BANGKOK DECLARATION ON IRREGULAR MIGRATION

BANGKOK DECLARATION ON IRREGULAR MIGRATION

We. the Ministers and representatives of the Governments of Australia, Bangladesh, Brunei Darussalam, Cambodia, China, Indonesia, Japan, Republic of Korea, Lad DPR, Malaysia, Myanmar, New Zealand, Papua New Guinea, the Philippines, Singapore, Sri Lanka, Thailand, and Vietnam, as well as the Hong Kong Special Administrative Region (hereinafter referred to as "the participating countries and Region"), meeting at the invitation of the Royal Thai Government in Bangkok on 23 April 1999, on the occasion of the International Symposium on Migration, held on 21-23 April 1999, under the chairmanship of H.E. Bhichai Rattakul, Deputy Prime Minister of Thailand, to address the question of international migration, with particular attention to regional cooperation on irregular/undocumented migration:

1. Realizing that international migration is a complex phenomenon which is rooted in human history and is closely associated with social and economic aspirations of each country and region;
2. Recognizing that the process of globalization and liberalization, including the increasing interdependence of economies, has contributed to large flows of people in the Asia-Pacific region, thus providing both opportunity and challenge for governments in the region;
3. Noting that both the supply (push) factor and demand (pull) factor from concerned countries have led to the outflow of migrants from the countries of the region;
4. Being aware that international migration, particularly irregular migration, has increasingly become a major economic, social, humanitarian, political and security concern for a number of countries in the Asia-Pacific region;
5. Noting with concern that the ongoing financial and economic crisis in many Asian countries has led to rising unemployment and other social problems, and has had differing impacts on irregular migrants and on the countries of origin, transit and destination;
6. Noting further that the periodical natural disasters in some Asian countries badly affect their economies and lead to rising unemployment and irregular migration;
7. Gravely concerned by the increasing activities of transnational organized criminal groups and others that profit from smuggling of and trafficking in human beings, especially women and children, without regard to dangerous and inhumane conditions and in flagrant violation of domestic laws and international standards;
8. Underlining that comprehensive, coherent and effective policies on irregular/undocumented migration have to be formulated within the context of a broader regional framework based on a spirit of partnership and common understanding;
9. Noting that over 65 percent of the world’s poorest people live in the Asia-Pacific region, hence poverty and differences in level of development among countries in the region remain important causes of irregular migration;
10. Noting that there is a number of international conventions and instruments dealing with humanitarian issues relating to migration;
11. Respecting the sovereign rights and legitimate interests of each country to safeguard its borders and to develop and implement its own migration/immigration laws, and also recognizing the obligation of the country of origin to accept its nationals back, and the obligation of the countries of transit and destination to provide protection and assistance where appropriate, in accordance with their national laws;
12. Recognizing the important role and contribution of regional consultative mechanism, such as the Asia Pacific Consultations on Refugee, Displaced Persons, and Migrants, and the Manila Process, on issues relating to irregular migration;
13. Noting with appreciation the participation of countries from various regions, United Nations bodies and specialized agencies, intergovernmental organizations, as well as non-governmental organization, in sharing their views and experiences in dealing with migration issues;
14. Noting with appreciation the participation of countries from various regions, United Nations bodies and specialized agencies, intergovernmental organizations, as well as non-governmental organizations, in sharing their views and experiences in dealing with migration issues;
15. Noting also with appreciation the discussion papers prepared by the Institute for Population and Social Research, Mahidol University, and the International Organization for Migration (IOM), which provided useful points of discussion and recommendations for the management of irregular migration;
16. Acknowledging with gratitude the timely initiative of H.E. Dr. Surin Pitsuwan, Minister of Foreign Affairs of Thailand, the dynamic chairmanship of H.E. Bhichai Rattakul, Deputy Prime Minister of Thailand, as well as the excellent arrangements provided by the Royal Thai Government, with the valuable support of the IOM;

Declare as follows:

