Women's Aid Organisation's ( WAO) Advocacy on the issue of Foreign Domestic Workers
( FDW) in Malaysia

This presentation was prepared by Ivy N. Josiah and Meera Samanther for the
" Women at the Intersection of Racism and Other Oppressions:
A Human rights Hearing"
Organized by the Center for Women Global Leadership for the NGO World Conference Against Racism, Durban, South Africa, 2001

INTRODUCTION
WAO'S INTERVENTION
CHALLENGES
- Contract
- Compensation
- Criminal Justice System
- Immigration
RACISM AND INTOLERANCE

INTRODUCTION

WAO's services in giving support and advocacy around the issue of FDWs began when we started sheltering foreign domestic workers primarily from Indonesia. Since 1995 we have received 35 Indonesian women, 7 Filipinas, 6 Thai women and 1 Bangladeshi woman.

Although WAO was primarily set up to shelter battered woman and their children, as we sheltered more and more women who had suffered physical and sexual abuse and in some instances systematic torture, it became incumbent on WAO that we take on this issue in a concerted way. The decision to expand our advocacy to include migrant women did meet with resistance within the organisation and the public, as it was seen as a waste of resources. There were some who felt that WAO's stretched resources will be better spent on Malaysian women as opposed to foreign women. Needless to say this position was accompanied by an attitude that amounted to racism if not xenophobia. Fortunately, the majority of the WAO Collective reminded dissenting parties that WAO was set up to assist all women in crisis irrespective of nationality, creed or class.

WAO learnt very quickly that the advocacy around migrant women is not a simple issue.

In the case of Diya, her battle with the various institutions is not unique but symptomatic of an unrelenting and unsympathetic system that serves to protect the interests of the employer first.

INTERVENTION

We will like to describe to you some of our interventions on behalf Diya.

First we had the task of making sure that the police complete their investigations and bring charges against the abusive employer. For many months there was no news as to the progress of the case and after several letters and calls to the police we were told that
the police were unable to locate the employer. We took matters into our own hands and initiated our own investigations. One night 2 social workers, one intern and Diya set out to find Diya's former employer's house. They managed to park nearby and saw a woman come out of the house, Diya confirmed that it was her former employer. The group then went to the neighbour's house. The neighbour recognised Diya as he was the person who had in the first place alerted the police, he informed the WAO group that even he was a little afraid to testify as the employer's husband is a "gangster". What was more alarming was when he told us that Diya's former employer had managed to get a new foreign domestic worker who was also being abused.

We immediately wrote a letter to the district chief of police and it was only after this
letter and several more calls, that the police did charge the employer in court.
It took 12 months for her case to be brought to court.

In court, Diya's case was to be presented by a Police Prosecutor and as part of our protocol WAO had a volunteer lawyer to hold a watching brief for Diya and presumably work with the Police Prosecutor so that Diya's interests will be fully represented. But the court proceedings was yet another obstacle as the defence lawyer was able to convince the court to postpone the hearing 4 times.

The watching brief lawyer could merely protest and reiterate the importance of a speedy hearing. Furthermore it was very disconcerting when we saw the Police Prosecutor on friendly terms with the defence lawyer and the husband of Diya's employer. The Police Prosecutor did not even speak with Diya to give her any reassurances. WAO did write to the Prosecutors' office to appeal that they assign a Deputy Public Prosecutor, i.e. a more senior prosecutor to handle the case on grounds that this case was of public interest but the DPP's office was not responsive to our appeal. However WAO was relieved when the Police Prosecutor was replaced by another a woman Police Prosecutor who has been more engaged with Diya's lawyer.

At the Labour office if not for our watchful presence and intervention Diya would not have had her day in Labour court. The labour officer who was initially quite sympathetic to Diya's plight and had agreed that Diya should be paid her due wages for 22 months , did a 180 degrees turn. She began facilitating the needs of the employer encouraging Diya to negotiate a settlement which was fraught with duplicity.

CHALLENGES

So, after 6 years of advocacy for the protection of foreign domestic workers, what are the lessons learnt? What are the challenges that WAO face?

Contract

WAO's initial advocacy centred around the issue of contracts and responsibility of the employer and the agents. The existing contract between the employer and agent and not the employer and FDW, emphasise only what the worker should do with absolutely no mention of the duties and responsibilities of the employer. Furthermore some agencies also had the workers sign a "surat akuan", i.e. a promissory note that outlined among other conditions that she will be at all times be respectful and say good morning, good afternoon, good evening, thank you, sorry sir /madam. She will promise not to use the telephone without prior permission, she will not steal nor lie, She will not marry any Malaysian and if she is cheated by anyone or caught by the police it will be entirely her responsibility.

We also learnt that many employers do not give the salary directly to the worker or bank it into the FDW's bank account. But to prevent the worker from running way and holding her captive, open a separate bank account under the employer's name and every month she will be shown that a sum of money was entered. To our mind this was very sophisticated form of slavery.

WAO highlighted these unfair terms and conditions to the public and relevant government agencies, i.e. the Ministry of Human Resources. But unlike the Philippines which has a bi- lateral agreement, that Filipina domestic workers must all have a standard contract which outlines days of rest, mode of payment and the moral responsibility of the employer, Indonesian domestic workers do not enjoy these basic rights.

Compensation

Besides seeking redress through the criminal justice system, WAO also initiates with consent from the FDW, a civil suit - whereby compensation for physical injury is claimed. We have found that by initiating a civil suit, employers were willing to come to the negotiating table. Our volunteer lawyers have been successful in getting monetary compensation from US$1,000 to US$6,000 for a FDW.

