The Non-State Sector: Rise of Human Rights Activism

Whatever has occurred in the state sector by way of a contraction of democratic space and the overall and specific instances of human rights abuse is mirrored by an apposite response on the part of the non-state actors, albeit working against tremendous odds. This notwithstanding, there have been important strides made in human rights activism by a dedicated and committed set of NGOs as indicated by our rendering of milestones above. We will now consider briefly some specific areas of human rights practice and the work NGOs continue to undertake in promoting human rights, often with little help from the state.


The Irene Fernandez Case

Conditions in immigration detention centers in Malaysia became an international issue in August and September 1995 after a Malaysian NGO called Tenaganita ("Women's Force") issued a memorandum and a news release on July 27, 1995 entitled, "Abuse, Torture, and dehumanized Treatment of Migrant Workers at Detention Center."

The memorandum disclosed the alleged systematic abuses suffered by migrant workers in detention. Copies of the memorandum were also submitted to the Deputy Prime Minister, Home Affairs, Foreign and Human Resources ministries in August 1995.

The director of Tenaganita, Irene Fernandez, was arrested and charged with "false reporting" under Section 8A of the Printing Press and Publication Act, a charge that carries a maximum sentence of a fine of RM20,000 of three years in jail or both. Her trial began in June 1996 and is still continuing at the time of writing. After the New Straits Times published a front page report on the memorandum, a senior official of the Police Field Force (PFF) lodged a report alleging criminal defamation under section 499 of the Penal Code. The PFF are a section within the police force which provide the administrative, security and logistical support to the immigration authorities in running the detention centers. The police then subjected her to questioning which lasted about 10 days. They also questioned Tenaganita staff and volunteers and also tried to take statements from her lawyers. Her lawyers with Bar Council support objected to this.

Human Rights Watch's research confirmed some of the allegations made by Tenaganita. If migrant workers are to be protected in the receiving countries, NGOs must be free to raise issues publicly without fear of harassment of intimidation. Not only should the Malaysian government drop all charges against Irene Fernandez, but it should cease the use of criminal defamation or false reporting charges to take issue with NGO findings. If government allege, as Malaysia did in this case, that an NGO has made factual errors, it can challenge these in the media or simply allow independent observers to investigate the charges.

Human Rights Watch, Vol. 10, No. 02(C), March 1998, and Suaram, 1998.

The Malaysian workforce has grown dramatically from about 5.6 million in 1985 to about 7.9 million in 1995 because of rapid industrialisation in export oriented industries. (Suaram, 1998:46). Along with the economic growth, just prior to the 1997-98 financial crisis, an unemployment rate of 2.6 % was achieved in 1996, which is technically recognised as a full employment situation. However, despite this overall rosy picture, there is still no legislation on a minimum wage and the key concerns of labour still revolve around the restrictive framework for the exercise of freedom of association, the right to organise and bargain collectively and the right to strike, to name a few key issues. Unionisation remains low with less than 10% of labour or 706,253 members being members of unions in 1995. The MTUC by 1998 had some 167 unions and 403,163 members as its affiliates (Labour News, January 1998).

The Trade Union Act of 1959 severely restricts the unionisation of workers. Workers employed under categories labelled 'confidential, 'managerial', 'executive' and 'security' are prohibited from joining unions. Similarly non-clerical police and military personnel are also prevented from unionising and public servants require approval before setting up unions which have to be confined to in-house style unions. Three umbrella union organisations have been allowed to be formed, namely, the Malaysian Trade Union Congress (MTUC) for private sector unions, the Federation of Unions of Employees in the Civil Service (CUEPACS), representing unions in the public sector, and in 1989 a third body, the Malaysian Labour Organisation (MLO) was formed with encouragement from the government to rival MTUC. However, MLO was subsequently dissolved in 1996. A long-standing issue has been the move to block the formation of a national union for the electronics sector dating back to the early 1970s. It was only in 1988 that the government relented and allowed electronic workers to form in-house unions as opposed to their choice of a national union. (Suaram, 1998:47-49).


