Written by Emily Ho Mei Li
‘Rohingya refugees in Malaysia – A woman cuts betel nut for sale’ © by The Spacemen, licensed under CC BY-NC-ND 2.0
Recently, there has been quite a lot of conversation about the issuance of work permits to refugees in Malaysia, specifically the economic benefits of such a policy—as studied by the Institute for Democracy and Economic Affairs—in terms of costs of production and impacts on fiscal revenue. There has been also been a side conversation about how such a policy would better protect refugees against the risk of human trafficking, an issue that the US Department of State has highlighted in its 2019 Trafficking in Persons Report on Malaysia. In fact, the Human Resource Minister M. Kulasegaran announced in November that the Cabinet would decide the matter in the near future, though no decision has been reached as of yet. This issue occurs within the context of a wider conversation about the rights of refugees, attributable not least to relevant promises made by Pakatan Harapan in its GE14 manifesto:
‘Recognising that Malaysia is hosting more than 150,000 refugees, including Rohingyas and Syrians, the Pakatan Harapan Government will legitimise their status by providing them with UNHCR cards and ensuring their legal right to work. Their labour rights will be at par with locals and this initiative will reduce the country’s need for foreign workers and lower the risk of refugees from becoming involved in criminal activities and underground economies. Providing them with jobs will help refugees to build new lives and without subjecting them to oppression’ (Promise 35)
‘The Pakatan Harapan Government will also ratify the 1951 International Convention on Refugees so that refugees who escape from war-torn countries and arrive in Malaysia are given proper assistance.’ (Promise 59)
Malaysia is not currently party to the 1951 Refugee Convention or its 1967 Protocol. As IDEAS writes, the corollary of this is that ‘refugees and asylum seekers in Malaysia often exist on the margins of society’. Are refugees in Malaysia sufficiently protected from the risk of human trafficking and forced labour? If not, what can be done to secure their protection? Much can be written in answer to these questions, but in this short post I set out a few starting points.
Presently, refugees in Malaysia do not have a legal right to work, meaning they are not allowed to enter formal employment. US Department of State, in its 2019 report on Malaysia, states that ‘[more] than 163,000 registered refugees and asylum-seekers in Malaysia lack formal status and the ability to obtain legal work permits, leaving them vulnerable to trafficking.’ IDEAS CEO Ali Salman elaborates that ‘forced labour and debt bondage … disproportionately affect the refugee community’ due to the lack of access to work.
Precisely how are refugees more vulnerable to trafficking than their counterparts who have the right to work (e.g. foreign workers and Malaysian nationals)? Salman referred to ‘debt bondage’, which is ‘a form of human trafficking in which traffickers use debt to force an individual into forced labour’ (US Department of State). Refugees may be told by their initial smugglers that they owe a debt that they must pay off for the service of transporting them to Malaysia, and the only opportunity they have to pay it off is by working for the bondmaster. ‘Many refugees incur large smuggling debts’, reports US Department of State, and ‘traffickers then use [these debts] to exploit refugees’. Unfamiliar with the local culture and language, lacking basic resources and the opportunity to work legally elsewhere, refugees have little opportunity seek redress for this coercion, and therefore no choice but to labour under the dire conditions imposed by their traffickers. They retain no pay themselves, for the ‘wages received’ (which are surely low, if there are any) go straight to setting off the debt that is wielded by their traffickers. This can continue for long periods of time during which refugees labour with no personal autonomy, with the debt looming over them. This situation is exacerbated by the fact that refugees have virtually no alternative means of paying off the alleged debt: they ‘receive no welfare from the Government, and foreign aid and NGO support is insufficient to cover basic needs’, as reported by IDEAS. To bring us as closely up to date as possible, the Guardian reported just a few days ago that researchers fear that a trafficking ring in Thailand and Malaysia has been revived, and that the vulnerable Rohingya are victims.
If refugees avoid debt bondage and escape straight-up forced labour, many of them nevertheless have to enter into informal employment in whatever opportunities they find in order to support themselves and their families, notably—as UNHCR reports—in horticulture and agriculture, cleaning, and construction. Such informal employment is unlikely to be well protected by the labour protection framework. For example, the Employment Act 1955—which ‘deals with issues that are considered indicators of forced labour such as contract substitution, excessive overtime, withholding of wages, debt bondage, abusive working and living conditions’ (summarised by the International Labour Organisation)—is ‘silent on the requirement for migrant and domestic workers to be documented, however, it contains provisions that exclude domestic workers from entitlement to maternity protection, rest days or holidays’. This suggests the narrow scope of the Act, which would not capture informal employees. It also goes without saying that it would be very difficult to enforce regulations in the informal sector anyway: Siti Marshita binti Mahyut writes concerning minimum wage regulations, for example, that ‘coverage of minimum wage laws in developing countries is limited to a small formal sector and because the informal sector is large these laws are difficult to enforce’ (International Journal of Business, Economics, and Law). This is a particularly worrying lacuna in protection, given that in these so-called ‘3D jobs (dangerous, dirty and demeaning)’, workers are most prone to injuries at work and physically abusive living conditions, employers have great incentive to force overtime work, and work is often tucked away from the urban eye. Therefore, as refugee workers fall outside these labour protection regulations, they may be subjected to labour exploitation with no authorities’ notice or care.
Even if refugees are given the right to work, they are still vulnerable in their workplace due to their being non-nationals, unfamiliar with the local languages and culture, and often poor when they arrive. Whilst they will be formally protected within the legal framework, however excellent the framework in place, Malaysia still needs to up its game in its operationalisation, ensuring refugees (and other vulnerable workers) are protected from threats, violence, compulsory overtime, and other forms of labour exploitation whilst they are employed. The Malaysian government reportedly performed poorly in operationalising the legal framework in 2019. US Department of State reports: ‘The [Malaysian] government identified far fewer victims than in previous years and authorities investigated and prosecuted fewer cases. The government’s victim protection efforts remained largely inadequate…’ and ‘authorities treated many of the victims identified during police or immigration raids like criminals. NGOs … believed this treatment contributed to the government’s insufficient identification of victims; the raid-environment was not conducive to victims speaking candidly to law enforcement and due to the lack of basic indicators of trafficking, NGOs reported officials arrested and charged some victims for immigration violations instead of identifying them as trafficking victims.’ Therefore, issuance of work permits is not the end-all solution to protecting refugees from trafficking. The wider framework to combat trafficking needs to be effectively operationalised. This can be done by carefully training officials who are likely to encounter victims on the indicators of trafficking and forced labour (especially police and enforcement officers) and more widely countering corruption among officials; both of these are among the ‘prioritised recommendations’ of the US Department of State in its Malaysia report.
This post has sought to provide initial insights and thoughts into the situation of refugees in Malaysia and their vulnerabilities to human trafficking. Whatever the Government decides concerning the issuance of work permits to refugees, it is hoped that careful thought is given to measures to combat trafficking of particular vulnerable groups such as refugees in Malaysia.
- Institute for Democracy and Economic Affairs, The Economic Impact of Granting Refugees in Malaysia the Right to Work (April 2019), available at: http://www.ideas.org.my/wp-content/uploads/2019/05/P60_Refugee-V6.pdf
- US Department of State, 2019 Trafficking in Persons Report (June 2019), available at: https://www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf
- International Labour Organisation, Situation and gap analysis on Malaysian legislation, politicies and programmes, and the ILO Forced Labour Convention and Protocol (2019), available at: https://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/documents/genericdocument/wcms_650658.pdf