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II. Background

Labor Migration in Asia

According to the International Labor Organization (ILO), there are approximately eighty-one million migrant workers worldwide, and of these, twenty-two million work in Asia.¹  Women comprised approximately half of all migrants worldwide for several decades, including in Asia, but were generally a small proportion of migrant workers.  This pattern has been shifting since the late 1970s, most dramatically in Asia.²  An estimated flow of 800,000 Asian women workers migrate each year, and this number is increasing steadily.³

The feminization of Asian labor migration is most marked in Indonesia, the Philippines, and Sri Lanka, where the majority of workers who migrate abroad for work are women.  For example, in 2002, the Indonesian Ministry of Manpower and Transmigration, responsible for overseeing Indonesia’s labor policies, recorded that 76 percent of all legal overseas Indonesian migrant workers were women.⁴  Women migrant workers are concentrated in low-paying, poorly protected sectors such as domestic work and sex work.⁵

In 2001, migrant workers from developing countries sent home U.S.$72 billion, the second largest source of external revenue after foreign direct investment.⁶  For sending countries like Indonesia, the Philippines, Sri Lanka, India, Bangladesh, Pakistan, Vietnam, and Thailand, the “export” of labor has become an increasingly important strategy for addressing unemployment, generating foreign exchange, and fostering economic growth.  Indonesia records up to U.S.$5.49 billion in remittances from migrant workers per year.⁷  Indonesia, along with many other countries, includes targets for the numbers of workers it hopes to send abroad in its five-year economic development plans.  Indonesia’s targets have risen rapidly over time:  in the economic development plan for 1979-84, the target was 100,000 workers; in the economic development plan for 1994-99, the target was 1.25 million workers; and in the economic development plan for 1999-2003, the target was 2.8 million workers.⁸ 

The most popular destination for Asian migrants has shifted from the Middle East to other Asian countries whose economies have boomed in recent decades.  In 1990, for every migrant worker from Indonesia, the Philippines, or Thailand employed in other parts of Asia, there were three working in the Middle East.  By 1997, destinations such as Malaysia, Singapore, Japan, Hong Kong, and South Korea had surpassed the Middle East.⁹  These countries rely upon migrant workers to fill labor shortages that arise when the domestic labor force cannot meet the labor demands created by their fast-growing economies, or when their citizens are unwilling to take up low-paying, labor-intensive jobs with poor working conditions. 

Although Asian migrants include highly-skilled professionals in management and technology sectors, the vast majority remain workers employed in jobs characterized by the three D’s:  dirty, difficult, and dangerous.  Unable to find adequate employment in their home countries and lured by promises of higher wages abroad, migrants typically obtain jobs as laborers on plantations and construction sites, workers in factories, and maids in private homes.  Many of these jobs are temporary and insecure—approximately two million Asian migrant workers each year have short-term employment contracts.¹⁰ 

Indonesian Migrant Workers in Malaysia

Malaysia relies upon migrant workers from Indonesia, Bangladesh, the Philippines, India, and Vietnam to meet labor demands.  Indonesians are the largest group of foreign workers (83 percent) and have a long history of working in Malaysia.¹¹  They fill sectoral labor shortages created by Malaysia’s economic policies:  seeking to reduce economic disparities between the Malay and ethnic Chinese populations, Malaysia instituted its “New Economic Policy” in 1971 which aggressively pursued export-oriented industrialization and public sector expansion.  The policies resulted in urban job growth and a mass migration of rural Malaysians to the cities.  Industrial growth also led to an increase in demand for labor in manufacturing and construction that could not be met by the domestic workforce.  By the early 1980s, the scarcity of labor in the agricultural sector and the heightened demand for domestic workers among an expanding middle class catalyzed a surge of migrant workers. 

According to Indonesian government records, approximately 480,000 Indonesians migrated in 2002 for overseas work.¹²  Migrants to Malaysia find jobs in domestic work (23 percent), manufacturing (36 percent), agriculture (26 percent), and construction (8 percent).¹³  Two million Indonesians may currently be working in Malaysia, but the exact number is difficult to verify as more than half may be undocumented workers without valid work permits or visas.¹⁴     

Indonesians in Malaysia make up the largest irregular migration flow in Asia and globally are second only to Mexicans entering the United States.¹⁵  During an amnesty that regularized the immigration status of undocumented workers in 1992, fifty thousand undocumented workers came forward.¹⁶  In 1997, 1.4 million Indonesians residing in Malaysia voted in the Indonesian elections, causing Malaysia’s Immigration Department to estimate that 1.9 million Indonesians lived in Malaysia at the time.¹⁷  Many migrants choose to enter Malaysia through unofficial routes since migrating through licensed labor agencies can result in long delays and requires cumbersome bureaucratic procedures, while unofficial arrangements can take just days.  However, there is greater risk of corruption and abuse with the unlicensed labor agents, and less protection if workers face problems with their employers or government authorities.

