Representatives of civil society organisations and trade unions gathered in Shah Alam recently to conduct a National Consultation on the Protection and Promotion of the Rights of Migrant Workers under the auspices of the Task Force on Asean Migrant Workers mechanism. This is their collective statement.
National Statement
Malaysia National Consultation on the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers
13-14 August 2008
Shah Alam, Selangor
1. As representatives of civil society organizations and trade unions, we have gathered in Shah Alam, Selangor, on August 13-14, 2008 to conduct this National Consultation on the Protection and Promotion of the Rights of Migrant Workers under the auspices of the Task Force on ASEAN Migrant Workers mechanism. We recognize very clearly that Malaysia must play a central role in the deliberations and determinations of the framework of to protect and promote the rights of migrant workers in ASEAN because it is the destination country for the largest number of migrants in Asia. The economy and society of our country is integrally connected with the fate of these migrant workers since as many as 1/3 of the workers in our country are migrants. Yet for the major role that migration plays in the daily lives of Malaysians, we acknowledge that the policies of the Government of Malaysia towards migrant workers and their families have often been detrimental towards the rights of these migrants. Unfortunately, to date, the history of Malaysia’s treatment of migrants can best be characterized by the continued existence of many laws regulating migrant workers which remain largely unimplemented. We also see that there remain significant failures in good governance among civil servants at all levels when actions are taken to regulate migrant workers.
2. We believe that the fundamental problem that runs like a thread through Government migrant policy is the focus on treating migration as a matter of “security” rather than an issue that is more appropriately handled as a matter concerning “labour” by the Ministry of Human Resources. Migrants are invited to come to Malaysia to work and significant sectors of economy of our country remain dependent on their labour. Yet the Government continues to view migrants as a national security threat, and accordingly provided the leading role to the Ministry of Home Affairs (MHA). In our view, the MHA has continuously mismanaged the policy towards migrant workers, setting out systems that provide the green light for employers to restrict workers’ rights and systematically exploit their vulnerability, which in turn ultimately drives migrant workers to flee their employers and join the swelling numbers of undocumented migrants. By creating a climate of fear among migrants, MHA has made the country less secure by undermining the kinds of policy initiatives need to effectively manage migration for the mutual benefit of migrant workers, employers, and Malaysian society at large.
3. In spite of its ratification of CEDAW, and the concluding comments of the Committee on the Elimination of Discrimination against Women in 2006, the Government continues to fail to recognize the multiple sites and forms of discrimination experienced by migrant women, in particular domestic workers, including violations of employment rights, right to a life free from violence, right to reproductive rights, and the right to redress in cases of abuse and violations.
4. Malaysia has been the subject of sometimes severe criticism from neighboring nations in ASEAN about the treatment accorded to their nationals working in our country. In the spirit of a “sharing, caring ASEAN” to which we all aspire, we feel it is important that the Government of Malaysia receive this criticism positively, and take immediate steps to address the myriad problems that has been surfaced in these interventions. As representatives of Malaysian civil society and trade unions, starting from today we renew our commitment to do whatever we can to ensure Malaysia will play a much more positive role in ASEAN in promoting regional policies and mechanisms that respect and promote the rights of all migrant workers.
5. At the same time, it is also important to recognize that many of the NGOs, community-based organizations, and trade unions in Malaysia have worked diligently and selflessly to protect migrant workers, assist them with their needs, and intently involve them in discussions and actions aimed at empowering them to better defend their rights. Tens of thousands of migrants have benefited from this important work. Accordingly, we pledge to redouble our efforts, in cooperation with all stakeholders in Malaysia as well are diplomatic representatives and international organizations present in our country, to continuously work to build an atmosphere of acceptance and respect for the rights of migrant workers and their families.
6. Regarding the current situation of immigrants in Sabah, we believe that the Government’s current forced deportation of migrant workers, refugees and stateless persons constitutes intense human rights violations and will not resolve the root causes of the situation. Real solutions must come with recognition that the undocumented migrant workers, refugees and stateless persons in Sabah are deeply rooted in the fabric of local society and make major contributions to the economic growth of the state. Only by recognizing and legitimizing the presence of these persons will this serious situation be effectively and sustainably addressed.
