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ASEAN urged to set up mechanism for migrant rights

VERA files - 10 September 2012. The 10-member countries that make up the Association of Southeast Asian Nations today host at least five million migrant workers originating from the region, many of them employed in a few yet economically well-endowed countries in the region but with stories of abuse and misery to tell. This article examines regional progress towards the creation of an instrument to enforce the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers.

SHORTLY  after arriving in Kuala Lumpur early this year to work as a domestic worker, Marissa Santos (not her real name) began complaining of severe stomach pains. Her Malaysian employer, aghast that her Filipina house help could be suffering from an ailment, promptly returned Santos to her recruiter, also a Malaysian.

But instead of getting her medical help, the recruiter subjected Santos to slave-like treatment at his spa.

It would take three months to bring Santos back to the Philippines—after her husband, a low-income laborer, coughed up P40,000 for her plane ticket and some trumped-up expenses.

Santos’ story illustrates the difficult conditions of many migrant workers in Southeast Asia, which has witnessed a steady rise in intraregional labor migration since the 1980s. Between 1990 and 2002 alone, labor migration grew 44 percent.

The 10-member countries that make up the Association of Southeast Asian Nations today host at least five million migrant workers originating from the region, many of them employed in a few yet economically well-endowed countries in the region but with stories of abuse and misery to tell.

Confronted with the plight of labor migrants in the region, ASEAN in 2007 belatedly adopted a regional declaration to protect and promote the rights of these workers. A nonbinding agreement, the declaration requires an instrument to become enforceable.

But five years later, the regional grouping has yet to develop that instrument to secure workers’ well-being.

Intra-ASEAN migration “has been phenomenal, yet it has happened without a regional regulatory or institutional framework,” the Cambodia Development Resource Institute said in its 2011 policy brief.

As the 45-year-old ASEAN moves toward regional economic integration that will turn its members into a “single market and production base” by 2015, a regional mechanism to protect migrant workers will be needed all the more. One of the expected outcomes of integration: Increased labor mobility across the region.

Low-skilled, women, undocumented

At present, low-skilled and irregular workers comprise a big proportion of migrant workers in Southeast Asia. Women make up at least half of them, many in domestic work that is not covered by national labor laws of the major ASEAN destination countries, thus depriving them of basic protections. Undocumented workers account for almost a third of intraregional migrants.

Malaysia, Singapore and Thailand are the main destination countries in the region. The rest, led by the Philippines and Indonesia, comprise the origin, or labor-sending, states. Cambodia, Burma, and Vietnam have of late emerged as labor-sending countries.

The growth, according to the Cambodia Development Resource Institute, has been accompanied by “irregular migration, recruitment abuses and the exploitation of migrants, who are often without access to legal protection.”

As of 2005, the region supplied 13.5 million, or 7 percent of an estimated 200 million international migrants. ASEAN says migration within and from the region will continue to increase as a result of economic and demographic factors.

Belated awakening

By the sheer number of workers from and within the region, “the migrant worker issue is the toughest to deal with in ASEAN,” said Braema Mathi, president of Maruah, Singapore’s focal point for the Working Group for an ASEAN Human Rights Mechanism, a regional coalition of nongovernment organizations across Southeast Asia officially recognized by ASEAN as a dialogue partner.

In January 2007, at the 12th ASEAN Summit in Cebu, the regional body finally adopted the Declaration on the Protection and Promotion of the Rights of Migrant Workers, which spells out basic principles for safeguarding migrant workers and the obligations of both labor-receiving and -sending ASEAN countries.

Three years earlier, ASEAN had drawn up a six-year plan called the Vientianne Action Programme, which pushed for the “elaboration of an ASEAN instrument for the protection and promotion of the rights of migrant workers.”

The 2007 Cebu declaration has been called “an important step forward to protect the human and labor rights of migrant workers within the ASEAN region,” especially in the absence at the time of a human rights body.

Although ASEAN issued a joint communiqué in 1993 in which its members “agreed to consider the establishment of an appropriate regional mechanism on human rights,” it would take the association 16 years, in 2009, to finally create a regional human rights body, now known as the ASEAN Intergovernmental Commission on Human Rights (AICHR).

The AICHR is currently drafting the highly anticipated ASEAN Declaration on Human Rights, in keeping with Article 14 of the ASEAN Charter, the regional body’s Constitution ratified by all member states in 2009.

Civil and nongovernmental groups advocating the welfare of migrant workers expect the ensuing human rights agreement to cover those of migrant workers as one its important components.

