Violence, Exploitation, and Abuse and in Migration Affecting Women and Children in ASEAN: A Baseline Study Violence, Exploitation, and Abuse and Discrimination in Migration Affecting Women and Children in ASEAN: A Baseline Study Violence, Exploitation, and Abuse and Discrimination in Migration 500 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 501

Violence, Exploitation, and Abuse and Discrimination in Migration Affecting Women and Children in ASEAN: A Baseline Study

by Jaclyn Ling-Chien Neo

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 502 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 503

Table of Contents (i) Domestic Violence 527 (ii) Forced Marriages 528 A. OVERVIEW 507 (iii) Child Marriages 528 1. Baseline Literature 507 (iv) Female Genital Mutilation 528 2. Background on Malaysia 509 (v) Sexual Harassment 528 (vi) Violence against Sex Workers 529 B. VIOLENCE 510 3. Implementation, Monitoring and Prevention 529 1. Description of the Problem 510 a. Implementing and Monitoring Mechanisms 529 a. Prevalence of Violence 510 (i) Institutionalization 529 (i) Domestic Violence 510 (ii) Mainstreaming 530 (ii) Child Abuse 511 (iii) Grassroots Activation 530 (iii) Sexual and b. Complaints Process 530 Children 513 c. Protection and Rehabilitation 531 (iv) Incest 514 (i) Protective/Restraining Orders 531 (v) Child Marriages 516 (ii) Shelters 532 (vi) Female Genital Mutilation 517 (iii) One-stop Crisis Centers at Government (vii) Violence Against Sex Workers 517 Hospitals 532 (viii) Violence and Sexual Harassment Against (iv) Child Protection Teams 533 Indigenous Women and Children 517 (v) Court of Children 533 (ix) Violence against Women Refugee and (vi) Children’s Homes 533 Asylum-Seekers 518 (vii) Profession of Social Work 533 (x) Sexual Harassment 518 d. Prevention Strategy 534 (xi) E eminate Boys and Homosexuals 519 (xii) Judicial caning 519 4. Role of Non-State Actors 535 b. Root Causes of Violence and Aggravating a. Assistance to Victims 536 Practices 521 b. Prevention Programs 537 (i) Gender and Cultural (i) Campaign against Rape 537 Assumptions 521 (ii) Campaign against Domestic Violence 537 (ii) Sexual Objectication 521 (iii) Campaign Sexual Harassment Out (SHout) 537 (iii) Social Misconceptions 521 (iv) An Integrated Approach to Preventing Child (iv) Lower Socio-economic Status 522 Sexual Abuse 538 (v) Remoteness and Limited Reach of Law (v) Lobbying for Reform of Religious Laws 538 Enforcement 522 (vi) Services for Women in Rural Areas 538 (vi) Substance Abuse 522 c. Monitoring and Cooperation 538 (vii) Financial Problems 523 5. Progress Indicators and Challenges 539 c. Impact of Violence 523 a. Challenges 539 2. De Jure State Responses 523 (i) Need for Comprehensive and a. Bases of State Responsibility 523 Comparable Data 539 b. National Policies against Violence 524 (ii) Need to Expand Perceived Coverage 539 (i) Rape (Sexual Intercourse Without Consent) 524 (iii) More E ective Law Enforcement 539 (ii) Rape by Object Penetration 524 b. Progress Indicators 540 (iii) Statutory Rape 524 (i) Optional Protocol to CEDAW 540 (iv) Incest 525 (ii) Genderizing Laws 540 (v) Unnatural Sex or Gross Indecency 525 (iii) Gender-Sensitizing Law Enforcement 540 (vi) No Marital Rape 525 (iv) Public Health and Developmental Issue 540 (vii) Domestic Violence Act 526 (v) Gender Equality Act 540 (viii) Child Act 526 6. Recommendations for Further Study 540 c. Assessment of State Policies 527

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 504 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study

C. EXPLOITATION 541 (i) Domestic Workers 556 (ii) Undocumented/Stateless Children 558 1. Description of the Problem 541 (iii) Refugees and Asylum Seekers 559 a. Prevalence of Exploitation 541 b. Root Causes of Abuse and Discrimination in (i) Tracking in Women and Children to Migration and Aggravating Practices 561 Malaysia 541 (i) Social Isolation in a Domestic Environment 561 (ii) Tracking of 542 (ii) Slave-Owner Mentality 561 (iii) Internal Tracking 542 (iii) Unfair Terms 562 (iv) Child Tracking 543 (iv) 562 (v) Child Labour 543 (v) Statelessness 562 b. Root Causes of Exploitation and Aggravating (vi) Public 562 Practices 543 (vii) Legal Deciencies and Corruption 562 (i) Socio-economic Factors 543 c. Impact of Abuse and Discrimination in Migration 563 (ii) Individual Vector 544 (iii) Market Demand 544 2. De Jure State Responses 563 (iv) Governmental Commitment 544 a. Bases of State Responsibility 563 (v) Negative Public Misperception 545 b. National Policies against Abuse and (vi) Evolving and Developing Legal System for Discrimination in Migration 563 Immigration 545 (i) Entry into Malaysia: Immigration Act (vii) Corruption 545 and Passports Act 563 c. Impact of Exploitation 546 (ii) Immigration Enforcement 563 (iii) Payment of Wages 564 2. De Jure State Responses 547 (iv) Citizenship and Education 564 a. Bases of State Responsibility 547 c. Assessment of State Policies 564 b. State Policies against Exploitation 547 (i) Restricted Registration System 564 (i) Tracking of Persons 547 (ii) Mandatory Health Checks and Deportation 565 (ii) Child Act / Tracking in or Selling of (iii) Lack of Wage and Other Protection 565 Children 549 (iv) Abuse of Power 565 (iii) Forced Prostitution 549 (iv) Child Prostitution 549 3. Implementation, Monitoring and Enforcement 567 (v) Child Labour 549 a. Monitoring Mechanisms 567 (vi) Rape and Abuse of Authority 550 b. Complaints Process 567 c. Assessment of State Policies 550 c. Protection and Rehabilitation 567 d. Prevention Measures 568 3. Implementation, Monitoring and Enforcement 550 a. Monitoring Mechanisms 550 4. Role of Non-State Actors 568 b. Complaints Process 551 a. Assistance to Victims 568 c. Protection and Rehabilitation 552 (i) Legal Assistance 568 d. Prevention Measures 554 (ii) Shelters for Abused/Homeless Female Migrants 569 4. Role of Non-State Actors 554 (iii) Community Assistance 569 a. Assistance to Victims 554 b. Prevention Programs 569 b. Prevention Programs 555 c. Monitoring and Cooperation 569 c. Monitoring and Cooperation 555 5. Progress Indicators and Challenges 570 5. Progress Indicators and Challenges 555 6. Recommendations for Further Study 571 6. Recommendations for Further Study 556 BIBLIOGRAPHY 572 D. ABUSE AND DISCRIMINATION IN MIGRATION 556 1. Description of the Problem 556 a. Prevalence of Abuse and Discrimination in Migration 556

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 505

Formal Name : The Federation of Malaysia Capital City :

Male: 14.4 million Population Female: 13.9 million Both sexes: 28.03 million* Male: 71.05 years Life expectancy at birth Female: 76.73 Both sexes: 73.79 Median age: 26.2 years 0-14 years: 27.6% 15-64 years: 67.3% 65 and over: 5.1% Gender breakdown: Age structure Male 0-14 years: 14.2% (of total population) Female 0-14 years: 13.4% Male 15-64 years: 34.8% Female 15-64 years: 32.6% Male 65 and over: 2.4% Female 65 and over: 2.6% Total: 1.01 male(s)/female At birth: 1.069 male(s)/female Sex ratio Under 15: 1.06 male(s)/female 15-64 years: 1.01 male(s)/female 65 and over: 0.79 male(s)/female Bumiputra: 67.4% (Malays: 54.6%; other Bumiputra: 12.8%) Ethnic groups Chinese: 24.6% (Malaysian resident citizens only) Indians: 7.3% Natives of Sabah and Sarawak: 4.3% Others: 0.7% Islam: 61.3% Buddhism: 19.8% Christianity: 9.2% Religious groups Hinduism: 6.3% Taoism/Confucianism/other traditional Chinese religions: 1.3% Other/unknown religions: 1.4% No religion: 1.0% Male: 94.58%1 Functional literacy rate Female: 90.29%2 Both sexes: 92.1% National poverty line RM720 per month Percentage of population living below 3.8% the national poverty line Gross Domestic Product per capita US$8,3730

1 United Nations Educational, Scientic, and Cultural Organization (UNESCO) Institute for Statistics, Indexmundi (2009), online at http://www. indexmundi.com/facts/malaysia/literacy-rate) (accessed Jan 27, 2012). 2 United Nations Educational, Scientic, and Cultural Organization (UNESCO) Institute for Statistics, Indexmundi (cited in note 1 ). Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 506 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study

Total: 2.045 million3 Number of foreign workers in country Male: - Female: - Percentage of 15.56% female-headed households (887,000 out of 5.7 million heads of households) Total: 62.7% Labour force participation rate Male: 78.7% Female: 46.1% Total: 3.4% Unemployment rate Male: 3.3% Female: 3.6% Total: 4.5%4 Proportion of unpaid family workers Male: 1.7% Female: 2.8% Fertility rate 2.4 Maternal mortality rate 31 deaths/100,000 live births Infant mortality rate 6.3 deaths /1,000 live births e Child Act 2001 denes a ‘child’ as ‘a person under the age of eighteen Legal denition of ‘child’ years’ but ‘in relation to criminal proceedings, a child is a person under ten years of age. Age of majority 18 years of age5 Non-Muslim male: 18 Non-Muslim female: Licence is required for females aged 16 and 17, not required for 18 and above Marriageable age Parental consent for non- Muslim males and femalesis required until 21 years of age 6 18 years of age for Muslim males and 16 years of age for Muslim females Age of consent 16 years of age 10 years of age,7 although section 83 provides for an exception for a child above ten years of age and under twelve who has ‘not attained sucient Age of criminal responsibility maturity of understanding to judge of the nature and consequence of his conduct on that occasion.’ Minimum age of employment 14 years of age Minimum age for military 18 years of age recruitment and participation *Unless otherwise indicated, population data are as at 2010, and refer to the total resident population, i.e.citizens and non-citizens.

3 Department of Statistics Malaysia, Selected Social Statistics, Series 10(February 2009) online at http://www.statistics.gov.my/portal/download_ Labour/les/BPTMS/PST-Siri10.pdf (accessed Jan 27, 2012). 4 Based on total number in the workforce. Department of Statistics Malaysia, Labour Force Statistics, (2010),onlineathttp://www.statistics.gov.my/ portal/download_Labour/les/BPTMS/ringkasan_perangkaan_2010.pdf (accessed Jan 27, 2012). 5 Age of Majority Act (1971) 6 Law Reform (Marriage and Divorce) Act 1976 (Act 164), Sections 10 and 21(2), available at http://www.agc.gov.my/Akta/Vol.%204/Act%20164. pdf (accessed 27 May 2012). 7 Penal Code (1997 Revised), 82.

