Perspective (Spotlight Weekly)

Labor Rights Situation of Nepalese Workers in Malaysia: The Worst is still to Come

By Bipin Adhikari

There are approximately 800,000 legal foreign workers in Malaysia. Due to the robust economy that Malaysia has been successful to sustain since 1987, it has attained, together with the steady economic growth, a situation of full employment, giving opportunity to thousands of foreign workers to come and work in Malaysia every year. Although an exact figure is not known, the Nepalese workers in Kuala Lumpur claim that about 1,50,000 Nepalese are already working there by now. Some of them are said to be illegal immigrants, or those who entered the country as valid tourists, but started working there without work permits.

In whatever way they reached Malaysia, the Nepalese workers are under substantial human rights risks. Some risks owe to the commissions or omissions of the Ministry of Labor of His Majesty's Government and concerned employment agencies, and some to the dreary attitude of the Malaysian government. Most of them who are sent as workers are illiterate, uneducated high school dropouts, or ill informed, underpaid, and straight-forward rural folks without proper health care. They are often harassed by police and immigration officials and arrested and detained if their papers are not with them. There is abuse of detained workers while in detention leading to serious human rights implications from causes which could have been easily prevented such as beriberi. Physical and sexual abuse by their employers and agents and other government personnel are also frequently reported. The problems of these workers also include abuse of their right to freedom of movement. Apart from all these problems, most of the Nepalese workers face wage discrimination, non-payment, and poor living and working conditions. They are deprived of many facilities promised to them by their Nepali agents. The lack of legal regime back home, and no legal aid in the largely unknown country, makes them vulnerable in all situations.

The major labor legislation in modern Malaysia are the Employment Act, 1995 which regulates minimum standards of work; the Social Security Act, 1969 which provides social security and welfare for injured workers and for some occupational illnesses; the Employees Provident Act, 1951 which has set up a provident fund for the workers; the Industrial Relations Act, 1967 which regulates disputes of unionized workers and their employers; the Trade Union Act, 1959 which regulates the registration and function of the trade union including calling for strikes, pickets and other industrial action, and so on. There is no organization of Nepalese laborers capable to help them know what legal benefits they have under these laws as foreign workers temporarily working in Malaysia. Workers also are constrained by other non-democratic laws which allow for detention without trial, strict stipulation which tamper with freedom of speech, publication or assembly. These restrictions have kept workers generally compliant. This makes their plight miserable.

The present Human Resources Minister of Malaysia is said to be determined to make sure that the Government has necessary agreements with the source countries, starting with Vietnam and Nepal, which supply workers to Malaysia. Among the new terms to be incorporated in such government to government (G2G) agreements are that the workers must be able to at least communicate in either Bahasa Malaysia or English, be free of any criminal record and the host governments be accountable in bringing their workers back if they violated Malaysia's laws. In principle, the responsibility to learn Bahasa Malaysia and English will also rest with the workers themselves or their governments.

Additionally, the Human Resources Ministry is currently said to be in talks with major companies employing foreign workers on the proposed move to organize orientation courses to teach them local languages, Malaysian customs and way of life. They want the major employers to conduct some sort of short-term familiarization courses for their foreign workers as an initial effort to combat problems of fighting or quarrel among workers of different nationalities which recently took place because of insufficient knowledge of the languages spoken locally and the environment.

Besides Uzbekistan, G2G agreement has been approved between Vietnam, Nepal, Myanmar, Sri Lanka, Turkmenistan, Kazakhstan, the Philippines, Cambodia, Laos and India. The G2G agreement where recruitment procedures will be made more systematic to allow for a comprehensive data collection, the Malaysian government hopes, can address the problem of illegal foreign workers in the country. The bulk of the new foreign workers would be employed in the manufacturing sector while the others would be hired for the service sector, the estates and the construction industry. Most of the Nepalese workers seem to be working in construction works, and rural or domestic helps which do not require prior training. It is said that the Ministry of Human Resources had received 2,470 applications from employers involving 8,000 foreign workers who wanted to extend their work permits for another five years. Malaysia is keen to assess their skills by the help of Malaysian Vocation Training Council before extending their permits as skilled workers.

The Malaysian Government does not hesitate to whip foreign illegal workers, including Nepalis. According to an unverified estimate, there are more than 10,000 Nepalis working illegally in Malaysia. To date, a total of 1,200 illegal immigrants have been caned by Malaysian authorities under tough immigration laws introduced in August 2002. Both illegal immigrants and their employers face a mandatory six months in jail and possibly up to six strokes of the cane under the new laws. Two Malaysia Airports employees were recently suspended from duties in connection with police investigations into a human smuggling syndicate at the Kuala Lumpur International Airport. That explains the situation.

Malaysia is a big market for the Nepalese work force, but Nepal must know what it is lacking in its labor export promotion scheme. The principal issue, of course, is the labor rights issue.

[Adhikari is a lawyer. He may be accessed at human_rights_nepal@yahoo.co.uk]