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VI. National and International Legal Standards

When Indonesian women who migrate for employment as domestic workers in Malaysia encounter abuses such as severe restrictions on their movement and ability to practice their religion; psychological and physical abuse, including sexual abuse; discrimination under the labor code; or excessively long working hours without regular pay or rest; they are experiencing violations of international human rights law.  These abuses also violate rights articulated in the national laws of Indonesia and Malaysia.

Indonesia and Malaysia have both committed to uphold human rights protections defined in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).¹⁷⁵  They must ensure that domestic law and its enforcement comply with their international obligations to protect the rights of women and children and to guarantee equality under the law.  Both Indonesia and Malaysia have also ratified several ILO conventions, including the ILO Forced Labor Convention (No. 29), the Worst Forms of Child Labor Convention (No. 182), and the ILO Right to Organize and Collective Bargaining Convention (No. 98), and have obligations to protect the rights of workers as set forth in those treaties.  Research conducted by Human Rights Watch found that, in law and in practice, the rights of women migrant domestic workers are routinely flouted.

The Universal Declaration of Human Rights (UDHR) is the precursor of important international treaties that set forth human rights.  Although Indonesia and Malaysia have not ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), or the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), these are important sources of international law and human rights standards.  Some of their provisions reflect a significant degree of international consensus and evolving state practice.  In this sense, they provide guidance on how Indonesia and Malaysia might reformulate their legislation in respect to migrant workers.¹⁷⁶

The Right to Just and Favorable Conditions of Work

International human rights law protects a spectrum of workers’ rights.  Articles 23 and 24 of the UDHR outline rights to just and favorable conditions of work, remuneration, freedom to form and join trade unions, rest, leisure, reasonable limitations of working hours, and periodic holidays.¹⁷⁷  Article 11(d) of CEDAW delineates the “right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value” and article 11(f) describes the “right to protection of health and to safety in working conditions.”¹⁷⁸  The CRC and several ILO Conventions outline protections for working children.¹⁷⁹

Through their ratification of several International Labor Organization conventions, Indonesia and Malaysia also undertook international obligations to enforce labor rights protections for the payment of wages and to suppress forced labor.¹⁸⁰  According to ILO Convention on Forced Labor, Number 29, forced or compulsory labor “shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”¹⁸¹  Malaysia has ratified the ILO Convention on the Protection of Wages, Number 95, which specifies that wages should be paid directly and regularly to workers, and that workers should be informed of the conditions of payments before beginning employment.¹⁸²

By excluding domestic workers from several key employment protections, Malaysia’s labor laws fail to comply with international law.  The principal source of employment law in Malaysia is the 1955 Employment Act, which regulates terms and conditions of work.  The 1955 Employment Act includes “domestic servants” in the categories of employees covered by the Act, and protects them from irregular or late payment of wages, but specifically excludes them from provisions on rest days, hours of work, public holidays, annual leave, sick leave, and maternity protections.  Domestic workers are also excluded from termination, lay-off, and retirement benefits.¹⁸³  Malaysia’s 1952 Workmen’s Compensation Act, which provides a mechanism for workers to receive compensation for workplace injuries and occupational illnesses, also excludes domestic workers.¹⁸⁴

Employers in Malaysia routinely require Indonesian domestic workers to work fourteen to twenty hours a day, seven days a week, with no rest, in contravention of the human rights outlined in international instruments.  Article 24 of the UDHR states that “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.”  These work conditions also do not meet the minimum standards defined in Malaysian law for workers in sectors besides domestic work.  Malaysia’s 1955 Employment Act sets forth the following labor rights:  one rest day per week; a minimum thirty-minute break for each period of five consecutive hours of work; and limitations of work hours to eight hours per day (not to be spread over a period longer than ten hours in one day) and forty-eight hours per week.¹⁸⁵

Many Malaysian labor agents and employers delay payment of wages to workers until the end of their standard two-year contracts, both denying the workers control of their wages and creating coercive conditions that make many domestic workers unable to leave their place of employment.  These practices violate both international law and Malaysian law.¹⁸⁶  Domestic workers, including Indonesian migrant domestic workers, are protected under sections 18 and 19 of the Employment Act which stipulate that, “a contract of service shall specify a wage period not exceeding one month,” and that “[e]very employer shall pay to each of his employees not later than the seventh day after the last day of any wage period the wages, less lawful deductions, earned by such employee during such wage period.”  Many domestic workers never receive their full salary because their employers cheat them or because the mechanism for claiming unpaid wages through Malaysia’s Department of Labor is too long, cumbersome, and expensive.  Most Indonesian domestic workers that Human Rights Watch interviewed were not even aware of this option. 

