Advocating for the Rights of Migrant Workers A Capacity Building Program Module December 2017, Kuala Lumpur, Malaysia REPORT

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1 Advcating fr the Rights f Migrant Wrkers A Capacity Building Prgram Mdule December 2017, Kuala Lumpur, Malaysia REPORT SUMMARY Mdule fur f the capacity building prgram fr civil sciety Advcating fr the Rights f Migrant Wrkers in Malaysia was held frm 2 5 December 2017 in Kuala Lumpur. This mdule built n previus mdules held in Malaysia. It had a fcus n CEDAW and n building lbbying and engagements skills, n engagement with diplmatic missins, and cntinuing t build knwledge n hw t apply internatinal standards t prevent and stp the abuses that the participants have identified, and hw these might help t prvide avenues fr redress. This special natinal level prgram is designed t build knwledge, skills and netwrks t enhance and supprt civil sciety advcacy fr the prmtin and prtectin f migrant wrkers rights in Malaysia. The prgram brings tgether Malaysian advcates with advcates frm cuntries f rigin, including Nepal, Bangladesh, Philippines, Cambdia and Indnesia t build links and netwrks and t develp shared advcacy strategies fr greater impact in Malaysia and cuntries f rigin. It is rganised and facilitated as a partnership between the Bar Cuncil Migrants, Refugees and Immigratin Affairs Cmmittee (MRIAC), Nrth Suth Initiative (NSI), Migratin Wrking Grup (MWG) Migrant Frum in Asia (MFA) Diplmacy Training Prgram (DTP). Over 30 participants representing NGOs, faith based grups, trade unins, migrant cmmunity and lawyer s netwrks in Malaysia came tgether fr this mdule. Representatives frm Nepal, Thailand and Bangladesh civil sciety rganizatins wrking fr migrant wrkers als participated. The fcus f the mdule was n civil sciety engagement with UN Treaty Bdies fcusing n CEDAW ne f the human rights cnventins relevant t MWs ratified by Malaysia. The mdule als had a fcus n engagement with diplmatic missins t prvide an pprtunity fr participants t educate and infrm the diplmatic missins abut the issues and cncerns f MWs in Malaysia. Participants visited the Eurpean Delegatin and Australian High Cmmissin t meet with diplmats. Participants als engaged with diplmats frm the Embassy f Nepal and Indnesia. The sessins with diplmatic missins facilitated an exchange f infrmatin between advcates and missins, and help build skills in strategic advcacy. The mdule had further fcus n the ASEAN Cnsensus n the rights f MWs adpted in Nvember 2017 and n the Glbal Cmpact n Safe Migratin. Participants discussed in grups t explre and analyse hw the instrument can be used by civil sciety in their advcacy. The fllwing reprt gives sme mre detail abut the cntent f Mdule 4. The mdule was psitively evaluated by participants and these evaluatins are available n request. 1

2 PROGRAM CONTENT Mdule 1, 2 and 3 Recap, and Intrductin and Overview f Mdule 4 The prgram started ff with pening remarks frm Patrick Earle, Executive Directr f DTP, and Sumitha Shaanthinni Kishna frm the Malaysia Bar Cuncil. There was a recap n mdules 1, 2 and 3 t refresh learnings f the previus mdules. The cntent and bjectives f mdule 4 were intrduced. Participants shared updates frm their wrk between mdule 3 and 4. Sme highlights were participants attending internatinal cnference n dmestic wrkers in Manila, engagement with lcal trade unins, case referrals and case management f MWs, and faith based rganizatins wrk n palm il plantatin learning center fr stateless children and wrkers. DTP als intrduced t the participants the new Law Lkup Tl a pilt prject f an nline applicatin tl develped by DTP Law interns fr MWs advcates. The nline applicatin helps advcates, lawyers, and thers t find applicable internatinal law relevant t sme specific human rights issues faced by migrant wrkers. ASEAN Cnsensus n Rights f Migrant Wrkers The ASEAN Cnsensus n the Prtectin and Prmtin f the Rights f Migrant Wrkers was signed by the Heads f States/Gvernments in the 31st ASEAN Summit. The signing f this ASEAN Cnsensus was a milestne as 2017 marked the 50th anniversary f ASEAN and the tenth year since the adptin f the ASEAN Declaratin n the Prtectin and Prmtin f the Rights f Migrant Wrkers, knwn as the Cebu Declaratin. The ASEAN Cnsensus stipulates the general principles, fundamental rights f migrant wrkers and members f their families, specific rights f migrant wrkers, bligatins and cmmitments f ASEAN Member States. It aims t establish a framewrk fr clser cperatin amng member states n addressing migrant wrkers issues in the regin. Civil Sciety Organizatins (CSOs)have welcmed the adptin f the instrument with reservatins. They have highlighted that the dcument shuld be legally binding in rder t address the lack f cmprehensive legislative prtectin f migrant wrkers in many ASEAN cuntries. They recmmend that the instrument shuld prtect undcumented migrant wrkers, cver migrant wrkers families, and include migrant wrkers nt frm ASEAN cuntries. ASEAN perates by cnsensus this can lead t weak standards and lack f enfrcement mechanisms as the lwest cmmn denminatr generally prevails. In 2018, the member states will wrk n develping the instrument int a cncrete and practical actin plan that wuld be acceptable t bth labr sending and labr receiving cuntries within ASEAN. CSOs in the regin recmmend that emplyers rganisatin, trade unins and NGOs shuld be part f the discussin, and the actin plan shuld be pen fr cnsultatin and inputs frm stakehlders. As a practical exercise, participants were divided int grups t explre and analyze the dcument n hw it can be used by civil sciety in their advcacy, what are psitives and negatives, and hw can it facilitate cllabratin between sending and receiving cuntries. Presentatins frm Internatinal Participants Thailand Preeda Tngchumnum, Prgram Manager, Slidarity Center As a prgram a manager at Slidarity Center Preeda supprts the implementatin f the prject activities, prvides legal technical supprt, supprts advcacy wrk, and wrks clsely with migrant wrkers netwrk. 2

