....... “I will continue as long as I have breath. It is my life, my belief and my faith. It’s in the empowerment of the people, especially women, workers and children, that gives me the meaning and strength to live”
Friday, July 29 2005
JULY 27 marked the 10th anniversary of the release of the Abuse, Torture and Dehumanised Treatment of Migrant Workers at the Detention Camps memorandum by IRENE FERNANDEZ
, co-founder and director of Tenaganita.
Despite all this, she continues to speak up for the rights of migrant workers. In this interview with CINDY THAM, she talks about her Nobel Peace Prize nomination
JULY 27 marked the 10th anniversary of the release of the Abuse, Torture and Dehumanised Treatment of Migrant Workers at the Detention Camps memorandum by IRENE FERNANDEZ, co-founder and director of Tenaganita. Fernandez paid a high price for speaking out on behalf of those who could not. She was found guilty in 2003 of "maliciously publishing false news" under Section 8A (1) of the Printing Presses and Publications Act 1984. The appeal is pending. Fernandez, 59, who is also deputy chief of the women's wing and supreme council member of Parti Keadilan Rakyat, could not run in the 2004 general election. In the meantime, her passport has been impounded by the court, restricting her travel overseas. Despite all this, she continues to speak up for the rights of migrant workers. In this interview with CINDY THAM, she talks about her Nobel Peace Prize nomination [Fernandez is one of two Malaysian nominees, the other being Zainah Anwar of Sisters in Islam, nominated for the 1,000 Women for the Nobel Peace Prize this year], the rights of migrant workers and what needs to be done to ensure those rights are protected. First of all, congratulations on being nominated for the Nobel Peace Prize.
Fernandez: Thank you. You've been working on human rights for marginalised communities like plantation and migrant workers since Tenaganita was formed in 1991. How do you feel about this international recognition after so many years?
(Chuckles) Well, I'm happy. I'm happy because it's recognition of the organisation and its commitment to the marginalised communities. And I think that recognition from the international community is really very important to forward the struggle of the voiceless. It's bringing to the fore the faces of the communities we work with. And in that respect, I'm very happy.
The second aspect is it is a nomination through a very different process. This is by a number of people who see that there are very few women receiving the Nobel Peace Prize. And so, they wanted to bring to the world's attention the immense contribution of women in bringing about peace and in conflict resolution, globally. And so, for the last three years, they actually launched a process to identify 1,000 women. It's a collective approach. Women - we always think in a collective way, we always think of family, we always think of community, we always think of sustaining life, more than men (chuckles). This is going to make a big difference to the Nobel Peace Prize.
How did you get nominated? Was it by someone or an organisation in Malaysia?
Well, I don't really know how I got nominated - I got an SMS message congratulating me. And then I said, "Are you, er, kidding?" And the person said, "Read theSun newspaper!" (Laughs) That was when I found out! So you have no clue who nominated you?
No, but I have heard it's international, the nomination. How and where does Tenaganita get its support? How many members does it have and who are they mainly?
Tenaganita relies on donors and well-wishers for support. Our main source of support comes from the Dutch government through our programme on migration and HIV/AIDS. We also get support from other regional organisations for joint programmes, and individual donations within Malaysia. Sadly, Malaysians still have a very welfare mentality in their generosity of giving; Malaysians still do not see the importance of contributing to development or human rights work that ensure the dignity of people. Unfortunately, the propaganda by the state has created a perception that if one criticises the state/government or asserts one's right, then you are anti-government. In fact, all that we are is pro-people.
We are registered as a company for the legal framework. We are a non-profit organisation. Therefore, we do not have the normal [type of] membership. But we have a large number of subscriber members for our programmes and information publications from plantation workers, migrant workers and our network partners, nationally and regionally. We have over 1,000 volunteers, [ranging] from the grassroots to middle-class people. Since it was formed, Tenaganita has worked with various groups and has been a strong voice on migrant workers' rights. How many migrant workers are there in Malaysia today compared with, say, 10, 20, years ago? What contributed to this growing phenomenon and what are some perceivable trends?