Freedom from Discrimination

International law prohibits discrimination on the basis of such distinctions as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.¹⁸⁷  International law and the Constitution of Malaysia also guarantee equality before the law and the entitlement of all persons to equal protection of the law.¹⁸⁸  The Indonesian Constitution provides that, “[e]ach person has the right to be free from discriminatory treatment on any grounds and has the right to obtain protection from such discriminatory treatment.”¹⁸⁹  The section on unjustifiable disparate impact immediately below demonstrates how exclusion of domestic workers from employment laws and bilateral agreements is a form of discrimination violating Malaysia and Indonesia’s obligations under international law.

Unjustifiable Disparate Impact:  Domestic Workers’ Exclusion from Legal Protections

Malaysia’s employment laws and its bilateral agreements with Indonesia exclude domestic workers from many of the legal protections extended to other workers.  These exclusions reflect discrimination against a form of work that is is usually performed by women and girls and involves tasks associated with traditional female domestic roles such as cleaning, child care, and cooking.  Women domestic workers are often at particular risk of abuse because of the isolated nature of their work.  The lack of legal protections for domestic workers both compounds these risks and prevents victims of abuse from seeking redress through the law.

Facially neutral laws, regulations, policies, and practices can have a discriminatory impact.¹⁹⁰  The CEDAW Committee has not directly articulated its interpretation of discriminatory impact on the basis of sex, but has indirectly done so in its definition of gender-based violence as "violence that is directed against a woman because she is a woman or that affects women disproportionately."¹⁹¹  Thus, a law, policy, or human rights abuse that has an unjustifiable disparate impact on a group distinguished by sex, and which has the effect of limiting their enjoyment of human rights, could be read as discrimination within the meaning of CEDAW. 

The exclusion of domestic workers from the majority of Malaysia’s labor protections, while a facially neutral policy, has a disparate impact on women migrants since the vast majority of domestic workers in Malaysia are migrant women workers.  No legitimate reasons exist for these exclusions, meaning that the unequal protection of domestic workers in Malaysian law constitutes impermissible disparate impact discrimination.¹⁹²  These exclusions prevent women domestic workers from enjoying their right to freedom from discrimination in the field of employment, as articulated under Article 11 of CEDAW, including in rights to job security and all benefits and conditions of service; equal remuneration, including benefits; paid leave; and health and safety in working conditions.¹⁹³

Around the world, exclusions of domestic work from employment protections represent the formalization of social biases and gender stereotypes into law.  Male work in the public sphere is often considered the norm for defining the type of employment deserving legal protection.  Female work in the private sphere is typically not valued as an economic activity or acknowledged as work requiring public regulation. 

The Right to Health and the Right to Privacy

International law protects the right to the highest attainable standard of physical and mental health.¹⁹⁴  Malaysia and Indonesia must uphold the right to have medical care and necessary social services as set forth in article 25(1) of the UDHR.¹⁹⁵  Article 12(1) of CEDAW prohibits discrimination against women in the field of health care and obliges states to ensure equal access to health care services.¹⁹⁶  Indonesian domestic workers have little or no access to adequate health care when confined in training centers for indefinite periods, or when working in Malaysia.  The conditions in the training centers and their employers’ homes often negatively affect Indonesian women workers’ health.  Women interviewed by Human Rights Watch reported deprivation of adequate amounts of food or sleep, injuries from physical and sexual abuse, and anxiety and depression often associated with the confinement and abuse they encountered.

The 1998 United Nations Guidelines on HIV/AIDS and Human Rights (U.N. Guidelines) interpret the right to privacy as encompassing, “obligations to respect physical privacy, including the obligation to seek informed consent to HIV testing.”¹⁹⁷  The practice of health care providers in Indonesia giving the results of pregnancy and HIV tests and other medical exams to labor recruiters rather than directly to prospective migrant workers, and without the workers’ consent, violates their rights to privacy. ¹⁹⁸    

Women interviewed by Human Rights Watch said that they did not know they were tested for HIV, and therefore did not provide informed consent, and they generally received no pre- or post-test counseling.  The U.N. Guidelines advise that “public health legislation … [should] ensure, whenever possible, that pre- and post-test counseling be provided in all cases,” because counseling helps ensure the voluntary nature of HIV testing and contributes to the effectiveness of subsequent care or HIV prevention.¹⁹⁹  Malaysia and Indonesia should ensure that all HIV testing be accompanied by informed consent and by pre- and post-test counseling.