Recommendations to the Government of Malaysia
Policy principles
7. As a leading country in ASEAN that is receiving migrant workers, Malaysia should effectively implement its commitment in article 8 of ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, which states that Governments shall “promote fair and appropriate employment protection, payment of wages, and adequate access to decent working and living conditions for migrant workers.”
8. The Government should adopt a rights-based approach to migrant worker policy which adheres to the core principle of non-discrimination in all aspects of law and policy implementation.
9. With regards to terms and conditions of employment for migrant workers, Government policy should maintain “national treatment” as its core premise, meaning that migrant workers shall receive treatment no less favorable than that accorded to Malaysian workers.
10. To ensure that these principles are infused throughout all aspects of policy, the Government should immediately sign and ratify the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and take all necessary steps to harmonize national laws with this Convention.
11. As a leading member of the ILO in the region, the Government of Malaysia should ensure that its treatment of migrant workers conforms with the ILO’s Decent Work Principles that call for respect for basic human rights, access to employment, safe and healthy working conditions, and social security.
12. We commend the Government for ratifying many of the core ILO Conventions, including Convention 29 (Forced Labour), 98 (Collective Bargaining), 100 (Equal Remuneration), 138 (Minimum Age), and 182 (Worst Forms of Child Labour).
13. We call on the Government to immediately ratify the remaining core ILO Conventions, including 87 (Freedom of Association) and 111 (Discrimination), and to reverse its decision to denounce its ratification of Convention 105 (Abolition of Forced Labour).We also call on the Government to undertake to ratify ILO Conventions 97 (Migration for Employment) and 143 (Migrant Workers).
14. As a member of the UN Council on Human Rights, we believe that it would be an important signal to the people of Malaysia, the migrant workers, and the international community for Malaysia to ratify without delay the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
Policy determination, management and coordination
15. Jurisdiction for formulation and implementation of policies focusing on migrant workers should be transferred immediately from the MHA to the Ministry of Human Resources (MHR) which has the necessary expertise to oversee migrant workers policy as part of the overall labour policy. We believe that the MHR is best positioned to determine demands by employers for foreign labour, conduct workplace assessment and inspections, and to investigate and address complaints raised by migrant workers alleging problems at their workplace.
16. A new inter-ministerial coordination system on policies and practices towards migrants is needed to ensure effective implementation of migrant workers policy. This inter-ministerial/departmental body must be chaired by representative of the MHR and it should set up systems (coordinated by the MHR) to direct all matters pertaining to the recruitment, placement, and employment of migrant workers, and set out a clear policy outlining practical steps to be taken to increase the protection and promotion of the rights of migrant workers. Representation from the following Ministries will be required for this new inter-ministerial/department body – Human Resources (chair), Home Affairs, Health, Foreign Affairs, Women’s Affairs, and Education. This body should also actively reach out to civil society organizations and trade unions as it develops its policies.
17. MHA’s role should be restricted to handling the aspects of entry and exit of migrant workers only.
Recruitment and placement
18. The Government of Malaysia should immediately abolish the system of “outsourcing” under which 226 outsourcing companies have been issued licenses by the MHA but have operated with impunity in exploiting migrant workers and abusing their rights. Based on our experience, the “outsourcing” system has significantly fueled grievous abuses by creating bonded labour arrangements and effectively encouraging human trafficking for purposes of labour exploitation. This system serves to enrich only a select few brokers and their cronies while sullying the reputation of our country throughout the region.
19. In place of this system, the Government should negotiate bilateral agreements with labour sending countries based on a standardized agreement (developed in a transparent consultation process with Malaysian civil society and trade unions) that is in accordance with international labour standards. These agreements should contain clear information about sectors of work, and terms and conditions of work in those sectors. Direct employers would then be empowered to work through the MHR and these bilateral agreements to recruit the workers they need.
Any recruitment fees should be paid by the employer.
20. We recommend that the Government insist that as part of these arrangement, standardized migrant worker contracts would have to be signed in the sending country, specifying all terms and conditions of work, and made in both the migrant’s native language and English. These contracts should be developed in line with guidelines set by the MHR, and these guidelines should conform to international labour standards and set out minimum wages and conditions of work. Upon arrival, the Government should oversee the attestation of the contracts, and ensure that the contracts are recognized by employers and enforced. Government polices should be developed to severely punish cases of contract substitution by employers.