Before the 1990s, there was a very small group actually, mainly from Indonesia and to some extent, the beginning of domestic workers [coming] from the Philippines. So it was only a few hundred thousand. And in the last 15 years, it has increased tremendously to three million migrant workers in the country. It's a very significant number. And that's why we find them everywhere. And this is part of the "tiger economy" that we are in. We are one of the five "tigers" in Asia. Malaysia has had a very rapid industrialisation and urbanisation programme. We have the privilege of having resources like oil, palm oil, timber, and this has really boosted the economy. And with our small population and the labour resources available to us, we've not been able to cope with this form of industrialisation. Therefore, one way we sustained or achieved this rapid economic growth was through the recruitment of migrant workers.
The second factor is Malaysia is also one of the countries that promoted equal opportunity for women. In that context, it motivated a lot of women to enter the job market. But unfortunately, while we have this equal opportunity to work, we didn't create the same equal opportunity for men. There was a vacuum in taking care of the household, in taking care of the children. And that's why we recruited domestic workers. So today, we have more than 300,000 domestic workers in the country. We've grown from recruiting migrant workers from Indonesia and the Philippines to recruiting from a wider range of sources?
Yes. Twelve countries. It's really too large. Because, then, you'll have this immense diversity of people with different languages, different cultures, coming into the country. I know diversity is the spice of life but I think when it comes to labour migration, it can create a lot of problems, in terms of misunderstanding at the workplace ? in terms of providing facilities like interpreters if they get arrested and brought to court. It also increases our [responsibility] in ensuring there is a fair deal for them while [they are] in the country. The other countries [which are sources of recruitment] are Cambodia, Vietnam, Bangladesh, Sri Lanka, India, Pakistan?
It's getting very wide. How have migrant workers contributed to Malaysia's economy and society? I mean, they're not just contributing to the workforce but they have also blended into local society in some ways?
If you look at the sectors migrant workers are in " the construction sector, plantation and agriculture sector, the small and medium-sized factories, services like domestic workers, cleaners, restaurant workers" you'll find that they are really in the semi-skilled and unskilled workforce. They're also in what we call the three Ds: the dirty, demanding and dangerous jobs. I believe the [Petronas] Twin Towers, the KLIA [Kuala Lumpur International Airport], Putrajaya, all these would not be reality if not for the hard work and endurance of migrant workers. I think the KLIA had about 32,000 migrant workers during its construction period. Because, at that time, the prime minister [Tun Dr Mahathir Mohamad] also wanted it to be ready very quickly. If you want things done fast, you need people who are willing to work round the clock. And who?d work round the clock if not migrant workers, who are away from their families, [and are] single. And so that's why they have truly significantly contributed [to Malaysia?s development].
Putrajaya would not be what it is today if not for migrant workers. Our highways were built by migrant workers. The whole construction industry has actually created a heavy dependency on migrant workers. And if you look at Ops Nyah and Ops Tegas, the migrant workers did not return as expected [after the operations and] the construction industry came to a standstill. The plantation industry also. The implication is very great for the plantation industry because palm-oil harvesting cannot wait. Within four days, you have signs of the fruit dropping. You have to harvest it. If not, the quality drops and that's the end.
On the other hand, there has been a lot of hype: Why can't our locals do the job? Are local workers choosy? But I think we should also see the trends in employment within the context of globalisation and privatisation and their impact on employment. Previously, those who cleared the rubbish belonged to the industrial and manual group. They were part of quasi-government employment and they had a lot of benefits like housing loans and medical benefits. Now, with privatisation, all these benefits are gone. So, they would rather go and work on contract, earning a clear amount of money every day? although it is kais pagi makan pagi, kais petang makan petang [living from hand to mouth]. It has been reported that illegal migrant workers are seen as a national security issue.