Over time, the Malaysian government has alternated between tightening immigration policies, causing mass outflows of foreign workers, and loosening them through development of bilateral agreements and amnesties.  A number of measures taken by Malaysia over the past few decades, including the Medan Agreement of 1984, which introduced regulations for recruiting Indonesian domestic workers and plantation workers, a November 1991-June 1992 amnesty for undocumented workers, and a 2002 amendment to the Immigration Act that established harsh punishments for immigration violations, have all failed to stem illegal migration or to protect the rights of migrants  seeking work in households, manufacturing, construction, and plantations.¹⁸

Malaysia has made it a criminal offense for migrant workers to be present in Malaysia without a work permit or visa and has taken increasingly punitive measures, including caning, to deter and penalize such workers.¹⁹  The local Malaysian population often blames both petty and violent crime on foreign workers.  According to SUHAKAM, Malaysia’s human rights commission, in January 2003, only three hundred out of 1,485 women in Kajang Women’s Prison were Malaysian.  The rest were foreign women, including migrant workers and trafficking victims.²⁰  The routine arrest, detention, and  deportation of undocumented workers, regardless of the reasons for their undocumented status, means that migrant workers in abusive situations are less likely to attempt to escape, as they fear being caught by immigration authorities.

Domestic Work

Domestic work, or employment as a housekeeper or caretaker for children or the elderly, is poorly remunerated, and workers are particularly at risk of abuse because of their isolation in private homes.  Migrant domestic workers encounter abuses not only in the workplace, but also at many stages of the work cycle, from susceptibility to trafficking at the recruitment stage and abuses at training centers in Indonesia, to poor conditions of detention and lack of access to health care if arrested without documents and detained.

Labor laws around the world usually exclude domestic work from regulation or provide less protection for domestic workers than for other workers, reflecting discriminatory social biases that create artificial dichotomies between work associated with men in the formal public sphere, and work associated with women in the private sphere.  Malaysia’s Employment Act of 1955 excludes domestic workers from regulations providing maternity benefits, rest days, hours of work, and termination benefits.

Policy-makers, employers, labor agents, and members of the public often view women’s labor as domestic workers as a natural extension of women’s traditional, unpaid role as mothers and care providers in the family, underplaying the contractual relationship between employer and employee.  They do not address the range of working conditions that domestic workers may encounter, including the physical size, layout, and building materials of the house they must clean; the number of individuals they serve, including children in the employer’s household; and the workload, which often involves juggling cleaning, cooking, caring for children, and caring for the elderly.

Legal labor migration from Indonesia is dominated by women domestic workers—According to the Indonesian government and the World Bank, in 2002, 76 percent of 480,393 overseas workers from Indonesia were women, and 94 percent of these women were employed as domestic workers in Middle Eastern, East Asian, and Southeast Asian countries.²¹  These workers include girls who travel with falsified passports and employment visas.²²  According to Malaysian officials, there are currently 240,000 women migrant domestic workers in Malaysia and over 90 percent of them are Indonesian.²³  The “import” of domestic workers was in part a response to Malaysian women moving into more secure, higher-paying factory jobs.²⁴

Most domestic workers who migrate to Malaysia come from East Java, Lombok, and Flores.  The women whom Human Rights Watch interviewed cited financial necessity and a desire to support their parents and children as their primary reasons for seeking work in Malaysia.  Some women stated that they were interested in seeing a different country and having new experiences, and that they saw Malaysia as a stepping stone to gaining the qualifications that could make them better candidates for more lucrative jobs in the Middle East, Singapore, or Hong Kong.  Most were between the ages of seventeen and thirty-five, and had completed elementary or middle school.  They chose domestic work because they did not have to pay any money up front, and they would receive free board and lodging in Malaysia, thereby, they believed, enabling them to save more money.²⁵  Labor agencies typically charge large processing and placement fees for other overseas work, for example, jobs in factories, restaurants, or plantations.