The Industrial Relations Act, 1967 imposes restrictions on the right to collective bargaining and the right to strike. Certain matters deemed as management prerogatives such as promotion, transfer, termination and dismissal are excluded from collective bargaining, which is reduced to monetary matters. Under the Act, the conditions for strike are extremely stringent. A legal strike requires approval by two-thirds of the affected members and must be submitted to the Director General of Trade Unions and can only proceed seven days from that submission. The Minister for Human Resources can also order an end to a strike and institute compulsory arbitration by the Industrial Court. This occurred in 1990 when the 65,000-strong National Union of Plantation Workers (NUPW) struck over a demand for monthly wages, this being a long-standing issue for the daily rated NUPW workers. The Minister terminated the strike after three days and the Industrial court ruled subsequently that workers were entitled to a 25-day pay (ARENA, 1992: 33).

NGOs have been active in labour issues involving women and foreign workers. While female participation has risen to almost half the labour force (47.1 % in 1995), women remain concentrated in the lower echelons of work and earn lower wages than men and are confronted with problems of sexual harassment and lack child care facilities at work sites. By 1996, Malaysia was reported to have some 449,565 legal or documented foreign workers. Unofficial estimates suggest that the real figure could be close to two million, which is one-fifth of the workforce (Aliran Monthly, 1998, 18:4). Migrant workers face problems ranging from poor housing, racial discrimination, abuse and various other forms of exploitation since they are not protected by unions. In a botched operation in 1999 of deporting some 500 Indonesian "illegals", nine people were killed. Figures received from an NGO based in Jakarta, Solidaritas Perempuan, indicated that out of 499 Indonesian migrant deaths reported for the period 1991-1997, 85% or 429 were from Malaysia. This rate of deaths is about 60 per year for Indonesians alone. A Malaysian NGO, TENAGANITA that alleged police brutality and torture in the treatment of migrant workers, has landed its director, Irene Fernandez, with a sedition suit (See box).

The MTUC currently opposes the Malaysian government's stand on linking trade and labour standards, the so-called 'social clause' of the WTO. Malaysia has argued that labour rights should be handled in the ILO. However, as part of the ICFTU campaign to support the social clause, the MTUC has asked the government to support discussion of core labour standards in the WTO. MTUC supports the international union's campaign for inclusion of the social clause in the WTO because the ILO does not have any enforcing mechanism on labour standards (Labour News, December 1998).

Harris Workers' Never Ending Struggle

The first electronics in-house union, RCA Workers Union was formed in January 1989. The company, RCA Sdn Bhd was not happy and attempted to kill the union by changing the name of the company twice, victimizing and finally sacking the entire executive council of 10 as well as 11 active members. After 6 years of protracted struggle, the unionists finally won their case for wrongful dismissal in the Court of Appeal in August 1996 and secured reinstatement to their jobs with payment of full back wages. This case serves as an example of the weakness of an in-house union and some of the obstacles posed by law. Unlike other trade unions, the designation of the in-house union has to follow the name of the company. This was exploited by the company to thwart the formation of the in-house union by first changing its name to Harris Solid State Malaysia Sdn Bhd. Later, the company again exploited the weakness of the in-house union by transferring all its employees except the 21 union leaders and active supporters to a related company - Harris Advanced Technology Sdn Bhd. It then sacked the union activists after 9 months of sustained harassment through isolation in an abandoned factory. It was to the credit of the unionists and workers involved that they sustained the struggle for unionization for six years. However how many other workers would be able to sustain such long drawn-out battles?

Source: Suaram, 1998: 49

In its vision for a new millennium, the MTUC has called for the implementation of a minimum monthly salary of RM1, 200 (note: the MTUC has since revised the amount to RM900 following comments from government officials that RM1,200 was too high) and also more freedom for unions, abolition of child labour, a ban on night work in construction sites and an extension of the retirement age from 55 to 60 years. President Zainal Rampak called particularly on the government to recognise the ILO Convention 87 for union freedom and the right to hold joint meetings (The Star, January 1, 2000).