‘Zero’ draft

To be fair, the drafting of an ASEAN framework instrument to protect and promote the rights of labor migrants as envisioned by the 2007 Cebu declaration began in earnest in 2009.

The ASEAN Committee on Migrant Workers (ACMW), composed of representatives from the regional body’s 10 member countries, was mandated to develop the instrument. The committee in turn created a drafting team, consisting of two labor-sending countries, Indonesia and the Philippines, and two labor-receiving members, Thailand and Malaysia.

But the creation of the instrument remains an unfinished business. ASEAN has so far managed to produce what it calls a “zero,” or preliminary, “draft” based on the wish lists of member states.

Malaysia, for example, insists that states should retain their sovereignty in determining their own migration policy, citing “the need to adopt policies on migrant workers within their jurisdiction, including those related to labor intermediaries.”

If Malaysia gets its way, existing laws such as its controversial Employment Act would negate the overriding goals and aspirations of the 2007 ASEAN declaration and its subsequent instrument to protect migrant workers all over the region, critics say.

Amended in October 2011 amid strong protests from trade unions, civil society and other sectors, the law gives outsourcing companies, which supply labor to factories and other workplaces, statutory recognition as “employers.” Outsourcing agents in Malaysia are known to recruit workers under less favorable terms and conditions than those routinely granted by company owners, or principals, to their employees.

Human rights groups have blamed heightened migrant worker abuse and exploitation in large part on outsourcing firms. “Outsourcing companies and labor contractors have been key factors in the trafficking of persons for labor in Malaysia, a fact that the State is aware of,” said Irene Fernandez, executive director of Tenaganita, a Kuala Lumpur-based NGO helping migrant workers in distress.

Said Phil Robertson, deputy director of the Asia division of Human Rights Watch: “Sadly, the schizophrenic attempts of ASEAN to go in opposite directions at the same time, and then try to paper over the differences, is failing when it comes to migrant workers’ rights.”

Consistent with the 2007 ASEAN declaration, the draft is silent on undocumented workers.

And in true ASEAN fashion, given the regional grouping’s proclivity for secrecy, the draft has not been made public or shared with CSOs for comments.

Sinapan Samydorai, convenor of the Task Force on ASEAN Migrant Workers (TF-AMW), a Singapore-based regional coalition of civil society organizations concerned with migrant workers’ rights, said he has not seen a copy of the zero draft.

Since migrant workers’ rights fall under the purview of human rights, coordination between the ACMW and AICHR on the issue of migrant workers is expected. Since migrant workers’ rights fall under the purview of human rights, the expectation is that the ACMW and AICHR would be coordinating on the issue of migrant workers. There is no engagement between the two, said Philippine Representative to AICHR Rosario Manalo. But there has to be, she added.

This has led Robertson to describe relations between the AICHR and ASEAN sectoral bodies dealing with human rights as “largely dysfunctional.”

“What it says about ASEAN is that it is a house that still is in disorder in terms of human rights policies, with widely varying perspectives from member states effectively preventing progress on the migrant workers’ rights issues,” he said.

Civil society proposal

Unlike ASEAN, the Singapore-based TF-AMW in 2009 successfully put together its version of the ASEAN framework instrument for migrant workers, and formally submitted its draft to the ASEAN Secretariat and ACMW in Vientianne, Laos in May that year.

The proposed framework instrument is “by far the most comprehensive proposal made to ASEAN by civil society,” according to the Southeast Asia Regional Cooperation in Human Development.

Targeted at ASEAN and its individual member governments, the task force’s Civil Society Proposal for the ASEAN Framework Instrument on the Protection and Promotion of the Rights of Migrant Workers lists recommendations that are rights-based and fully compliant with global labor standards. It accords protection to regular and irregular migrant workers alike and to their families.

Ellene Sana, executive director of the Philippine-based Center Migrant Advocacy, a member of the task force, recalls that some members of the task force originally did not want to “push too hard” on “thorny issues” like safeguarding the rights of undocumented workers.

Eventually, they agreed that the ASEAN framework must be legally binding and should not leave undocumented workers and migrant workers’ families out of the scope of its protection.

TF-AMW’s Samydorai also said, “A regional mechanism cannot be lower than international standards.”

The Southeast Asia National Human Rights Institutions Forum (SEANF) and the Southeast Asia Women’s Caucus on ASEAN have also sent their recommendations to ASEAN. They fully share the TF-AMW’s position on the scope and form of the ASEAN instrument.