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A. OVERVIEW 2006. Besides the CEDAW Report, the following related documents alsoformed part of this literature review: 1. Baseline Literature a. Joint Report submitted by 28 non-governmental organisations to the CEDAW Committee, is study uses as its baseline Malaysia’s combined initial critiquing the government’s report, 2005 (‘NGO and second periodic reports to the CEDAW Committee CEDAW Shadow Report’);13 (‘CEDAW Report’),8 Initial Report to the Committee 9 b. Malaysia’s responses to the CEDAW Committee’s on the Rights of the Child in 2006 (‘CRC Report’), as list of issues and questions for consideration, 2006 well as Malaysia’s Universal Periodic Review Report to (‘Malaysia’s CEDAW Responses’);14 and the Council in 2008 (‘Malaysia’s UPR’).10 e Convention on the Elimination of Discrimination b. Concluding Comments by the CEDAW against Women (CEDAW) and the Convention on the Committee, 2006 (‘CEDAW Concluding 15 Rights of the Child (CRC) are the central international Comments’); and instruments governing Malaysia’s legal-political c. National Council for Women’s Organisations’ framework on the protection of women and children Memorandum on the Concluding Comments against violence, exploitation and migration.11 Neither from the CEDAW Committee.16 CEDAW nor the CRC are part of Malaysia’s domestic law. Malaysia adheres to the dualist tradition; treaties are not Malaysia submitted its CRC Reportin 2006and the CRC self-executing but must be incorporated by an ad-hoc Committee considered it in June 2007. Besides the CRC legislative act to be directly applicable in domestic law.12 Report, the following related documents also formed part At present, the Malaysian parliament has yet to enact the of this literature review: necessary incorporating statute. Nonetheless, the reports a. Written Replies by the give insights into Malaysia’s approaches to the protection concerning list of issues received by the committee, of women and children, not just in the positive sense of 2006 (‘CRC Written Replies’);17 and showcasing areas of improvement but also in the negative b. CRC Committee’s concluding observations, 2007 sense of highlighting areas where attention is still lacking. (‘CRC Concluding Observations’).18 Malaysia submitted its CEDAW Report on 12 April 2004and the CEDAW Committee considered itin May 13 NGO Shadow Report Group, NGO Shadow Report on the Initial and Second Periodic Report of the Government of Malaysia (2005), 8 Combined Initial and Second Periodic Reports of State Parties, online at http://www.iwraw-ap.org/resources/pdf/Malaysia_SR.pdf Committee on the Elimination of Discrimination Against Women, (accessed Jan 27, 2012) (hereaer ‘NGO Shadow Report’) (Apr 22, 2004), CEDAW/C/MYS/1-2 (hereaer ‘Malaysia’s CEDAW Report’). e reports were due in 1999 and 2003. 14 Malaysia’s Responses to the list of issues and questions for consideration of the combined initial and second periodic report, 9 Consideration of Reports Submitted by State Parties under Article 44 Committee on the Elimination of Discrimination Against Women, of the Convention: Malaysia, Committee on the Rights of the Child (Mar 27, 2006), CEDAW/C/MYS/Q/2/Add.1 (hereaer ‘Responses (Dec 22, 2006), CRC/C/MYS/1 (hereaer ‘Malaysia’s CRC Report’). to CEDAW Questions’) e Report was due in 1997. 15 See also the Concluding Comments of the Committee on 10 National Report Submitted in Accordance with Paragraph 15(A) the Elimination of Discrimination against Women: Malaysia, of the Annex to Human Rights Council Resolution 5/1: Malaysia, Committee on the Elimination of Discrimination Against Women Human Rights Council, Working Group on the Universal Periodic (31 May 2006), CEDAW/C/MYS/CO/2 (hereaer ‘CEDAW Review, Fourth Session, (Nov 19, 2008), A/HRC/WG.6.4/MYS/1/ Concluding Comments’). Rev. 1 (hereaer ‘Malaysia’s UPR’). 16 NGO Shadow Report Group, National Council for Women’s Organi- 11 Malaysia signed both instruments in 1995: the CRC on 17 February sations’ Memorandum on the ConcludingComments from the CE- 1995 and CEDAW on 5 July 1995. DAW Committee(Mar 8, 2007), (accessed Jan 27, 2012), online at 12 Judges in common law dualist countries such as Malaysia http://www.wao.org.my/backup_v1_21.7.2011/newslinks/Memo- have however incorporated human rights provisions into their randumCEDAWConcludingCommentsMar07.pdf. constitutional and statutory interpretation. ere was recently 17 Written Replies by the Government of Malaysia Concerning the a landmark High Court decision where CEDAW’s article 11 List of IssuesReceived by the Committee on the Rights of the Child provisions against was used to inform Relating to the Consideration of the Initial Report of Malaysia, the interpretation of Malaysia’s constitutional prohibition against Committee on the Rights of the Child (Dec 4, 2006), CRC/C/ gender discrimination. Noorfadilla binti Ahmad Saikin v Chayed MYS/Q/1/Add.1 (CRC/C/MYS/Q/1). bin Basirun, et. al. [2012] 1 MLJ 832. See further Jaclyn Ling- Chien Neo, Calibrating Interpretive Incorporation: Constitutional 18 Consideration of Reports Submitted by States Parties Under Article Interpretation and Pregnancy Discrimination under CEDAW, 44 of the Convention, Committee on the Rights of the Child, Forty- Human Rights Quarterly (2013, forthcoming) fourth session, (Jun 25, 2007), CRC/C/MYS/CO/1.

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Malaysia’s UPR was a necessary update to Malaysia’s As Malaysia’s CEDAW and CRC reports were prepared CEDAW and CRC Reports insofar as it discussed human more than ve years ago (i.e. submitted in 2004 and rights issues involving problems of violence, exploitation 2006 respectively) and the UPR,though more recent, and migration against women.19 e Human Rights addresses women’s and children’s issues from a broader Council considered Malaysia’s 2008 UPR in its fourth human rights perspective, more updated and specialised session. Besides the UPR, following documents arising literature needed to be reviewed to further illuminate from the UPR were reviewed: the documented prevalence of the problem of violence, a. Stakeholders’ Submissions to the universal exploitation and migration a ecting women and children, periodic review, 2008 (‘UPR Stakeholder’s as well as to evaluate the de jure state responses and the Submissions’);20 range of implementation, monitoring and prevention mechanisms in Malaysia. b. Report of the Working Group on the Universal Periodic Review, 2009 (‘UPR Working Group Report’);21 At the national level, various domestic reports and documents prepared by Malaysian government agencies c. Addendum to the Report of the Working Group, 22 and the Human Rights Commission of Malaysia 2009; (SUHAKAM) formed part of this literature review. ese d. Report by the Coalition of Malaysia NGOs in the were: UPR Process (‘COMANGO Report’);23 1) Malaysia Government’s National Action Plan on e. Joint submission by members of the Migration Tracking in Persons (2010- 2015) Working Group (MWG) and the Northern 2) Police Statistics; Network for Migrants and Refugees (Jaringan 3) South East Asia National Human Rights Utara Migrasi dan Pelarian, JUMP) (‘MWG- 24 institutions Forum (SEANF) Paper on Migrant JUMP submission’); and Workers 2010, (Malaysia, Human Rights f. Bar Council’s Report submitted to the UN Human Commission of Malaysia, 2010), p14 (‘SEANF Rights Council for its Universal Periodic Review Migrant Workers Paper’). (‘Bar Council UPR Report’).25 4) SUHAKAM Annual Report 2010

19 Malaysia’s UPR (cited in note 9). Furthermore, newspaper reports provided the most 20 Summary Prepared by the Oce of the High Commissioner for updated information on the prevalence of the problem, Human Rights in Accordance with Paragraph 15(c) of the Annex state responses as well as implementation, monitoring to Human Rights Council Resolution 5/1: Malaysia, Human Rights and prevention mechanisms. Council Working Group on the Universal Periodic Review, Fourth session, (Oct 27, 2008), A/HRC/WG.6/4/MYS/3 (hereaer Lastly, reports by external bodies and NGOs provided ‘OHCHR Summary’) external views and important empirical and anecdotal 21 Report of the Working Group on the Universal Periodic Review, accounts regarding the treatment of women and children Human Rights Council, Eleventh session, (Oct 5, 2009), A/ in Malaysia. e relevant documents reviewed are: HRC/11/30. 22 Addendum to the Report of the Working Group on the Universal 1) US State Department 2010 Tracking in Periodic Review: Views on conclusions and/or recommendations, Persons Report (‘2010 TIP Report’); voluntary commitments and replies presented by the State under 2) US State Department 2010 Human Rights review, Human Rights Council, Eleventh session, (Jun 3, 2009), A/ Report (HR Report); HRC/11/30/Add.1. 3) Human Rights Watch Report, ‘Help Wanted: 23 Women’s Aid Organisation, Report by the Coalition of Malaysia Abuses against Female Migrant Domestic NGOs in the UPR Process, online at http://www.wao.org.my/ Workers in and Malaysia’ (2004);26 backup_v1_21.7.2011/Documents/COMANGO-Final.pdf and (accessed Jan 27, 2012). 4) Human Rights Watch Report, ‘‘ey Deceived 24 Joint submission by members of the Migration Working Group (MWG) and the Northern Network for Migrants and Refugees UN Human Rights Council for its Universal Periodic Review (Jaringan Utara Migrasi dan Pelarian, JUMP), Human Rights (September 2008), online at: http://www.malaysianbar. Council, 4th Session, (February 2009), online at: http://lib. org.my/index.php?option=com_docman&task=doc_ ohchr.org/HRBodies/UPR/Documents/Session4/MY/MWG_ details&gid=1735&Itemid=332 (accessed Jan 27, 2012). JUMP_MYS_UPR_S4_2009_MigrationWorkingGroup_ 26 Human Rights Watch, Help Wanted: Abuses Against Female Migrant theNorthernNetworkforMigrantsandRefugees_JOINT_upr.pdf Domestic Workers in Indonesia and Malaysia, (Jul 21, 2004), online (accessed Jan 27, 2012) (hereaer ‘MWG-JUMP Submission’). at http://www.hrw.org/reports/2004/07/21/help-wanted (accessed 25 Malaysian Bar Council, Bar Council's Report submitted to the Nov 10, 2011).

