In its 51 interviews with Indonesian domestic workers still living in Malaysia as well as those who have returned home, Human Rights Watch found that the workers faced exploitation and abuse at every step of the migration process, largely because legal biases allowed them to be treated as second-class humans.

However, such claims are not new to local non-governmental groups, labour activists and lawyers who have long complained of the very same in their work with migrant workers.

Each time a domestic worker seeks out a women's shelter or when labour activists attempt on the workers' behalf to obtain redress for abuse or unpaid wages, the discriminatory nature of Malaysian laws and policies is highlighted and the blatant inaction of policy-makers reaffirmed.

But when HRW released its report last Wednesday, which said missing legal protection and policy hurdles created fertile grounds for the abuse of Indonesian domestic workers here, Human Resources Minister Dr Fong Chan Onn was quick to the defence.

"The issue of not being protected by the law does not exist. They have a choice to leave the country if they feel they are not protected. Nobody is forced," he was quoted as saying in the local media.

He added that Malaysia was among the countries that paid high wages to foreign workers and this was why many Indonesians choose to work here.

Nirmala's case

However, the minister's answers were nothing short of a surprise to Nisha Varia, the HRW researcher responsible for the report

.

"Domestic workers are excluded from important provisions of the Employment Act, such as those regulating work hours, days off, and termination of contracts. And this problem was something that had been acknowledged in our meetings with ministry officials.

"I think it is disappointing that they (the government) do not recognise the gaps in the law, and refuse to see that systemic failings need to be addressed ... when in fact this would be the right time to tackle the problem," she told malaysiakini.

The 'right time' refers to the government's pledges made in May, following the alleged abuse of Indonesian Nirmala Bonat, who received prominent media coverage. Her case is currently being heard in the court.

The 19-year-old, who sustained severe burns on her breasts, arms and legs, was discovered in the hallway of her employer's apartment building with bloodstained clothes.

Nirmala, who claimed to have been abused for five months, accused her employer of scalding her with hot water and burning her with an iron.

In response, the government issued a formal apology to Nirmala and the people of Indonesia, and pledged to protect workers in a memorandum of understanding (MoU) with the Indonesian government to regulate domestic workers from that country.

However, HRW expressed concern that the MoU has become the Malaysian government's answer to the problems.

"Bilateral agreements have few mechanisms for enforcement and redress, and unequal power relationships between countries of origin and destination make it difficult to produce fair agreements that truly protect migrant workers," stated the report.

What the government should focus on, is to address the exclusion of domestic workers from employment laws, rid the hurdles preventing workers from seeking redress through the courts, monitor labour agencies for infractions and stop its blind enforcement of immigration policies, added HRW.

Different standards

Critics have cautioned against high expectations, if the disappointing provisions in the MoU serve as an indication of things to come.

The MoU has also been severely criticised by labour groups in Jakarta for perpetuating workers' exploitation.

For one, it permits employers the right to continue keeping their workers' passports. This essentially legitimates forced confinement of a worker and prevents them from leaving their jobs to escape abuse and ill-treatment, labour groups point out.

But if they are not allowed to do this, the Malaysian government claimed that workers would end up running away from their employers at the first opportunity and settle in the country illegally.

However, the government did not explain why the MoU was also anti-union. Indonesian workers are prevented from forming labour associations and no provision was spelt out for rest days.

Activist groups have also strongly chastised the government's double standards, with one set of rules for Indonesians and another for Filipinos.

When its bilateral labour accord with the Philippines was able to stipulate for rest days, minimum wage, working hours, and the workers' right to hold custody over their passports, these groups now question why the Malaysian government was so unyielding in its MoU with Indonesia.

"When a worker pays all the necessary levies to work in this country, employers must keep their end of the bargain to pay wages, and the government is expected to keep its bargain to protect the basic human rights of workers," said Joachim Xavier, an officer with the Penang Office of Human Development, a service arm of the Catholic Church.

"But the government's blatant disregard of such rights is close to being obnoxious. It is basically turning a blind eye to migrant workers."

Joachim said as the laws 'encourage' migrants to become undocumented, 'it isn't fine' for the government to announce plans to expel an estimated 1.2 million illegal migrants from the country.