21. The Government should abolish the Foreign Worker Levy, which is a failed policy that further impoverishes migrant workers. The monies accumulated from the levy are not being provided for benefits or services for the migrant workers, and it has not had the intended effect of deterring employers from seeking foreign labour. Since the costs of the levy are passed to the worker, the levy has contributed to the deepening of debt bondage among workers.
22. The Government should mandate the creation of a pre-employment orientation program (in migrant workers’ native language) for migrant workers when they arrive in Malaysia, focusing on ensuring that migrant workers are aware of their rights and responsibilities under all relevant laws and policies concerning migrant workers and receive information about avenues to seek support and assistance in difficult situations. The Government must ensure that the costs of this orientation are borne fully by the employer and not passed on to the worker.
23. Our experience with numerous cases of migrant workers show that the tying of a migrant worker to one employer by contract, with provisions providing for immediate deportation if the worker is dismissed or otherwise unable to work, creates ideal conditions for exploitation of that worker. Therefore, we strongly recommend that the Government review and revise the Work Permit procedure, and provide workers the right to change employers through institution of a “portable” Work Permit registration system. The Government should also hold accountable those employers who negligently fail to renew their employees’ work permits.
24. The Government should consider amending the regulations for the Special Pass to provide longer periods of validity, and provide the Special Pass as a method of regularizing undocumented migrant workers who have lost their jobs through termination or other circumstances. The Special Pass could bridge the period of time while the migrant worker seeks and finds a new employer, and provide an avenue to seek a new Work Permit.
Working and living conditions
25. Migrant workers in Malaysia currently suffer from a wide variety of difficult, dangerous and dirty conditions in their work, and face significant challenges in earning sufficient wages to support themselves and provide support to their families back in labour-sending countries. In our experience, among the litany of abuses suffered by workers are long work hours and no days off, shifting placements, requirements to do multiple jobs, poor wages, lack of benefits, restrictions on the mobility and/or confinement to the workplace, poor housing conditions (connected to overcrowding, lack of proper food preparation and sleeping areas, lack of hygienic facilities for bathing and toilets), restrictions on seeking medical treatment, withholding of passport or other ID documents, denial of access to family and friends, prohibitions on practicing religion, and restrictions on their right to form associations or unions that can protect their rights. Migrant workers often suffer from contract substitution on arrival, compounded by employers’ failure to fulfill even the terms of the substituted contract – yet they can not leave their employer without fear of being fired and then immediately be deported.
26. The Government should implement a national minimum wage of 900 RM per month, supplemented by a 300 RM cost of living supplemental payment, and ensure that all migrant workers are paid no less than the minimum wage.
27. The Government should immediately revise the MHA policy connected to issuance of work permits which contains a prohibition on migrant workers joining associations of any kind. This policy is in violation of the Trade Union Act of 1959 and the Industrial Relations Act of 1967, both of which place no restrictions on the right of migrant workers to join unions. The Government should similarly take punitive action against employers inserting clauses into employment contracts that restrict or prohibit migrant workers from joining trade unions.
28. The Government should pro-actively proclaim its recognition of the right of migrant workers to establish, join, and hold positions in trade unions and should strongly enforce provisions in the law prohibiting harassment and dismissals of migrant workers for trade union activity.
29. The Government should revise the Employment Act to ensure that domestic work is covered under the law and that domestic workers have recourse to redress under that law. Policies should be established to ensure that domestic workers have at least one day off with pay per week, and that employers do not interfere in any way with migrant domestic workers’ right to communication with family members.
30. The Government should strictly enforce the provisions of the Passports Act of 1955 and sanction employers who seize and hold migrant worker’s passports. Furthermore, the Government should issue standard documentation (for example, migrant ID cards) for migrant workers, which can then be used by migrant workers to prove legal presence even in cases where they have had their lost their passport, or had their passport seized and held by the employer.
31. The Government has an obligation to safeguard the living and housing conditions of migrant workers and ensure that migrant workers are provide hygienic conditions and not subject to overcrowding. Migrant worker accommodations should comply with all applicable public health and housing regulations, as well as the Housing and Amenities Act. The MHR should play a leading role in coordinating with other Ministries and agencies to ensure that migrants are provided with appropriate accommodation and to penalize employers who continue to flout the requirement for safe and healthy housing for their workers.