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Us at Every Step: Abuse of Cambodian Domestic in conformity with the Constitution, national laws and Workers Migrating to Malaysia’’ (2011);27 national policies of the Government of Malaysia.’ Despite 5) International Council on Social Welfare’s Report, withdrawing reservations to Articles 1, 13 and 15 of CRC, ‘Tracking and Related Labour Exploitation in Malaysia still has ve reservations in place. is suggests the ASEAN Region’ (2007).28 that the Malaysian Government still takes the view that children can be discriminated against, have no right e literature review showed that issues of violence to a name or nationality, have no freedom of thought, against, exploitation of as well as abuse/discrimination conscience and religion, and staggeringly, should not be arising from migration of women and children manifest free from torture and deprivation of liberty,30 presumably in a multitude of situations. ese situations raise due to the existing views of cultural and religious groups di erent but overlapping considerations. As such, while concerning the status of children. the report seeks to provide a comprehensive view of these issues, it also concentrates on certain issues that Malaysia practices state legal pluralism;31 there is a general disproportionately a ect women and children so as to system of law and courts and a limited system of Islamic provide a better understanding of the predicament of or Sharia courts. ese Sharia courts are part of the the most vulnerable groups of women and children in realization of the claims of the religious majority to self- Malaysia. ese sub-issues are: determination and group autonomy in Malaysia. About sixty per cent of Malaysians are Muslims, the rest being of 1. Violence against women and children: Domestic Buddhist, Hindu, and Christian aliations. While there violence (against wives and children) and sexual is some general correlation between race and religion for violence (note that issues of violence against two of the three major racial groups, that is, most Chinese domestic migrant workers are addressed under are Buddhists/Taoists and most Indians are Hindus, there the rubric of abuse and discrimination of is an almost complete overlap between Malays and Islam migrant); in Malaysia. 2. Exploitation of women and children: Tracking of women and children, and child prostitution; Criminal law falls within the scope of the federal 3. Migration of women and children: Abuse of government, whereas Islamic/Sharia laws fall within the domestic foreign workers and undocumented/ scope of the state government. e Sharia Courts (Criminal stateless street children. Jurisdiction) Act 1965 provides that Sharia courts only have jurisdiction over o ences against the precepts of 2. Background on Malaysia the religion of Islam. Such o ences are applicable only to persons professing Islam and the maximum punishment Malaysia’s racial and religious demographic, and its for these o ences are three-year imprisonment, a ne pluralistic legal system are two critical factors a ecting not exceeding RM 5,000 and/or 6 strokes of the cane.32 Malaysia’s approach to women and children. ese formed Despite this, jurisdictional conicts between federal and the basis of Malaysia’s declarations and reservations to state governments on the one hand, and secular and CEDAW and CRC. With regard to CEDAW, Malaysia Islamic courts on the other, have meant that some laws declared that its accession is subject to the understanding guaranteeing individual liberties arede facto deferred to that the provisions of the Convention do not conict Islamic requirements, at least for Muslims. e resulting with the provisions of the Islamic Sharia’ law and the uncertainty on the law may undermine state protection Federal .’29 As for the CRC, the for women and children (see below discussion on Malaysian government declared that its implementation statutory rape, child marriages and domestic violence). of certain provisions would ‘be applicable only if they are ere are also discrepancies between the general/secular and Sharia laws, with the latter granting fewer protections 27 Human Rights Watch, ey Deceived Us at Every Step: Abuse of Cambodian Domestic Workers Migrating to Malaysia, (Nov 1, 2011), online at http://www.hrw.org/reports/2011/11/01/they-deceived- 30 Lim Chee Wee, Press Release: Time to remove all reservations and us-every-step (accessed Nov 10, 2011). sign the Optional Protocols, (MalaysianBar Jul 8, 2010), online at: http://www.malaysianbar.org.my/press_statements/press_release_ 28 Sally Cameron, Tracking and Related Labour Exploitation in the time_to_remove_all_reservations_and_sign_the_optional_ ASEAN Region, (International Council on Social Welfare, Nov protocols.html (accessed Jan 27, 2012). 2007), online at www.icsw.org (accessed Jan 27, 2012). 31 For a description of the types of legally pluralistic orders (and 29 Country Reservations, United Nations Committee for the more), see William Twining, Normative and Legal Pluralism: A Elimination of Discrimination Against Women,online at http:// Global Perspective, 20 Duke J. of Comp. & Int’l Law 473 (2010). www.un.org/womenwatch/daw/cedaw/reservations-country.htm (accessed Jan 27, 2012). 32 Sharia Courts (Criminal Jurisdiction) Act (1965), 2.

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 510 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study to women. For instance, general laws exempt women abuse) and sexual violence against women and children from judicial corporal punishment. However, Sharia laws in Malaysia in recent years. do not similarly exempt women from whipping as a form of punishment. ere have been occasions in recent years (i) Domestic Violence where women have been sentenced to whipping upon conviction for Sharia o ences, which women’s groups Statistics show that the number of reported cases of heavily criticised. As an example, in 2010, three women domestic violence (keganasan rumahtangga) rose sharply were caned aer being convicted of engaging in illicit in 2007 and 2008, but since then appear to be on the sex under section 23(2) of the Federal Territory Sharia decline. e numbers do not di erentiate between Criminal O ences Act 1997 (Illicit Sex).33 It should be men and women victims. is is consistent with the noted that whipping as a form of punishment in the Malaysia’s Domestic Violence Act being gender neutral. Sharia system is less severe than judicially ordered caning Nonetheless, media reports quote the police department in the general system. Nonetheless, the discrepancies acknowledging that about 98% of reported victims have also have symbolic e ect. At the very least, the Sharia been women. 35 legal system needs to more seriously take into account the viewpoints of Muslim women. As Malaysia’s Women 2005 2006 2007 2008 2009 2010 Action Plan recommended, there was a need to involve Domestic women and obtain their opinions in the formulation of violence 3,093 3,264 3,756 3,769 3,643 3,173 religious directions (fatwa) on issues concerning women. Source: and Finally, it should be highlighted that discrimination Ministry of Women, Family and Community Development and abuse is a systemic problem that is closely tied to the degree of political freedoms. Political freedoms are Based on the statistics, the reported incidences of necessary to bring about true reform, which requires domestic violence are the highest in urbanized states. more than just legal but also political and social changes. e highest number of reported cases occurs in the state Furthermore, when democratic space is constricted and of Selangor, which is the most urbanized and developed dominated by a singular mainstream discourse, this can state in Malaysia. Furthermore, the number of cases be used to perpetuate gender and patriarchal stereotypes reported for Kuala Lumpur may not seem very high in with negative consequences for women and children.34 absolute terms, but considering the size of the territory, A corollary e ect is that women and children who the numbers are worrying. However, despite an overall become politically active are denigrated and their e orts decline in the number of reported cases, there has been delegitimized because of their perceived (lower) status in an increase in the number of reported cases in less society. developed states such as Kelantan (from 33 cases in 2000, to 242 cases in 2010) and Sabah (from 102 cases in 2000, B. VIOLENCE to 301 cases in 2010).

1. Description of the Problem e higher number of reported cases in urbanized areas may be due to better policing in the area and/or due to a. Prevalence of Violence more awareness among urbanized women of their right not to be abused, thereby leading to more reports. ese ere has been growing recognition of the prevalence factors may also account for the increase in reported cases and seriousness of domestic violence (including child in less developed states in more recent times as policing and awareness campaigns begin to change cultural and 33 Women whipped: O enders are repentant, says minister, (e Star social norms in these areas. e exact causes for the Malaysia Feb 18, 2010), online at http://thestar.com.my/news/ changes (rise and decline) in the number of reported story.asp?file=/2010/2/18/nation/20100218192616&sec=nation cases are an area of possible research. (accessed Jan 27, 2012). 34 See for example, Ambiga Sreenevasan, Healthy Democracy, Healthy Government, (e Star Malaysia Mar 8, 2011), online at:http://thestar.com.my/lifestyle/story.asp?file=/2011/3/8/ lifefocus/8177999&sec=lifefocus (accessed Jan 27, 2012). See further recent events such as the Wanitasupermy rally. Leven Woon, Women Paint PJ Purple in Demanding Clean Governance, 35 Andrew Sagayam, A Rape Every 2.5 Hours, (Malay Mail Online May (Malaysiakini, Mar 18, 2012), online at: http://www.malaysiakini. 19, 2011), online at:http://www.mmail.com.my/content/72570- com/news/192418(accessed Jan 27, 2012). rape-every-25-hours (accessed Nov 9, 2011).

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DOMESTIC VIOLENCE CASES IN MALAYSIA/YEAR 2000-2010 (By States) KES KEGANASAN RUMAH TANGGA DI MALAYSIA

STATES/NEGERI 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 PERLIS 39 27 39 32 53 21 27 46 10 54 47 KEDAH 117 179 177 179 264 328 198 378 387 288 135 P/PINANG 399 431 269 231 255 272 213 338 279 286 282 PERAK 269 185 135 123 85 186 151 261 241 290 345 SELANGOR 877 855 942 805 932 845 520 811 1,102 1,015 626 K/LUMPUR 264 162 131 96 95 71 42 189 92 71 123 N/SEMBILAN 349 318 242 301 262 253 206 289 252 274 239 MELAKA 92 56 67 68 104 159 112 106 89 62 64 JOHOR 377 379 187 234 465 320 259 315 273 231 300 PAHANG 150 161 202 188 206 167 86 197 186 149 164 TERENGGANU 24 29 10 9 21 23 24 82 90 68 45 KELANTAN 33 36 47 19 27 80 53 184 252 173 242 SABAH 102 86 85 69 124 114 56 144 218 342 301 SERAWAK 316 203 222 201 208 254 224 416 298 340 260 TOTAL/JUMLAH 3,468 3,107 2,755 2,555 3,101 3,093 2,171 3,756 3,769 3,643 3,173 Source: Women’s Centre for Change ()36

(ii) Child Abuse Year 2005 2006 2007 2008 2009 2010 Physical Child 189 141 196 22037 203 25738 Child abuse is an area that has received increasing Abuse 3738 attention from the Malaysian government as well as non- Source: Royal Malaysia Police and Ministry of Women, governmental organizations in recent years. Generally Family and Community Development speaking, statistics show an increase of reported cases over the years. e Department of Social Welfare’s reported number of child abuse cases is higher as it relies on amore According to police statistics, the number of reported comprehensive list of sources. Other than the police, the cases of physical abuse of children (penderaan kanak- Department’s statistics include reported cases with the call kanak) was at an all-time high in 2010. Compared to 189 centre 15999, private medical practitioners, government reported cases of child abuse in 2005, a total of 257 cases hospitals, members of the public, media, district social welfare ocers, schools, nurseries/kindergartens, family of physical child abuse were reported in 2010. Ocial 39 statistics for 2011 have not been released to the public. members and other institutions.

37 Data for the year 2008 was not widely available. It was presented in a newspaper report which claimed to rely on statistics released by the police department. Andrew Sagayam, Record High Child 36 Compiled by the Women’s Centre for Change (Penang) (formerly Abuse, (Malay Mail Online May 20, 2011), online at http://www. known as Women’s Crisis Centre), with information from mmail.com.my/content/72695-record-high-child-abuse (accessed Perangkaan Wanita, Keluarga dan Kebajikan Masyarakat (2006), Nov 9, 2011). It should be noted that the online content has since Kementerian Pembangunan Wanita, Keluarga dan Masyarakat, been removed. Pemberitahuan Pertanyaan Bagi Bukan Jawab Lisan 38 Data provided by the Women’s Aid Organisation (on le with author). (2010) and Polis Diraja Malaysia (PDRM). Women’s Centre for Change, Domestic Violence Cases in Malaysia / Year 2000-2010, 39 Reported Child Abuse Cases According to the Source of Referrals online at: http://www.wccpenang.org/les/docs/DOMESTIC_ 2006-2008, Statistics: United Against Abuse, UNICEF Malaysia, VIOLENCE_CASES_IN_MALAYSIA_updated_on_sept_2011.pdf online at http://www.uniteagainstabuse.my/learn/facts?id=4 (ac- (accessed Jul 17, 2012). cessed Jul 11, 2012)

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Year 2005 2006 2007 2008 2009 2010 increase of almost 1,000 cases, e.g. 2,696 or 2,780 cases in 2008. It is not clear if this increase is a real increase, that Child abuse 1,800 1,999 2,279 2,780 NA40 NA is, whether it is due to better reporting or because there (Total) are more incidences of child abuse. It is also possible that the increase is due to a change in statistical methods, e.g. Source: Ministry of Women, Family and Community a broader denition of what constitutes child abuse. a40Development41 Statistics from the Department of Social Welfare, Malaysia Data presented to the CRC Committee showed that most show that 2,780 cases of child abuse were reported in child abuse victims fall within the 7-15 years age bracket 2008. is means that an average of 7 children were and are of the Malay ethnicity (although the latter could be reported to be victims of child abuse each day in 2008. a function of the population distribution). Furthermore, a According to the Department data, more than 13,000 large number of female child victims experienced sexual children were abused in Malaysia between 1999 and 2008 abuse; for example, 524 female victims out of 1170 female (a ten year period).42 victims experienced sexual abuse in 2005.