"I would always support the arrest of individuals who enter through illegal means. The only problem is that a large number of those deemed 'illegal' are not illegal by their own doing."

However, Joachim argued that both the Malaysian and Indonesian governments shared the burden of not keeping to their obligations and responsibilities.

"For example, we were recently working on a case of an abused Indonesian domestic worker. We helped her make a police report, and subsequently sent her to the Indonesian embassy (in Penang) for temporary shelter.

"To our utter horror when we arrived, we found that there were 30 to 40 other workers living in the embassy, in appalling conditions with no soap, little food and nothing to sleep on. Clearly, neither governments are not taking the rights of migrant workers seriously."

Unsanitary conditions

In Kuala Lumpur, the figures of Indonesian workers seeking shelter at the embassy is much higher.

At any one time this year, about 150 to 200 Indonesian migrant workers, mostly women, are housed in unhealthy, cramped conditions within the compound of the embassy building..

At one point in May, their numbers shot up to 270 individuals - usually victims of trafficking or abuse who are awaiting legal process or those who had left their employers over salary non-payment.

The majority of them will stay between three to seven months - those who put up a legal challenge will have to stay longer. But those who choose to go home will also have to wait due to the bureaucracy surrounding their exit travel documents.

Most resort to sleeping on the floors of the open patios at the back of the embassy building as there are only bunk beds for 36 people.

What is more disconcerting is that, according to the Jakarta-based interest group Migrant Care, three women workers with chronic illness were allegedly not given proper medical care while staying in the embassy.

One of them died of tuberculosis at the Selayang hospital, where she was taken after her condition deteriorated, while two others allegedly died on their return passage by ship to Sumatra, Indonesia.

Embassy information officer Budi Rahardjo, when interviewed last month, said the embassy had no resources to support all those who approached them for help, but the embassy continued to house them albeit under limited conditions "on humanitarian grounds".

Rahardjo also denied the allegation that sick individuals were denied medical care and pointed out that workers were often very ill when they arrive at the embassy.

However, he admitted that the embassy does not provide regular check-ups for the workers.

According to him, a new building to shelter larger numbers of Indonesian workers is being built on the embassy grounds and is expected to be ready by August.

No distinction

As for the few workers who are able to obtain help to file a complaint against their employer, the lengthy legal process is discouraging.

Under the law, a worker pursuing a legal case is barred from working but is required to pay RM100 for a 'special pass' just to see their cases processed.

For workers who have not received any wages and not allowed to work, where are they supposed to find the money to leave the country, let alone exercise their rights under the law? asked HRW's Nisha.

Yet, such situations only apply to the lucky few who managed to escape their employers, avoid police and immigration dragnets and seek shelter with a local NGO or the embassy.

The immigration laws here are stringently but blindly enforced as no effort is made to discriminate between workers escaping from abusive conditions and victims of trafficking, from those who entered illegally.

In an interview with HRW, a domestic worker who claimed to have been verbally and physically abused said: "My employer kept my passport. I wanted to run away, but I was afraid the Malaysian government and security would catch me."

Trafficking victims receive the same raw deal. HRW's report also pointed out that despite a revision of the penal code, trafficking victims are often treated without distinction from undocumented migrants - and can be detained, fined and deported without any access to services or redress.

"There are few shelters and services for victims of trafficking who are identified, and many are repatriated without pursuing criminal or civil cases because of the time, expense and bureaucracy involved," it added.

HRW's findings are backed by another document: the US State Department's 2004 Trafficking in Persons Report, which noted that Malaysia in 2003 "continued an inadequate performance of protecting and assisting trafficking victims."

It further added that "...victims, especially those who do not usually speak Bahasa Melayu, are sometimes detained. Royal Malaysian Police further lack the training and language skills to screen trafficking victims from illegal migrants. Foreign trafficking victims are often not recognised as victims and are treated as immigration offenders."

So it is curious that the government has remained steadfastly unmoved in its policy position, despite the furore over Nirmala Bonat's case, and even as a foreign agency, human rights groups, labour activists and lawyers paint a blow by blow account of how Malaysia's policies and laws are deliberately biased against migrant workers.