But you cannot really differentiate. How do you differentiate legal and illegal? They are migrants. You look at all those working in Putrajaya... [and those who] built the Twin Towers. Most of them were not documented.
But I think I want to state that there is no such thing as "illegal" human beings. For me, the whole world belongs to all of us. We are one earth. The only difference is that we have defined the boundary whereby we define our nation, our citizenship. So they [migrant workers] don?t have the same documents that we have. That's why we [Tenaganita] refer to them as "undocumented". Instead of "illegal"?
Yes. I think that is very important because then, the concept changes. They are human beings, they are workers. They are different because they are not part of our country, that?s the only thing.
This concept of a threat to national security also comes about because if you look at the whole recruitment process, it's all managed by the Home Ministry and not by the Human Resources Ministry. So, because it is managed by the Home Ministry, it tends to look at it in the framework of security. And this is where, I think, the root of the problem is.
Secondly, I think [it is] from politicians and with media support [that] these images have also been created. We will have front-page headline if it was an Indonesian who was the snatch thief. But we will not have the same when [it comes to] 50 or 100 locals who were snatch thieves. And if you look at the statistics from the police, it reveals that less than 5% of total crimes were committed by foreigners. Therefore, how can we say that they are a threat?
But what I would like to point out is, what kind of an environment are we creating for the migrant workers so they are able to live in dignity. And this is where, for me, the problem arises. The onus of getting the work permit is with the employer. When the work permit is not renewed, that means the worker becomes undocumented. And it is the worker who gets arrested, not the employer. The norm today is that the employer holds the passport. The migrant worker has a photocopy. When he produces that to the arresting officer, be it Rela [Ikatan Relawan Rakyat Malaysia, an auxiliary police volunteer unit] [or the] Immigration [Department], that is not recognised. And he is detained. And the employer is not made accountable. When we do that, we create a fearful environment for the migrant worker.
The other factor is the conditions in which they live. The employer is to provide living space for them. You go to a construction site, where do they live? They?re living in the kongsi or the shed. Now, in that kind of situation, you increase their vulnerability to diseases. There could be malaria, there could be dengue. Again, the blame goes to the migrant worker. It is true that in some situations, they do not keep the environment clean when houses are provided for them. This is where Tenaganita has said they need an orientation programme when they come to the country, not just to learn a few words of Malay, [but] how they need to behave, the dos and don?ts, how they must learn to integrate and listen to the local community. I think that is very, very important.
When they create their own social network, what do they need to look out for so they don't get involved in criminal activities because then, they become vulnerable. They're alone and they come in single, they're not allowed to bring their spouses. They have their social needs. Now, how do they reconcile those social needs with the new environment, the new reality? These are very often not spoken about. But would an orientation programme alone be sufficient because this will just introduce them to the new environment? Is there a way in which employers and Malaysian society can deal with this better? I mean, at the same time, some of the employers' fears are also valid. Maids have run off before.
Well, take the example of domestic workers. They do not have a day off. Now, day in and day out, they are looking at the same people. Both the employer and the domestic worker need their space, because doing housework, it's very long hours, and you work in a very isolated, individualised work environment, unlike in the factories, where they can socialise. Therefore, migrant workers, domestic workers, need their space. What we are saying is, allow them days off, like in Hongkong, Taiwan, Singapore. Then, they will come together. And many organisations are willing to have weekend sessions with them, where we can talk about increasing their skills. They can also share their problems. There can be counselling. Where they can interact and develop themselves. And this will be very enhancing in their work and in their relations with the children, with the family.
Control does not work. There's always a bursting point in control. And that's why there's the tendency to abuse also, because we tend to believe that this worker does not know anyone and so I will not be caught. One way to reduce gender-based violence is to let them come out, and then, you're open about it. Communities must be willing to get them together as well, to socialise. You know, the Filipinos, they don't run away so often now. They spend a lot of money to come here and they don't run away easily.
Now, because we control, they [migrant workers] tend to get influenced by people who come around, be it the one who clears the rubbish [or] the postman. And some dubious people would see their vulnerability and encourage them to run away.