1. Migration, particularly irregular migration, should be addressed in a comprehensive and balanced manner, considering its causes, manifestations and effects, both positive and negative, in the countries of origin, transit and destination;
2. The orderly management of migration and addressing of irregular migration and trafficking will require the concerted efforts of countries concerned, whether bilaterally, regionally or otherwise, based on sound principles of equality, mutual understanding and respect;
3. Regular migration and irregular migration should not be considered in isolation from each other. In order to achieve the benefits of regular migration and reduce the costs of irregular migration, the capacity of countries to manage movement of people should be enhanced through information sharing and technical and financial assistance. In this context, UNITAR, UNFPA, and IOM, joint sponsors of the International Migration Policy and Law Course (IMPLC), are invited to hold, in the near future, a course for middle to senior government officials from the region;
4. A comprehensive analysis of the social, economic, political and security causes and consequences of irregular migration in the countries of origin, transit and destination should be further developed in order better to understand and manage migration;
5. As the causes of irregular migration are closely related to the issue of development, efforts should be made by the countries concerned to address all relevant factors, with a view to achieving sustained economic growth and sustainable development;
6. Countries of origin, a well as countries of transit and destination, are encouraged to reinforce their efforts to prevent and combat irregular migration by improving their domestic laws and measures, and by promoting educational and information activities for those purposes;
7. Donor countries, international organizations and NGOs are encouraged to continue assistance to developing countries, particularly the least-developed countries, in the region aimed at poverty reduction and social development as one means of reducing irregular migration;
8. The participating countries and region should be encouraged to pass legislation to criminalize smuggling of and trafficking in human beings, especially women and children, in all its forms and purposes, including as sources of cheap labor, and to cooperate as necessary in the prosecution and penalization of all offenders, especially international organized criminal groups;
9. The participating countries and Region should exchange information on migration legislation and procedures for analysis and review, with a view to increasing coordination to effectively combat migrant traffickers;
10. The countries of origin, transit and destination are encouraged to strengthen their channels of dialogue at appropriate levels, with a view to exchanging information and promoting cooperation for resolving the problem of illegal migration and trafficking in human beings;
11. Greater efforts should be made to raise awareness at all levels, including through public information campaigns and advocacy, of the adverse effects of migrant trafficking and related abuse, and of available assistance to victims;
12. Concerned countries, in accordance with their national laws and procedures, should enhance cooperation in ascertaining the identity of undocumented/illegal migrants who seemingly are their citizens, with a view to accelerating their readmission;
13. Timely return of those without right to enter and remain is an important strategy to reduce the attractiveness of trafficking. This can be achieved only through goodwill and full cooperation of countries concerned. Return should be performed in a humane and safe way;
14. Irregular migrants should be granted humanitarian treatment, including appropriate health and other services, while the cases of irregular migration are being handled, according to law. Any unfair treatment toward them should be avoided;
15. The participating countries and Region should each designate and strengthen a national focal point to serve as a mechanism for bilateral, regional and/or multilateral consultations and cooperation on questions of international migration;
16. A feasibility study should be conducted on the need to establish a regional migration arrangement, linked to existing international bodies, to provide technical assistance, capacity building and policy support as well as to serve as an information bank on migration issues for the countries in the Asia-Pacific region. The countries in the region are meanwhile encouraged to utilized and strengthen the already existing bilateral and multilateral arrangements;
17. The participating countries and Region will follow-up on the above mentioned issues of irregular migration at the political and senior official levels in ways which may be deemed appropriate;
18. This documents shall be given the widest publicity and dissemination possible to encourage governments, non-governmental organizations, the private sector and civil society to join in a collective regional effort to alleviate the adverse effects of irregular migration and to prevent and combat trafficking of human beings, especially, women and children.

Bangkok, THAILAND

23 April 1999

Release All Refugees and Asylum Seekers and Immediate Halt to the Operations of RELA (MFA)

Statement: 14th February 2007

Release All Refugees and Asylum Seekers and Immediate Halt to the Operations of RELA

On 28th January 2007, a joint force by 70 RELA (People’s Voluntary Corps) and 30
enforcement personnel of the Sepang Municipal Council (MPS) conducted a raid in
Kampung Sungai Merab, Denkil, resulting in the arrest and detention of more than 170
“undocumented” migrants from predominantly Chin ethnic Burmese group. Those
arrested included 14 with UNHCR recognized status; 7 with Refugee Status
Determination (RSD) letters; and 34 Asylum Seekers.

The raid in which was conducted by both RELA and the enforcement began at 8AM
lasted four hours. The enforcement police then returned again to the area at 2PM for an
additional two hours. It is alleged that tents, clothing and food were burnt to the ground.
Then at 6PM, ten locals came to the areas on motorbikes and destroyed all the
remaining tents which provided shelter to the people.

The MFA network is alarmed and concerned about the Malaysian government’s
continues utilization of untrained civil volunteers, in particular, RELA in its operations
against undocumented migrants in Malaysia. On 18th July 2006, the MFA network
released a statement (http://www.mfasia.org/mfaStatements/mfa_my_07182006.pdf ) against this practice of the Malaysian government which we believe has led to gross human rights violations. In a follow-up statement released by MFA on 2nd November 2006
(http://www.mfasia.org/mfaStatements/Malaysia%20appeal%20November%202006.pdf )MFA urged the Malaysian government to stop the crackdown and criminalization of migrant
workers irrespective of their status. The same statement reiterated the concern over the
Malaysian Government’s crackdown on undocumented migrant workers in Malaysia
since 2002 which has since continued unabatedly. Hundreds of Thousands of
undocumented migrant workers since 2002 have been fleeing the border or hiding from
immigration officials, police officers and RELA.1

Cases of RELA raids and abuse have indicated clearly the gross misuse of power and
highly unprofessional conduct involving theft, extortion of money, corruption and
physical abuse of suspected undocumented immigrants. We also consider such arrests
on refugees and asylum seekers via the conduct of RELA to be a national shame and a
dangerous setback for the promotion and protection of human rights in Malaysia.
As a member of the United Nations and the esteemed Human Rights Council we would
like to remind the Malaysian Government of its responsibility to protect the rights of
migrant workers irrespective of status.

As a member of the ASEAN we further call on Malaysia to adhere to the recent ASEAN
declaration on the protection and promotion of the rights of migrant workers which recognizes the contributions of migrant workers to the society and economy of both receiving and sending states of ASEAN.

The same declaration calls for consideration of humanitarian reasons in dealing with the cases of
undocumented migrant workers. We therefore urge the Malaysian Government to adhere to its
commitment to the ASEAN declaration on the protection and promotion of the rights of migrant
workers.

We welcome the move of the Malaysian Home Affairs Ministry’s to prepare a cabinet paper to get a clear guide on ways to handle refugees protected by the United Nations High Commissioner for Refugees (UNHCR). However, in the process of coming up with the cabinet paper we urge the Malaysian government to involve and consult the UNHCR and civil society organizations that have through the years accumulated experience expertise in developing a humanitarian response to the issues of undocumented migrant workers and asylum seekers.