32. The Government should insist that employers be responsible for the provision of nutritious food at reasonable cost in sufficient quantities to ensure continued good health of migrant workers, or provide sufficient and hygienic facilities, and opportunities to purchase raw ingredients, so that migrant workers can prepare their own food.
33. The Government should strictly apply and enforce the Occupational Safety and Health Act to protect the health of migrant workers. Workers injured in workplace accidents should have the right to compensation from their employer and from the Government. Compensation for injured migrant workers should be paid for the Social Security Act and not the Workman’s Compensation Act.
34. In terms of use of violence and sexual harassment against migrant workers, the Government should develop a Sexual Harassment Act which provides guidelines on stopping sexual harassment/violence. The Act should also include provisions that mandate effective education of employers about sexual harassment. The legislation should be developed in a participatory way with the involvement trade unions, employers and NGOs to ensure that the Act is both practical and can be effectively implemented. For migrants who suffer from violent attacks either inside or outside of the workplace, provision should be made to make counseling available to them.
Trafficking in persons
35. The Government is to be commended for the passage of the Anti-Trafficking in Persons Act (ATIP) which criminalizes trafficking in persons for all end purposes, but there are still significant problems in enforcement of the law that must be addressed. We are prepared to work closely with the Government to achieve effective implementation of the law, but this requires the commitment of key Government agencies to work with us in a transparent, sincere and honest manner as respected partners who have the interests of the victims at heart.
36. The Government should provide effective training to key officials of the agencies mandated under the Act to ensure they understand the procedures of implementation and enforcement of the Act, methods of identification of victims, and use of appropriately gender sensitive procedures which will protect victims.
37. The Government should also educate its personnel on the issues surrounding trafficking for labour exploitation so that law enforcement personnel are able to understand trafficking occurs in many forms and for many end purposes, and not only just sex trafficking.
38. In cases where corruption among Government officials is reasonably suspected to have occurred in relation to human trafficking, the Government must take strict, fast and effective measures to identify those responsible and take appropriate actions, including dismissal and action against them under law.
39. To provide adequate support for victims of human trafficking, the Government should dedicate resources and personnel to open shelter(s) in each State.
40. In order to ensure effective enforcement of the ATIP Act and the root causes that facilitate trafficking in persons, the Government must enact a Whistleblowers/Witness Protection Act.
41. The Government should pay special attention to the protection of highly vulnerable groups, such as stateless persons, asylum seekers, and refugees to ensure that they do not fall victim to trafficking.
Law enforcement and access to justice
42. Arrest and detention of undocumented migrant workers should be treated as an administrative offense, and not a criminal matter.
43. The Government should immediately disband RELA because the original rationale for their existence is no longer valid, they poorly trained in law and law enforcement, and as a unit, they are responsible for significant abuses of their powers and human rights abuses which have brought much criticism against Malaysia from the international community. Moreover, there is little indication that they are screened in hiring, their authority is ill-defined and arbitrary, and methods of oversight and accountability are not sufficiently transparent to inspire our confidence. Accordingly, RELA’s entire resources should be re-allocated to official law enforcers like the police, and to building up the capacity and personnel (possibly through new hires) of the police.
44. The Government’s use of whipping to penalize workers arrested for immigration offences must immediately be stopped, and the Government should ratify the UN Convention Against Torture to ensure that these practices cease permanently.
45. We believe the Government is responsible for ensuring that migrant workers are given an avenue to access and pursue justice. The current dysfunctional system of the “Special Pass” needs significant attention and reform. The duration of the Special Pass (one month) is too short, and the criteria for granting it are unclear and should be clarified. Therefore, the Government should endorse and implement the proposal of the Malaysian Bar Council “Memorandum Relating to Special Pass”, dated 16 July 2008, and immediately implement the following policies contained in that memorandum:
* Allowing migrant workers in legal procedures to work – by creating a process to allow a migrant worker to pursue legal remedies by issuing workers with a “special pass” followed by a “visit pass”. The special pass provides would provide the opportunity for the worker to stay in Malaysia and seek employment while their court case is proceeding, and then if they locate employment, the visit pass could be issued to allow the migrant to work until the final resolution of the migrant worker’s court case;
* A policy decision should be taken to allow the “visit pass” to be issued to migrants for temporary employment but to waive the requirement for the visit pass to only be given to a foreigner who is outside the country when applying;
* Eliminate unreasonable requirements – such as the need to secure a letter from a Court – before the special pass can be issued;
* Waive the 100 RM a month cost for the special pass;
* Fast-track applications of migrant workers when processing the special pass and the visit pass.