According to Malaysian immigration authorities, in the last four years, fifty-seven thousand domestic workers in Malaysia left their places of employment before the completion of their work contracts.  Abuse in the workplace is one of the leading causes for workers to leave their employers.²⁶  NGOs in both Malaysia and Indonesia also reported handling cases of abuse of domestic workers.²⁷

Trafficking

Every year, an estimated eight to nine hundred thousand people are trafficked across international borders into forced labor or slavery-like conditions.²⁸  Although exact figures are difficult to obtain, there is substantial evidence that trafficking of women and children in Asia is a particularly serious and entrenched phenomenon.  Governments, NGOs, and international organizations have documented trafficking of individuals into forced labor, including forced prostitution, from Burma to Thailand, Indonesia to Malaysia, Nepal to India, and Thailand to Japan, among others.²⁹

Trafficking includes all acts related to the recruitment, transport, transfer, sale, or purchase of human beings by force, fraud, deceit, or other coercive tactics for the purpose of placing them into conditions of forced labor or practices similar to slavery, in which labor is extracted through physical or non-physical means of coercion, including blackmail, fraud, deceit, isolation, threat or use of physical force, or psychological pressure.³⁰  For a more detailed discussion of the definition of trafficking, see the “International Legal Standards” chapter of this report.

Migration and trafficking are interlinked, as traffickers often exploit the processes by which individuals migrate for economic reasons.  Through corrupt government officials, unscrupulous labor agents, and poor enforcement of the law, economic migrants may be deceived or coerced into situations of forced labor and slavery-like practices.  Indonesian trafficking victims may be found in situations of forced domestic labor and other forms of forced labor, forced sex work, and forced marital arrangements.³¹  In its annual report for 2003, Malaysia’s National Human Rights Commission (SUHAKAM), addressed the issue of trafficking victims forced into sex work, noting:  “Indonesian girls and women are usually brought in as domestic maids and then ‘sold’ by their agents to work in discos and entertainment outlets to entertain men, including being forced to provide sexual services.”³²

No reliable estimates exist for the numbers of individuals trafficked from Indonesia to Malaysia each year.  Although there are hundreds of confirmed cases, most groups working on the issue suspect the actual number runs into the thousands.  According to the 2004 U.S. Trafficking in Persons Report, of 5,564 women and girls arrested and detained in Malaysia for suspected prostitution in 2003, a large number were probably trafficking victims.³³  Many anti-trafficking efforts have continued to focus on women and children trafficked only into forced prostitution, and police, immigration authorities, and other relevant actors still fail to identify individuals trafficked into other forms of forced labor.

Trafficking victims in Malaysia have little hope of receiving protection or aid from the Malaysian authorities, including services or remedies through the justice system.  Despite a revision of the penal code in Malaysia, trafficking victims are often treated without distinction from undocumented migrants, meaning they may be detained, fined, and deported without any access to services or redress.  There are few shelters and services for the victims of trafficking who are identified, and many are repatriated without pursuing criminal or civil cases because of the time, expense, and bureaucracy involved.

Repression of Civil Society in Malaysia: The Irene Fernandez Case

The repression of civil society in Malaysia makes the exposure of human rights abuses against women migrant workers, the provision of services, and advocacy for change extremely difficult.  The case of Irene Fernandez, the director of Tenaganita, a prominent migrants’ rights group in Malaysia, underscores the atmosphere of intimidation and coercion that has been created by the state.  Fernandez is an internationally recognized human rights advocate who has worked to reform laws on rape and domestic violence, provide support services to migrant workers and trafficking victims, and create programs to improve health services for HIV-positive women.³⁴

Tenaganita published a report in 1995, “Abuse, Torture and Dehumanised Treatment of Migrant Workers in Detention Camps,” that detailed abuses against migrant workers in Malaysia’s immigration detention centers, including physical abuse and inadequate food and water.³⁵  Instead of prosecuting or disciplining the officials responsible for these violations, the Malaysian government pressed charges against Fernandez in March 1996 for publishing “false and malicious” information about the Malaysian state under the restrictive Printing Presses and Publications Act of 1984 (PPPA).³⁶  The PPPA is but one of several Malaysian laws that do not adhere to international standards, and which the government regularly uses to clamp down on the basic rights of free expression, association and assembly.³⁷ 

On October 16, 2003, after the longest trial in Malaysian history, and one that drained the resources of one of the few organizations helping migrant workers, Fernandez was convicted and sentenced to a year in prison, sending a chilling message to other human rights advocates.³⁸  Fernandez, free on bail pending appeal of the one-year sentence, has faced other forms of restrictions from the government, including recent denials of her application to travel abroad to speak at international conferences, on the grounds that she would “tarnish the image of the country” if allowed to travel abroad.³⁹

The Status of Women and Girls in Indonesia

The high risk of abuse and the accompanying lack of government protection encountered by Indonesian migrant domestic workers are linked to women’s status in both Indonesia and Malaysia. 