Neglect is the most common form of child abuse in Statistics obtained from the Department of Social Welfare Malaysia, followed by physical abuse and sexual abuse. show that 1 in 2 child victims reported in 2008 were Sexual abuse disproportionately a ects female child abused by a parent; out of 2,780 child abuse cases reported victims. As an indication, a breakdown of cases according in 2008, 772 o enders were mothers of the victims, while to type of abuse and the gender of the victims for 2007 494 cases were attributed to fathers of the victims.45 and 2008 are as follows: UNICEF has expressed concern that child abuse is on the Type of Abuse 2007 2008 rise in Malaysia with an increase of some 700 reported Male Female Total Male Female Total cases between 2006 and 2008 alone.46 UNICEF Further Abandoned 30 33 63 29 29 58 noted concern that these gures represent only reported babies cases to the Department of Social Welfare, police or Neglect 392 369 761 421 531 952 hospitals/clinics when children are treated.47 ere is Physical Abuse 298 288 586 430 433 863 justied concern that the child abuse is more widespread Sexual Abuse 50 704 754 5 199 204 than these gures show. According to UNICEF, global Emotional / 7 38 45 39 51 90 experience shows that only a small proportion of child Psychological Abuse abuse is reported and investigated, and few perpetrators 48 Incest 2 19 21 30 499 529 are held to account. Anecdotal evidence indicates Others 27 22 49 31 53 84 that, oen, only the most acute cases of child abuse are reported.49 Furthermore, very young children, for Total 806 1,473 2,279 985 1,795 2,780 example, lack the capacity to report physical or sexual Source: Department of Social Welfare43 abuse, while older children also oen fear reprisals by perpetrators or interventions by authorities, both of Malaysia’s representations to the CRC stated that there which may worsen their overall situation.50 were 1,390 reported cases of child abuse in 2003 and 1,800 cases in 2005.44 However, later statistics showed an of Malaysia, Committee on the Rights of Child, 44th session, (4 December 2006), CRC/C/MYS/Q/1/Add.1. 40 ere is a gap in the public data. 45 UNICEF Malaysia, UNICEF Fact Sheet: Child Abuse in Malaysia, 41 See Department of Statistics Malaysia, Perangkaan Sosial Terpilih: (September 2010), online at http://www.unicef.org/malaysia/Ge- Trend Sosial di Malaysia (Siri 11/2009), online at http://www. tonBoard-Factsheet-Child-Abuse-in-Malaysia.pdf (accessed Jul 10, statistics.gov.my/portal/download_Labour/files/BPTMS/PST- 2012) (hereaer UNICEF Fact Sheet 2010); Reported Child Abuse Siri11.pdf (accessed Jul 20, 2012) Cases According Abuser 2006-2008, archived at United Against Abuse: Statistics, UNICEF Malaysia, online at http://www.unite- 42 Department of Statistics Malaysia, Perangkaan Sosial Terpilihat againstabuse.my/learn/facts?id=4 (accessed Jul 11, 2012). 13-4 (cited in note 43). 46 UNICEF Fact Sheet 2010 (cited in note 45). 43 Also archived at United Against Abuse: Statistics, UNICEF Malay- sia, online at http://www.uniteagainstabuse.my/learn/facts?id=4 47 UNICEF Fact Sheet 2010 (cited in note 45). (accessed Jul 11, 2012). 48 UNICEF Fact Sheet 2010 (cited in note 45). 44 Written Replies by the Government of Malaysia Concerning the 49 UNICEF Fact Sheet 2010 (cited in note 45). List of Issues (CRC/C/MYS/Q/1) Received by the Committee on the Rights of the Child Relating to the Consideration of the Initial Report 50 UNICEF Fact Sheet 2010 (cited in note 45).

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(iii) Sexual Violence against Women and Children is dropped slightly to 3,595 cases of rape in 2010.55565758

A total of 3,595 cases of rape were reported in 2010. is Year 2005 2006 2007 2008 2009 2010 2011 means that an average of 10 women wasraped every Rape 1,931 2,454 3,17655 3,49456 3,81657 3,595 3,30158 day in Malaysia in 2010. Latest 2012 statistics from Outrage of the Malaysian Police Force show that there were 408 Modesty 1,746 1,349 2,243 2,131 2,110 2,054 1,941 (Molestation) rape cases in the months of January and February 2012 51 Sexual alone. e department noted that this is a decrease of Harassment in the 102 101 195 NA NA NA NA 43 cases from the same period the year before (January Workplace and February 2011).52 Nonetheless, this would still mean that an average of 6 to 7 rape cases occurred over the two- Source: Royal Malaysia Police, and Ministry of Women, Family 59 month period each day. and Community Development

e Malaysian Police Force’s Sexual and Child Abuse division has started compiling comprehensive data on violence against women and children, which is highly commendable. However, the data is not publicly and widely available but have only been selectively released to the public.53 ere has been a general increase in sexual crimes against women and children, although there is indication that the numbers are decreasing slightly. For instance, compared to the 1,217 cases of reported rape in 2000 (based on Malaysia’s representations to the CEDAW Committee),54 there were 3,816 reported cases in 2009.

55 Statistics from Malaysian Police Force’s annual report 2008. Portal Rasmi Polis Diraja Malaysia, Report Tahunan 2008, online at: http:// www.rmp.gov.my/defaultbase.cfm?path=about/Ops.cfm?mod=78 (accessed Jul 18, 2012). 56 Statistics from Malaysian Police Force’s annual report 2009. See Portal Rasmi Polis Diraja Malaysia, Report Tahunan 2009, online at:http://www.rmp.gov.my/defaultbase.cfm?path=about/Ops. cfm?mod=78 (accessed Jul 18, 2012). 57 Statistics from Malaysian Police Force’s annual report 2009. e report also stated that 95.65% of the cases were solved in 2009, i.e. that 3,650 cases were solved in 2009. is may suggest commitment and eciency on the part of the police force, as well as the possibility that a large number of perpetrators are known to the rape victims, thereby facilitating identication and arrest. Report Tahunan 2009 at 100 (cited in note Error! Bookmark not dened.). See also Women’s Aid Organization, Statistics on Violence against 51 Portal Rasmi Polis Diraja Malaysia, Perbandingan Jenayah Indeks (2000 - 2010), online at: http://www.wao.org. Bagi Tempoh Jan-Feb 2011 dan Jan-Feb 2012, online at http:// my/Police+Statistics+2007_64_5_1.htm (accessed Jul 25, 2012). www.rmp.gov.my/defaultbase.cfm?path=about/Ops.cfm?mod=78 Note however there is a slight discrepancy in the 2009 data for on (accessed Jul 18, 2012). rape. e WAO compilation shows lower number of rape cases in 52 Perbandingan Jenayah Indeks Bagi Tempoh Jan-Feb 2011 dan Jan- 2007, 2008 and 2009, i.e. 3,098, 3,409, and 3,626 respectively. It is Feb 2012(cited in note 51). not clear why there is such a discrepancy. WAO uses data provided by the Ministry of Women, Family and Community Development 53 e police department released the booklet to e Malay Mail (a and the Malaysian Police Force. local newspaper), which published a series of articles highlighting some of the relevant data. In addition, the non-governmental 58 Data provided by Women’s Aid Organisation (stated source: Royal Women’s Aid Organisation (WAO) managed to obtain a copy of Malaysia Police & Ministry of Women, Family & Community the booklet aer much negotiation and only on condition that it Development) (on le with author). is used for research purposes only. e Malay Mail articles are no 59 WAO, Statistics on Violence against Women in Malaysia (2000 longer available online. See: Sagayam, Record High Child Abuse, - 2010) (cited in note 57), supplemented by data provided by (cited in note 37); Sagayam, A Rape Every 2.5 Hours, (cited in note Women’s Aid Organisation (stated source: Royal Malaysia Police & 35). (Printed copies on le with author.) Ministry of Women, Family & Community Development) (on le 54 Responses to CEDAW Questions at 15 (cited in note14). with author).

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RAPE CASES IN MALAYSIA/ KES ROGOL DI MALAYSIA YEAR/TAHUN 2000-2010 (By States/Mengikut Negeri)

STATES/NEGERI 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 PERLIS 12 10 13 11 21 26 28 27 41 43 40 KEDAH 110 123 132 119 127 163 221 313 314 344 339 P/PINANG 61 75 73 70 89 71 115 161 177 179 150 PERAK 91 79 100 118 121 148 183 226 234 257 294 SELANGOR 216 269 253 280 289 368 421 562 630 623 639 K/LUMPUR 67 97 120 77 116 111 142 221 186 155 152 N/SEMBILAN 59 82 62 69 89 97 103 153 194 210 182 MELAKA 43 43 57 67 100 77 125 139 130 110 106 JOHOR 194 234 235 312 323 324 343 473 535 589 585 PAHANG 74 79 79 70 102 84 143 194 206 221 223 TERENGGANU 48 48 45 38 58 99 127 130 141 122 137 KELANTAN 52 74 70 66 82 90 152 167 246 308 307 SABAH 109 94 115 111 149 156 199 196 236 261 239 SERAWAK 81 79 77 71 94 117 129 136 139 204 202 TOTAL/JUMLAH 1,217 1,386 1,431 1,479 1,760 1,931 2,431 3,098 3,409 3,626 3,595

Source: Royal Malaysia Police, and Ministry of Women, Family and Community60

ere are media reports providing the demographic (iv) Incest breakdown of the rape victims which show that a signicant proportion of rape victims were below 18 ere has been a rise in reported cases of incest 61 years old. It should nonetheless be noted that these data in Malaysia, with fathers being the most common includes statutory rape cases. In order to fully apprehend perpetrator of incest. the nature of the problem of sexual violence, and calibrate legal and policy responses, there is a need to disaggregate statutory rape from the rape data. Furthermore, where male minors are convicted of statutory rape, there is a lack of adequate protection and counselling to address the problem, particularly to ensure that these male minors are treated di erently from common criminals.

60 Women’s Centre for Change (Penang), Rape Cases in Malaysia 2000-2010, online at http://www.wccpenang.org/les/docs/RAPE_ CASES_IN_MALAYSIA_updated_on_sept_2011.pdf (accessed Jul 25, 2012). 61 According to the media reports, which claimed to rely on ocial statistics, a signicant number of victims below 18 years of age were very young, i.e. below 13 years. For example, in 2010, the reports stated about 73.9% of rape victims were below 18 years of age, and of these 73.9%, 10% of victims were under 13 years old. is means that of 3,595 reported cases in 2010, 2,658 involved victims below 18 years of age.ese numbers could not be independently veried as ocial statistics have not been forthcoming. is is an area for further research. See Sagayam, A Rape Every 2.5 Hours, (cited in note 35).

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RELATIONSHIP WITH VICTIM AND SUSPECT/PERHUBUNGAN MANGSA DENGAN SASPEK YEAR/TAHUN 200-2007

RELATIONSHIP/PERHUBUNGAN 2000 2001 2002 2003 2004 2005 2006 2007 Grandfather/Datuk 4 5 13 5 7 1 7 5 Step Grandfather/Datuk tiri 3 0 2 3 3 1 1 1 Granduncle/Datuk saudara 2 1 1 3 0 0 3 2 Father/Bapa 67 77 77 72 99 88 100 96 Step Father/Bapatiri 41 52 40 42 58 46 70 57 Uncle/Bapa saudara 34 42 65 42 61 54 60 74 Father-in-law/Bapa mertua 0 1 0 0 2 2 0 1 Adopted father/Bapa angkat 3 7 9 5 7 16 11 11 In-law/Menantu 0 0 0 0 0 0 0 1 Brother/Abang 13 15 29 22 24 18 25 36 Step Brother/Abang tiri 1 4 10 6 9 7 4 6 Brother-in-law/Abang/Adik ipar 26 23 22 20 21 30 19 44 Foster brother/Abang angkat 3 0 1 0 0 4 4 2 Brother/Adik 1 0 2 0 1 0 1 1 Step Brother/Adik tiri 0 0 0 0 0 0 1 0 Child/Anak 0 0 2 1 0 1 2 0 Step child/Anak tiri 0 1 0 0 0 2 0 0 Adopted child/Anak angkat 0 0 0 0 0 0 0 0 Nephew/Anak saudara 0 0 0 0 2 1 0 3 Relative/Saudara 7 7 6 7 8 8 5 11 Cousin/Sepupu 8 11 27 26 33 25 33 39 TOTAL/JUMLAH 213 246 306 254 335 304 346 390

Source: Royal Malaysia Police, and Ministry of Women, Family and Community62

e reported number of incest cases was consistently the highest in the states of Selangor, Johor and Sabah from years 2000 to 2009.

