Critical Notes on Migrant Labor Policy in Malaysia

By:  Adrian Pereira

Director of North South Initiative (NSI) Malaysia

In response to the ongoing enforcement operations on undocumented migrant workers by the Immigration Department of Malaysia and as per press release (31 May 2018) by the Home Affairs Minister of Malaysia, YB Tan Sri Muhyiddin Haji Mohd Yassin, of the new Pakatan Harapan government,we the migrant community and CSOs concerned about migrants’ rights in Malaysia are very concerned about the future of migrants in the country.

The directives in the press  statement fails again to address the root causes of the issues and do not provide enough time for proper discussions and analysis for just remedies which need to be holistic, comprehensive and be based on ILO Conventions and fundamental Human Rights principles. These concerns also cover refugees, asylum seekers and stateless communities, who are also at risks of being detained during this new enforcement operations.

How Migrants Become Undocumented

Many of the migrants by the Malaysian Government has labelled “Illegal” (or in more humane terms “undocumented”) attain that status due to no fault of their own. Some of these reasons include:

• Trafficking: Malaysia’s history as a human trafficking hub is well documented by civil society and even reflected in Government data. Recent revelations regarding a large and politically well-connected trafficking syndicate, as well as Malaysia’s downgrade to Tier 2 Watch List of the US State Department’s Trafficking in Persons (TIP) report further reinforces our fears of the prevalent and possibly even systemic existence of trafficking networks within Malaysia. We must never punish migrants who became victims of trafficking to Malaysia, as their circumstances are beyond their control.Criminalizing victims and survivors is not the way to go; we should instead be going after the syndicates and those responsible.
• Deception: Agents have a history of giving false advice and promises regarding the process of getting permits and jobs in Malaysia. Some migrants have low literacy levels, making them susceptible to fraud and deception, and even literate migrant workers become possible victims of fraud and unjust treatment by both recruiters and employers. Recruiters promise work permits and good employment contracts with decent wages and conditions. Upon arrival, however, these workers often find that not only have their contracts, employment sites, and terms and conditions been changed, but that they may have also violated Malaysian immigration laws.For most workers there is little access to justice or right to redress mechanisms in proving the fraud and deception.
• Rehiring: The rehiring process is lengthy and non-transparent, and the subcontractors and sub-agents of rehiring face little accountability. It is a privatized process driven by profiteering motifs, fraud and deception. For example, workers are not given receipts of rehiring payments and many agents cheat workers, taking their money but not providing e-cards. There is no adequate redress mechanism that can investigate and track these agents. While we welcome the cancellation of problematic rehiring contractors, we are afraid that workers in the midst of registration may be again victimized by this move.
• Renewal: The migrant working visa renewal process is equally riddled with cheating, a lack of transparency and little accountability by agents and employers. Most migrants have little idea of how this opaque process works. Passports are often illegally held by employers and whether their visas are renewed or not is out of the beyond the worker’s control.
• Employer bondage and exploitation: The past Malaysian Government’s hiring policy, which now needs to be reviewed by the new government, requires an employer’s consent to for workers to change employers. This inflexibility is particularly problematic in cases of exploitation, intimidation and physical violence where workers have no choice but to abscond and become undocumented. This is exacerbated where workers’ passports have been illegally retained.This system,which resembles the widely-criticised kafala system practiced in Gulf countries,provides little option to seek redress for workers in this situation, particularly with the overhanging threat of deportation.
• Amnesty blacklisting: The 3 + 1 amnesty program, which blacklists workers for five (5) years, further discourages them from using the amnesty system and thus forces them to become undocumented.
• Accountability: The complex commercial chains of private outsourcing companies and agents that govern migrant workers’ affairs activities render them largely unaccountable. Companies and agents often deny or neglect their responsibility for their workers, and many migrant workers become undocumented because of the irresponsibility of these companies and agents.
• Border enforcement: Documented corruption and inefficiency within border enforcement agencies add to the problems faced by migrant workers, benefiting from the activities of the accountable recruitment industry and providing little relief or assistance when things go wrong.
• Recruitment debt: Many migrant workers believe the promises made to them in countries of origin by agents and employers, borrowing huge sums from syndicates and moneylenders to finance the initial migration costs. This debt bondage is exacerbated by the illegitimate substitution of contract terms,arbitrarily driving down wages and conditions and imposing unaccountable wage deductions, making repayment increasingly difficult. Sending people home in such circumstances is putting many workers at risk, and this needs to be clearly addressed.

To ensure that all labour migration matters are handled in a way that gives dignity and respect to migrant workers, we demand an holistic solution based on the following recommendations:

1. An immediate moratorium on raids/enforcement operation “Ops Mega 3.0”to ensure no workers are punished for crimes which are not of their fault. These raids and operations should be suspended while a holistic assessment of all the issues and potential comprehensive solutions are undertaken with all stakeholders with regard to labour migration.
2. That the Government makes available its Standard Operating Procedure for conducting raids and detaining undocumented migrant workers, so that human rights and civil society organisations can ensure fundamental rights are protected and due process guaranteed.
3. To decriminalize the “undocumented” status of workers (which is an administrative offence), and recognize that becoming undocumented is primarily an outcome of labour exploitation. This is especially relevant for vulnerable groups like women and child migrant workers, who face additional layers of exploitation which leads to them being undocumented and victims of forced labour and trafficking.
4. That the Committee for Institutional Reforms facilitates safe dialogue spaces between the Government of Malaysia and migrant communities and other relevant stakeholders and social actors to propose evidence-based solutions. Such solutions must be based on clear verified labour market data (for example from the Institute of Labour Market Information and Analysis, employer organizations and other sound economic analysis)and base its solutions on fundamental Human Rights and Decent Work principles.The involvement of the International Labour Organisation would be advisable in this respect.
5. To facilitate the overhaul and expansion of Government-to-Government hiring mechanisms as the primary means by which workers are recruited in Malaysia in a manner that is transparent and accountable as well as evidence- and rights-based.
6. More time must be given to migrant workers to process and secure their working visa status and make decisions on their working status in Malaysia. Unrealistic deadlines force workers to risk going underground, collaborating with exploitative actors within the labor supply chain, driving criminality and other high-risk activities.
7. The Government should stop blacklisting migrant workers who use the 3 + 1 Amnesty Program, an action which only discourages its use. The program should be conducted exclusively by the Immigration Department to avoid levying excessive charges on already-struggling workers and discourage profiteering.
8. The Government must ensure all migrants have access to justice and the right to redress, including when they are caught and detained. This due diligence must be practiced by enforcement agencies and the judiciary to ensure accused migrants have a fair trial and a chance to defend themselves. Migrants must have guaranteed access to legal aid from the National Legal Aid Foundation to achieve these goals.

Migrant workers play a huge part in securing economic growth for Malaysia and will still be needed in years to come by various industries. The Government must play a more active role in educating the Malaysian people that migrant workers are not their enemies or the cause of their own financial or employment problems.

Migrants are here because the Malaysian government, employers in formal and informal sectors and agents opened spaces for their work. So how can migrants be ‘illegal’? No person is illegal. We have always been keen to discuss these matters with all appropriate authorities to find the best solutions. This is a good time for the new Government to take stock of what the real situation is and what determine what possible solutions might be, before taking any actions.