DECEMBER 18 — On this day — International Migrants Day — which is commemorated annually on 18 December, the Malaysian Bar acknowledges all the hard work and substantial contributions of migrant workers to the economic progress and development of Malaysia and to their respective home countries. Migration for work is prevalent in an increasingly globalised world, and it is the aspiration of many migrant workers to strive for a better future. While international migration has primarily been discussed in terms of its socio-economic benefits, its human cost has also been brought to the forefront in recent years.
Malaysia hosts a significant population of migrant workers, both documented and undocumented. Migrant workers are one of the key pillars of the modern Malaysian economy, primarily in critical industries such as plantations, manufacturing, construction, and agriculture. It is beyond a doubt that Malaysia would be a vastly different country in their absence. Yet, despite their contributions, migrant workers are among the most vulnerable groups in our nation. They are very often confronted with marginalisation and exploitation, and have little access to justice. It therefore comes as no surprise that migrant workers are routinely subject to deportations; arbitrary seizures of passports; physical, emotional, and mental abuse; discrimination; and sexual harassment. This is compounded by the fact that many of them are afraid to voice their complaints, for fear of retaliation by their employers or cancellation of their work permits.
Many migrant workers arrive in Malaysia in dire financial straits. Their position is worsened as they face language and cultural barriers, and their lack of information about their rights further hamper their ability to receive redress when necessary. Equality before the law is enshrined under Article 8(1) of the Federal Constitution and applies to all persons in Malaysia, irrespective of their nationality. There is therefore no question that migrant workers should be included in such fundamental protections.
Undocumented migrants are particularly exposed to abuse. We must be cognisant of the possible reasons for the presence of these undocumented migrants — which may range from the failure of their employers to legalise or renew their work permits, to migrants who have been illegally trafficked into the country — through no fault of their own.
The Malaysian Bar takes the position that there must be mechanisms put in place to guarantee the dignity and welfare of migrant workers. Their rights to equal justice should not be confined to where they are born, or where they choose to live and work, especially in a globalised ecosystem across this world. We recognise the improvements that have been made to ameliorate the issues concerning forced labour, through Malaysia’s ratification of the International Labour Organization’s Forced Labour Convention No 29 earlier this year. The position taken by the Malaysian Government is commendable as it serves as a declaration on the pressing need to eliminate forced labour in our country. Nevertheless, while this is a step forward, there are still many reforms that should be done to further strengthen our institutions to protect migrant workers in our country.
We are pleased to note that in this regard, in May 2022, the Court of Appeal unanimously affirmed the High Court decision of Fice Fransina Nenobais v Lee Hee Chooi[1] that ruled that an undocumented worker, referred to in the media as Nona, had the right to have her case heard in the Labour Court. Nona had filed a claim for unpaid wages in the sum of more than RM30,000 against her employer in the Labour Court. This case affirmed the principle that work done by undocumented workers is deserving of wages.[2]
On this International Migrants Day, the Malaysian Bar calls on the Government to:
(1) make public the report by the Independent Committee on the Management of Foreign Workers to implement the recommendations therein;
(2) implement the recommendations put forward by the Bar Council in its report titled “Developing a Comprehensive Policy Framework for Migrant Labour” (2008), which includes:
(a) collaborating 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, and possess knowledge of their labour rights and obligations; and
(b) extending the Malaysian Government’s legal aid programmes, such as those offered by the Legal Aid Department (Jabatan Bantuan Guaman) and National Legal Aid Foundation (Yayasan Bantuan Guaman Kebangsaan, “YBGK”), to cater for migrants and refugees who are foreigners in Malaysia;
(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 and adhere to the various international conventions which Malaysia has yet to do, 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;
(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
(c) the Global Compact for Safe, Orderly and Regular Migration agreement, of which Malaysia is a signatory.
Finally, the Malaysian Bar welcomes the appointment of our country’s new administration — including our new Prime Minister, Minister of Human Resources, and Minister of Home Affairs. We look forward to working closely with the respective government authorities to provide the necessary input to advance the rights of migrant workers in Malaysia.
*This statement is submitted by Karen Cheah Yee Lynn, President, Malaysian Bar.
** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.
[1] [2020] 7 CLJ 416.
[2] “Court of Appeal declares undocumented workers have right to seek redress at Labour Court – Tenaganita”, Aliran, 19 May 2022.