“The instrument should comply with all the major international human rights treaties and relevant ILO Conventions,” the SEAF said.

To this day, though, the recommendations from civil society largely remain on paper. “We found that many of our recommendations have not been done yet,” said Samydorai.

IN December 2009, Indonesia and the Philippines produced the initial draft of a proposal to give flesh to the two-year-old declaration of the Association of Southeast Asian Nations to promote and protect the rights of migrant workers within the region.

But the draft, especially on the contentious issue of undocumented workers, quickly came under fire from two other countries: Malaysia and Thailand.

Malaysia strongly opposed the inclusion of undocumented foreign workers and families of migrant workers within the scope of the proposed regional instrument on labor migration.

Thailand, on the other hand, wanted a clear distinction between documented and undocumented workers, and insisted that rights accorded migrant workers should not exceed those granted to the locals.

The deadlock highlights the conflicting interests of labor-sending countries like Indonesia and the Philippines and of labor-receiving countries like Malaysia and Thailand. It partly explains why it will likely take years for the regional instrument to come into being.

Conflicting interests among the member states “are reflected in their opposing position, commitment and approach to dealing with issues and problems concerning migrant workers,” writes Ben Perkasa, director of the Foreign Service School in Indonesia, in the English-language Jakarta Post in May. Perkasa is Indonesia’s former representative to the ASEAN Committee on Migrant Workers (ACMW), which is in charge of drafting the proposed instrument.

Binding or not?

A major source of disagreement among countries is the nature of the instrument that ASEAN will eventually adopt.

Source countries interpret the instrument “as an international agreement” and thus binding, while others see it only as “no more than guidance, which is not legally binding,” said Perkasa.

Reports reaching national and regional rights groups say the instrument would be merely called an “ASEAN Agreement” instead of a “Framework Instrument on the Protection and Promotion of Rights of Migrant Workers.” A copy of the “zero draft” obtained for this report confirms that a nonbinding ASEAN instrument is indeed in the works.

Should this happen, Phil Robertson, deputy director of the Asia division of Human Rights Watch, said it would be “a cruel joke” on migrant workers of the region.

“The question to ask the ASEAN leaders is, Why can you negotiate a binding agreement when it comes to foreign domestic investment or reduction of trade tariffs, but you fail to do so when it comes to making an agreement to protect your people when they leave the country to work?” he said.

Sinapan Samydorai, convenor of the nongovernmental Task Force on ASEAN Migrant Workers (TF-AMW) based in Singapore, said there are fears that the instrument would take the form of a convention—legally binding, but only after it is ratified. This means the 10 member states of ASEAN could simply drag their feet on the ratification of the instrument.

Longest negotiation

“The excessive differences in the drafting process resulted in four years of deadlock, one of the longest negotiation processes in ASEAN,” Perkasa said.

Philippine Overseas Employment Administration (POEA) head Hans Cacdac who represents the country in the ACMW, has witnessed this deep division as a former member of drafting team of the ACMW.

During a meeting in Singapore in April, Malaysia wanted the team “to clarify the common understanding between the member states” on the basic concepts of protection of migrant workers, he said. This, in effect, meant bringing the whole discussion back to square one.

Before the April meeting, the team had already reached a consensus in September 2011 to discuss the major issues dividing the countries in phases: Phase 1 (2012) on regular migrant workers; Phase 2 (2013) on undocumented workers and migrant workers’ families; and the third and final phase (2014) on the form of the instrument, whether it will legally binding or not.

Cacdac sees the glass half full.

“Three or four years ago, we found it extremely hardly to push the discussion of these issues off the ground,” he said. “At least today we have a timeline.”

The Ministry of Manpower in Singapore also said ASEAN members have made “commendable progress” in drafting the ACMW Instrument since the declaration was adopted in 2007.

“(They) have demonstrated during discussions that they could put aside national differences as they work towards achieving the shared goal of protecting and promoting the rights of migrant workers,” it said.

Civil society groups and rights advocates, however, see the proverbial glass as all but empty.

“Regrettably, there has been no appreciable progress,” rues Robertson, who is also the TF-AMW’s technical adviser.

The ASEAN Secretariat declined to comment on the the drafting of the ASEAN instrument. “I am afraid that we are not (at) liberty to answer your questions because the process is still at a preliminary stage,” said Mega Arena, assistant director and head of Social Welfare, Women, Labor and Migrant Workers Division at ASEAN.