We further urge the Malaysian Government to recall that in 1989 the international community had adopted a declaration and comprehensive plan of action (CPA) to address the ongoing crisis legal, political and humanitarian created by asylum seekers from Vietnam. The significance of the CPA lay in the potential for the international community’s cooperation on seemingly divisive issues.

The CPA tied in neatly with the mandate of the UNHCR to ensure the protection of refugees and
respond to refugee crisis by promoting durable solutions.2 Recognizing that Malaysia has not
ratified the Convention Relating to the status of Refugees, 1951 and urging it to ratify the said
convention we call on the Malaysian government as a member of ASEAN to respond to the issues of undocumented migrant workers, asylum seekers and refugees keeping in mind the practice established by the CPA in situations of ongoing crisis, legal, political and humanitarian particularly in the situation of Burma.

We further reiterate our calls urging the Malaysian government to:


* Immediately halt mass arrest, detention and deportation of asylum seekers, refugees and
other undocumented migrant and to respect and protect the human rights of migrant
workers and asylum seekers.


Condemn the violent raids conducted by the RELA, express concern over the continued
deployment of RELA in immigration raids and arrest and call on the Malaysian
government to suspend immediately the deployment of RELA in such raids.


Develop a humane immigration policy that adheres to international human rights standards;


Ratify the 1990 UN convention on the protection of the rights of migrant workers and
members of their families


Ratification the ILO conventions 97 and 143


To work with the United Nations High Commissioner for Refugees (UNHCR) and grant it
the fullest cooperation to ensure a fair and proper treatment of refugees

Signed:
The Migrant Forum in Asia
Secretariat Address:
59 B Malumanay St. Teachers Village
Diliman, Quezon City Philippines
Tel no: (632) 4333505
Telefax (632) 4331292
E-mail: mfa@pacific.net.hk
Website: www.mfasia.org

1 The Guardian (http://www.guardian.co.uk/) South Asia correspondent, John Aglionby reported in February 28, 2005 that hundreds of thousands of undocumented migrants were fleeing the border and that the Malaysian Government deployed around 300,000 RELA to help in rounding up undocumented migrants for the crackdown.

2 Ahmed, Syed Rafaad. Forlorn Migrants:An International legal regime for undocumented migrant workers.





Standing Members
Bangladesh Ain O Salish Kendra (ASK); Refugee and Migratory Movements Research Unit (RMMRU); Welfare Association of Repatriated Bangladeshi Employees (WARBE) Association for Community Devlopment (ACD)
India Center for Education and Communication (CEC); Migrant Forum India (MFI) Center for Indian Migrant Studies (CIMS) Migrants Trade Union - India
Nepal All Nepal’s Women Association (ANWA); Women Rehabilitation Center (WOREC) Sri Lanka Action Network for Migrant Workers (ACTFORM); Migrant Services Centre (MSC); Women and Media Collective (WMC)
Burma Federation of Trade Unions – Burma (FTUB)
Indonesia Center for Indonesian Migrant Workers (CIMW); Jarnas Pekabumi; KOPBUMI; Migrant Care; Solidaritas Perempuan; Serikat Buruh Migran Indonesia (SBMI)
Malaysia Charles Hector & Co.; Tenaganita
Philippines Batis Center for Women; Center for Migrants Advocacy (CMA-Phils); Kapisanan ng mga Kamag-anakan ng Migranteng Mangagawang Pilipino(KAKAMMPI); Kanlungan Center Foundation, Inc. (KCFI); Unlad Kabayan Migrants Services Foundation, Inc. ATIKHA
Singapore St. Francis Workers Centre (SFWC)
Hong Kong Asian Migrant Centre (AMC); Coalition for Migrants Rights (CMR); Indonesian Migrant Workers Union (IMWU)
Japan Solidarity for Migrants – Japan (SMJ)
Korea Joint Committee for Migrant Workers in Korea (JCMK)
Taiwan Hope Workers Center (HWC)
Mongolia Center for Human Rights and Development (CHRD)

Demands for the Protection of Migrant Workers’ Rights by the Thai Labour Solidarity Committee (TLSC)

Demands for the Protection of Migrant Workers’ Rights

on the Occasion of

International Migrant Workers’ Day

December 18, 2006

Submitted by

the Thai Labour Solidarity Committee (TLSC)

On December 18, B.E.2549 (2006), the Thai Labour Solidarity Committee (TLSD) organized a campaign march to Government House and the Ministry of Labour to mark International Labour Day. On this occasion, TLSC representatives and allies formally urged the Thai government to extend its protection to migrant workers in a more serious manner with the following core content:

Currently, most migrant workers in Thailand are from three neighbouring countries; Myanmar, Laos and Cambodia. In general, they work as labourers or in labour-intensive work, constituting a workforce that is the most neglected, exploited and denied adequate access to labour protection, social welfare and minimum benefits.

In most cases, these migrant workers have faced many pressing problems, including:

- No clear legal status.

- Lack of basic knowledge of labour laws.

- Cheating on wages (even when earning below the minimum wage).

- Working longer hours than regular workers.

- Very limited or no legal access to health care and services.

This situation clearly indicates how most migrant workers have been treated, with subsequent impacts on Thai society as a whole. In fact, these workers are fully entitled to basic minimum rights, which should have been duly accorded to them, as human beings and workers. One of the main causes of their suffering is their lack of awareness of their rights as workers under the law. At the same time, legal mechanisms for the protection of migrant workers are not in place, or not easily accessible, due to the language barrier between officials and migrant workers, their inadequately defined legal status, and practices without due regard to their basic rights as migrant workers. In addition, the failure to organize collectively to gain a stronger bargaining position within the framework of labour relations is also a big obstacle to them gaining due recognition. On top of this, they are also faced with a rather negative attitude towards them in Thai society at large. With all these odds against them, migrant workers in Thailand have inevitably been subject to inhumane exploitation with various violations of workers’ rights. This grave situation is likely to worsen if nothing is done to deal with the problems.