Forced Labor and Trafficking

International law prohibits forced labor and trafficking in persons.  The UDHR, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol), CEDAW, the ILO Forced Labor Convention, and the ILO Worst Forms of Child Labor Convention are the principal sources of international law that define and prohibit these practices.²⁰⁰  Indonesia and Malaysia must uphold the rights set in the treaties it has ratified:  CEDAW and the Forced Labor Convention.  Indonesia has also signed the Trafficking Protocol.

National-level provisions proscribe forced labor.  Article 6(2) of the Malaysian Constitution states that “[a]ll forms of forced labour are prohibited.”²⁰¹  Forced labor is defined by the ILO Forced Labor Convention as "all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily."  "Menace of any penalty" was explained by the ILO Committee of Experts as a penalty that "need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges."²⁰² 

In many of the cases described above, labor agents and employers engaged in practices that created a “menace of penalties,” including threats and physical abuse; confiscation of passports; and withholding of wages.  By diverting salaries directly into inaccessible bank accounts, leaving domestic workers penniless for two years, or making irregular payments, employers and labor agents contributed to conditions that made workers economically dependent.  Workers face the loss of up to two years of earnings if they protest their workloads or if they decide to escape from abusive situations.

Neither Indonesia nor Malaysia has domestic legislation specifically addressing trafficking, but as of this writing, Indonesia is developing an anti-trafficking law.  Trafficking is defined in the Trafficking Protocol as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.  Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.²⁰³

Human Rights Watch interviewed nine women who could be classified as trafficking victims given the deception and coercion involved in their recruitment and the situations of forced labor in which they were placed.  These women were deceived about the type of work they would perform in Malaysia, the salary they would receive, or the terms and conditions of their work.  The lack of information and protections in the labor migration process places many economic migrants at risk of trafficking into situations of forced labor.

Freedom of Movement and Freedom of Association

International law protects both the right to freedom of movement and freedom of association.  Article 13 of the UDHR provides for the right to liberty of movement and the right to return to one’s country.²⁰⁴  In addition to its legal basis under treaty law, the right to return has increasingly been recognized as a norm of international customary law.²⁰⁵   

Article 20 of the UDHR elaborates the right to freedom of association.²⁰⁶  This right is further elaborated by several ILO Conventions, most notably the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (Convention No. 98), two of the ILO’s fundamental conventions.²⁰⁷  Indonesia has ratified both of these conventions, and Malaysia has ratified the latter.²⁰⁸  Malaysia’s Constitution protects the right to freedom of movement and the right to freedom of assembly only for citizens.²⁰⁹

Bilateral agreements between Indonesia and Malaysia permit employers to hold workers’ passports, significantly restricting their freedom of movement and the right to return to their own country.  These MoUs also prohibit migrant workers from joining trade unions and forming associations.  Malaysia and Indonesia have failed to ensure that their domestic legislation and bilateral agreements conform to their obligations under international law.

The forced confinement of domestic workers is not necessary for purposes of national security, public order, public health or morals, or the rights and freedoms of others.  Consequently, the widespread practice of restricting domestic workers from leaving training centers or their workplace and confiscating their travel documents constitute violations of international human rights law.  Confinement in training centers and the workplace prevents women domestic workers from enjoying other rights, such as the right to the highest attainable standard of health, freedom of association, and the right to return to their country.  Combined with labor rights violations and abuse, forced confinement is also psychologically abusive, isolating domestic workers from support networks or escape options and fostering dependency and feelings of powerlessness.

Restrictions on Indonesian domestic workers’ movements prevent them from associating with other domestic workers, or from contacting religious organizations, NGOs, or other types of support and advocacy groups.  In contrast, the Filipino government has negotiated a standard contract with the Malaysian government that guarantees the right for Filipina domestic workers to have at least one day off.  Migrant Filipina workers have used the day off to meet with one another. They have formed strong associations in which they can turn to each other for social support and information, and through which support services, including health care and legal aid, can more easily be channeled.  The Malaysian government violates the right of Indonesian domestic workers to freedom of association by not legislating and enforcing freedom of movement, rest days, and the right to organize.