Bilateral agreements not enough

Without a regional mechanism for migrant worker protection in place, the five million intra-ASEAN migrant workers have only agreements forged between their country and another member state to fall back on to protect their rights, if at all these exist or are worker-friendly.

Bilateral labor agreements (BLAs), which are binding, and memoranda of understanding (MOUs), which are nonbinding and less formal, are traditional mechanisms for managing migration flows and addressing migrant worker concerns.

Forging labor agreements, including MOUs, is a “long and tedious process” owing to the reluctance of destination countries to enter into BLAs, Stella Go, chairperson of the Philippine Migration Research Network, said in a paper presented at a forum on Labor Migration in Asia in January 2011.

Go said these countries argue that “foreign workers are subject to the same laws as nationals” anyway and that “formal agreement with one country could open (the) floodgate of proposals from other countries.”

Labor rights advocates say bilateral agreements on labor migration do not work.

Human Rights Watch’s Robertson cited, for example, the bilateral MOUs Thailand has with neighboring Mekong countries—Burma, Cambodia and Laos—and those of the Philippines with many countries.

These agreements, he said, “have been continually thwarted by failures to control ‘legal’ manpower/labor recruitment companies in labor-sending countries which continue to charge excessive fees to intending migrant workers, and failure of labor-receiving countries to provide adequate protection for workers even with their legal status.”

Adisorn Kerdmongkol, a senior policy adviser with the Thailand-based International Rescue Committee, which assists migrants and cross-border refugees, said bilateral agreements between Thailand and other Mekong countries have resulted in increased protections for migrant workers, but many issues remain unresolved such as high recruitment fees and the prohibition for workers to change employers unless they meet certain conditions.

“There has not been much progress,” he said.

Indonesia’s 2006 MOU with Malaysia on migrant workers did not prevent the abuse of a number of its domestic workers who had slaved it out within the backyard of the region’s emerging economic power. This prompted the Indonesian government to halt the deployment of Indonesian domestic helpers to Malaysia in 2009.

The moratorium, however, “failed to result in effective changes to increase the protection of its workers’ rights,” Irene Fernandez, executive director of Tenaganita, a Kuala Lumpur-based NGO helping migrant workers, said.

Malaysia soon turned to Cambodia for its direly needed supply of domestic workers. Last year the Cambodian government, following in Indonesia’s footsteps, banned the sending of workers to Malaysia following a trail of abuses against, even deaths of, some Cambodians while serving their employers.

On May 30, 2011, the MOU between Malaysia and Indonesia was revised to include some positive changes. Yet it did not set a minimum wage and allowed recruiters to collect several months of the workers’ salaries as fees.

If anything, source or origin countries share part of the blame for the hapless state of many of their migrant workers.

The “labor export policies of the source countries have remained the same,” said Fernandez, citing the Philippines—the biggest labor-sending country in the region—as a “classic example.”

Vicente Cabe, Philippine labor attaché in Singapore, said, however, sending states must work within the system of receiving countries. “We have to understand that they (host countries) have to balance their interests.”

Oftentimes, though, these interests are skewed heavily against those of migrant workers, leaving them at the mercy of their employers.

Thus, unless they conform to international core labor standards—and oftentimes they do not—bilateral labor agreements and similar mechanisms cannot work.

This again brings to the fore the need for a binding and rights-based regional mechanism, CSOs and human rights advocates say.

Going forward

What labor-sending countries need to do is push their provisions in the proposed ASEAN instrument on labor migration “more strongly” in the face of vigorous opposition from major receiving states to certain provisions favorable to migrant workers, Fernandez said.

“It appears that those governments working to frustrate a comprehensive agreement to protect migrant workers have more political will to stop progress than those trying to promote such a deal,” Robertson said.

POEA’s Cacdac said the Philippines remains firm in pushing for rights-based provisions and in convincing receiving states to accept the provisions on undocumented workers and families of migrant workers.

“More protection and security to the workers need to be emphasized (in the planned instrument),” said Fitri Riyanti, minister counselor for political affairs of the Indonesian Embassy in the Philippines.

But more important, it is time “for advocacy at the national level to press governments to demand progress by the ACMW,” said Robertson.

Such advocacy should be pursued by the ASEAN peoples themselves, human rights advocates say.

Said Fernandez: “I would like to see a very visible, consolidated ASEAN people’s movement (that) will be a force to reckon with.”

(This story and accompanying photos were produced under the “Reporting Development in ASEAN” series of IPS Asia-Pacific, a program supported by the International Development Research Centre.) 


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