3 One f the majr issues f MWs in Thailand is that the number f undcumented migrants are higher than the dcumented wrkers. Preeda highlighted that the Gvernment f Thailand recently launched a prgram t register the undcumented migrants t prve their natinalities. The MWs wh registered were able t apply fr travel dcuments which facilitated their freedm f mvement. Hwever, the legislatin in Thailand is cnfusing, and plicies are changing ver time. Fr example, Thailand has scial prtectin law that helps wrkers access health care insurance, but they have t pay fr it. It s cntradictry t the law f scial prtectin. Undcumented migrant wrkers have n access t scial prtectins, including labur rights. Bangladesh Prabir Biswas, Bangladeshi Ovhibashi Mhila Sramik Assciatin (BOMSA) BOMSA started t wrk fr the migrant wmen with the aim t unite and prtect the welfare f the migrant wmen wrkers f Bangladesh. BOMSA has been wrking with internal and external wmen migrants since 1998 t ensure the prtectin f migrant s rights. Prabir prvided a backgrund n Bangladesh s migratin sectr. In 2017, there were 7 millin Bangladeshis wrking verseas, and 93% f them went t ten cuntries. Bangladesh ranks seventh in the list f the wrld s tp remittance receiving natins accunting fr almst 9% f the cuntry s GDP. One f the persistent challenges is that mre than half the migrant wrkers frm Bangladesh are classified as less skilled, and nly 10% f the migrant wrkers use the frmal channels f migratin. The UN Human Rights System An Intrductin t Human Rights and Treaty Reprting & NGO Advcacy Internatinal Human Rights mechanisms develped alng tw pathways UN Charter based and Treaty Based. Human rights in the UN Charter prvides the mandate fr the Human Rights Cuncil, Special Prcedures and the Universal Peridic Review. There are nine cre human rights treaties and cuntries that adpt them agree t implement their prvisins including t review and amend their laws and t prtect and prmte the rights in the treaties. Each State party t a treaty has an bligatin t take steps t ensure that everyne in the State can enjy the rights set ut in the treaty. The human rights treaty bdies are cmmittees f independent experts that mnitr implementatin f the cre internatinal human rights treaties. Internatinal human rights Treaties are legally binding (unlike Declaratins). Treaty bligatins are nt ptinal nce agreed t, they must be implemented in law and in practice. T implement the treaty states must allcate resurces and prmte the rights in the treaty. The UN HR Treaty Bdies Treaty mnitring bdies are cmmittee f independent experts, receive and examine state reprts, issue cncluding bservatins, adpt general cmments, and cnduct cuntry visits. There are nine human rights treaty bdies cmpsed f independent experts. The individuals are vted n and must be free frm the influence f the gvernment. The Cmmittees adpt general cmments/recmmendatins abut particular rights r issues e.g. rights f dmestic wrkers. These General Cmments are imprtant surces f advice and interpretatin and are sft law. The reprting cycle under the HR Systems 1) State parties (gvernments) submit initial and peridic reprts t the cmmittees dcumenting prgress in implementatin f the treaty and challenges. NGOs submit shadw/ alternative reprts highlighting issues f cncern. 3