So the more open we are, the better. The relationship becomes better. And if you're a good employer, the domestic worker will stay on. If they know you are taking care of them, they will stay on? And if you know they are creating a link, then it's time to talk. It's not time to punish, it's time to talk. You're dealing with an adult. And people forget that this domestic worker is taking care of their children. If you become violent, she may think the only way to protect herself is to be violent and that doesn?t help at all.
Only yesterday, we rescued another domestic worker [from an abusive employer]. She had marks all over her body. We are able to do [this] because we have gone into partnership with the police. So, we have a domestic workers action line which people can call. One of the neighbours saw this and she couldn?t bear it. She called us and we called the police. They rescued her.
What is also important is government intervention. One main problem where domestic workers are concerned is that their work is not recognised as work.
Are migrant workers subject to the same employment laws as Malaysians, and how are they different?
Theoretically, yes. They [migrant workers] enjoy the same benefits, except for domestic workers. If their wages are not paid, they can make a claim at the labour court. If they are unfairly dismissed, they can go to the industrial court. Work hours and all, yes, they can claim overtime. But, there seems to be a problem if they are contractual, they don?t seem to get annual leave and so forth.
The only area where there is contention is they are not allowed to join unions. What has happened is, when they sign the contract, it is stated in small print that they should not join any association or organisation.
Within that context, however, as I have said, the onus of getting the work permit is on the employer. The moment the worker who has not been paid his or her wages makes a demand, the employer becomes a bit aggressive, chases him away or the worker runs away because he can no longer remain in the same work environment. The employer then cancels the work permit. The moment that happens, the worker becomes undocumented. So, although the worker enjoys the same benefits [as Malaysians] under the Employment Act, the Immigration Act, under which the work permit is issued, takes away that right. You said domestic workers are not subject to the same Employment Act. How so?
Because they are not recognised as workers, they do not come under the Employment Act. And so, the only thing they can do if their wages are not paid is they can try and claim that from the Labour Court, but all the other benefits, they do'n't enjoy. Domestic work is not recognised as work. So what category do they come under?
They are seen to be in the informal sector, and therefore, the only mechanism they can rely on is their contract. If they want to claim their benefits under their contract, it's a civil remedy and it costs a lot. Most of the time, the domestic worker does not even have a contract, particularly those from Indonesia. The agent has a contract with the employer, not the domestic worker. That contract between the agent and the employer, does that not constitute a form of employment?
No, it doesn't because it is a contract for the delivery of the service to the employer. And the only thing that is determined is the wage that needs to be deducted, the work permit and the salary. When it comes to the domestic worker's rights, in terms of annual leave, medical benefits?
[Shaking her head] Nothing. And that is the dilemma. That's why we are asking the government to amend the Employment Act  to include domestic workers so that one, domestic work is recognised as work. Two, the government has a standardised contract so that all domestic workers have very clear minimum benefits?
Right now, there is a standard practice [in Malaysia] where domestic workers from certain countries do get a day off in a week. It's only for Filipinos and Sri Lankans. I understand that Tenaganita has launched a three-month campaign to get the Home Ministry ? in particular the Immigration Department ? to be more accountable and transparent in its actions and policies. Can you elaborate?
Well, this arose this year, when the amnesty period ended and then in March, Ops Tegas took place. We saw a new development in that Rela was recruited as part of the Ops Tegas programme. They [Rela members] were given the power to arrest undocumented workers. Now we, together with other organisations, had a monitoring campaign. We had a common operations room where we had a 24-hour line so people could call us if they were arrested and we would provide intervention.
There were two cases where we challenged the system, the cases of Mangal and Pajirudeen. [Mangal Bahadur Gurung, from Nepal, was wrongfully arrested in March this year for illegal entry into the country. The arrest and conviction by the Petaling Jaya magistrate court was overturned by a higher court in May. Pajirudeen Pichaikani from India was released on July 8, after being wrongfully jailed for more than two months for illegal entry.] They were documented workers. The only problem was, they did not have their passports on them, which, as I stated earlier, were held by the employers. They [workers] had the photocopy.
