Penalties may sting 'wrong' illegals
news feature Heavier penalties may deter some foreign workers from entering Malaysia illegally from Aug 1. However, implementation risks punishing the helpless, writes YAP MUN CHING in the first of a three-part series on the impact of the amended immigration law.
Semenyih, Machap Uboo and Pekan Nenas those familiar with detention centres for illegal entrants into Malaysia will recognise these names, associated since 1998 with occasional riots by inmates.
Things came to a head in February this year, when Indonesian workers went on a riot at a factory in Seremban where they were employed.
It evoked public outrage and fed latent paranoia about the influx of low-skilled foreigners in the country. Malaysians used the incident as another case in point to debate the popular perception that foreign workers have been behind the rising crime rate in the country.
The Immigration (Amendment) Act 2002 was hurriedly passed to take effect on May 30. This provide for imposition of heavy fines, imprisonment and whipping of illegal immigrants. However, enforcement was delayed to allow for voluntary departure by July 31.
Weighing the risks
The act, however, does not adequately address the reasons behind the presence of "illegals" in Malaysia.
Legislators appear to have assumed that all immigrants who have entered the country illegally have done so purely by choice. To a large extent, the law-makers may be right.
Malaysia, being one of the wealthier Southeast Asian countries, is a magnet for large numbers of immigrants. In addition to those who have come in by legal means, there are reportedly about half a million others who were smuggled in across the country's porous borders with neighbours.
Dr Diana Wong, a research fellow at the Malaysia and International Research Institute says, for example, that Indonesian migrants from various parts of the archipelago head for Malaysia to escape poverty and unemployment at home.
These workers are attracted by the demand for cheap labour in Malaysia as well as higher wages and higher standards of living.
For them, the potential gains have outweighed the risks associated with illegal entry which, to date, have had entirely to do with detention and deportation.
The new penalties, therefore, are designed to offset the 'pull factors' in the demand for labour in Malaysia, and to ensure that foreign workers comply with entry procedures.
Human rights violation
Problems with a penalty-based solution arise, however, when there are other reasons why immigrants live undocumented in this country.
Among those entering the country illegally are also scores of potential asylum seekers from conflict-prone areas such as Aceh, Mindanao and Burma.
As Malaysia does not recognise political refugees, many genuinely displaced persons may end up becoming victims of the harsh punitive measures.
United Nations High Commission for Refugees Protection Officer Shinji Kubo says that, in instances where people have no place to go, they will return to Malaysia even if there is a threat of whipping upon conviction.
"Penalties could be implemented if the effects can be secured but without this assurance, [Malaysia] may end up with a bad penalty system," Kubo says.
He also says that, although Malaysia is not a signatory to the UN Convention against Torture, whipping is considered a form of torture by international norms.
"It may result in a serious human rights problem," Kubo adds.
Victims of circumstance
Often overlooked, too, is the fact that most foreign workers with the exception of large numbers from Indonesia had entered the country via proper channels but later 'became' illegal because of unscrupulous recruitment agents and employers.
According to labour rights organisation, Tenaganita, many workers pay large sums of money to be brought to work in Malaysia. But instead of being installed in secure jobs upon arrival, the 'agents' disappear with the workers' money and passports, leaving them stranded.
"These people become illegal but they are unable to leave because they have spent all their money getting here," says Aegile Fernandez, Tenaganita's Migrant Desk coordinator.
Migrant workers are also unprotected once they enter Malaysia. Those faced with atrocious working conditions and abuse by their employers "run away" to find other jobs.
Fernandez notes that the situation is compounded by the workers' ignorance of local laws and regulations. They rely on their employers to renew their work permits, but are powerless to act whenever employers fail to do so.
"This happened a lot especially during the financial crisis in 1997. Many workers paid up to RM2,000 to their employers or had their salaries deducted. But instead of paying for the permits, the companies kept the money."
Plugging a loophole
While the amended law will be tough on employers of undocumented workers, there are still no direct laws to deal with errant employers who contribute to making workers illegal.
Questioned about this loophole, Deputy Home Affairs Minister Chor Chee Heung said the immigration law would run alongside a new foreign labour recruitment policy to cover such situations.
"The recruitment policy is now classified with stringent rules which require the commitment of employers," he said in reference to the policy for employers to submit applications for work permits directly to the immigration department or to a specified ministry.
To exact responsibility from employers for their workers, the immigration department is also monitoring employers' records before approving new applications.
Need for flexibility
However, few are fully convinced that this strategy alone will work in stemming the tide of illegal immigrations.
According to Wong, a better long-term solution would be for the government to introduce greater flexibility in the foreign labour policy to cater to the high demand for illegal labour.
"We have to recognise that different sectors have different needs. The model that we have now is based on the manufacturing sector. The construction sector hires more illegal workers because projects are mainly for short durations," she says.
For instance, employers could perceivably benefit from being able to set up a labour exchange pool in which workers will be allowed to work with more than one employer over the duration of validity of their work permits.
Until such structural adjustments are made, even a stringent law is unlikely to stop immigrants from being made illegal. Punishing a few may discourage more from arriving, but this would be at the cost of victimising others.
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