APSN | Protection for all migrants in Malaysia

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Protection for all migrants in Malaysia

Joint Statement - December 20, 2009

Today marks International Migrants Day, a day set aside by the United Nations General Assembly to promote the human rights and fundamental freedoms of migrants, which include "the design of actions to ensure their protection".

Malaysia is one of the primary destination countries for migrants in Southeast Asia. There are an estimated 2.1 million documented migrant workers in Malaysia and more than 1 million migrants in an irregular situation. The economy of Malaysia is foreign labour dependent - around 25-30 percent of the workforce comprises migrants. Without the labour of migrants, Malaysians would not be able to enjoy the economic recovery and growth it has experienced over the past three decades.

Since International Migrants Day last year, we are pleased to note some progress on the protection of migrants. Specifically, we note the Malaysian government's willingness to sign a Memorandum of Understanding with the Indonesian government allowing migrant workers to keep their own passports and to have one day off a week, as well as the government's willingness to set up joint task force to monitor and settle labor disputes with employers. We look forward to seeing the full implementation of these agreements through real changes in policy and practice. Secondly, we also note the increased efforts of the Royal Malaysian Police in tackling trafficking for sexual and labour exploitation. We urge the Malaysian government to increase the provision of shelters, extending them to men as well as women, and also to ensure that victims are compensated for their losses, not just removed from exploitative conditions.

However, the rights of migrants are still poorly protected in a number of ways. Migrants continue to face significant barriers to access to health services and are subject to discriminatory policies of mandatory testing and deportation for several treatable diseases as well as pregnancy. Those who suffer from violations of labour and human rights - such as cheating by agents, wrongful arrest and detention, unpaid wages, wrongful dismissal, wrongful deduction of wages, accidents in the workplace, abuse, violence, sexual harassment, and rape - are unable to obtain effective redress through the existing legal system.

Documented migrants who initiate court action against their employers have their work permits cancelled thus losing their right to stay in Malaysia as well as their right to work. In order to pursue redress, they are required to apply for a Special Pass, issued at the discretion of the Immigration Department, which grants them the right to stay for a month. Sometimes, applications for these Passes have been refused in spite of evidence produced that court proceedings are underway. NGOs assisting migrants have also been verbally abused for making these applications on behalf of migrants. A fee of RM100 per month is charged for this Special Pass, which can be renewed for a maximum of 90 days. These fees are exorbitant, especially as they are not allowed to work during this time. Often, the resolution of cases through court proceedings and discussions with employers takes longer than 3 months. However, migrants are unable to get their Special Pass extended further. Impoverished and desperate, many opt to return home without obtaining effective redress.

Migrants in detention also face great difficulties obtaining justice through legal proceedings. Many are unable to understand court proceedings and are unable to secure legal aid or assistance from their embassies or employers while held in remand, as they do not have the right to make contact with persons outside of detention facilities. Asylum seekers, refugees, and stateless persons face difficulties contacting the UNHCR to lodge a claim for international protection. Trafficked persons are not identified systematically and removed from Immigration Detention Centres and Prisons. Migrants in an irregular situation are unable to seek protection of the law, as they fear arrest because of their immigration status.

On the occasion of International Migrants Day, we the undersigned organizations call on the Malaysian government to institute reforms to better protect the rights of migrants.

Specifically we call on the Malaysian government to ensure their right to effective protection of the law, their right to effective remedy, and their enforceable right to compensation by instituting the following changes:

For migrants having suffered from crime – to investigate and prosecute perpetrators and to ensure effective remedy for victims;
For migrants in detention – to respect their right to communicate with consular or diplomatic authorities, or in the case of asylum seekers, refugees and stateless persons, the UNHCR;
For migrants who have been victims of labour or sex trafficking – to be provided with assistance and services for rehabilitation, repatriation and reintegration, as well as compensation for losses;
For migrants charged with immigration or criminal offences – to uphold their right to communicate with counsel of their own choosing, to be tried without undue delay, to have the free assistance of an interpreter as needed, and not to be compelled to testify against themselves or to confess guilt;
For migrants pursuing redress for grievances – to provide Special Passes without cost to migrants until their cases are resolved effectively. The resolution of cases should be timely, fair, and with a means for ensuring effective compensation.

This statement is drafted by members of the Migration Working Group and the Northern Network for Migrants and Refugees (Jaringan Utara Migrasi dan Pelarian, JUMP), and endorsed by the following organizations:

1. Aliran
2. Amnesty International Malaysia
3. Asian Resource Foundation-Asian Muslim Action Network (ARF-AMAN)
4. Episcopal Commission for the Pastoral Care of Migrants and Itinerants (EMI)
5. Health Equity Initiatives (HEI)
6. Jaringan Utara Migrasi dan Pelarian (JUMP)
7. Knowledge and Rights with Young people through Safer Spaces
8. Malaysian Social Research Institute (MSRI)
9. Marie Stopes Papua New Guinea
10. Parti Rakyat Malaysia
11. Parti Sosialis Malaysia (PSM)
12. Penang Office for Human Development (POHD)
13. Suara Rakyat Malaysia (SUARAM)
14. Tenaganita
15. The Justice Peace & Solidarity In Mission Office, The Good Shepherd Sisters, Province of Singapore-Malaysia
16. The National Human Rights Society (Persatuan Kebangsaan Hak Asasi Manusia, HAKAM)
17. Women's Aid Organisation (WAO) 18.) Parti Keadilan Rakyat