But on arrest, the Rela officials refused to look at the photocopy and arrested and surrendered them to the Immigration Department. The Immigration Department also has the responsibility then to investigate. The workers were held for 14 days for investigation. In our interviews with those arrested, [we found out that] only once were they asked where they worked. After that, nothing else was done. Both these workers tried to say that they are documented but that was not heard. The workers were charged under Section 6 of the Immigration Act, which states that they have come into the country illegally. Therefore, their penalty will not be just imprisonment but also whipping. This is very harsh. In both cases, the investigating officers did not investigate.
In the case of Mangal, he had the letter of his labour case for unpaid wages. He had produced that but they refused to look at it. And the Labour Office had called the prosecuting officer [in the Immigration Department] as well as [gone] personally and [gave] the letter and passport to the investigating officer and prosecuting officer. Even after that, they still maintained that he entered the country illegally and in court, that was the evidence that was produced. This worker was from Nepal and he didn?t understand Malay well, and so he just said yes. He couldn't express himself. I've sat in court, I've gone through a long trial, the longest in the country - and I have watched how fast the interpreters would read and it's really difficult to understand, what more if you don't know the language.
What we are saying is that when you file a case under Section 6, there?s very little evidence you need to adduce. Whereas if you go under the other sections of overstaying, then you have to have more investigation, getting the other documents, calling the employer, et cetera. In Ops Tegas, they just want to push people into the category of illegal entry.
So, what I'm saying is the Immigration Department is not behaving responsibly. It's not seeing the seriousness of taking away the liberty of a person. The migrant worker has spent a lot of his savings to come and work here. And therefore, for me, there was not enough transparency in the way Ops Tegas was carried out.
That's why I'm asking the government, through this three-month campaign, to review its policy on Ops Tegas, its investigation procedures. One other gap I see is, for other forms of prosecution under the Penal Code, the investigating officer has to have a diary to show the process of the investigation. I say the Immigration Department should also have had a diary for the 14 days the persons [Mangal and Pajirudeen] were there. You cannot go and simply arrest people. It?s a violation of rights. And we cannot condone this form of violation of rights. Are there any particular initiatives or meetings that Tenaganita is initiating for the campaign?
We will be going to Suhakam [Human Rights Commission] with Mangal to file his case there. He's been released and he has got his wages. He?ll be leaving the country soon. And we are also asking the government for an apology for the wrongful arrest. I think this is part of being accountable. Does Tenaganita have any suggestions on how the ministry can be more accountable or make improvements?
For example, during Ops Tegas, the moment a migrant worker is arrested, he should have the right to make a call so he can call his employer. Do Malaysians have that right?
No. That should be recognised even for Malaysians. He [the migrant worker] should have that right so that immediately, his employer can come with the passport and [the case] is finished. Right now, so much time and effort are wasted in the prosecution and sentencing. And it has been said the prisons are overflowing. It's a waste of money, time and staff. All this can be reduced if we have proper procedures and accountability. Every officer must be accountable for every arrest he makes. This is where I call on the judiciary to be pro-active, raise questions to the prosecution.
Secondly, [let] the accused speak, ask the orang kena tahan [ones arrested] questions. And we must always believe that the person is innocent until proven guilty. That principle has to be there. It?s really very crucial. Thirdly, the bias against migrant workers must go. And we must also make the employer and the recruiting agents accountable. Should there be a standard policy and terms and conditions for all migrant workers, regardless of where they come from?
Yes. We should have a standard agreement and not differences and discriminatory practices. One key area is where domestic workers are concerned, we agree to recruit domestic workers from the Philippines and they are paid about US$200 [RM750] in wages, from Sri Lanka RM500 and from Indonesia, RM350. That is very discriminatory. Many countries are also practising this. Do you see any chance of Malaysia leading the way in setting up a good migrant worker system?