1. Current Problems and Issues on Migrant Workers

1. Problems in registering migrant workers and work permit applications are urgent. Despite some earnest attempts by the Thai government to address this issue, by a policy of registering all migrant workers for a number of years now, the competent agency faces a decreasing number of migrant workers seeking extensions for their work permits. The obvious problems are listed below:

· Migrant workers are not adequately informed of their rights and obligations regarding registration, since the targets of information or public relations provided by government agency are mostly employers. Even when information is provided, the materials are all published in the Thai language, while very little information is disseminated in the languages of the migrant workers.

· Migrant workers have found the registration process too complicated and the timeframe too short, resulting in poor or incomplete understanding of the procedures by both migrant workers and employers, and failures to register in time.

· Some migrant workers change their place of employment or employers without properly informing the authorities or officially changing their employment status data. This is basically due to the common practice of employers holding vital documents and work permits. Very often employers themselves do not bother to inform competent officials about changes. The situation becomes more confused when different officials or employment offices adopt different procedures or practices. Subsequently, properly registered migrant workers find it confusing and are unable to extend their work permits.

· A high rate of turnover is found in many enterprises, while the policy on registration of migrant workers is too rigid and not adaptable to such rates of turnover. Thus, many migrant workers are not able to register changes, resulting in illegal hiring practices.

· Migrant workers have to shoulder high costs or expenses in Thailand, being compelled to pay all the expense incurred in employment, which are deducted from their monthly wages by the employer.

2. Problems in the Hiring Process and Welfare System.

· Migrant workers often do not enjoy the legal minimum wage, overtime pay, working hours and working conditions as regulated by labour laws. Many of them are forced to work more than 8 hours a day but earn less than the legal minimum wage and without overtime pay.

· Many employers have adopted the practice of seizing worker permits or any other form of identification of migrant workers in their employ, as a form of guarantee or security. This situation has placed migrant workers in difficult situations, if they are arrested outside the workplace or try to access public health services.

· Migrant workers are often subject to various forms of abuse; physical, emotional, psychological, and even sexual, with the confines of the workplace, but they are not in any position to seek redress or access to labour protection mechanisms.

· It is often difficult for migrant workers to change their employer or workplace due to complicated legal procedures and/or bureaucratic processes. With no employment choices, they are forced to toil for one employer, regardless of exploitation or inhumane working conditions. The alternative is to find employment elsewhere, although it is illegal and there is no access to labour protection.

· Migrant workers are not able to organize their own labour unions, to address their pressing problems and issues and to conduct effective and formal negotiations with employers, due to limits in the legal framework.

· Migrant workers are almost always subject to automatic pay deductions, presumably for all sorts of questionable reasons, welfare, tools, protective gears, etc. without any means to complain or to refuse such systematic exploitation.

3. Labour Rights Protection and the Justice System

· Based on current complaint procedures for labour rights protection under the relevant labour laws, migrant workers have limited access, due to complicated communication channels and skills, language barriers and, most importantly, prevailing prejudices and negative attitudes towards migrant workers.

· The current labour protection process consumes too much time, whilst the deportation process is quick. By law, migrant workers are given only one (1) week to exercise their right to change jobs or to be hired by a new employer. This situation inevitably creates more and more labour disputes. Meanwhile, migrant workers are often deported promptly without enough time or opportunity to access to any labour protection mechanism available under labour laws.

· The current Labour Court system does not provide qualified interpreters to assist migrant workers, denying them a fair chance to a fair trial when accused of violations of the labour law.

4. Policy and Nationality Verification Process for Migrant Workers.

· Current, there is no clear long-term policy on migrant workers and no Master Plan for dealing with the issue. Whatever policy being implemented now is not very relevant to the influx of migrant workers from neighbouring countries.

· Policies adopted and implemented so far by the Government still lack a dimension on labour rights protection for migrant workers, because greater emphasis is placed on issued of national security and the demand for cheap migrant labour, resulting in an obvious lack of well-defined, properly formulated guidelines for effective labour protection. Such practical guidelines have never materialized.

· At the policy level, there has been no serious attempt to legalize migrant workers by having efficient mechanism to verify their nationality or country of origin, etc. Migrant workers, particularly from Myanmar, face rather complicated problems, with various minority groups waging independence struggles. Political factors and contradictions have contributed to the complexity of the issue.

· Another clear drawback is the fact that policies affecting migrant workers have been formulated and adopted without adequate participation from all concerned groups and organizations, genuinely representing the voices of migrant workers as well as Thai workers.

5. Occupational Health and Safety

· From the start, most migrant workers have been hired to work in the most oppressive and hazardous conditions, resulting in increasing cases of undocumented or unreported injuries, deaths and chronic health conditions.

6. Housing and Accommodation

· A pressing problem faced by migrant workers is the need for adequate housing and accommodation. Migrant workers do not have real choices of work to begin with, and they inevitably end up in substandard living quarters. In some cases, National Security officials have viewed this situation as a question of policy, where workers are to be confined to the compound of their workplace, making the situation worse because their movements are restricted under the strict control, or at the mercy, of their employer. It creates more pressure on migrant workers, making particularly young female migrant workers vulnerable as targets for sexual abuse or physical violence.

Recommendations on “Registration of Migrant Workers”.

