Press Release

The Right to Redress for All Non-Citizens
by the Migration Working Group (MWG) Network

26 April 2008

Malaysia hosts around 2.2 million documented migrant workers, amongst whom there are an estimated 320,000 domestic workers. There are an additional 1-2.5 million non-documented migrant workers.

An estimated 100,000 asylum seekers, refugees and stateless persons seek protection in Peninsular Malaysia. However, as Malaysia has not enacted national legislation with regards to asylum and statelessness, most are treated as non-documented migrants.

The most common violations of labour and human rights are: cheating by agents, wrongful arrest and detention, unpaid wages, wrongful dismissal, wrongful deduction of wages, accidents in the workplace; as well as abuse, violence, sexual harassment, and rape.

In terms of labour rights specifically, non-citizens are given statutory protection, for example, under the Employment Act 1955, Workmen’s Compensation Act 1952, Industrial Relations Act 1967, and the Occupational Safety and Health Act 1994. 

However, effective redress for violations of labour and human rights through existing mechanisms is dependent on the legal status of individuals. It is extremely difficult to get redress for wrongs as a non-documented migrant. This applies to most asylum seekers, refugees and stateless persons because their status is not officially recognized in Malaysia.

Even documented migrant workers find it extremely challenging to obtain redress for wrongs. In many cases, when they file cases against their employer, their employer cancels their work permit. They lose 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, which grants them the right to stay for a month. A fee of RM100 per month is charged for this Pass, and it can be renewed for a maximum of three months. These fees are exorbitant, especially as they are not allowed to work during this time.

The Migration Working Group maintains that the labour and human rights of all individuals must be safeguarded regardless of their immigration status in the country. Everyone has the Right to Redress – that is, the right to obtain remedy for a wrong or a grievance.

Effective Right to Redress for non-citizens is only possible when three rights are observed: The Right to be Heard, the Right to Stay, and the Right to Work.

The Right to be Heard comprises the following:

• The right to have cases heard by a competent, independent and impartial authority, and the right to trial. Cases should not be dismissed on the basis of a person being non-documented.

• The right to communicate with the consular and/or diplomatic authorities of their State (or in the case of asylum seekers, refugees, and stateless persons the United Nations High Commissioner for Refugees), as well as to legal counsel, whether or not they are in detention. There should be no delay in all communication.

• The right to information about their rights, and about the services they are entitled to.

• If arrested, the right to be informed of the reasons for their arrest and of any charges against them, in a language they understand and without any delay.

• The right to legal representation, to timely adjudication and to enforceable compensation.

• The right to protection from arbitrary arrest or detention while pursing redress, and the right to challenge unlawful detention if it occurs.

Non-citizens should have the Right to Stay in the country while they are pursuing their claim to redress, until all avenues for redress are exhausted. The cost involved in obtaining and maintaining this status should not be prohibitive. This status should not be granted at the discretion of Immigration authorities, but should be a matter of right. The legal documents issued in regard to this should be timely, to prevent the non-citizen from getting arrested, detained, prosecuted and deported in the meantime.

Non-citizens should have the Right to Work, that is, the right to seek alternative employment on a special, renewable temporary work visa while pursuing their claim to redress. This is the protection of the right to livelihood.

Once all avenues for redress have been exhausted, all non-citizens should have adequate time to prepare for return.

We urge the Malaysian Government to ensure that the Right to Redress for all non-citizens are protected through the full observation of the Right to be Heard, the Right to Stay and the Right to Work as outlined above, so that all non-citizens may have true access to justice in Malaysia.

Alice Nah
Co-coordinator
Migration Working Group