) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(iii) Protective measures including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.214

Indonesia and Malaysia both have national-level legislation to address violence against women, but these laws contain gaps in crucial areas and enforcement is weak.  In Indonesia, the Penal Code has provisions against rape but the definition of rape remains narrow and is limited to forced sexual intercourse, excluding forms of rape like forced oral or anal sex. 215  The law should be amended to include any physical invasion of a sexual nature without consent or under coercive circumstances.  Draft bills on domestic violence and trafficking were pending as of June 2004.  In Malaysia’s penal code, rape is also limited to forced sexual intercourse and sexual assault is defined to include forced anal sex and the insertion of objects into bodily orifices.

Malaysia’s Ministry of Human Resources has drawn up a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.  However, women’s rights organizations are concerned about the effectiveness of the code and are lobbying for more powerful legislation barring sexual harassment.216  The code does not explicitly prohibit sexual harassment or provide sanctions for perpetrators; rather, the stated goal is to provide “guidelines to employers on the establishment of in-house mechanisms at the enterprise level to prevent and eradicate sexual harassment in the workplace.”  The guidelines therefore have little relevance for domestic workers who are isolated in private homes and who have few or no options for where they can turn to report sexual harassment.

The governments of Malaysia and Indonesia have a responsibility to address the psychological, verbal, physical, and sexual violence that Indonesian domestic workers encounter at every stage of the migration process.  As described above, the current structure of labor migration between the two countries, which gives labor agents the primary responsibility for informing workers about their rights and for responding to cases of abuse, has often left migrant domestic workers in extreme positions of vulnerability with almost no opportunity for redress.  In order to uphold their obligations under international human rights law, Malaysia and Indonesia must enact effective laws and institute programs that prevent and remedy such abuse, including by punishing perpetrators of violence.  Independent monitoring of training centers and employment conditions in private homes is essential for such efforts, as are mandated rest days and protections of workers’ freedom of association.  Indonesian women migrant workers’ ability to take time off and to visit NGOs, the Indonesian embassy, health care providers, and workers’ associations are critical measures for increasing their awareness about their rights and access to services.

Freedom to Practice One’s Religion

Article 18 of the UDHR establishes, “the right to freedom of thought, conscience, and religion…and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”217  Article 3(1) of the Malaysian Constitution states that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

The restrictions employers and labor agents place on Muslim domestic workers’ freedom to fast, to pray, and to avoid pork and dogs in accordance with their religious beliefs constitute a clear abuse and infringement on their freedom of religion as protected under international human rights law.  The same standard applies for Christian workers who are unable to attend church.  In some cases, confiscation of prayer materials and the Koran as well as targeted religious insults designed to humiliate domestic workers could also be considered a form of psychological abuse and degrading treatment.

The Malaysian and Indonesian governments should ensure that all domestic workers are able to practice their religion freely, without restriction or punishment.  In response to earlier reports of Muslim domestic workers being prevented from practicing their religion, the Malaysian and Indonesian governments considered a rule to place domestic workers only in homes with employers who belong to the same religion as they do.  However, such a practice would discriminate on the basis of religion, and furthermore would not be an effective solution.  As noted above, for example, Human Rights Watch interviewed Muslim domestic workers who said that their Muslim employers did not allow them to fast or to pray.  The government must instead find ways to monitor the treatment of domestic workers inside homes, create mechanisms for domestic workers to report such abuses, and to raise awareness and accountability among employers about their responsibility to respect this right. 

[175] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), G.A. Res. 34/180, U.N. Doc. A/34/46, 1979, entered into force September 3, 1981, and ratified by Indonesia on September 13, 1984 and by Malaysia on July 5, 1995; Convention on the Rights of the Child (CRC), U.N. Doc. A/44/49, 1989, entered into force September 2, 1990, ratified by Indonesia on September 5, 1990 and by Malaysia on February 17, 1995.

[176] International Covenant on Economic, Social and Cultural Rights (ICESCR), U.N. Doc. A/6316 (1966), entered into force January 3, 1976; International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, entered into force March 23, 1976; Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers’ Convention), adopted on December 18, 1992, U.N. G.A. Res. 45/158, entered into force July 1, 2003.

[177] UDHR, art. 23 and art. 24.