1. Any policy on the registration of migrant workers must be relevant to the actual situation and conditions where they work and live. Thus, it is recommended that registration should be open throughout the year, to be responsive to changes of employment and workplace, and the increasing demand for migrant workers.

2. Concerned government agencies, i.e., Employment Offices under the the Ministry of Labour, should serve as a go-between between employers and employees (in the form of Recruitment Centres for Migrant Workers). Under this arrangement, migrant workers can register directly with the Employment Office and proper employment contracts can be negotiated and concluded at the Employment Offices. This proposal is intended to fill the gap (or loophole) where employers are currently required to take employees to report and to register legally. Under these circumstances, migrant workers are at the mercy of the employers, depending on them to take them to report, and register. They had no choice but to comply with whatever their employers say and do.

Once employers manage to avoid registration, migrant workers then become virtually a piece of property. This proposed new system can also do away with the lucrative system of labour recruitment agents, a deep-rooted corrupt practice in the local labour market, where migrant workers are especially easy victims.

3. Abolition of the guarantee or collateral system is intended to undermine the bargaining position of migrant workers, their access to labour protection mechanisms and their human dignity, simply because it grants employers a discretionary controlling power over migrant workers, rendering them powerless subjects under the complete control of the employer.

4. The expenses incurred in applying for a working permit shall be revised so that employers shall be responsible for them, thus doing away with the prevalent unfair deductions from the wages of migrant workers.

5. Any relevant documents or materials produced for dissemination among migrant workers should be in foreign languages, to ensure that they can properly and accurately understand the content and the requirements for applying for work permits or for proper registration. In addition, qualified interpreters/translators shall be arranged to provide migrant workers necessary consultation or adequate assistance.

Recommendations on Hiring Practices and Processes and Welfare/Fringe Benefits

1. There must be efficient labour protection mechanisms in accordance with labour laws, to which migrant workers can have easy access, i.e., production and distribution of a Handbook on Labour Rights and Access to Complaint Mechanisms, and assignment of qualified interpreters/translators for migrant workers to the Office of Labour Protection.

2. Genuine efforts must be made to facilitate the participation of all concerned parties to safeguard and protect labour rights, including representatives of workers’ communities, migrant workers, labour-related NGOs and government agencies. One proposal may take the form of volunteers recruited to promote and safeguard labour rights in target areas or communities.

3. Clearly defined punitive measures must be introduced and enforced against the prevalent practice of employers seizing or confiscating the ID cards of migrant workers as collateral or guarantee.

4. There must be a new social security system appropriate for providing due protection for migrant workers.

5. The current Labour Relations Act should be amended to allow migrant workers to organize legally and form their own labour unions.

6. Migrant workers should be permitted to change employers if there is justifiable cause. If they are unjustly dismissed, they should be given a minimum period of one (1) month to seek new employment or a new employer, based on the current actual labour situation.

Recommendations on Labour Rights Protection Procedures and the Justice System

1. There should be appropriate mechanisms for migrant workers to file formal complaints or to voice grievances as part and parcel of safeguarding the rights of migrant workers under labour laws. For example, qualified interpreters/translators must be provided throughout complaint procedures, starting from filing a formal complaint to proceedings in labour courts. In addition, translated materials shall be made available to migrant workers to foster accurate and adequate understanding of processes and procedures. Once a complaint is filed, there must also be an effective mechanism to protect workers, so that they are not subject to untoward harassment or unfair dismissal during the complaint process.

2. In labour disputes and dispute-related dismissals or termination of employment, migrant workers should be given temporary permission to stay in the country pending a labour dispute ruling. Also when seeking a new employer, migrant workers should be granted adequate time to comply with the required complaint procedures as well as labour protection mechanisms.

3. A prompt and systematic investigation or review of any case of possible deportation of migrant workers shall be introduced and put into practice. A migrant worker should be able to provide facts and figures on pending wages, compensation or any benefit due to them or information on other outstanding matters. This mechanism shall be designed and implemented to prevent any untoward practice of avoiding payment due to migrant workers.

Recommendations on Policy

1. A long-term Master Plan shall be formulated and introduced by soliciting meaningful participation from all concerned quarters, to establish a set of clear guidelines for a long-term view of the issues.

2. There must be clearly defined policies and practices designed to provide protection for migrant workers, as a platform to generate concrete and effective labour protection.

3. Procedures to verify the identity and nationality of migrant workers, especially those from Myanmar, with due consideration for all the factors involved, i.e., the political situation and conditions in the country of origin, etc, should be subject to a prompt and systematic review the devise the most appropriate ways and means to address the issue.

4. To ensure that the certification of the status of migrant workers is based properly on international agreements allowing migrant workers to work legally in the country, a specially mandated Working Group should be established with fair representation from migrant workers from Burma, Laos and Cambodia, the Thai labour movement, labour-related organizations and migrant worker support groups, and government agencies. An effective proposal for verifying the nationality of migrant workers and endorsing their legal status should be formulated.

5. Serious and systematic attempts shall be made to generate meaningful participation by labour representatives, labour organizations and other concerned parties in formulating policy at all levels, i.e., Thai trade unionists, migrant worker representatives, working actively together as an authorized or mandated Committee dealing with migrant workers at all levels. This is to ensure that any policy adopted would reflect various perspectives and be most relevant to the real situations.

6. The government shall promptly revoke the Cabinet Resolution adopted on August B.E. 2542 (1999) on the repatriation or deportation of migrant woman workers to their countries of origin. In the case of pregnant migrant workers, such inhumane treatment clearly constitutes a violation of workers’ rights and discrimination due to their pregnancy.