46. Migrant workers, regardless of status, should have the right to access justice. The Government should recognize the continuum of legal rights of a migrant worker, regardless of his/her immigration status, and make provisions to enable them to realize this right.
47. The Government should provide resources to extend legal aid to migrant workers, thereby supplementing the efforts of NGOs and the Malaysian Bar Council.
48. Access to justice requires that migrant workers understand the legal proceedings which they are involved in. The Government must develop effective and practical mechanisms to provide translation and interpretation services for migrant workers with cases before the Courts.
49. The Special Courts set up in detention centers remain isolated from provisions such as legal aid/right to legal representation, interpretation services, access to prepare a defense, and other requirements required for the realistic delivery of justice. The Government should immediately integrate immigration cases into the main legal system, and end use of Special Courts in detention centers.
50. The Government should immediately establish and empower an independent Commission of Inquiry to investigate the prevailing conditions and treatment of migrant detainees in detention centers. The Government should provide the Commission with resources and personnel sufficient to conduct a full inquiry and ensure the full cooperation of all Government officials with the Commission. The final report should be made public and the recommendations fully considered for implementation by the Government.
51. The Government should adhere to the United Nation Basic Principles for the Treatment of Prisoners 1990 and end punishment/whipping of migrant workers in detention centers.
52. Finally, to counter well-documented allegations of continuing corruption among law enforcement officials, the Government should establish an Independent Commission for the Police.
Health, safety, education and social dimensions affecting migrants
53. Mandatory health testing shall not be a pre-condition for employment. The Government should employ a rights-based approach towards the testing of the health of migrant workers, including voluntary testing, with provision of counseling and access to treatment for migrant workers.
54. The Government should cease mandatory testing for HIV and other treatable diseases for migrant workers while also providing access for treatment for migrant workers through the public health system so that they can recover their health. Workers who wish to change employers to enable them to better recover their health (such as moving to less physically challenging job, or moving to a job closer to the hospital/health facility where they are being treated) should be permitted to do through the use of “Special Pass” until they find a new job and receive a new Work Permit.
55. In line with the principles of non-discrimination, and to support better and more effective public health response for Malaysian society (since migrants compose one-third of the work force), it is imperative for the Government to allow migrant workers access and enjoyment of the same medical benefits that Malaysian citizens are entitled to in the public health system. Health care service should be provided to migrants irregardless of status, and special attention should be placed on provision of gender sensitive health care information, and reproductive health information and services for all migrants. One alternative that the Government should consider is to create a high quality, portable health care insurance scheme – with the proviso that it should not be prohibitively expensive and employers should pay the costs for migrants.
56. Migrant workers being held in detention centers face significant challenges to their health as a result of overcrowding, unhygienic conditions, and maltreatment. Current access to detention centers is quite limited, with treatment usually only available through a medical orderly based at the detention centers and some access by NGOs to operate mobile clinics. The Government should provide significantly increased access to detention centers by international agencies and NGOs so as to enable them to provide additional support for health care in the centers. More nutritious food should be provided, and efforts made to address other conditions deleterious to good health in the centers.
57. In light of its commitment as a signatory to CEDAW, the Government should end its policy of deporting pregnant migrant workers.
58. In line with its commitment as a signatory of the UN Convention on the Rights of the Child, the Government should provide free education for all including for children of migrant workers, refugees, asylum seekers and stateless persons, and should ensure that children of migrants are provided with documents that allow them equal access to the same health care services that are received by a Malaysian child.
59. The right to love and marry should be inviolable, and the Government should end policies that penalize marriage with loss of employment. For foreign workers who marry a Malaysian citizen, the person should be able to independently apply for, receive, and renew a spouse visa.