[178] CEDAW, art. 11(d) and art. 11(f).

[179] The CRC states children’s right "to be protected from economic exploitation and from performing any work which is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development." The ILO Worst Forms of Child Labour Convention (No. 182) requires the prohibition and elimination of "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children," along with work characterized as the "worst forms" of child labor, Worst Forms of Child Labour Convention, art. 3(d).  ILO Recommendation 190 on the Worst Forms of Child Labour calls on states to give special attention to girls in hidden work situations.  ILO Recommendation 190, Recommendation Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, art. 2(c)(iii).  When defining types of work that comprise the worst form of child labor, states should include "work which exposes children to physical, psychological or sexual abuse" and "work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer."  Ibid, art. 3(a) and art. 3(e). 

[180] Indonesia and Malaysia, Forced Labour Convention, 1930 (No. 29); Protection of Wages Convention, 1949 (No. 95).

[181] ILO Convention on Forced Labour, 1930 (No. 29).

[182] ILO Convention on the Protection of Wages (No. 95), arts. 5, 12, and 14.

[183] 1955 Employment Act of Malaysia, sections 12, 14, 16, 22, 61, 64 and parts IX, XII, and XIIA.

[184] Workmen’s Compensation Act of 1952, Malaysia.

[185] 1955 Employment Act of Malaysia, part XII, sections 59-60a.

[186] UDHR, art. 23(3) states, “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.”  Malaysia Employment Act, 1955, section 18-19.

[187] UDHR, art. 2; ICCPR, art. 2(1):  “Each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  See also, CEDAW, art. 1; CRC, art. 2; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by Indonesia on June 25, 1999, art. 1; and the Migrant Workers Convention), art. 7.

[188] UDHR, art. 7; ICCPR, art. 26; Malaysia Const, art. VIII, § 1; Indonesian Const, 1945, amended 2002, art. 28 § d.

[189] Indonesian Const, art. 28 § i(2).

[190]  The Convention on the Elimination of Racial Discrimination (CERD) Committee has argued that when abuses or policies disproportionately affect a group of people based on such distinctions as race, color, descent, and national or ethnic origin, and have the effect of impairing enjoyment of human rights and fundamental freedoms, this “disparate impact” can be understood as discrimination.  CERD Committee, General Recommendation 14 on Definition of discrimination (art.1, para.1). (Forty-second session, 1993), U.N. Doc. A/48/18. In General Recommendation 20, the CERD Committee noted that states must take special caution to ensure that any restriction on the rights listed in Article 5 of the Convention is "neither in purpose nor effect...incompatible with Article 1 of the Convention." Article 5 enumerates a long list of civil, political, economic, social, and cultural rights, including the right to just and favorable conditions of work and the right to just and favorable remuneration. CERD Committee, General Recommendation 20 (Forty-eighth session, 1996), U.N. Doc. A/51/18.

[191] CEDAW Committee, General Recommendation No. 19.

[192] Some have argued that because domestic workers have responsibilities for child care or preparing meals that do not fit in a standard eight-hour workday, they should not be regulated by limits on their working hours.  Although their hours may be flexible, there should be limits on the maximum hours of work they perform each week, with provisions for overtime pay.  Furthermore, the requirements of many other jobs, such as health care providers, waiters, and pilots, do not fit the standard eight-hour workday model, yet workers in these jobs are still covered under domestic employment protections.

[193] CEDAW, art. 11.

[194] ICESCR, art. 12(1).  “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”  See also, CRC, art. 24.  The Committee on Economic, Social, and Cultural Rights has established that states have obligations “to adopt legislation or to take other measures ensuring equal access to health care and health-related services….  States should also ensure that third parties do not limit people's access to health-related information and services.  Committee on Economic, Social and Cultural Rights, The right to the highest attainable standard of living (General Comments), General Comment 14, August 11, 2000, U.N. Doc. E/C.12/2000/4, para. 35.  The Committee on Economic, Social and Cultural Rights is a body of independent international experts charged with monitoring the implementation of the Covenant in each ratifying state.  To aid the ratifying states in the implementation of their obligations under the Covenant, the Committee issues general comments which are widely recognized as authoritative interpretations of the rights set forth in the Covenant.