62 Women’s Centre for Change, Cases of Incest in Malaysia/ Year 2000- 2009 (By States), online at (http://www.wccpenang.org/les/docs/ CASES_OF_INCEST_IN_MALAYSIA.pdf (accessed Jul 25, 2012). See also WAO, Statistics on Violence against Women in Malaysia (2000 - 2010) (cited in note 64).

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CASES OF INCEST IN MALAYSIA/YEAR 2000-2009 (BY States) KES SUMBANG MAHRAM DI MALAYSIA

STATES/NEGERI 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 PERLIS 1 1 4 1 4 4 1 3 5 3 KEDAH 21 12 31 21 28 32 21 31 33 32 P/PINANG 6 13 11 3 11 4 8 7 7 15 PERAK 16 14 27 29 27 33 25 36 35 33 SELANGOR 29 32 47 35 40 41 33 46 45 58 K/LUMPUR 9 15 10 9 21 12 4 17 10 10 N/SEMBILAN 7 17 10 14 22 14 12 17 18 30 MELAKA 13 8 10 15 14 17 11 17 13 11 JOHOR 29 34 47 47 52 39 17 61 56 42 PAHANG 13 18 35 19 21 13 13 32 30 29 TERENGGANU 16 18 15 6 13 21 10 13 6 11 KELANTAN 9 21 16 11 16 10 10 21 23 38 SABAH 24 30 27 29 44 38 28 37 44 42 SERAWAK 20 13 16 15 22 17 16 22 9 31 TOTAL/JUMLAH 213 246 306 254 335 295 209 360 334 385

Source: Royal Malaysia Police, and Ministry of Women, Family and Community63

e state of Kelantan has also been publicly agged by the Population and Housing Census 2010 claim that there are police for a notable increase in the number of reported no married children under the age of 15. It records 145 incest cases, especially in rural areas.64 married persons between the age of 15-19, of which 74 are males and 71 are females.

(v) Child Marriages Media reports however suggest that child marriage is a continuing practice in Malaysia; recent media reports According to data provided in the CEDAW NGO Shadow highlightMuslim men marrying under-aged girls as Report, there was a signicant number of marriages young as eleven years old.66 Reports state that Kelantan involving young girls.e Population and Housing Census has the highest number of underage marriages among 2000 show that there were 6,146 married girls and 4,478 all the states in Malaysia. Based on data published by married boys among adolescents aged 10-14. e census the Malaysian Sharia Courts Department, there were a also shows that among the 2.49 million children within total of 1,065 requests by parents for court approval of the age group of 10-14 in Malaysia, 235 were widowed underage marriages in 2010. Of this, cases in Kelantan 65 and 77 were divorced or permanently separated. e comprised more than a h (20%) at 231 cases. Other problematic states include Sarawak (165 cases), Sabah 63 Women’s Centre for Change, Cases of Incest in Malaysia/ Year 2000- (146 cases) and Terengganu (107 cases). Penang ranked 2009 (By States), online at (http://www.wccpenang.org/les/docs/ the lowest with 14 cases in 2010.67 CASES_OF_INCEST_IN_MALAYSIA.pdf (accessed Jul 25, 2012). See also WAO, Statistics on Violence against Women in Malaysia 66 K’tan religious ocials probe child marriages, (Malaysiakini Mar (2000 - 2010) (cited in note 64). 12, 2010), online at http://www.malaysiakini.com/news/126371 64 Rise in rape, incest cases in Kelantan has cops worried, (e New (accessed Jul 13, 2012); Marriage’ of two underage girls in K’tan Straits Times, Sept 3, 2009), online at http://news.asiaone.com/ sparks debate, (Malaysiakini Mar 13, 2010), online at: http://www. News/AsiaOne%2BNews/Crime/Story/A1Story20090903-165343. malaysiakini.com/news/126473 (accessed Nov 9, 2011). html(accessed Jul 25, 2012). 67 Fatimah surprised Sarawak ranked number two in underage- 65 NGO CEDAW Shadow Report (cited in note 13) (on article 16). marriages, (e Borneo Post Sept 13, 2011), online at http://www.

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(vi) Female Genital Mutilation (vii) Violence against Sex Workers

Malay-Muslims in some regions of Malaysia practice ere are no gures to show the extent of this problem female circumcision.68 ere have not been any reports although sex workers have been known to work on the more drastic form of female genital mutilation throughout pregnancies be forced to perform demeaning occurring in Malaysia. Although female circumcision sex acts, and be beaten when unwilling to comply with was largely practiced in villages as part of the Malay clients’ demands.72 ey also lack access to legal and cultural practices, there are reports of an increase in medical recourse.73 ey tend to su er abuse from their the practice of female circumcision even among adult pimps, their clients as well as from law enforcement women.69 ose interviewed believed that circumcision ocers. Sex workers are subject to harassment from law controls a woman’s sexual desires.70 It has been argued enforcement ocers such as being handcu ed during that rising Islamic or, more specically, Arabic inuences raids, subject to demeaning treatment and have their right in Malaysia could be a reason Malaysian Muslims are to privacy violated when their pictures are published.74 In starting to practice female circumcision. In 2009, the addition, they are subjected to urine tests for drugs and Fatwa Committee National Council of Islamic Religious HIV.75 is has resulted in sex workers going further A airs Malaysia issued a ruling stating that ‘female underground and out of reach of social workers who can circumcision is part of Islamic teachings and it should o er them information on health, STDs, etc.76 be observed by Muslims.’ It should however be noted that the ruling went on to say that this practice is only (viii) Violence and Sexual Harassment againstIndigenous obligatory and not strictly compulsory; ‘circumcision can Women and Children be exempted if the practice brings harm to the person.’ is is because, the ruling explains, ‘Islam also pays 71 Besides the above, more attention needs to be given to attention to the safety of its people’. determine the prevalence of violent acts and practices against foreign and/or indigenous women and children. e CRC Committee noted in its concluding observations that vulnerable groups of children such as children of indigenous populations living in remote places, children of migrant workers and child victims of tracking theborneopost.com/2011/09/13/fatimah-surprised-sarawak- are under-served and under-represented in Malaysia’s ranked-number-two-in-underage-marriages/ (accessed Jul 13, governmental e orts.77 e more particularized forms of 2012). According to the report, in 2009, there were a total of violence against domestic migrant workers and tracked 1,079 cases with Kelantan (204), Sarawak (191), Sabah (158) and Terengganu (104) in the same positions. See also Shuhada Elis, Ili women and children are discussed generally in the other Liyana Mokhtar & Rozanna Lati , Too Young to Wed? (New Sunday two sections below. Times Jun 20, 2010), at 6, reproduced online at http://www.usm. my/index.php/about-usm/news-archive/67-papercutting-/7073- In Sarawak, Penan women and girls have been sexually Too-young-to-wed?-.html (accessed Jul 27, 2012). violated and harassed by employees or associates of 68 See e.g. Ab. Rahman Isa, Rashidah Shuib, M. Shukri Othman, timber companies. A 2009 ocial report compiled ‘e Practice of Female Circumcision among Muslims in Kelantan, by the Ministry of Women, Community and Family Malaysia’, Vol. 7(13) Reproductive Health Matters 137 (May 1999); Development conrms the allegations of rape and sexual Abdul Khan Rashid, Sapna S. Patil and Anita S. Valimalar, ‘e exploitation of Penan women and girls by employees Practice Of Female Genital Mutilation Among e Rural Malays and associates of timber companies.78 e report further In North Malaysia’, Vol. 9(1) e Internet Journal of ird World Medicine (2010), online at http://www.ispub.com/journal/the- 72 NGO CEDAW Shadow Report (cited in note 13) (on article 6). internet-journal-of-third-world-medicine/volume-9-number-1/ the-practice-of-female-genital-mutilation-among-the-rural- 73 NGO CEDAW Shadow Report (cited in note 13) (on article 6). malays-in-north-malaysia.html (accessed Jul 27, 2012). 74 See e.g. images from Report Tahunan 2009 at 100 (cited in note 56). 69 Dina Zaman, FGM: It happens in Malaysia too, (e Malaysian 75 NGO CEDAW Shadow Report (cited in note 13) (on article 6). Insider Feb 3, 2011), online athttp://www.themalaysianinsider. com/features/article/fgm-its-happens-in-malaysia-too/ (accessed 76 NGO CEDAW Shadow Report (cited in note 13) (on article 6). Dec 9, 2011). 77 CRC Concluding Observations, at p.24, 25 and 31 (cited in note 18). 70 Zaman, FGM: It happens in Malaysia too (cited in note 69). 78 Ministry of Women, Community and Family Development, 71 Jabatan Kemajuan Islam Malaysia (JAKIM), Hukum Pemotongan Ocial Report on the Investigation of Allegations of Sexual Violence Genitalia Wanita (Female Genital Mutilation), online at http:// Against Penan Women in Sarawak, reproduced online at http:// www.e-fatwa.gov.my/fatwa-kebangsaan/hukum-pemotongan- hornbillunleashed.files.wordpress.com/2009/09/penan-ir.pdf genitalia-wanita-female-genital-mutilation (accessed Jul 13, 2012). (accessed Jul 13, 2012) (hereaer Penan Ocial Report).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 518 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study concluded that one major cause of the sexual violence the allegations.82 However, so far, SUHAKAM has only is due to the reliance of the victim on transportation released a press statement urging the government to vehicles belonging to timber companies79 Despite this, conduct a thorough investigation into the claims. e there have yet to be concrete actions on the part of the government had previously rejected setting up a Royal Malaysian government to charge the perpetrators and to Commission of Inquiry to investigate the complaints on ensure Penan women and girls are protected from further the basis that the matter was not urgent.83 So far, the PSG sexual violence and exploitation. In fact, even when has given evidence to the police department about the Malaysia addressed this issue in its 2008 UPR, there was rape claims but follow-up action has been slow.84 little acknowledgement about the seriousness of the issue. Malaysia merely said that: (ix) Violence against Women Refugee and Asylum-Seekers

