The Malaysian Bar commemorates International Migrants Day, observed on 18 December annually. It is a day for us to acknowledge the hard work of migrant workers who contribute significantly to the economic development of Malaysia as well as their home countries.
Migrant workers comprise a sizeable proportion of the Malaysian workforce, yet their importance is hardly publicly recognised. Migrant workers form the backbone of our country’s economy, primarily in critical industries such as plantations, manufacturing, agriculture, and construction. Undoubtedly, Malaysia would be a vastly different country in the absence of migrant workers.
However, despite their ubiquity in the labour market, migrant workers have been portrayed as a potential threat to the country’s long-term social and economic development.1 Many migrant workers face barriers that prevent access to justice — including their fear of termination from their jobs and discrimination from the authorities. Their lack of information about their rights to redress significantly hampers their chances of getting justice.
There is much that needs to be improved when it comes to protecting the rights of the migrant community. During the height of the COVID-19 pandemic, the Government had conducted several raids that led to the detention of more than 18,000 undocumented migrant workers2 — an unnecessary step under the circumstances.
Equality before the law is a right enshrined under Article 8 of the Federal Constitution and applies to all persons in Malaysia, irrespective of nationality or citizenship. However, migrant workers face barriers that make it incredibly difficult to access the legal system. They usually arrive in Malaysia under dire financial circumstances. The ability of these individuals to work in a safe environment, where their rights are protected, could mean the difference between financial security and financial ruin.
The Malaysian Bar is a firm advocate of equal access to justice for all individuals, irrespective of their immigration status. Although migrant workers contribute their skills to build a stronger and more prosperous economy for our country, they still lack the fundamental awareness of the laws that protect them. Most return home without any redress for the losses they may have suffered.
They are also vulnerable to the arbitrary seizure of passports, deportations, physical and mental torture, forced labour with little or no pay, discrimination, and sexual harassment.3 These are especially true for undocumented migrants. However, we must bear in mind that some of these workers became “undocumented” for a variety of reasons — they may have lost their legal status during their stay here or might not have been able to renew their documents due to the COVID-19 pandemic — and not necessarily due to entering the country illegally. Some may even have been trafficked into our country by unscrupulous individuals. What we need to do is to treat all migrants, whether documented or not, with respect and with dignity.
On this International Migrants Day, the Malaysian Bar calls on the Government to:
(1) Implement the recommendations put forward by the Bar Council in its report titled “Developing a Comprehensive Policy Framework for Migrant Labour”4, including:
(a) working closely with country-of-origin governments to fine-tune the recruitment system — to ensure that migrant workers are recruited fairly and equipped with the necessary skills in tandem with their employment, as well as knowledge of their labour rights and obligations; and
(b) extending the Malaysian Government’s legal aid programmes, including the Legal Aid Department (Jabatan Bantuan Guaman) and National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan, “YBGK”), to cater for migrants and refugees in Malaysia;
(2) Make public the report by the Independent Committee on the Management of Foreign Workers to implement the recommendations therein;
(3) Grant undocumented workers the right to file cases in the Labour Court;
(4) Ensure full respect for the human rights and humane treatment of migrants, regardless of their migration status, in line with the 2030 Agenda for Sustainable Development, adopted by the United Nations General Assembly on 25 September 2015;
(5) Accede to the various international conventions which Malaysia has yet to do so, including:
(a) the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the United Nations General Assembly on 18 December 1990. This Convention recognises and guarantees respect for the dignity and rights of all migrants, regardless of their national origin or immigration status; and
(b) the C189 - Domestic Workers Convention, 2011 (No. 189), adopted by the International Labour Organization on 16 June 2011. This Convention recognises the need to ensure the effective promotion and protection of the human rights of domestic workers; and
(6) Adhere to the principles in the Global Compact for Safe, Orderly and Regular Migration agreement, wherein Malaysia is a signatory.
We need to continuously look at the ways to remedy the problems and barriers faced by migrant workers on our shores. The Malaysian Bar is ready to work closely with all stakeholders and the Government to provide any assistance towards realising this objective.
A G KALIDAS
17 December 2021
1 “Stop painting migrants, refugees as security threats, says Suhakam”, Free Malaysia Today, 14 June 2021.
2 “18,355 PATI ditahan sejak Januari”, Sinar Harian, 6 August 2020.
3 “Exploitation of Migrant Workers in Malaysia and Protection under Domestic Laws”, Science and Technology Publications, Lda, 2020.
4 “Recommendations from the Conference: Developing a Comprehensive Policy Framework for Migrant Labour”, Bar Council, 2008.