[195] UDHR, art. 25(1).  “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

[196] CEDAW, art. 12(1).

[197] Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIV/AIDS and Human Rights International Guidelines  (from the second international consultation on HIV/AIDS and human rights 23-25 September 1996, Geneva) (U.N. Guidelines) (Geneva: UNAIDS, 1998), U.N. Doc. HR/PUB/98/1, para. 97.  The U.N. Guidelines provide guidance in interpreting international legal norms as they relate to HIV/AIDS.

[198] UDHR, art. 12; CRC, art. 16.  See also ICCPR, art. 17; Migrant Workers’ Convention, art. 14.

[199] U.N. Guidelines, para. 28(c) and para. 74.

[200] UDHR, art. 4; ICCPR, art. 8, Trafficking Protocol, CEDAW, art. 6; ILO Forced Labor Convention 29; Convention to Suppress the Slave Trade and Slavery, 60 L.N.T.S. 253, September 25, 1926, Article 1(1); and the Worst Forms of Child Labour Convention, art. 3(a).

[201] Malaysia Const, Art. VI, § 1 and Art. VI, § 2.

[202] International Labor Conference, 1979 General Survey of the Reports relating to the Forced Labor Convention, 1930 (No. 29) and the Abolition of Forced Labor Convention, 1975, (No. 105), Report of the Committee of Experts on the Application of Conventions and Recommendations, 65th Session, Geneva, 1979, Report III, para. 21.

[203] U.N. Trafficking Protocol, art. 3.

[204] UDHR, art. 13; see also, ICCPR, art. 12.  The Migrant Workers Convention also protects the right of migrants to enter their country of origin, Migrant Workers Convention, art. 8.

[205] See “Current Trends in the Right to Leave and Return,” U.N. Doc. E/CN.4/Sub.2/1985.

[206] UDHR, art. 20.  See also, ICCPR, art. 22; Migrant Workers Convention, art. 26.

[207] Freedom to organize is one of the four core labor rights identified by the International Labor Organization Declaration on Fundamental Principles and Rights at Work (ILO Declaration). According to the ILO Declaration, all ILO members, including Indonesia and Malaysia, “have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights.”  International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 18,1998.

[208] Ninety-eight, Malaysia May 6, 1961, Indonesia Ninety-eight July 16, 1957, 87 June 9, 1998.

[209] Malaysia Const, art. IX and art. X.

[210] UDHR, art. 3, ICCPR, art. 6, CRC, art. 6 (right to life); UDHR, art. 5, ICCPR, art. 7, CRC, art. 37 (freedom from torture, cruel, inhuman or degrading treatment).

[211] Declaration on the Elimination of Violence against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (no. 49) at 217, U.N. Doc. A/48/49 (1993), art. 4.

[212] CEDAW, art. 15, and ICCPR, art. 26. See also, Committee on the Elimination of Violence against Women (CEDAW Committee), General Recommendation 19, Violence against women, (Eleventh session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 84 (1994) (contained in document A/47/38), para. 6.

The U.N. Special Rapporteur on violence against women has stated, “In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators. States are under a positive duty to prevent, investigate and punish crimes associated with violence against women.”  Special Rapporteur on violence against women, its causes and consequences, “Preliminary Report Submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1994/45,” (Fiftieth Session), U.N Document E/CN.4/1995/42, November 22, 1994, para. 72.

[213] CEDAW Committee, General Recommendation No. 19, para. 17-18.

[214] CEDAW Committee, General Recommendation No. 19, art. 24 (i).

[215] Penal Code of Indonesia, art. 285.

[216] The Code of Practice defines sexual harassment as, “Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:   (i) that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment, or (ii) that might, on reasonable grounds, be perceived by the recipient as an offence humiliation, or a threat to her/his well-being, but has no direct link to her/his employment.”  Kementerian Sumber Manusia (Ministry of Human Resources),  Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.  August, 1999, art. 4.

[217] UDHR, art. 18.  The right is also articulated in Article 18 of ICCPR, Article 12 of the Migrant Workers Convention, Article 14 of the CRC, and in the U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.  ICCPR, art. 18; Migrant Workers Convention, art. 12; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, U.N.G.A. Res. 36/55, November 25, 1981.

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