4 2) The treaty bdy presents the state party with list f issues and questins based n cncerns raised by the reprt (and the NGO shadw reprts) 3) The State party may submit written replies t list f issues and questins. CSOs meet members f the cmmittee it culd be frmal r nn frmal t raise questins, issues and recmmendatins with the State party. Sme cmmittees hld pre sessins, thers make time during the frmal sessins 4) Cnstructive dialgue between the Cmmittee and the state party delegatin takes place during the sessin 5) Treaty bdy issues its cncluding bservatins t the gvernment, including recmmendatins 6) Fllw up n implementatin f treaty bdy recmmendatins (sme Treaty Bdies have frmal fllw up prcesses. CEDAW, Wmen s Rights and Migrant Wrkers Ivy Jsiah, a wmen's rights activist in Malaysia, led the sessins n The Cnventin n the Eliminatin f All Frms f Discriminatin Against Wmen (CEDAW). Ivy is the frmer Executive Directr f WAO wh led the rganisatin fr ver 15 years, and which put dmestic vilence n the natinal agenda in Malaysia, using CEDAW as part f their strategies. CEDAW prvides the framewrk fr advcating fr wmen's human rights. The Malaysian gvernment ratified CEDAW in Malaysia made reservatins with respect t and des nt cnsider itself bund by prvisins f certain articles, which included the rights f wmen relating t marriage and family relatins. Under CEDAW, rights fr wmen are based n 3 fundamental principles. 1 They are, Principle f Substantive Equality Substantive equality means equal pprtunity, equal access and equal results and utcmes fr wmen and men. Principle f Nn discriminatin CEDAW defines discriminatin as "any act that has the effect r purpse f denying the exercise and enjyment f all rights". Principle f State Obligatin Under the terms f CEDAW, state parties must submit a natinal reprt within ne year f acceding t the Cnventin and within every fur year perid thereafter. The Cnventin calls fr natinal legislatin t ban discriminatin, recmmends temprary special measures t speed equality in fact between men and wmen and actin t mdify scial and cultural patterns that perpetuate discriminatin. The gvernments that have ratified CEDAW are required t submit a reprt t the CEDAW Cmmittee within a year f becming State parties and thereafter, submit a reprt every 4 years. Other key prvisins f the Cnventin are It is legally binding Prvides a brad definitin f discriminatin against wmen (article 1): any distinctin, exclusin r restrictin made n the basis f sex which has the effect r purpse f impairing r nullifying the recgnitin, enjyment r exercise by wmen, irrespective f their marital status, n a basis 1 4

5 f equality f men and wmen, f human rights and fundamental freedms in the plitical, ecnmic, scial, cultural, civil r any ther field Bridges divisins between civil and plitical and sci ecnmic rights and cvers a range f rights Regulates the actins f the State, but als private rganisatins, enterprises and individuals Creates a mnitring mechanism General Recmmendatins e.g n n VAW (19), n marriage (21), n migrant wmen (26) n plitical life (23), n health (24) Optinal Prtcl cmmunicatins and inquiry prcedures CEDAW: Hw can yu use it? CSOs can play a crucial rle in alerting States t their bligatins, cllabrating with States n their prgrammes where CSOs are better placed t frge links with cmmunities and husehlds, develping alternative mdels t State mdels f interventin, and mnitring State activities and their impact. CSOs can submit their Shadw Reprts t the Cmmittee and make their wn recmmendatins which the Cmmittee will find useful and might adpt. CSOs can publicize State reprts and the cncluding cmments f the CEDAW Cmmittee t a wider natinal audience, where States may avid ding s. At the lcal level, discussins arund cncepts and practice f wmen's rights can prvide a very sund basis fr influencing plicy and creating spaces fr change. NGOs are als able t influence the creatin f general recmmendatins (GR). NGOs can lbby the Cmmittee and as part f their recmmendatins suggest the Cmmittee develp a GR that deals with their issue/cntext. CSOs can btain a space and pprtunity t influence the substantive text f any GR. Lbbying fr Rights The bjectives f sessin n lbbying was t share knwledge and tips n lbbying and n effective dialgue befre the sessins with diplmatic missins. Lbbying is a prcess t infrm, negtiate with and cnvince thse in pwer r thse wh can influence n an issue. Lbbying is abut influencing change thrugh direct persnal cmmunicatin it can be frmal/infrmal planned/pprtunistic. It is a prcess ften lng term, and requires develping relatinships. Fr effective lbbying, knw yur bjectives create maps f influence wh t lbby have a timetable be ready fr pprtunities Fllwing steps shuld be cnsidered befre an effective Lbbying Meetings Preparatin Knw the peple wh yu re meeting. Clear bjectives, knw yur interests. What are the particular changes yu d like t have? Anticipate questins/bjectins and prepare respnses 5