Recommendations on Standard Practices for Occupational Health and Safety (OHS) at the Workplace

For over 2 decades, Thailand has raised concerns about high risk, unhealthy and hazardous working conditions. It is now time for Thailand to get serious in addressing these problems. OHS practice needs to be upgraded and standards raised, while competent government agencies shall demonstrate their political commitment by facilitating conditions to give the Thai labour movement and migrant workers the opportunities and fora for exchange of ideas and concerns, aiming at raising the standards and practice of OHS in the workplace.

Recommendation on the Rights to Adequate Accommodations

In principle, appropriate living quarters or adequate accommodation must be arranged or provided for migrant workers, especially in areas benefiting from the economic and social development to which migrant labour contributes both directly and indirectly. Measures must be initiated and taken to ensure that are adequate accommodation is arranged for migrant workers in their communities.

Recommendation on the Right to Work of Refugees.

Currently, many refugees from Shan State in Burma are in urgent need of humanitarian assistance from concerned organizations and agencies, both local and international. The pressing issue is that they are being targeted for involuntary repatriation, to face cruel treatment from the military junta. The immediate point of concern is that Shan refugees, especially women, should on humanitarian grounds be allowed to work in Thailand for their survival.

Right to collective bargaining for migrant workers

Thailand should respect, promote, and realize fundamental principles and rights at work; namely freedom of association and the effective recognition of the right to organize and bargain collectively by amending LRA 1975 to allow non-Thai workers to form trade unions and serve as committee or sub-committee members of trade unions.

Lost in immigration (Malaysiakini)

Lost in immigration

Salbiah Ahmad Feb 8, 07 11:37am

[ SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o­n the process of reclaiming the many facets of independence.] Home Minister Radzi Sheikh Ahmad should be commended for his ministry's attempt to develop guidelines to "handle refugees protected by the United Nations High Commissioner for Refugees (UNHCR)". (Bernama, Feb 1) This is quite a leap from his predecessor's relationship with this UN body. Azmi Khalid, the former home minister, had accused the UNHCR in March 2005 of "helping illegal migrants" by granting refugee status to too many immigrants to escape the crackdown, Operation Tegas. (AP, Mar 4, 2005). This was refuted by UNHCR spokesperson Ron Redmond. However, the explanation for the ministry's guidelines is a cause of some concern. Radzi was quoted in Bernama as saying, "When we arrest them (refugees) the UNHCR will come and say they are under it's care. We don't recognise the UNHCR's action but on humanitarian grounds, we release them." "We do not recognise and accept the UNHCR-hosted refugees." It would seem that the home minister has no qualms at all in refusing recognition to the protection work of the UNHCR. Thus the handling of refugees in the proposed guidelines may for all intents and purposes, be a reversal of all the processes and protocols painstakingly developed by the UNHCR in Kuala Lumpur for refugee protection. The fact that Malaysia has not ratified the 1951 Refugee Convention is no longer a good reason as there is a growing body of human rights standards that the state no longer has an absolute right to turn individuals away from its borders. Malaysia in good faith and in protection of her international image as a member of the UN had hosted the UNHCR in Kuala Lumpur. And now, Malaysia is turning its back on all that, by undermining the UNHCR and its work with relevant authorities, human rights groups and the judiciary in Malaysia. Acting illegally At present, Malaysia is treating refugees under its immigration laws. There is nothing in this law on refugee protection as this law did not conceive of this category of people at the time of its making. When such is the case, then the use of such a law over refugees, is not legitimate and is unconscionable. As a matter of argument, it can be said that the home minister has acted illegally by using this law over refugees. Under the immigration law, "illegals" can be jailed up to five years, face a RM10,000 fine and six strokes of caning. About 18,000 "illegals" were whipped in 2003. The terms, "illegal migrant", "illegal immigrant" are problematic because they criminalise the person. Using these terms have the effect of pre-judging the person's status. When a person is forced to flee from persecution, international humanitarian law recognizes that they may need to enter a country without authorization. It would thus be misleading to describe them as "illegals". A person may also be brought into the country through trafficking, in which case such a person should be recognized as a victim of a crime and not a wrong-doer. Refugees here face a terrible humanitarian situation. They are not afforded refugee status, where they can receive protection under the Convention rules. This includes the right of work. The UNHCR and Malaysian human rights campaigners had welcomed the ministry's proposal to allow refugees to work. In Feb 2005, the former home minister announced that the refugee community of Rohingyas (recognised as refugees), would be permitted to work. That experiment was abandoned due to glitches but that proposal was not reviewed for this refugee community nor for any other refugee community in Malaysia since then. Humanitarian disaster We have a humanitarian disaster where refugees cannot work and then persecuted when they do work as they need to, to keep body and soul together. In keeping refugees in a limbo, we are implicated in the humanitarian problem that we may have inadvertently set for them on our shores. According to UNHCR sources, the number of migrants in the world has reached an estimated 200 million. The important distinctions between migrants, asylum seekers and refugees have been blurred. With it has come a growing degree of "asylum fatigue" which has threatened refugee protection. Control policies should distinguish between migrants seeking better economic opportunities and those people who are in need of international refugee protection. Our present laws and policies are incoherent. Asylum seekers are not portrayed as refugees fleeing persecution and entitled to sanctuary. It is often overlooked that asylum seekers and refugees comprise only a small proportion of the tens of thousands of international migrants. It is with stronger reason that we need to safeguard the principle of asylum when we blur or confuse categories and distinctions. Our control policies should recognise refugee protection which has also a history in the idea of safe passage or aman in the Islamic Law of Nations (precursor of a public international law). It should establish a status determination process for people fleeing human rights abuses. It should follow internationally accepted principles of non-refoulement. It should provide for humanitarian assistance to refugees in Malaysia. The ministry should work closely with the UNHCR. The UNHCR has invaluable experience over issues of protection both under the 1951 Convention and outside of that. It has more than half a century of protection work. It does seem rather silly to ignore that body of work. We can and must learn from the UNHCR in developing the proposed guidelines.