‘Based on the expected ndings put forward by the ere are reports that women refugees and asylum- police as well as SUHAKAM regarding the alleged seekers are targets of violence, including sexual or abuse of Penan women, the Committee will formulate gender-based violence. ey have little protection against intervention programmes and provide counselling such violence, with minimal access to lawyers, medical services to help the Penan women. is includes an treatment, safe houses and other necessary support.85 awareness raising campaign to the Penan society, particularly women, so that they would be able to recognise and address issues of sexual harassment (x) Sexual Harassment an d a bu s e .’ Sexual harassment appears to be a prevalent problem in ere was no commitment to prosecuting the perpetrators Malaysia. ere is little statistical data on how extensive and to take strong measures to ensure that such acts do the problem is. Many people, particularly men, still see not recur. sexual harassment as being harmless fun. For instance, the Director-General (DG) of Labour Department, e Penan Support Group, together with the Asian Forum commented in 2009 that having a Sexual Harassment Act ‘could lead to a dull and rigid environment in the for Human Rights and Development and the Asian 86 Indigenous Women’s Network, conducted an independent workplace’, thus trivializing harassment at the workplace. fact-nding mission. e Penan Support Group (PSG) Incidences of harassment are only taken seriously where consists of NGOs: Suara Rakyat Malaysia, Women’s Aid a crime has occurred. Sexist and o ensive remarks have been reported even at the highest levels of government, Organisation, Centre for Orang Asli Concerns (COAC) 87 and AWAM. e mission documented evidence and including during parliamentary debate. en deputy statements of survivors who had been sexually abused by timber company employees/associate in a report entitled 82 SUHAKAM, Annual Report 2010 (cited in note 81). ‘A Wider Context of Sexual Exploitation of Penan Women 83 Clara Chooi, Pakatan MPs slam rejection of Penan motion, 80 and Girls in Middle and Ulu Baram, Sarawak, Malaysia’. (e Malaysian Insider, Jul 14, 2010), online at http://www. PSG has submitted the report to SUHAKAM with a themalaysianinsider.com/litee/print/malaysia/pakatan-mps-slam- request to conduct a national inquiry into the alleged rejection-of-penan-motion/ (accessed Jul 27, 2012). 81 sexual abuse. A preliminary meeting was organised 84 Group Gives Evidence on Penan Women’s Sexual Abuse, (Bernama in July 2010 for the Commission to ascertain details of Sept 1, 2010), online at http://empowermalaysia.org/e10/index. php?option=com_content&view=article&id=96:group-gives- evidence-on-penan-womens-sexual-abuse&catid=53:empower-in- the-news&Itemid=77 (accessed Jul 27, 2012). 79 Penan Ocial Report (cited in note 77). 85 Amnesty International, Malaysia, Abused and Abandoned: Refugees denied rights in Malaysia (16 June 2010), at 15, online at http:// 80 Penan Support Group, FORUM-ASIA & Asian Indigenous Women’s www.amnesty.org/en/library/info/ASA28/010/2010/en (accessed Network (AIWN), A Wider Context Of Sexual Exploitation Of Penan Jul 27, 2012). Women And Girls In Middle And Ulu Baram, Sarawak, Malaysia, (19 July 2010), online at http://www.scribd.com/doc/33986536/A- 86 All Women’s Action Society Malaysia, Press Statement: Launch Wider-Context-of-Sexual-Exploitation-of-Penan-Women-and- of Campaign Sexual Harassment Out (Shout), (10 September Girls-in-Middle-and-Ulu-Baram-Sarawak-Malaysia (accessed Jul 2011), online at:http://www.awam.org.my/images/Press%20State- 27, 2012). ment%20SHout.pdf (accessed Jul 27, 2012). 81 Human Rights Commission of Malaysia (SUHAKAM), Annual 87 See Joseph Chin, Wanita Gerakan condemns Bung Mokhtar over Report 2010, at 69-71, online at http://www.suhakam.org.my/c/ Sexist Remarks, (e Edge Malaysia Mar 31, 2011), online at document_library/get_le?p_l_id=35723&folderId=39678&name http://www.theedgemalaysia.com/business-news/184321-wanita- =DLFE-10502.pdf (accessed Jul 27, 2012) gerakan-condemns-bung-mokhtar-over-sexist-remarks.html

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 519 prime minister (now Prime Minister of Malaysia) Najib Gay and Lesbian Human Rights Commission (IGLHRC) Tun Razak defended some the comments saying that the criticized the education department’s action, as it would MP’s o ensive remarks should be taken with a sense of single out certain children for discriminatory treatment, humour.88 which in turn could lead to in schools, mental health problems, family rejection, and even violence.92 It should be noted that there is now increasing recognition e organization also pointed out that children who feel that ‘the multiplicity of forms of violence against women unsafe in school typically have low graduation rates.93 as well as the fact that this violence frequently occurs at the intersection of di erent types of discrimination.’89 All In 2011, the Malaysian police banned the fourth Seksualiti forms of discrimination, however small, contribute to a Merdeka festival, an annual sexuality rights event held hostile environment to women, which can escalate into in Kuala Lumpuron the basis that the event constituted physical violence. a threat to public order.94 Part of the argument was that Seksualiti Merdeka promotes free sex and is contrary to Furthermore, sexual harassment becomes most the religious tenets of all religions. However, the Malaysian problematic when children are involved since most Consultative Council on Buddhism, Christianity, children are presumptively less well equipped to fend o Hinduism, Sikhism and Taoism (MCCBCHST) have such harassment. ere have been reported cases and come out in support of Seksualiti Merdeka, declaring police action taken.90 order to address sexual harassment that it is against all forms of harassment, intimidation, on all levels, there needs to be an overhaul of societal threats and violent attacks on any Malaysian including attitudes towards women and girls. those from the lesbian, gay, bisexual or transgender (LGBT) community.95 It should be noted that Seksualiti (xi) E eminate Boys and Homosexuals Merdeka is not a gay parade; among the events planned were talks, forums, workshops, art exhibitions and stage 96 In April 2011, it was reported that the Education performances. Department of Terengganu (a conservative north-eastern state) ordered 66 Muslim boys between the ages of 13 to 17 (xii) Judicial caning to be sent to a special camp for counselling on masculine behaviour. ey underwent four days of religious and Children can still be subject to judicial corporal physical education. e boys were selected because they punishment in Malaysia. e Child Act provides some displayed ‘feminine mannerisms’.91 e state’s education safeguards but does not do away with them. e Child director said that the students were invited to join the Court is empowered under section 91 to punish a male camp but were not compelled to do so. e International child by caning.

(accessed Jul 27, 2012). 88 JD Lovrenciear, DPM’s position on ‘bocor’ case equally shocking, (Malaysiakini May 17, 2007), online at http://www.malaysiakini. 92 e International Gay and Lesbian Human Rights Commission com/letters/67364 (accessed Jul 27, 2012). (IGLHRC) is a leading international organization dedicated 89 Rashida Manjoo, Report of the Special Rapporteur on Violence to human rights advocacy on behalf of people who experience Against Women, Its Causes and Consequences, Human Rights discrimination or abuse on the basis of their actual or perceived Council, A/HRC/17/26 (2 May 2011), http://daccess-dds-ny. sexual orientation, gender identity or expression. See IGLHRC un.org/doc/UNDOC/GEN/G11/130/22/PDF/G1113022. Letter to Malaysian Minister: Children’s Rights Violated in pdf?OpenElement Discriminatory Camp, (Apr 29, 2011), online at http://www.iglhrc. org/cgi-bin/iowa/article/takeaction/resourcecenter/1377.html 90 For instance, in 2011, a discipline teacher was charged with 11 (accessed Jul 27, 2012). counts of molesting underage girls in the school he teaches. M. Mageswari, Discipline Teacher Charged with Molesting 11 Under- 93 IGLHRC Letter to Malaysian Minister (cited in note 92). age Girls, (e Star Mar 4, 2011), online at: http://thestar.com.my/ 94 See generally Seksualiti Merdeka, online at http://www.seksualitim- news/story.asp?le=/2011/3/4/nation/20110304162502&sec=nati erdeka.org/ (accessed Jul 27, 2012). on (accessed Jul 27, 2012); See also Melissa Chi, Scoutmaster ac- cused of molesting girls at co-ed school, (e Malaysian Insider, Mar 95 Malaysians of Reason and Religion, (Komunitikini Nov 5, 2011), 22, 2012), online at:http://www.themalaysianinsider.com/mobile/ online at: http://komunitikini.com/kl-selangor/kuala-lumpur/ malaysia/article/scoutmaster-accused-of-molesting-girls-at-co-ed- mccbchst-seksuality-merdeka-religion-lgbt-human-rights school/ (accessed Jul 27, 2012). (accessed Jul 27, 2012). 91 ‘E eminate’ boys in Malaysia sent to ‘anti-gay’ camp, (BBC Apr 96 Audrey Edwards, Fanning Hate Ends Freedom, (e Star Nov 19, 2011), online at http://www.bbc.co.uk/news/world-asia- 6, 2011), online at http://www.seksualitimerdeka.org/2011/11/ pacic-13133589 (accessed Jul 27, 2012). fanning-hate-ends-freedom.html (accessed Jul 27, 2012).

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Section 91(1) If a Court For Children is satised e Education Regulations (Student Discipline) 2006 that an o ence has been proved the Court shall, in also banned public caning. Malaysian governments do addition to any other powers exercisable by virtue of not encourage caning for primary school students, but this Act, have power to … (g) order the child, if a caning is allowed at the secondary level by the principal male, to be whipped with not morethan ten strokes or a person to whom he delegates the power to.97 of a light cane: (i) within the Court premises; and Furthermore, the Penal Code provides parents/guardians (ii) in the presence, if he desires to be present, of the a legal defence for corporal punishment done in good parent or guardian of the child; … faith for the benet of a person under 12 years of age. e provision states: Section 92 further prescribes certain conditions for executing the punishment of whipping: Section 89 Nothing, which is done in good faith for the benet of a person under twelve years of age, or e following provisions shall be followed when of unsound mind, by or by consent, either express executing the order of whipping: or implied, of the guardian or other person having (a) before executing the whipping, the child shall lawful charge of that person, is an o ence by reason be examined by a medical ocer to certify that of any harm which it may cause, or be intended by the child is in a t state of health to undergo the the doer to cause, or be known by the doer to be whipping; likely to cause, to that person: (b) the person shall use a light cane with average force without liing his hand over his head so Provided that this exception shall not extend to: that the child’s skin is not cut; a) the intentional causing of death, or to the (c) aer inicting a stroke, he shall li the cane attempting to cause death; upward and not pull it; b) the doing of anything which the person doing it (d) whipping may be inicted on any part of the knows to be likely to cause death for any purpose body except the face, head, stomach, chest or other than the preventing of death or grievous private parts; hurt, or the curing of any grievous disease or (e) the child shall wear clothes; and inrmity; (f) if during the execution of the whipping the c) the voluntary causing of grievous hurt, or to the medical ocer certies that the child is not in a attempting to cause grievous hurt, unless it be for t state of health to undergo the remainder of the the purpose of preventing death or grievous hurt, whipping, the whipping shall be nally stopped. or the curing of any grievous disease or inrmity; d) the abetment of any o ence, to the committing of Women and girls are exempted from judicial corporal which o ence it would not extend. punishment, except in the Sharia courts (see discussion above under section A.2.). Illustration A, in good faith, for his child’s benet, without his Corporal punishment is allowed in schools, but is child’s consent, has his child cut for the stone by a regulated by the Education Regulations (Student surgeon, knowing it to be likely that the operation Discipline) 2006. e Regulations state that: will cause the child’s death, but not intending to a) Female students are not allowed to be caned; cause the child’s death. A is within the exception, in b) Only the headmaster can carry out the caning; as much as his object was the cure of the child. c) A teacher can only cane when the headmaster delegates this power to him inwriting, and he Furthermore, section 350 which denes criminal force must be a permanent teacher of the school; contains an illustration that the caning of a scholar by a d) e student can only be caned on the buttocks or head teacher does not amount to criminal force. the palm. It cannot be doneon bare buttocks and the student cannot be asked to lower his pants; 350. Whoever intentionally uses force to any person, e) e caning is to be meted out in a conned area; without that person’s consent, in order to cause the f) e student’s parents will be informed and invited to witness the caning; g) Caning must only be for a repeated mistake or 97 See generally Global Initiative to End All Corporal Punishment very serious o ence. of Children, Malaysia Country Report, (January 2012), online at http://www.endcorporalpunishment.org/pages/pdfs/states-re- ports/Malaysia.pdf (accessed Jul 27, 2012).