Freedom from Violence

International human rights law establishes the right to life, security of person, and the right to be free from torture and other forms of cruel, inhuman, and degrading treatment.²¹⁰  In the Declaration on the Elimination of Violence Against Women, the United Nations stated that governments have an obligation to “prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by states or by private persons.”²¹¹  A state’s consistent failure to do so amounts to unequal and discriminatory treatment, and constitutes a violation of the state’s obligation to guarantee women equal protection of the law.²¹²

Sexual harassment may also be considered a form of gender-based violence and discrimination prohibited under CEDAW and directly impacts equality in employment.  The ILO’s Committee of Experts considers that sexual harassment falls within the scope of the ILO Discrimination (Employment and Occupation) Convention.  The CEDAW Committee has commented that sexual harassment includes:

unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment and promotion, or when it creates a hostile working environment.²¹³

The CEDAW Committee recommends that governments institute effective complaints procedures and remedies for survivors of gender-based violence.  These include:

(i) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including, inter alia, violence and abuse in the family, sexual assault and sexual harassment in the workplace;

(ii) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;

(iii) Protective measures including refuges, counseling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence.²¹⁴

Indonesia and Malaysia both have national-level legislation to address violence against women, but these laws contain gaps in crucial areas and enforcement is weak.  In Indonesia, the Penal Code has provisions against rape but the definition of rape remains narrow and is limited to forced sexual intercourse, excluding forms of rape like forced oral or anal sex. ²¹⁵  The law should be amended to include any physical invasion of a sexual nature without consent or under coercive circumstances.  Draft bills on domestic violence and trafficking were pending as of June 2004.  In Malaysia’s penal code, rape is also limited to forced sexual intercourse and sexual assault is defined to include forced anal sex and the insertion of objects into bodily orifices.

Malaysia’s Ministry of Human Resources has drawn up a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.  However, women’s rights organizations are concerned about the effectiveness of the code and are lobbying for more powerful legislation barring sexual harassment.²¹⁶  The code does not explicitly prohibit sexual harassment or provide sanctions for perpetrators; rather, the stated goal is to provide “guidelines to employers on the establishment of in-house mechanisms at the enterprise level to prevent and eradicate sexual harassment in the workplace.”  The guidelines therefore have little relevance for domestic workers who are isolated in private homes and who have few or no options for where they can turn to report sexual harassment.

The governments of Malaysia and Indonesia have a responsibility to address the psychological, verbal, physical, and sexual violence that Indonesian domestic workers encounter at every stage of the migration process.  As described above, the current structure of labor migration between the two countries, which gives labor agents the primary responsibility for informing workers about their rights and for responding to cases of abuse, has often left migrant domestic workers in extreme positions of vulnerability with almost no opportunity for redress.  In order to uphold their obligations under international human rights law, Malaysia and Indonesia must enact effective laws and institute programs that prevent and remedy such abuse, including by punishing perpetrators of violence.  Independent monitoring of training centers and employment conditions in private homes is essential for such efforts, as are mandated rest days and protections of workers’ freedom of association.  Indonesian women migrant workers’ ability to take time off and to visit NGOs, the Indonesian embassy, health care providers, and workers’ associations are critical measures for increasing their awareness about their rights and access to services.

Freedom to Practice One’s Religion

Article 18 of the UDHR establishes, “the right to freedom of thought, conscience, and religion…and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”²¹⁷  Article 3(1) of the Malaysian Constitution states that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

The restrictions employers and labor agents place on Muslim domestic workers’ freedom to fast, to pray, and to avoid pork and dogs in accordance with their religious beliefs constitute a clear abuse and infringement on their freedom of religion as protected under international human rights law.  The same standard applies for Christian workers who are unable to attend church.  In some cases, confiscation of prayer materials and the Koran as well as targeted religious insults designed to humiliate domestic workers could also be considered a form of psychological abuse and degrading treatment.

The Malaysian and Indonesian governments should ensure that all domestic workers are able to practice their religion freely, without restriction or punishment.  In response to earlier reports of Muslim domestic workers being prevented from practicing their religion, the Malaysian and Indonesian governments considered a rule to place domestic workers only in homes with employers who belong to the same religion as they do.  However, such a practice would discriminate on the basis of religion, and furthermore would not be an effective solution.  As noted above, for example, Human Rights Watch interviewed Muslim domestic workers who said that their Muslim employers did not allow them to fast or to pray.  The government must instead find ways to monitor the treatment of domestic workers inside homes, create mechanisms for domestic workers to report such abuses, and to raise awareness and accountability among employers about their responsibility to respect this right.