A good man he may be, a good leader he's not

A good man he may be, a good leader he's not

Charles Hector Feb 6, 07 6:32pm

It is shocking how Abdullah Ahmad Badawi and the government of the day continue to keep ‘secrets’ from the people, your ‘bosses’. Responses like ‘we know what’s best’ when confronted with these concerns, no longer appeases the oppressed rakyat of Malaysia. Let us not forget that we are the rakyat and you are our elected representatives, elected to govern the nation on our behalf in a manner that will serve the best interest of all the rakyat. This governing must be done in an open transparent and accountable manner. In fact all agreements, be it the highway building and toll agreements, the water agreements and all privatisation agreements must be made available to the rakyat. It should at the very least be available on the respective government websites for all to access and see. Our government has also signed many memorandum of understanding and other treaties - and again they are not available for the concerned rakyat to peruse and be aware of our nation’s current obligations. Once elected, our government behaves as though the rakyat has given them a ‘blank check’ to do anything and whatever it likes without the necessary obligation of transparency and accountability to the rakyat. Sadder still, is when these documents/agreements get revealed to the rakyat, the government goes after those who have revealed it. As a nation, we are almost 50 years old and our government still treats the ‘rakyat’ like little children. We, the rakyat, are adults with intelligence and maturity, and we want to know everything the government has done (or is going to do) on our behalf - no more hiding things from the rakyat. The time came long ago for greater transparency and accountability by our government. The time has also come now for the immediate repeal of the Official Secrets Act, and the introduction of a Freedom of Information Act. Acknowledging that there may be military and police matters that may still have to be kept secret for security purposes but surely not all these privatisation agreements, MOUs and other treaties. The deputy minister in the Prime Minister's Department Abdul Rahman Suliman, in Parliament, recently revealed that since 1983 when the privatisation scheme was launched, 490 projects had been privatised. We have not seen the list of what these 490 privatised projects are and who got it, let alone have seen these relevant agreements. Does the government still have full control of the companies that got these privatised projects with regard to policy and priorities? Are these companies still wholly Malaysian, or have they been taken over by foreigners? In December 2006, in the Dewan Rakyat, it was also revealed that the government spent more than RM11 billion in taxpayers' money to bail out failed privatisation projects. Of this RM11 billion, it was reported that RM3.256 billion was for Star LRT, RM4.486 billion for Putra LRT. Now, apparently these two projects is under a new company, one Syarikat Prasarana Negara Bhd. This RM11billion was also utilised for the following purpose: RM2.802 billion for Malaysia Airlines System Bhd RM142 million for Seremban-Port Dickson Highway by Projek Lebuhraya Utara Selatan Bhd. RM135 million for Bandar Kuching Prison with the Public Works Department taking over from a private company. RM192.54 million for the National Sewerage Scheme from its previous concessionaire, Indah Water Konsortium. RM8.3 million for the Muslim Food and Consumer Goods Research Unit, which now comes under the Malaysian Islamic Development Department (Jakim). We, the rakyat, do not want to just be informed about how much of our money has been paid out to certain companies - those that had been awarded privatised projects before. We want to know what happened, and why is the government now paying out monies to ‘privatised’ projects and companies that were awarded these privatised projects. The government, in the person of the prime minister and his cabinet, should be made accountable and responsible for the bad choices and the bad agreements they made which now costing the rakyat money. They should be made liable for the rakyat’s money that has now been used to bail out some of these projects and companies. We want to also know whether the directors and these companies are being penalised for their failures. I believe that it is most likely that some of the directors and shareholders of these affected companies have long ago made their money from these projects. They have probably managed these projects badly, knowing always that at the end of the day the government will happily inject more funds, if need be. The very idea of injecting rakyat’s money into projects already privatised goes against the whole object and notion of privatisation. It is sad that the government so easily spent RM11 billion on these already privatised projects that have failed, but when it comes to things that benefit all rakyat like petrol costs, toll charges, water and electrical rates, to name a few, the government seems not so bothered about increasing prices resulting in the increased suffering of the rakyat. This RM11 billion would have been better used to keep petrol, water and electrical charges low. Now, when the suffering rakyat protest these hikes in prices, our government comes down hard with the police, water cannon and make arrests. At one time, many Malaysians believed that when Abdullah became our new premier after the 22-year reign of Dr Mahathir Mohamad, things would get better. But alas our new prime minister has just been continuously increasing the burdens and sufferings of the rakyat as time goes by. A good man he may have been but obviously the task of governing the nation for the benefit of the rakyat seems to be beyond him. Many now feel that it maybe time for our prime minister, our deputy prime minister, our works minister and all those other members of the cabinet who are responsible for those ‘failing privatised projects’ and the increase of charges/rates should just honourably step down. The prime minister should resign, and maybe the Yang Di-Pertuan Agong should just appoint some member of parliament and/or senator, whose name has not been linked to any scandals or ‘allegation of corruption’ and someone who is not in the present cabinet as our new prime minister. This new prime minister must then appoint a totally new cabinet, and maybe then Malaysia and the rakyat may be able to come out from this mess that Malaysia is in now. If this not happen, maybe we should all seriously consider voting out the Barisan Nasional in our upcoming general elections. Looking at the state of the nation, after 50 years of Barisan Nasional (before that the Alliance), under the leadership of Umno, MCA and MIC, maybe it may not be too bad an idea for us to consider a change. An alternative government cannot do any worse that the present government - and perhaps it may even be able to bring Malaysia out of this rut we are in today.