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committing of any o ence, or intending by the use of ‘In many cultures in Malaysia, the man is normally the such force illegally to cause, or knowing it to be likely head of the household while the wife is subservient that by the use of such force he will illegally cause and has to attend to his needs and comfort as well as injury, fear, or annoyance to the person to whom the take care of the children and elderly relatives in an force is used, is said to use criminal force to that other. extended family.’101

Illustrations It is possible that certain practices and ideas commonly …. (i) A, a head teacher, in the reasonable exercise of associated with some cultural and/or religious group his discretion as contribute disproportionately to acts of violence against head teacher, canes B, one of his scholars. A does not women and children. It is also likely that socio-economic use criminal force status/class are relevant contributors to violence against to B because, although A intends to cause fear and women and children. annoyance, he does not use force illegally. (ii) Sexual Objectication

b. Root Causes of Violence and Aggravating Existing culture also support the objectication of women Practices as sexual objects, rather than persons of equal worth and dignity. In the past, Members of Parliament had made (i) Gender Stereotypes and Cultural Assumptions sexist remarks on female menstrual cycle of female Members of Parliament.102 Such contributes to Sexism is prevalent in Malaysian society. Even though resistance to reform for gender equality. there is de jure equality between husband and wife under the law, gender stereotypes remain prevalent. Many male Women may also contribute to the prevalence of sexual politicians in governmental ministries and parliament objectication. A group of Muslim women called the have displayed sexist attitudes and made disrespectful Obedient Wives Club have attracted much controversy comments about their colleagues. For instance, a woman for their position that wives should behave like ‘rst-class 103 MP was once told not to be too emotional in a debate whores’ to keep their husbands faithful and happy. on the Immigrations Act 1963 and the Income Tax Act 1967.98 In another instance, a male MP claimed in (iii) Social Misconceptions Parliament that most women drivers were slow and paid little attention while on the road.99 Certain misconceptions about rape and rape victims make it harder for women to confront the problem Such gender stereotypes and entrenched patriarchal squarely. It also makes it harder for survivors to report attitudes are primary causesfor violence against women rape incidences because of fear of . Such (and the girl child) in Malaysia. Women tend to be seen misconceptions blame the survivor for rape rather than as the ‘weaker’ and ‘less valuable’ sex. Assumptions see it as a violent crime against the woman. erefore, about parental-children hierarchy within the family unit some Malaysians (mostly men) have been observed to say also contribute to violence by parents against children. that‘[o]nly young, pretty women are sexually assaulted’ Consequently, a primary aim of enacting the 1994 and/or that ‘[g]irls who wear sexy clothes or irt with Domestic Violence Act was to eliminate certain cultural men provoke rape.’104 Such misconceptions e ectively assumptions that ‘give men authority to abuse their excuse the rapist’s behaviour by focusing on the victim’s spouses.’100 Malaysia’s CEDAW Report noted:

101 CEDAW Report at 81 and 380 (cited in note 8). 98 See Women’s Aid Organisation, End All Sexism and Gender 102 See e.g. Jasin MP denies making ‘bocor’ comment, (e Star Discrimination in Parliament: JAG Demands Public Apology from May 16, 2007), online at:http://thestar.com.my/news/story. Members of Parliament, (May 15, 2007), online at http://www.wao. asp?le=/2007/5/16/nation/17736594 (accessed Jul 27, 2012). org.my/news/20070104JAGStatementSexistMP.htm(accessed Jul 103 Debra Chong, Obedient Wives Club publishes explicit sex 27, 2012). book, (Malaysian Insider Oct 12, 2011), online at http://www. 99 P. Aruna, MP rapped for chauvinistic remarks against women themalaysianinsider.com/malaysia/article/obedient-wives-club- drivers, (e Star Mar 30, 2011), online at http://thestar.com.my/ publishes-explicit-sex-book(accessed Jul 27, 2012). news/story.asp?le=/2011/3/30/nation/8377680&sec=nation(acces 104 Women’s Centre for Change (Penang), Myth and Reality of Rape, sed Jul 27, 2012). online at: http://www.wccpenang.org/rape/myth-vs-reality1/(ac- 100 CEDAW Report at103 (cited in note 8). cessed Jul 27, 2012).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 522 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study personal traits as the root of the problem, rather than to to women’s progress.’108 Furthermore, there appears to be see it as a criminal act of opportunity. increasing incidences of rape by young persons, which the police department regards as part of a broader problem of Social misconceptions also make it dicult for healthcare rising delinquency among Malaysian youths.109 and service providers to adequately address the problems of domestic violence. For instance, a 2008 study on the Lower socio-economic status has been identied as a knowledge, attitudes and practices of primary health care direct contributing factor to sexual violence against providers regarding the identication and management Penan women by timber company employees/associates. of domestic violence in a hospital-based primary health Remoteness is another. In its conclusion, the report care setting showed that there is a lack of understanding identied poverty, remoteness of residence as resulting in and positive practices among the sta towards domestic reliance on timber companies not only for transportation violence. About 28% of clinicians and 51.1% of nursing to obtain health and education but also for basic goods sta interviewed tended to see victims of domestic such as water and electricity supply.110 Other contributory violence as blameworthy. Less than a third of the factors include distrust in authorities and the outsiders’ participants reported knowing of any written protocol prejudice against Penan as lazy, prone to lying and for domestic violence management. Only 20% of the alcoholism. is makes it harder for the Penan community clinicians and 6.8% of the nursing sta had ever attended to obtain help from local authorities and outsiders.111 any educational program related to domestic violence.105 With regard to violence against sex workers, the CEDAW (v) Remoteness and Limited Reach of Law Enforcement Report statedthat ‘negative social attitudes towards sex workers make it dicult for the Government to act According to media reports, police ocers in less against the perpetrators.’106 developed states with large rural areas have publicly raised their concerns that there is a higher incidence With regard to homosexuality discrimination among of sexual violence against women and children there children, Malaysia is in many ways still a deeply because ‘the culprits [think] that nobody would nd out conservative society. Sodomy is criminalized under about their behaviour since they lived in remote areas.’112 section 377A of the Penal Code. Homosexuals and transsexuals are at most tolerated but not accepted. (vi) Substance Abuse Malaysia has also declared that homosexuality and same sex marriage are incompatible with Islam and other 107 UNICEF Malaysia has also identied substance abuse religions practised in the country. as a possible contributing factor for child abuse. is is because alcohol and drug use may lessen impulse control (iv) Lower Socio-economic Status that leads adults to behave abusively. Furthermore, increased stress resulting from preoccupation with drugs In its National Policy on Women, formulated in 1989, on the part of the parent may also add to the likelihood Malaysia ‘recognizes poverty, lack of education and of abuse.113 Similarly, it is possible that substance abuse is sometimes culture and tradition’ as ‘major hindrances a contributing factor to domestic violence. For example, the Women’s Aid Organisation identied alcohol abuse 105 Sajaratulnisah Othman & Noor Azmi Mat Adenan, Domestic as a triggering factor for domestic violence in 36% of the violence management in Malaysia: A survey on the primary health cases it received in 2011, and drug abuse as a triggering care providers, 7(2) Asia Pacic Family Medicine (29 September factor for domestic violence in 22.7% of the cases it 2008), online at http://www.apfmj.com/content/7/1/2 (accessed Jul received in the same year.114 27, 2012). 106 CEDAW Report, 107 (cited in note 8). 108 CEDAW Report, 77 (cited in note 8). 107 See for instance, Jamil Khir: Malaysians should speak up against same-sex marriage, (Malaysian Insider Aug 7, 2012), online at 109 Report Tahunan 2009 at 93 (cited in note 56). http://www.themalaysianinsider.com/malaysia/article/jamil- 110 Penan Ocial Report (cited in note 78). khir-malaysians-should-speak-up-against-same-sex-marriages/ 111 Penan Ocial Report (cited in note 78). (accessed Aug 13, 2012). e minister was responding to a controversial wedding reception held in Malaysia by a same- 112 Rise in rape, incest cases in Kelantan has cops worried, (cited in note 64). sex couple. e couple had already been legally married in New 113 UNICEF Malaysia, Protecting Children from Abuse and Neglect, York. No legal union was registered in Malaysia. See e.g. First ‘gay online at:http://www.unicef.org/malaysia/GetonBoard-Proposed- marriage’ held in Muslim-majority Malaysia, (Associated Press, Child-Abuse-Media-Stories.pdf (accessed Jul 25, 2012). Aug 7, 2012), reproduced online at http://english.alarabiya.net/ articles/2012/08/07/230894.html (accessed Aug 13, 2012). 114 Women’s Aid Organisation, Annual Statistics 2011, online at: http://

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(vii) Financial Problems 2. De Jure State Responses

ere is also some indication that nancial problems a. Bases of State Responsibility constitute a triggering factor for domestic violence. According to the Women’s Aid Organisation’s statistics, CEDAW and CRC are the primary international human nancial problem is a triggering factor in 38.7% of the rights instruments underpinning Malaysia’s international ases it received in 2011.115 Similarly, UNICEF Malaysia obligations to respect, protect and promote non- has raised the possibility that there is a link between violence against women and children. As noted earlier, economic downturns and increasing number of child Malaysia has made several reservations on the basis of abuse cases in Malaysia; it noted that more research is asserted incompatibility between CEDAW and the CRC, required to establish such a link.116 on the one hand, and Sharia laws, on the other. While some reservations have been progressively withdrawn, c. Impact of Violence reservations to certain provisions of CEDAW and CRC remain. Of these, the reservation to article 16(2) of CEDAW, UNICEF Malaysia disseminates information through which seeks to nullify child marriages (and provision for brochures on the impact of child abuse and domestic a minimum age for marriage), is the most problematic for 120 violence on children. ese brochures are available on the issues under consideration in this literature review. the UNICEF website.117 For instance, in its brochure, As for Malaysia’s remaining reservations to the CRC, it UNICEF noted that the impact of child abuse is far is the reservation to article 37, which deals with torture greater than its immediate, visible e ects. Child abuse and the deprivation of liberty, which most concerns this 121 is associated with short- and long-term consequences review. e CEDAW Committee, the CRC Committee, that may include brain damage, developmental delays, and the UPR Committee have variously and repeatedly learning disorders, problems forming relationships, urged Malaysia to reconsider its reservations and to aggressive behaviour, and depression. Furthermore, it rethink its Sharia interpretations consistently with these noted that survivors of child abuse and neglect may be human rights standards. Malaysia has repeatedly stated at greater risk for problems later in life—such as low that it is in the process of considering withdrawal of its 122 academic achievement, drug use, teen pregnancy, and reservations to CRC and CEDAW. criminal behaviour—that a ect not just the child and family, but society as a whole.118 An academic study on the On 7 September 2011, the Malaysian Cabinet approved impact of physical abuse on the personality development the Ministry’s recommendation to accede to the CRC’s of children was recently released. e study was based two Optional Protocols: the Optional Protocol to the on 106 children from ve selected protection homes, Convention on the Rights of the Child on the Sale of and concluded that physical abuse negative impacts the Children, Child Prostitution and Child Pornography victims’ personality development, specically on their (‘OP on Child Sale, Prostitution and Pornography’), and emotional adjustment. is may further inuence their future wellbeing.119 120 e remaining reservations are to article 9(2) (equal rights to the nationality of a couple’s children); article 16(1)(a) (equal rights to enter into marriage); article 16(1)(c) (equal rights and responsibilities during marriage and at its dissolution); article 16(1)(f) (equal rights and responsibilities regarding guardianship, wardship, trusteeship and adoption of children); article 16(1)(g) (equal personal rights in a marriage, including the right to choose wao.org.my/file/file/WAO%20Annual%20Statistic%202011.pdf a family name, a profession and an occupation). Malaysia withdrew (accessed Jul 25, 2012). its reservations to articles 2(f), 9(1), 16(1)(b), (d), (e) and (h) of 115 WAO, Annual Statistics 2011 (cited in note 114). CEDAW in 1998. 116 Protecting Children from Abuse and Neglect, (cited in note 113) 121 e other remaining reservations are to Article 2 (non- discrimination); Article 7 (name and nationality); Article 14 117 UNICEF, Behind Closed Doors, online at: http://www.unicef.org/ (freedom of thought, conscience and religion); and Article 28(1)(a) protection/les/BehindClosedDoors.pdf (accessed Jul 25, 2012); (free and compulsory education at primary level). Malaysia withdrew UNICEF Fact Sheet 2010 (cited in note 45). its reservations to article 1, 13 and 15 of the CRC on 6 July 2010. 118 UNICEF Fact Sheet 2010 (cited in note 45). See United Nations, Statement by the Honourable Gobalakrishnan Nagapan Member of Parliament and Representative of Malaysia on 119 Mariani Mansor & Asnarulkhadi Abu Samah, A Descriptive Agenda Item 65: Promotion and Protection of the Rights of Children, Analysis on the Personality of Child Physical Abuse Victims, 2(14) online at www.un.int/malaysia/GA/66/66unga22_65children.pdf Int’l J. Business & Social Science, 229 (2011), online at http://www. (accessed Jul 25, 2012). ijbssnet.com/journals/Vol._2_No._14;_July_2011/26.pdf (accessed Jul 20, 2012). 122 See UPR,24 (cited in note 10).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 524 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study the Optional Protocol to the Convention on the Rights intercourse or prostitution.127 of the Child on the Involvement of Children in Armed Conict (‘OP on Children in Armed Conict’). e (i) Rape (Sexual Intercourse without Consent) signing of OP on Children in Armed Conict establishes 18 as the minimum age for compulsory recruitment Under the current laws in Malaysia, the crime of rape only and requires States to do everything they can to prevent applies where the victim is a woman. e legal denition individuals under the age of 18 from taking a direct part 123 of rape is ‘sexual intercourse with a woman … against her in hostilities. e signing of the OP on Child Sale, will [or] without her consent’ (Section 375 of the Penal Prostitution and Pornography establishes the state’s Code).128 is extends to situations where consent was obligations to protect the child against and eliminate obtained as a result of deception or fear of hurt or death these practices through criminalization. or where the woman is unable to understand the nature and consequences of her giving consent at the time she b. National Policies against Violence does it.129 e legal penalty for rape was enhanced in 1989 – a person convicted of rape will receive a jail sentence Malaysia’s Federal Constitution contains a fairly broad list of between ve to 20 years, and may also be liable to of fundamental liberties guaranteed to individuals against whipping. the state. e constitution prohibits state discrimination based on gender (article 8(2)) but this is limited to discrimination in law, in professional/trade regulations (ii) Rape by Object Penetration and in public appointments/employment. Article 8(2) of the Federal Constitution now reads: A new section, 377CA, was included in the Penal Code in 2006 to criminalize rape by sexual penetration of an ‘Except as expressly authorized by this Constitution, object: there shall be no discrimination against citizens on Any person who has sexual connection with the ground of religion, race, descent, place of birth another person by the introduction of any object and gender in any law or in the appointment to into the vagina or anus of the other person any oce or employment under a public authority without the other person’s consent shall be or in administration of any law relating to the punished with imprisonment for a term, which acquisition, holding or disposition of any property may extend to twenty years and shall also be or the establishing or carrying on any trade business, liable to whipping.130 profession, vocation or employment.’ (Emphasis added.) (iii) Statutory Rape