Refugees and stateless persons
60. The Government of Malaysia should immediately ratify the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, and recognize the status of those persons screened and accepted as refugees by the Office of the United Nations High Commission for Refugees (UNHCR). The Government should scrupulously respect the principle of non-refoulement and set out appropriate procedures with UNHCR to ensure that refugees are not deported.
61. The Government should ensure civil servants and law enforcement officials at federal, state and local levels respect the inviolability of UNHCR documents issued to refugees, and issue directives forbidding confiscation or destruction of said documents. We recommend that directives be made by the Government to officials at all that levels that in cases where a person carrying UNHCR issued documents is detained, the office of UNHCR shall be immediately informed and arrangements made for the release of the person into the care of UNHCR.
62. The Government should provide UNHCR-recognized refugees with the right to work under the applicable laws and regulations governing the employment of migrant workers in Malaysia.
63. The Government should provide access to detention centers by UNHRC officials to allow them to screen for asylum seekers.
64. In line with Malaysia’s commitments as a signatory to the CRC, all children in Malaysia should be given birth registration regardless of the status of their parents.
65. Government shall publicly recognize the right of stateless persons, especially children, to access social services such as education, healthcare, and other important services.
Recommendations to the Malaysian Parliament
66. We recommend that the Parliamentarians of Malaysia should play a leading role in forming a new Labour and Migration Caucus at the forthcoming meeting of ASEAN Inter-Parliamentary Assembly (AIPA) which will be held in Singapore on September 18, 2008. This Caucus should be tasked with intervening with the national Governments and the ASEAN Secretariat to ensure follow-up action is taken to fully implement the commitments made by the ASEAN governments in the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers.
Recommendations to Suhakam
67. We applaud the Declaration of Cooperation in Bali made on June 26-28, 2007 between the four national human rights institutions established in ASEAN, which includes Suhakam and the national human rights institutions of Indonesia, the Philippines, and Thailand. One of the areas of work to be undertaken under that Declaration is “protection of human rights of migrants and migrant workers.” Leadership in this area has been assigned to Suhakam. We believe that it is critical for Suhakam to play a dynamic leadership role on human rights of migrants, and we call for Suhakam to immediately convene a workshop in Malaysia, hosting its fellow national human rights institutions, to launch a campaign of closer cooperation among these institutions on the issue of migrant worker rights in ASEAN. We believe that Suhakam and its fellow national human rights institutions should deepen the regional commitment to protect and promote the rights of migrant workers. The proposed meeting should set out a plan of action for the four national human rights institutions to move forward on common activities on the portfolio of migrant workers rights in ASEAN. These activities should be planned and implemented in coordination with civil society organization and trade unions, and the members of the Task Force on ASEAN Migrant Workers.
Recommendations to Asean
Policies affecting migrant workers and their families
68. We urge the Member States of ASEAN to immediately ratify all eight core ILO Conventions1, and ensure that their national labour laws, especially those laws governing migrant workers, are harmonized with the standards contained in those core ILO Conventions.
69. We further urge all the Member States of ASEAN to ratify ILO migrant worker Conventions 97, 143 and 181 as well as the UN International Convention on the Protection of the Rights of Migrant Workers and Their Families.
70. We strongly recommend that the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers shall be considered to apply to all migrant workers present in ASEAN countries, regardless of their country of origin.
71. The ASEAN Governments should collectively ensure the implementation of the Vientiane Action Program concerning human rights matters.
72. ASEAN should play a critical role in consultation with the member Governments of both labour sending and receiving countries to ensure that intending migrant workers are not charged exorbitant recruitment fees to secure foreign employment. Excessively high recruitment fees only serve to deepen the debt of a migrant worker, contributing to vulnerability to debt bondage and trafficking.
73. The Governments of ASEAN should recognize the phenomenon of “statelessness” in the region, and seriously consider the fact that lack of status greatly increases the vulnerability of stateless migrant workers to exploitation. Accordingly, the Governments should publicly acknowledge the right of all persons to health and education services and acknowledge and recognize birth certificates issued by any ASEAN Government.