Bar Council: Managing the refugee issue

PRESS RELEASE: Managing the refugee issue

• M'sia urged to work with UNHCR Refugees, like migrant workers, are an international phenomenon that all nations who cherish peace and uphold humanitarian principles must accept and manage. Refuge, like most forms of migration, is an age-old human condition necessitated by hostile environments created often by societies and regimes. It is not difficult to appreciate that a person would not travel hundreds or thousands of miles from home, to live or work in a strange land under difficult conditions, unless there exists the most compelling reasons to take that tough decision. Yet, refugees and migrant workers are often seen as troublemakers, or even criminals or persons who create social problems for their host. This is largely the result of the lack of empathy. Malaysian society must reflect more deeply on these issues. Genuine refugees, like genuine migrant workers, are merely people less fortunate than us, and not less worthy. They deserve compassion, not scorn. It is not denied that, if not properly managed, refugees and migrant workers can cause social and other problems to their host country. Hence, fair and efficient management is important. Proper management must include having full regard to humanitarian concerns as well as international law and conventions. The Government has recently expressed the view that the office of the UNHCR gets in the way of enforcement agencies, namely the Immigration Department and RELA, in the performance of their duties. The Bar Council is concerned that the Government is forming this view. It should not, and need not, be so. When properly understood, the role of the UNHCR in the management of refugees and asylum-seekers is a crucial one, in any country. The UNHCR applies a set of internationally accepted guidelines for status determination. It does not rubber stamp applications for refugee status. It in fact assists the host country in separating genuine refugees from other categories of undocumented persons, which would be in the interest of the security of the country. Thus, we urge the Government to fully appreciate the indispensable functions of the UNHCR, and to grant them the fullest cooperation so that there will be fair and proper management of the refugee issue. More, not less, cooperation will benefit all parties and the nation as a whole. Cooperation will achieve its maximum benefit when the respective roles of the parties concerned are mutually appreciated and respected. Towards this end, we further urge the Government to increase constructive dialogue with the UNHCR and other stakeholders, including NGOs and the Bar Council. The principle of non-refoulement, which prohibits the return of refugees and asylum-seekers to their countries of origin, is a principle of international law that stands quite apart from the 1951 Refugee Convention. Malaysia is bound by this principle of international law, notwithstanding that she has yet to sign the 1951 Refugee Convention (which she has been repeatedly urged by the Bar Council to do). Malaysia must continue to recognize the refugee status issued by the UNHCR. A coordinated approach with the UNHCR is the best way forward in responding to the issues of refugees and asylum seekers. Dated 5 February, 2007 Yeo Yang Poh Chairman Bar Council

Bar Council :The rights of the ordinary man

PRESS RELEASE: The rights of the ordinary man

If good and proper governance is meant for the benefit of the governed, then the rights of the ordinary man must be fully respected, not just by words, but also by deeds. Political power, then, must be a constructive tool constantly checked by, and subjected to, the highest degree of scrutiny; instead of an oppressive weapon for the protection of the powerful at the expense of the not. If the above statement of principle is undisputed, as it should be indisputable, then what reasonable justification can there be for a toll concession agreement between the Government and a company to be classified as a secret document that must be hidden from the public? Did the Government not enter into such a contract for the benefit of the people, and for the public good? If a document was prepared and made for the public good, what good is it to the public if its contents are so private and secretive? Worse still, it now appears that the possession by an ordinary man of the knowledge of the contents of such a document may be considered a crime. Can that be right, when he is supposed to be the beneficiary of the agreement, which was executed on his behalf by the Government as his trustee? These are some of the important and legitimate questions, which the Government has so far answered not with reasoning but with the threat of punishment. This surely does not sit with our vision of transparency and accountability. The ordinary man, in this case, surely has the right to know. Just as a taxpayer has the right to know how tax monies are utilized, a toll-payer has the right to know how tolls are from time to time imposed or increased under an agreement that governs it. One difference between an authoritarian regime and a democratic government is that, in the latter, it is unacceptable for the authority to simply stipulate a document as secret, and then expect that no questions can be asked of it, or of why it should be so. That cannot be a proper use of the provisions of the Official Secrets Act (leaving aside for the time being the question of whether or not the Act itself as it stands is repugnant in a true democracy). There must be strong and cogent reasons, and a definite link to security issues, before any document may be classified as an official secret. Security reasons here clearly refer to the security of the nation, and not to any desire to enable certain individuals to feel continually secure. It is certainly not too late for the Government to reconsider the matter, which we strongly urge it to do. Investigation and action should be immediately dropped against those who supplied or received the toll concession agreement. On the contrary, the agreement should be made public. Let the truth be known. If all is well with the agreement, the public will understand and support it. If errors were made and some parts of the agreement are not truly in the public interest, the errors should nevertheless be disclosed, and remedial action should be taken as far as possible. An error will become a huge mistake when it is sought to be concealed. Asking the wrong questions, and barking up the wrong tree, will yield the wrong answers and bear the wrong fruit. That is a recipe for disaster in any society. Malaysia must not go down that road. Dated 3 February, 2007 Yeo Yang Poh Chairman Bar Council