By Kalinga Seneviratne
BANGKOK (IDN) - Philippines President Rodrigo Duterte has signaled his intention to push harder for the adoption of a binding regional treaty to protect the human rights of migrant workers during his chairmanship of ASEAN (Association of South east Asian Nations) this year.
Though he is strongly supported by Indonesia’s President Joko Widodo, yet human rights advocates in the region fear that ASEAN’s “consensus” based decision making process may hinder these attempts because Malaysia, Singapore and Thailand may not agree to a binding treaty to protect migrant workers in their countries.
Though the ‘ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers’ was adopted a decade ago, there has been no attempt until now to give it some teeth in terms of a binding treaty.
The 2007 declaration was adopted at the 12th ASEAN Summit in Cebu when Philippines last chaired ASEAN and it included clauses such as the obligation of receiving states to “intensify attempts to protect the fundamental human rights, promote welfare and uphold human dignity of migrant workers” and for sending countries to set up policies and procedures to protect their workers during the recruitment process, prepare them for deployment overseas and protect their migrant workers when abroad including repatriation and reintegration to the countries of origin.
As the Philippines and Indonesia are the biggest exporter of migrant workers to the region, Philippines chairmanship of ASEAN this year may see some action on this front, especially with a President who is determined to change regional mechanisms. In January, when launching the Philippines’ chairmanship of ASEAN, President Duterte called upon the ASEAN community to “provide opportunities for a truly better life (for all)” and said that Philippines will pace the “people at the core” of ASEAN.
A Labour Ministers’ retreat convened by the Philippine at Duterte’s hometown of Davoa on February 19-20 pledged “together in the spirit of ASEAN consensus” to adopt an ASEAN instrument on Labour migration. The ministers are due to meet again in late March to finalise this instrument.
While the host country of the ASEAN Summits has the power to steer the agenda in the direction they desire, in an organization where consensus is the king, the question is whether they would be able to agree on a binding treaty or mere guidelines?
According to International Labour Organisation (ILO) statistics on deployment of migrant labour across ASEAN countries in 2015, Philippines toped the list with 203,249 workers, while Indonesia came second with 128,646, Myanmar sent 89,031 and Cambodia, Thailand, Vietnam and Laos had smaller numbers but yet over 10,000 workers. Statistics also reveal that 56 percent of Malaysia’s deployment of 2.1 million migrant workers in 2015 was from ASEAN countries, and Thailand which deployed 1.4 million overseas workers in the same year, almost 90 percent were from ASEAN region. Figures for Brunei and Singapore are not available.
The Asian Forum for Human Rights and Development (Forum Asia) pointed out in 2016 that a majority of migrant workers deployed in ASEAN countries are women who are vulnerable to human trafficking and exploitation.
“ASEAN member states have failed to provide women and workers in general with decent work and livelihoods in their own communities and instead encourage policies that drive down wages and provide unsafe working conditions,” Forum Asia said in a statement.
"This endless pursuit of cheap labour for the growth of profits for the world’s obscenely wealthy and corporate elites, maintains an unequal balance of power, which has to be condemned,” the statement added.
A major source of disagreement between ASEAN member countries is on the nature of the agreement ASEAN will eventually adopt. Source countries want an “international agreement” that will be legally binding, while receiving countries want guidelines that will not be binding on them. Thus, it could be merely called an 'ASEAN Agreement' rather than a 'Framework Agreement' and everyone will claim victory.
A contentious issue in the region has been the role of private recruitment agencies many of who act unscrupulously circumventing laws, employing corrupt practices, and exploiting workers. They have been able to function like mafia syndicates with impunity because government agencies have often turned a blind eye, since there are no obligatory legal documents for them to be brought to justice.
Many migrant workers have taken for granted many of these exploitative practices such as charging exorbitant “placement” fees from workers that are considered as “debts” incurred by the migrant workers to be paid back once they start working. Thus, for example, Filipino and Indonesian domestic workers employed in Singapore have to give all their monthly salary earned in the first 6 to 8 months to the recruitment agency.
It is collected by the Singapore agent, who presumably remits a share of it to their counterparts in the Philippines or Indonesia. This practice is illegal under the existing laws of both countries, but, because the transaction is done undocumented and the migrant workers have not been made aware of the law nor are there any legal redress to claim this money back, it continues unabated.
Defining undocumented workers and such transactions has been a contentious issue in the ASEAN negotiation process. Malaysia has strongly opposed the inclusion of undocumented foreign workers in any ASEAN agreement, while Thailand wants a clear distinction between documented and undocumented workers, and they do not want any privileges given to migrant workers, not available the locals.
Thetis Mangahas, a former ILO regional director believes that an ASEAN agreement will not be able to do away with the exploitation but it will at least provide the abused workers a way of redress. “They would know what their rights are in the receiving state; they can file complaints (and) they can have access to services guaranteed by all states,” she told Mekong Migration Network (MMN).
While the Philippines is amenable to a non-binding agreement, they would need four main parameters incorporated in it: immediate deployment of an action plan with timetables to implement the instrument; negotiations of bilateral labour agreements between ASEAN member states; sharing and documentation of best practices; and designation of focal points on Instrument implementation in all member ASEAN states.
The Duterte government is also in the process of setting up a special Departmemt of Overseas Filipino Workers, which was an election pledge of his.
While Philippine officials are still mum on resolving the remaining issues, migration experts have told MMN that it may have to do with the legal nature of the instrument.
“It’s all about the binding issue. If it’s optional, why are they so contentious when it is up to them? If there’s a stalemate, it’s got to be that. Most likely it is that issue that is holding it back,” says Mangahas. She notes that Malaysia and Indonesia have the two most polarizing views on the legally binding instrument. “Indonesia has an all or nothing mindset, which is understandable as a sending state.”
A factor to this is the bilateral relations between the two states. In recent years, Indonesia has condemned Malaysia’s treatment of Indonesian migrant workers, which make up majority of the documented and undocumented workers in Malaysia. Thailand is also believed to have around one million undocumented workers mainly from neighbouring Myanmar.
“It is irreconcilable with the other so it’s a question of who gives in between the two. Indonesia doesn’t want to give in on this. Malaysia doesn’t want to give in on this. Indonesia is for a legally binding agreement. They don’t want a diluted instrument. I think they’re all for binding or nothing,” says Mangahas. [IDN-InDepthNews – 27 February 2017]
This article is part of IDN’s media project jointly with Global Cooperation Council and DEVNET Japan.