6 Allcate rles t delegatins wh will lead intrduce/wh will present n which issues/wh will take ntes Prepare materials Cnsider dress cde. If raising issues and cases, dn t be t cnfrntatinal, ask missins/embassies f hw we shuld address the issue. The engagement shuld create channels f cperatin. During the Meeting Intrduce delegatin & purpse Check if it s k t take ntes explain Make yur requests clear keep the discussin fcused n bjectives Maintain psitive atmsphere Active listening respnd t pprtunities Be cnfident interrupt and ask questins Be flexible Agree utcmes and next steps at cnclusin After the meeting Meet and review Fllw up letter f thanks, recrd f cnclusins, agreed next steps As a practical sessin, participants were divided int grups and were asked t prepare fr the dialgue with diplmatic missins. This was fllwed by a rle play exercise. Engagement with Diplmatic Missins Dialgue n Human Rights Cncerns Engagement with missins was rganized t prvide an pprtunity fr participants t educate and infrm the diplmatic missins abut the issues and cncerns f migrant wrkers, and als t help build participants skills in strategic advcacy and engagement. The sessins prvided pprtunity fr exchange f infrmatin between advcates and missins. Sme cuntries (e.g. mst EU cuntries, Canada, Swiss, Australia) have explicit human rights plicies and part f the wrk f diplmats is t prmte human rights and ffer supprt t human rights defenders including thrugh small grants. These diplmats can raise issues with their hst gvernments, send reprts back t their capital, suggest supprt fr UPR recmmendatins etc. They can therefre be useful cntacts, and smetimes allies. Sme gvernments fr example will always make representatins t try t prevent executins. The engagement with missins was rganized int tw phases the first invlved preparatin and a rle play fllwed by an utreach activity by participants invlving visiting Australian High Cmmissin and the Eurpean Delegatin. Participants were divided int tw grups fr the visit t the Australian and Eurpean missins t prepare what they wuld say, what issues wuld be raised, what their bjectives were and wh wuld play what rle n the delegatin. Participants presented t the missin representatives abut the key cncerns f migrant wrkers in Malaysia, and the challenges faced by CSOs t prtect the rights f MWs. They als briefed the representatives abut the different initiatives taken up by CSOs fr the prtectin and prmtin f the rights f MWs. Missin representatives fund the sessin very useful, and als prvided feedback t the participants n their presentatin f the issues. The Australian missin ffered advice abut pssible funding supprt/pprtunities. 6

7 Engagement with Diplmatic Missins Cuntries f Origin A dialgue with Indnesian and Nepalese diplmatic missins was als rganized as a facilitated panel discussin with presentatins, fllwed by discussin. Participants learnt abut the rle f missin and labur attaches fr prtecting the rights f their migrant wrkers, and the challenges faced by missins. The sessin was als useful t identify pints f cllabratin between CSOs and the missins and t share abut issues, appraches and lessns between the missins. There were pprtunities fr mre private discussins, relatinship building, and swapping f cards ver tea and cffee. It was a lively sessin and there was very psitive feedback. NEXT STEPS In the final sessins f the furth mdule, participants reflected n the grup wrk and identified sme next steps fr the cntinuatin f the assignments in between mdule 4 and 5. Participants agreed t wrk n the fllwing Case Submissin t UN Wrking Grup n Business and Human Rights (UNWG), UN Special Prcedures and AICHR Case submissin t UNWG n B&HR cases/issues discussed and presented in mdule 3 will be further develped and sent as cmmunicatins t the UNWG (Irene will fllw up n these cases). Further infrmatin is needed t submit cases t AICHR (Samantha as fcal pint fr submissin f cases t AICHR). Other grup members will meet and discuss the cases cllabratin f data, evidences, material, cnsent frm peple invlved in the cases, etc. Dialgue with SUHAKAM and RSPO sme participants agreed t engage with SUHAKAM and RSPO. The meetings will be rganized in Sumitha will facilitate the rganizing f the meetings. Cllabratin n GCM Adrian and ther grup members will cntinue t cllate infrmatin and develp strategy t influence the Malaysian gvernment fr the negtiatin phase f the GCM prcess. MFA will prvide regular updates and infrmatin n the utcmes f the stcktaking phase. In plenary, participants suggested cntent and expectatins fr the next mdule. They identified the fllwing issues t be cnsidered fr inclusin in mdule 5: Recruitment refrm initiatives; mre n CEDAW; updates n GCM and ther reginal prcesses; UN SDGs migratin n SDG; human trafficking; racism and xenphbia. Participants were als asked t reflect n the experience and usefulness f the mdules s far. Sme f the ntable utcmes f the prgram s far, as reflected by the participants were - Netwrking and cllabratin f CSOs in Malaysia, and frm cuntries f rigin - Knwledge and experience sharing with ther cuntries - Practical applicatin f human rights systems - Negtiatins skills and lbbying skills - Cnfidence building - Updates n glbal migratin trends - Knwledge and skills t wrk with UN cnventins and human rights system - T think strategically n hw human rights wrk in Malaysia can be imprved Mdule 4 cncluded with the cmpletin f evaluatin frms, and sharing f reflectins. The feedback n the mdule was psitive; highlight f the mdule was engagement with diplmatic missins. 7