The status of women and girls in Indonesia varies widely across the country, reflecting the diversity of ethnic group traditions and social expectations about the behaviors of men and women across the archipelago.  Girls’ rate of primary and secondary school enrollment is approximately equal to boys, but gender inequality still manifests itself in political participation and employment.  According to the ILO, women in the workforce earned 68 percent of that of male workers.⁴⁰  In 2002, the government stated that 38 percent of civil servants were women, but that only 14 percent of these women held positions of authority.⁴¹ 

Violence against women and girls is a serious problem in Indonesia and takes many forms, including domestic violence, trafficking, sexual violence, and violence by armed forces in conflict areas like Aceh and Papua.⁴²  The narrow criminal code definition of rape as penile penetration has prevented many rape prosecutions against sexual violence perpetrators.  In 2002 in Aceh, soldiers were not held accountable for raping women with bottles and other foreign objects.⁴³  Marital rape is not outlawed.

Access to redress through the criminal justice system, difficult for most Indonesians because of notorious corruption and inefficiency, is largely inaccessible to women and girls.  The process to file a complaint is often lengthy and bureaucratic, and law enforcement officials may not be adequately trained or competent in handling sexual or domestic violence cases.  In 2001 and 2002, less than 10 percent of the cases reported to four women’s crisis centers in Jakarta were reported to the police.⁴⁴ 

The Indonesian government has taken some steps to address violence against and exploitation of women; for example, the president established the National Commission on Violence against Women by decree in 1998, and the police have established women’s desks in police stations around the country to provide gender-sensitive services to women and girls.⁴⁵  The government has also begun setting up crisis centers for victims of violence and drafting bills to protect migrant workers’ rights, address domestic violence, and prevent and respond to trafficking.  Many of these initiatives remain in their planning stages and have been slow to get enacted or implemented.   For example, although the legislature initiated the bill on domestic violence six years ago, the House has yet to begin deliberations on it.⁴⁶

Gender-based discrimination, though outlawed by the 1945 Constitution, continues both in the law and in social practice.  Citizenship can only be passed through the father, meaning that children with Indonesian mothers and non-citizen fathers are not eligible for public services requiring citizenship, such as public school enrollment.  Muslims have the right to choose whether civil law or Islamic law is applied to them, but the CEDAW committee has raised concerns about the extent to which Muslim women are able to make this decision freely.⁴⁷  The Islam-based family court system poses some disadvantages for women.  For example, women bear a heavier burden of proof when seeking a divorce than men.

The Status of Women and Girls in Malaysia

Women’s social, economic, and political roles have transformed over the past few decades, both influenced by and actively shaping Malaysia’s politics and dramatic economic growth.  Indicators on education and health show encouraging progress.  For example, in 2000, school enrollment rates of males and females were approximately equal and 96 percent of all births were attended by a skilled health care provider.⁴⁸  The illiteracy rate among adult women dropped from 38 percent in 1980 to 17 percent in 2000, with only 2 percent of young women between the ages of fifteen and twenty-four being illiterate.⁴⁹ 

Low levels of political participation and economic segmentation along class and ethnic lines marginalize women politically and economically.  Women held 10 percent of the seats in the House of Representatives in 2003 and 26 percent of those in the Senate.⁵⁰  The second-largest political party, Parti Islam se-Malaysia (PAS), does not allow women to be candidates for the House of Representatives, but the party had three female senators in 2003.⁵¹

Ethnicity and religion intersect with gender in ways that adversely affect women’s legal status and rights.  The differences are especially marked in regard to the application of family law:  Muslim women are governed by Muslim personal laws interpreted by separate systems of religious courts in each state; indigenous women from Sabah, Sarawak, and other parts of the country follow native customary law; and the rest fall under Malaysia’s civil and criminal laws, including the 1976 Marriage and Divorce Act.⁵²  Women’s organizations have protested discriminatory provisions in Muslim personal laws that prevent Muslim women from having equal rights in contracting marriage or obtaining a divorce.  Two states, Kelantan and Terengganu, have passed bills to impose Islamic criminal law, or Hudood, which have raised concerns about the implications for women; for example, women and girls are confronted with discriminatory and prohibitive evidentiary requirements in cases of rape as they must provide four male witnesses.  Adultery is criminalized, and if a rape victim is unable to prove her case, she may be at risk for being punished for making slanderous accusations or for adultery for having sexual relations outside of marriage.  As of this writing, the federal government has consistently blocked enactment of these laws.⁵³

Violence against women and girls is a serious problem in Malaysia.  Women’s Aid Organization, an NGO, estimated that there were over three thousand cases of domestic violence in 2003, and in a 1995 report estimated that 39 percent of Malaysian women have suffered from partner abuse.⁵⁴  Marital rape is not a crime.  Furthermore, the Penal Code requires that visible evidence of physical injury exist to prosecute a domestic violence case, preventing survivors of sexual abuse without visible injury or who have suffered psychological abuse from pursuing legal remedies.  The government amended the Penal Code to stiffen punishments for rape from five years of imprisonment to thirty years, caning, and a fine.⁵⁵