With a system that practises double standards, coupled with alleged routine extortions by enforcement officials, it is no wonder foreign domestic workers - who are not even legally recognised as 'workers' - are unable to seek justice, said the Penang-based social service arm of the Catholic Church.

In a recent press statement, the Penang Office for Human Development (POHD) said unequal treatment, inadequate or defective laws and policies, and selective enforcement by immigration, police and the justice system have burdened migrant workers with unnecessary obstacles.

This makes it extremely difficult for them to seek redress.

Contacted today, POHD officer Joachim Xavier said the systemic problems preventing workers from obtaining justice are deep-seated, and will require an extensive overhaul of the justice system.

POHD, which runs support services for migrants in Penang, also noted reports of migrant workers being "often subjected to extortion" by enforcement authorities.

According to Joachim the police have been found to be on the watch for migrants "at every nook and cranny, creating an environment of constant harassment."

Migrant workers, he said, often complain of police using the excuse that they do not recognise the validity of the 'special pass' - a government-issue that provides a worker the legal right to live and work in Malaysia - in order to extract illegal payments from the workers.

Police also have been known to take the employers' side in coercing workers to comply with unfair terms of employment - technically an interference into immigration jurisdiction, said Joachim.

He added that such allegations of gross misconduct must be investigated.

Bigger disadvantage

However, POHD director Rev Fabian Dicom said compared to regulated workers, foreign domestic workers are placed at an even "bigger disadvantage".

Classified by the government as 'informal workers', domestic workers as such do not fall under the provisions of the Employment Act.

The resulting environment, said Fabian, is one where "employers feel they have some unspoken immunity."

"Employers are fully aware that even if the matter is brought to the attention of authorities, the courts or the immigration policies would make it almost impossible for the migrant worker to successfully seek redress, without first running out of time or money - both of which are under the control of the immigration department!"

He noted that often, the courts take up to four years before justice is restored. Immigration policies however, does not allow for such an extension.

Malaysia's justice system, Fabian argued, is swift in meting out severe punishments to workers but unfortunately does not apply the same standards against employers.

"The disparity is clear when this enforcement is judged from the standpoint of speed and precision."

Missing mechanism

Fabian also decried the current practice of signing bilateral memoranda of understanding (MOUs) - which is expected to ensure local compliance to minimum work conditions - as insufficient.

This is because the MOUs are missing any mechanism whatsoever to ensure compliance by agents and employers with the minimum standards, he said.

"Agents are allowed to reign free in Malaysia capitalising on a lucrative business that does not in any way make them accountable for their carelessness and irresponsibility.

"Except for a very small minority, agents often wash their hands off as soon as the workers are 'delivered' to the employers."

Similarly, workers are required to pay a 'hefty' RM100 a month for a 'special pass' allowing them to seek justice from their employers.

However, renewal of this 'special pass' is not guaranteed, but placed at the complete discretion of the immigration director-general. During this period, workers cannot seek other employments as well.

"So how are the workers to survive in this country, pay for their special passes, and at the same time seek redress within one month?" asked Fabian.

POHD strongly proposes that the RM100 fee be scrapped, or, the government allows workers to be transferred to another employment.

Swift justice

Recent news reports on the abuse of foreign domestic workers may have attracted a barrage of reaction from disgusted Malaysians, said Fabian, but the fact is that a lot of other abuses go largely unreported and therefore unaddressed.

"The sole reason Nirmala Bonat received so much attention and quick redress through the justice system was because the severity of her injuries warranted a front-page play-up in the local newspapers. The resulting public outcry prompted the Malaysian authorities to swing into action," he said.

"This goes to show that Malaysia can administer justice swiftly and effectively - when it chooses to do so," he added.

The hidden reality of many migrant workers, said Fabian, is a life of unpaid wages and broken contracts, cramp quarters and unsanitary, disease-promoting facilities and failure to be compensated for occupational health and industrial accidents.

Seeing that many migrant workers are not granted Nirmala's privilege of swift justice, POHD proposed that the following actions be taken by the government:

  • Ratify the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families.
  • Laws that impede workers from seeking justice be amended or removed, and ensure enforcement is impartial.
  • Recognise foreign domestic workers as 'workers' under the Employment Act.
  • Set minimum work and living conditions that employers must adhere to.
  • Put and end to harassment of foreign workers by enforcement authorities.