Actually, Malaysia should take the lead because we are the largest receiving country of migrant labour in Asia. Therefore, we should set the standard. That is what we should look forward to, and I think we can if we want to. It needs a lot of political will.
And now that we have taken steps to fight corruption, in setting up a proper recruitment and employment policy, you will also fight corruption. They are very much linked. You've been doing advocacy work for migrant workers for a long time. You've also paid a high price for it. Any regrets?
I have no regrets. The only regret is when I was convicted, [it] reflected the lack of independence in the judiciary, lack of respect for the freedom of expression and also the issue of transparency and accountability. I? have to speak the truth and ensure that life is respected at all times.
This is my belief. We cannot compromise on life, on [human] dignity... If the detention camp was threatening the lives of people and people were dying, people were being tortured, I cannot sit back and pretend I did not know. The moment I came to know, it was my responsibility to raise the issue.
I have absolutely no regret in speaking the truth and I will continue to do so because I think it?s only in standing up and letting our voice be heard that the voiceless can have a voice. I'm doing it for the migrants, for my children, because we want a nation that ensures freedom, that has its checks and balances, that is democratic. And this is one way I can ensure my children and others can enjoy these benefits in our country. And that migrant workers or any other person must have their dignity and rights recognised, even in detention. Is your family also involved in similar advocacy work? Has your passion rubbed off on them? [Fernandez married Joseph Paul, a quality management consultant, in 1979 and they have three children, two girls and a boy.]
One [girl] has finished college and is working in a regional NGO; the boy will be finishing university this year in engineering and my youngest daughter is in her third-year psychology [studies].
All are sensitive to the needs of the poor and in their own way, conscious of human rights and the dignity of people. They have been a strength to me.
My passion has sometimes created a problem, especially when I have to juggle time and energy. When this happens, they miss me. But I always remind them of how fortunate they are.
They have also become sensitive as my home has become, quite often, a temporary shelter for battered women, trafficked girls, migrant workers and children. A life of activisim
Although Irene Fernandez is today best known for her work with Tenaganita, she was active in NGO work long before she helped set up Tenaganita in 1991.
She started off her working life in 1968 as a teacher in Father Barre's Convent, her alma mater, in Sungai Petani, Kedah. "I gave up teaching as I was frustrated with it. The system of education was top-down and not for the poor. It was elitist and I found that many of the children could not make it through because of poverty in Kedah," she says.
In 1970, she gave up teaching and for the five following years, she was a fulltime organiser of young workers and unemployed youth in the Young Christian Workers (YCW) movement, and an executive committee member of International YCW. Fernandez was the first woman to become an exco member of the Malaysian Youth Council. She then worked with the Consumers Association of Penang as education director, initiating the formation of consumers clubs, the breastfeeding campaign and boycott of infant formula companies. She also developed a rural women?s consumer education programme till 1981.
Between 1983 and 1986, she was executive director of the Selangor Consumers Association. In 1985, together with several other organisations, Fernandez launched the violence against women campaign and formed the Joint Action Group, which she chaired till 1990.
After leaving the Selangor Consumers Association, she formed the Women's Development Collective (WDC) to support women's organisations and was part of a group that worked to change the legislation on rape and bring about the enactment of the Domestic Violence Act. She is the founder president of Awam or the All Women?s Action Society and co-founder of Suaram, Suara Rakyat Malaysia.
At an age where many have already retired or look forward to retirement, Fernandez still has her plate full. She is currently chair of the Pesticide Action Network for Asia-Pacific and a member of the criteria working group to develop sustainable palm oil under the Roundtable on Sustainable Palm Oil, and director of the International Coalition on Food Sovereignty. How long does she plan to keep doing what she does?
"I will continue as long as I have breath. It is my life, my belief and my faith. It?s in the empowerment of the people, especially women, workers and children, that gives me the meaning and strength to live," she says.
(Source: The SUN)