74. The right of all citizens of ASEAN countries to hold their own passports and Government-issued identity documents should be considered inviolable. This principle contrasts with the reality that brokers, agents, and employers routinely and systematically seize their passports and documents. Member States of ASEAN should adopt a clear no-tolerance policy that imposes tough punishments on all persons who seize or hold migrant workers’ documents.
75. The Member States of ASEAN are urged to ensure that migrant domestic workers are specifically included in coverage of the national labour law.
76. All the member Governments of ASEAN have ratified both the UN Convention on the Rights of the Child (CRC), and the UN Convention on Elimination of Discrimination Against Women (CEDAW). Therefore, in compliance with the provisions of the CRC and CEDAW, each Government must ensure that all children born to migrant workers should be provided with birth registration and access to education and health care.
77. Since all ASEAN Governments have ratified CEDAW, they should ensure the rights of migrant women, particularly domestic workers, are protected and that in cases of violations and abuse that there are viable avenues of redress, including effective laws, policies and programs which are in accordance with the principles of equality and non-discrimination.
78. Since it is clearly recognized that there is a trend of increasing feminization of migration in ASEAN, we strongly believe that the Member States of ASEAN should set out clear gender-sensitive policies on migration, and ensure that Government practices towards migrants reflect these gender specific migration policies.
79. Each Government of a labour-sending countries should clearly designate a focal point within their Embassy in each labour-receiving country to handle complaints and problems faced by their nationals who are migrant workers. Shelters or safe house arrangements should be made by each Embassy to support their migrant workers in serious distress.
80. The Member States of ASEAN should immediately ensure the end of all arrangements which devolve law enforcement authority over migrants to persons who are not law enforcement officials with permanent civil servant status in the Government. It is vital that the Member States of ASEAN take clear steps to protect all migrant workers from any form of human rights abuse perpetrated by civilian auxiliaries/groups.
81. Recognizing that quality of health of a migrant worker does not just affect the worker, but also his/her family residing in the country of origin, we recommend that the Member States of ASEAN create an effective scheme of high quality, portable health care insurance for migrant workers
82. ASEAN should develop a regional system, in coordination with civil society and representatives of migrants, which steps away from the current emphasis on mandatory testing of migrant workers for HIV. The new system would be based on voluntary testing of migrant workers and ensure universal access to treatment for those who test positive.
83. Given the importance of migrant worker remittances to the economy of the migrant’s origin country, a dependable, accessible, and low-cost system for transmitting remittances in ASEAN is vital. The Member States of ASEAN are urged to support the creation of such a remittances system, whether implemented by the private sector, trade unions and civil society organizations, or Government agencies.
84. All ASEAN countries should publicly acknowledge international migrant’s day (December 18) and grant a public holiday to migrant workers to celebrate this important day for affirming their rights.
Asean processes and steps forward
85. We recommend the ASEAN Member Governments should agree that the “instrument on the protection and promotion of the rights of migrant workers” to be developed (as called for in paragraph 22 of the ASEAN Declaration on the Promotion and Protection of the Rights of Migrant Workers) will be a binding instrument on ASEAN Member States.
86. The National Consultation strongly encourages the ASEAN Secretariat to take pro-active and immediate steps to encourage each member Government of ASEAN to immediately appoint their national focal point to the ASEAN Committee to Implement (ACI) the Declaration on the Protection and Promotion of the Rights of Migrant Workers, as called for in the resolution adopted by the ASEAN Foreign Ministers on July 30, 2007.
87. When constituted, the ASEAN Committee to Implement (ACI) should take immediate steps to formulate the ASEAN Instrument for the Protection and Promotion of Migrant Workers (as called for in Article 22 of the ASEAN Declaration on Migrants), and should ensure the Framework Instrument contributes directly to the harmonization of national labour laws of ASEAN members with the eight ILO core Labour Conventions and the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Member States of ASEAN should give those focal points the necessary authority, and task them to engage substantively with the Task Force as it develops civil society’s draft ASEAN Framework Instrument on the Protection and Promotion of the Rights of Migrant Workers.
88. Reflecting the fact that migration frequently involves movement across borders, ASEAN should develop an effective regional collabourative mechanism to work on issues of labour migration and human trafficking focusing on the predicament of undocumented migrant workers and their families, and stateless persons.
Done in Shah Alam, Selangor
14 August 2008