There has been some criticism against this strategy because in some cases, once a compensation is paid, there is an implicit understanding that the FDW will drop the criminal charges. But WAO has emphasised that this is a clear choice on the part of the FDW - and most times she preferred to receive a monetary compensation rather than going through a gruelling process of waiting for the case to be heard and have it postponed several times.

Criminal Justice System

Police:
The first agency we need to deal with is the Police. Although there were sympathetic police officers who brought women to the shelter, not all police officer were diligent in following up with the case - this could be due to lack of resources and a case overload thus making the FDW's case a low priority. We have had situations whereby the investigation officer did not immediately take the injured worker to the hospital, but only 2 weeks later when the wounds had healed. In another case 2 police officers had asked for payment from the FDW when they brought her to the shelter. She gave her precious money thinking that this was the usual practice.

Courts:
Since 1995 only 7 cases were brought to court. If the abuse had been particularly horrific and had captured the attention of the media, the case is heard quickly, however if the abuse was not sensational enough, WAO had to keep a close watch so that the interests of FDW were being fully represented by the Police Prosecutor. In most cases, the Police Prosecutor, was not interested in talking to the victim but only at the last minute just before going into court. And when they do they do interview the victim, the Police Prosecutor does not fully understand what the FDW has undergone due to a language barrier. Having a watching brief lawyer has helped as Police Prosecutors rather deal with criminal lawyers than social workers from WAO.

Another obstacle faced is the delay tactics by the Defence - whereby cases are postponed because of various reasons ranging from the accused being ill to being unable to obtain documents. It was WAO's belief that these delay tactics were employed to get the FDW frustrated with the system so that she return to her home country without pursuing the case. However, we must also put on record that there have been 2 court cases, whereby the magistrate had been firm that the hearings should not be postponed because the FDW needed to return to the safety of her home country as soon as possible.

Immigration

The Immigration policy in Malaysia deems that any migrant worker who has a matter pending in court against the employer, will have to apply for a special permit to enable them to stay in the country. This special pass costs US $ 35 per month. Pursuant to that the Employment Restriction Exemption Order, 1972, prohibits migrant workers holding a special pass seeking redress from engaging in any gainful employment. The impact of these 2 regulations discourages migrant workers from bringing legal action against the

This US $ 35 fee hike is a recent change in policy, as prior to this it only cost US$5 to renew the special permit and in some circumstances, Immigration was willing to waive this fee. But now it appears the Immigration Department is inadvertently protecting the interests of the employer who desperately wants the migrant worker to leave the country so that he does not face the consequences of charges.

An Immigration Raid
WAO has had a very good relationship with Immigration officers who have been largely sympathetic to the plight of the women. In fact one of the women who is on special pass because of a pending rape charge against her employer's son, has managed to get special permit to work with another employer. The Immigration Department has this discretionary power. At present relations with Immigration officers are cordial.

However WAO has come under threat. In October of 2000, when WAO was handling a sensitive case whereby the FDW was planning to file a claim from the employer's father who had allegedly raped her and was the father of her daughter, it was no coincidence that an Immigration officer from the Enforcement Division with a party of 11 officers chose to conduct a raid on WAO in search of this FDW in our shelter. During this raid officers entered our premises, shouted at the staff, took photos of sleeping women and children and even threatened to handcuff our Executive Director for asking too many questions. They went from room to room in search of undocumented workers and took away 4 FDWs. WAO held a press conference and sent a joint memorandum protesting the brash actions of Immigration officers. Two woman ministers also publicly lambasted the Immigration raid on WAO. The Director General of Immigration also met with WAO and apologised in a round about manner by giving us a hearty breakfast.

We understand that the Enforcement Officer was basing his raid on an anonymous letter that suggested that we were housing undocumented workers. What was most disconcerting and suspicious was that this particular officer was very familiar with WAO and had come to the Refuge on official business before. Unofficial sources informed WAO that a threatened employer had a dirty hand in this raid. The Enforcement Officer still remains in office with no apparent disciplinary action against him.

WAO has also heard from sources who do not want to go public, that we are perceived as an NGO with Christian influences and that we actually take a cut from the monetary compensation that the FDWS receive. WE believe we must be doing something right if threatened parties start inventing lies about the organisation .

RACISM AND INTOLERANCE

The negative perceptions of foreign workers contribute to the frequency and severity of abuse cases. Domestic workers are viewed as culturally inferior and wanton women out to seduce husbands. As such, they are not deemed deserving of our respect and consideration. Many Malaysians view foreign domestic workers as having a corrupting influence on Malaysian society. Thus the institutions also reflect this underlying prejudice.

Racist comments from officers ranging from "you cannot trust these woman, they must have secret, they are not educated, they have negative influence on our children, they are stupid" are said with utter conviction.

Although the picture looks bleak the Malaysian government has established the following:

- A Cabinet committee on Foreign Workers
- A Police hotline to report FDW abuse
- Speedier police investigations and charges against the perpetrators if the case attracts media attention.
- Age requirement for FWDs is at 25 years
- FDW must consent to work with employer from other religion if the FDW is Muslim.
- Immigration Department has a blacklist of employers who have abused their domestic help

But although these initiatives are a move forward, many women like Diya are still facing multiple forms of discrimination and isolation. What is still urgently needed is the political will of both sending and receiving countries to come to the table and recognise migrant workers rights as outlined in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

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