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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 182
March 19, 2005

This week's issue:
Human Rights Analysis
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Rights Investigation
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Rights investigation

Taking a deeper look at migrant workers in Malaysia

The period from the second half of 2004 through to the beginning of 2005 was a vulnerable time for Indonesian migrant workers in Malaysia, who were besieged with uncertainties. The Malaysian government had already warned in July 2004 that mass deportations of undocumented migrant workers in Malaysia would again be carried out based on its Immigration Act of 2002.

This policy would be enforced by mobilising around 560,000 civilians -- members of the People's Volunteers Union, RELA - as the spearhead of raids to arrest and evict those carrying no documents.

Despite the Malaysian government's early warning, no significant response came from the Indonesian government to anticipate the implementation of this policy. The government had apparently learned nothing from the bitter experience of the Nunukan tragedy in September-October 2002, when some 350,000 migrant workers were deported from Sabah, Malaysia, to the Indonesian frontier town of Nunukan, East Kalimantan. Because the Indonesian government failed to handle the case seriously the deportees were badly neglected, resulting in the deaths of at least 85 and thousands of others starving and suffering various diseases.

Indonesia's lack of serious response certainly caused concern about the safety of the country's migrant workers in Malaysia. The target of Malaysia's mass deportation operation was set at around 1.2 million people, mostly comprising some 800,000 undocumented migrant workers of Indonesian origin.

Only about 250,000 of these Indonesians returned home under an offered amnesty, while over 500,000 others remained in Malaysia. It is these migrant workers that the Malaysian government is targeting in its latest arrest and expulsion drive.

The Indonesian government's less than earnest endeavors can be traced to its failure to oppose an article in a Memorandum of Understanding (MOU) regarding migrant workers between Indonesia and Malaysia that was signed in May 2004, which gave authority to Malaysian employers to hold the passports of Indonesian migrant workers. This effectively put their papers under their employers' control making migrant workers' position subordinate to their employers. In the event of conflict or disagreement, employers will frequently hold onto workers' documents. Consequently, the workers lose their papers and thus risk being considered illegal immigrants.

The Indonesian government, too, has systematically stigmatised and criminalised its undocumented migrant workers just as the Malaysian government has done so. By calling them "illegal Indonesian migrant workers", the government has effectively blamed the victims.

The first thing the Indonesian government questions is the legal or illegal status of migrant workers, though the cases they face are serious and require immediate attention. The Indonesian government's slow response to the death sentence imposed on Suhaidi bin Asnawi, a migrant worker from Lombok, was because this worker had no papers.

The same response was shown when two Indonesian migrant workers received prison terms and lashes on Feb. 1, 2005 for criminal acts. This attitude goes against Law No.37/1999 on foreign relations that gives a mandate to the government - in this case Indonesian diplomatic missions abroad - to provide legal aid to Indonesian citizens involved in court cases overseas, as victims as well as defendants.

In terms of manpower management, the government has also failed to prevent the massive growth in undocumented labor migration. This problem is very much rooted in the bureaucratic red tape and corruption involved for Indonesian migrant workers to obtain necessary documents to legally work overseas.

Such corruption imposes very high cost burdens upon migrant workers through the imposition of arbitrary fees and wage deductions. For this reason, many if not most migrant workers choose to avoid these high costs and depart for overseas without documents. Law No.39/2004 on overseas placement and protection of Indonesian migrant workers has not made a significant impact on labor placement management.

On the demand side, the exodus of migrant workers without papers to Malaysia cannot be stemmed as long as Malaysian companies continue to exploit their presence in order to maximize profits. By recruiting and employing undocumented migrant workers, these companies do not have to pay the levies that are required for properly documented migrant workers, and are also free to pay substandard wages because there is no obligation for them to enter into or abide by work contracts. The Indonesian government has never earnestly urged Malaysia to deal with these demand-side irregularities and to punish the Malaysian firms involved.

The three extensions to the amnesty - originally until Nov. 1, 2004, then extended to Nov. 15, 2004, further to Dec. 31, 2004 and again to Jan. 31, 2005 because of the tsunami disaster - should be understood not as Malaysian government's "benevolence" but rather as the outcome of lobbying by Malaysian business who feared mass departure of workers.

Most undocumented migrant workers serve the construction and estate sectors, and losing so many of their workers so quickly would have caused a major setback in plantation production - Malaysia's major commodities and also disrupt Malaysia's infrastructure development projects.

The above factors should have been used by the Indonesian government as the basis of an analysis to find a solution to the crisis confronting Indonesian migrant workers in Malaysia. Thus for the governments of Malaysia and Indonesia have assumed that deportation is the only way to settle the issue of undocumented migrant workers.

In its realisation, however, deportation leaves many issues unresolved. Instead, every time a deportation takes place, tension increases in Indonesia-Malaysia diplomatic relations. There is also great potential for violence and human rights violations, especially when civilian vigilante groups are mobilised. Massive accumulations of deportees at transit points also leads to many serious problems, as was the case in Nunukan, and comprehensive deportation management must be adopted.

One solution to deal with the problem of undocumented migrant workers is legalisation. This means sorting out these workers' status problems by legalising and handling their immigration documents and working contracts in Malaysia, without sending them back to Indonesia. Such a solution was chosen by the Korean government in 2003 to deal with a similar problem of illegal migrant workers in that country. By legalising its problematic migrant workers without sending them home, Korea saved itself from a scarcity of labor upon which its industrial policy depends, and at the same time systematically eliminated the illegal recruitment of migrant workers.

In the case of such migrant workers in Malaysia, legalisation of their status could very much be a win-win solution. For the Malaysian government it saves millions of Malaysian ringgit that would otherwise be spent on raids and RELA mobilisation. Malaysian companies also make profits by avoiding a crisis of labor scarcity. For the Indonesian government this option saves costs that would otherwise go in anticipating massive numbers of deportees. For migrant workers, legalisation enables them to obtain proper immigration papers and get back to work with no more fear of raids.

Source: Migrant CARE, Indonesian Association for Sovereign Migrant Workers.


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