The heads of state and government of the Association of Southeast Asian Nations (Asean), attending the 12th Asean Summit on Jan13 in Cebu, Philippines came out with an Asean Declaration On The Protection And Promotion Of The Rights Of Migrant Workers.
Reading the title only, it all sounds very good for the promotion and protection of the rights of migrant workers but a deeper consideration of the said declaration itself reveals that it does very little for the protection and promotion of rights as everything declared is to be subject to the laws, regulations, and policies of the respective Asean member countries.
In the preamble, it explicitly states recognising further the sovereignty of states in determining their own migration policy relating to migrant workers, including determining entry into their territory and under which conditions migrant workers may remain.
By the usage of the words subject to the laws, regulations, and policies of respective countries, which is repeated several times in the document, the declaration basically allows that status quo be maintained as it is now in a particular country. Any advancement and protection when it comes, and if it comes, with regard to rights of migrants will depend on the particular member country and the Asean Declaration really does nothing about determining what or when or even whether anything will change for the better.
Laws and regulations are written documents and as such it is clear whereas policy is a vague creature. What is the policy of Malaysia with regard to migrant rights? No one can at any time for sure say what it is. Some say that it is what the prime minister, relevant minister or director-general of immigration state in their speeches and statements. But this can and does change all the time, and one will find it next to impossible to try and claim rights based on such policies.
It may have been reported in the media but then one can always turn around and say that the media got it wrong and it was not what was meant. We need to get our governments to lay down written policies (that are accessible to the public) for us to be really clear on what a government’s policy on a subject matter really is. In Thailand, the Cabinet made resolutions and this made policy clear but this is not so in Malaysia, and even if there were such resolutions, it has been kept away from the public.
A close reading of the declaration will reveal that they are only talking about migrants from Asean sending countries and specifically those that are documented or those that become undocumented later by no fault of theirs.
In the case of Malaysia, this declaration would not even cover the some 170,000 Nepali migrants, being the second largest nationality group of migrants workers, or those from countries like India, Bangladesh, Pakistan and other non-Asean countries.
Undocumented migrants generally are also not covered and the only group of undocumented workers covered is made clear by the usage of the words [those that] have subsequently become undocumented, and with regard to families of migrants, it only addresses family members already residing with them, not new members of the family of migrants that may come to be in the future of that said receiving country.
As such the millions of undocumented migrants, some of whom are really refugees, be it from Burma, Aceh , Southern Thailand and Southern Philippines, are not covered with regard to rights in this declaration.
The extension of access of consular functions and diplomatic assistance of member Asean countries when an Asean migrant is arrested or committed to prison or custody or detained in any other manner, under the laws and regulations of the receiving state seem to be a good thing especially when in that receiving country there is no embassy and/or consulate of the country from where the affected Asean migrant originates.
Undocumented workers
As mentioned earlier, the declaration does not talk about rights of the about two to five million undocumented migrants in our country. Officially, the number of documented migrants in Malaysia is about 1.8 million, but interestingly a recent AFP report in October 2006 reiterated yet again that Malaysia’s 10.5 million strong labour force is made up of 2.6 million foreign workers.
Undocumented migrant workers are the most victimised of the lot, but sadly the declaration clearly states that it is not concerned with the documentation of these group of workers when it stated: Nothing in the present declaration shall be interpreted as implying the regularization of the situation of migrant workers who are undocumented
In some Asean countries like Thailand, migrant workers from Burma enter, find employment and then register themselves with the relevant government bodies. Likewise, Malaysian migrant workers in Singapore also get the job first and are then registered by their employers as workers.
An ordinary Malaysian worker gets employed, and then only does his employer informs/registers the said worker with the Employees Provident Fund (EPF), for Social Security (SOCSO). The income tax department is also informed by the Employer. A similar system, where the obligations are placed on the employer (rather than the worker) would also work for migrant workers and that will solve the problem of documentation, and will result in much more cost saving for the receiving country.
In fact, in South East Asia we should be striving for an Asean community of peoples, an Asean community of workers and we should be trying to do away with all these sending and receiving agents and government pre-employment documentation procedures. The Asean worker should be allowed to enter any Asean nation freely, but maybe on a restricted entry permit of two to four weeks, being the time for him to secure a job, and if he fails to do so, then he may be required to leave generally, but this should not be the case for those who are refugees.
In Thailand, I believe, if a worker is not satisfied with his employer or his working conditions, he can leave and be allowed to stay in the country for a defined time during which he should find new employment. It is a good practice that Malaysia should also seriously consider.
Consensus, not majority decision
The biggest problem with Asean is that decisions are made by consensus and not by majority vote and this is a fact that cripples and impedes Asean from moving forward in the field of promotion and protection of rights. For example, if the majority of the Asean member nations are not happy with what is happening in Burma and want to make a statement of protest about Burma, Asean cannot do so because Burma (a member of Asean) objects. That’s why there may be gross human rights violations committed by some Asean member country, and Asean makes no statement or comment. Similarly the fact that some members of the Asean are not members of the World Trade Organisation prevents Asean from going into the WTO meetings and negotiating as a block for the good of the Asean people.
I believe that it is this problem that has brought about this very weak declaration that has an impressive title and nothing more. It does not even set minimum standards or guarantee basic rights of workers. Maybe, the soon to be Asean Charter may be able to set some standards and require strict compliance by all member nations within a stipulated time frame. We shall have to wait and see.
As it is, there really seems to be no sense for this declaration to have the secretary-general of Asean to submit annually a report on the progress of the implementation of the declaration to the summit through the Asean Ministerial Meeting. What is he going to report, save that each of the Asean member states have complied what is required of them in accordance with the requirement of their respective countries laws and regulations and policies. There were really no specific requirements that had to be complied by Asean member nations within any stipulated time frame.
To be fair, there is an indication that an Asean instrument on the protection and promotion of the rights of migrant workers is to be developed but alas no time frame was set, and even if such an instrument is developed it must have in place a monitoring system, a complaints procedure and an adjudicating body with penalising powers that should be accessible to everyone, including the migrant workers and their families and not just Asean member states. We already have UN and ILO conventions dealing with the rights of workers, migrants or otherwise; and also migrant workers and their families that could very easily be adopted in toto or used as a basis for this upcoming Asean instrument.
For the protection and promotion of the rights of migrant workers, we cannot be dealing with just the documented but also undocumented migrants. For refugees from member Asean countries now in other Asean nations, something more may be required, especially since most refugees are seeking asylum and protection from the wrath and possible persecution of their own country of origin.
The instrument must also advocate the equality of persons and equal protection of the law in all Asean countries of all persons and all workers from member nations and even other countries.
One group of workers that are presently left out in the employment laws of most nations is domestic workers and this new Asean instrument must provide for clear rights for this group of neglected workers. In Malaysia today, it is reported that there are about 320,000 domestic workers and as such this is no longer an insignificant or small number.
Asean’s concern about the protection and promotion of the rights of migrant workers must be applauded but the declaration that emerged on Jan 13 was a far cry from what one would have expected from a group of nations that describe themselves as a caring and sharing community.
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