Furthermore, the Penal Code, the Domestic Violence Act Sexual intercourse with a woman under sixteen years of and the Child Act constitute the legislative framework age, with or without her consent, constitutes statutory protecting women and children from violence.124 rape (section 375(g)).131 e lack of consent or when e Penal Code criminalizes a wide range of violent the girl is under twelve years of age (regardless of actsagainst women/children. Some crimes are gender- consent) are considered aggravating factors. Under neutral such as voluntarily causing hurt or grievous those circumstances, the punishment is enhanced to a hurt or wrongful restraint or connement.125 Others are maximum of thirty years.132 It is not entirely clear how gender and child-specic. Part XVI of the Penal Code to reconcile the criminal o ence of statutory rape with criminalizes the act of causing miscarriage, injuries to the unborn child, exposure of infants, and concealment of births.126 Gender-specic laws include rape and 127 CEDAW Report, 451 (cited in note 8). abduction of a woman with the intent of compelling her 128 Malaysian Penal Code (1997 Revised), at §375. to marry against her will or forcing/seducing her for illicit 129 CEDAW Report, 452 (cited in note 8). 130 e provision includes an exception: ‘is section does not extend to where the introduction of any object into the vagina or anus of 123 Malaysian [sic] joins two protocols on rights of child, (Bernama, any person is carried out for medical or law enforcement purposes.’ Sept 9, 2011), online at http://www.mmail.com.my/content/81868- malaysian-joins-two-protocols-rights-child (accessed Jul 25, 2012). 131 is was previously stated in §375 of the Penal Code as an Explanation but has been inserted as a proper provision by the 124 CEDAW Report, 450 (cited in note 8). Penal Code (Amendment) Act 2006. See CEDAW Report, 452. 125 CEDAW Report, 451 (cited in note 8). (cited in note8). 126 CRC Report, 144 (cited in note 9). 132 See Penal Code (Amendment) Act (2006), 376.

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 525 the practice of child marriages, which are more common against the order of nature on another person without among Malay-Muslims. It is arguable that consummation the consent, or against the will, of the other person, of such child marriages may constitute statutory rape. or by putting the other person in fear of death or hurt However, no charges have yet been brought against men to the person or any other person, shall be punished who marry under-aged girls. (See further discussion with imprisonment for a term of not less than ve below on child marriages.) years and not more than twenty years, and shall also be liable to whipping.’ (iv) Incest Furthermore, section 377E targets persons who incites a Incest was criminalized in 2002.133 Under section 376A child to an act of gross indecency: of the Penal Code, a person commits incest if he or she has ‘sexual intercourse with another person whose ‘Any person who incites a child under the age of relationship to him or her is such that he or she is not fourteen years to any act of gross indecency with permitted, under the law, religion, custom or usage him or another person shall be punished with applicable to him or her, to marry that other person’. A imprisonment for a term which may extend to ve girl under 16 years of age or a boy under 13 years of age years, shall also be liable to whipping.’ cannot be charged under this section for incest. ey are deemed incapable of giving consent.134 e punishment (vi) No Marital Rape for incest is imprisonment for a term between six to twenty years and possible whipping. As the CEDAW Report points out, marital rape is still not a crime in Malaysia. Prior to 2007, a man can be charged ere are conicting secular and Sharia laws, and for rape under section 375 only if he has sexual intercourse inconsistency in application. For instance, in 2000, the with his wife under the following circumstances: Kelantan Sharia Court prosecuted a 17 year-old girl for incest on the unproven assumption that the daughter (i) where the wife is living separately from her was a willing partner in the crime.135 is would not have husband under a decree of judicial separation occurred under the Penal Code; the father would likely or a decree nisi not made absolute; have been prosecuted for statutory rape or rape. It should (ii) where the wife has obtained an injunction be noted nonetheless that the current provision for incest restraining her husband from having sexual means that a 17 year-old girl could be prosecuted for intercourse with her; or incest only if it was shown that she consented to sexual (iii) in the case of a Muslim woman living separately intercourse. from her husband during the period of ‘iddah’ which is approximately a period of three 136 (v) Unnatural Sex or Gross Indecency months.

Section 377A criminalizes sodomy and oral sex, even However, the Penal Code was amended in 2007 to when such sexual acts are consensual. e section reads: criminalize a husband’s use of force against a wife for sexual intercourse.137 is new section 375A of the Penal ‘Any person who has sexual connection with another Code was included in 2007 to make it an o ence for a person by the introduction of the penis into the anus husband to cause hurt to his wife in order to have sexual or mouth of the other person is said to commit carnal intercourse with her: intercourse against the order of nature.’ ‘Husband causing hurt in order to have sexual Section 377A is supplemented by section 377C, which intercourse criminalizes carnal intercourse without consent. 375A. Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt to ‘Whoever voluntarily commits carnal intercourse 136 Malaysia’s CEDAW Report, 453 (cited in note 8). See the Com- mittee’s comments and criticisms in Summary record of the 731st 133 CEDAW Report, 358 (cited in note 8). meeting, Committee on the Elimination of Discrimination against 134 See §376B of the Penal Code and the corresponding Explanation. Women, irty-h session, CEDAW/C/SR.731 (20 June 2006), (‘Summary of First Session’) , 17, 24, 28-30. See also CEDAW Con- 135 Sisters in Islam, Press Statement: e Kelantan Incest Case (21 cluding Comments, 21-2 (cited in note 15). March 2000), online at: http://www.sistersinislam.org.my/news. php?item.853.12 (accessed Jul 25, 2012). 137 Penal Code (Amendment) Act (2006).

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his wife or any other person in order to have sexual (vii) Domestic Violence Act intercourse with his wife shall be punished with e 1994 Domestic Violence Act was enacted in response imprisonment for a term which may extend to ve to campaigning by women’s groups for a law to protect y e ar s .’ abused and battered women.142 It denes domestic violence broadly as covering all conduct that wilfully is amendment has been censured for its narrow scope. places the victim in fear of physical injury, causes e CEDAW Committee criticized the new provision physical injury, compels the victim by force or threat to as ‘narrowly tailored to criminalize sexual assault based engage in any conduct or act, sexual or otherwise from on use of force and death threats by the husband, rather which the victim has a right to abstain, and harassment than marital rape based on lack of consent of the wife.’138 or psychological harm so as to cause ill health.143 e e Committee has urged Malaysia ‘to enact legislation DVA provides women and children with the recourse criminalizing marital rape, dening such rape on the basis of obtaining a protective order against their abusers. of lack of consent of the wife.’139 At present, marital rape Malaysia is the rst country with a Sharia legal system to remains a highly contested issue culturally and socially pass an act on domestic violence.144 However, the DVA’s in Malaysia. In 2009, a man was convicted under the emphasis on the sanctity of individual libertymay conict amended penal laws for forcing his wife to have sex with with the Sharia’s emphasis on the primacy of the family him. is is the rst successful prosecution under the and community, which tend to contribute to the idea of 2007 amendment to the Penal Code.140 e current laws wives being subservient to their husbands (see e.g. section however only address situations where a husband causes 129 of the Islamic Family Law Act). fear of death or hurt to his wife but not to circumstances where the level of coercion does not meet that threshold. (viii) Child Act It should be noted however that section 129 of the Islamic Family Law Act (which applies to the federal territories e 2001 Child Act is the primary comprehensive and is put forward as a model family law for the other legislation protecting children against violence and all states) makes it an o ence for a wife to be disobedient to forms of exploitation and discrimination. e Child her husband. e section states: Act 2001 was ‘promulgated based on the principles enumerated in the Convention on the Rights of the ‘Any woman who wilfully disobeys any order lawfully Child (CRC) which Malaysia acceded to in 1995.’145 is given by her husband according to Hukum Syarak suggests that acceding to human rights conventions does commits an o ence and shall be punished with a ne a ect how states think about their laws and policies, at not exceeding one hundred ringgit or, in the case least in the ocial position. Section 31 of the Act, for of a second or subsequent o ence, with a ne not instance, makes it an o ence for any person having care exceeding ve hundred ringgit.’141 of a child to abuse, neglect, abandon or expose the child to physical or emotional injury or to sexually abuse the ere is a danger that such a provision continues to child. In addition, section 31(4) states that ‘[a] parent or arm the notion that the Muslim wife is subservient and guardian or other person legally liable to maintain a child subordinate to the husband. shall be deemed to have neglected him in a manner likely to cause him physical or emotional injury if, being able to so provide from his own resources, he fails to provide adequate food, clothing, medical or dental treatment, lodging or care for the child.’e CRC Committee noted

138 CEDAW Concluding Comments, 21 (cited in note 15). 142 CEDAW Report, 455 (cited in note 8). 139 Ibid. 143 See also Domestic Violence Act (1994), 2. 140 Malaysian Man Convicted of Marital Rape under New Law, (Jakarta Globe Aug 6, 2009), online at:http://www.thejakartaglobe.com/ 144 Violence against Women: harmful traditional and cultural practices home/malaysian-man-convicted-of-marital-rape-under-new- in the Asian and Pacic region, Expert Group Meeting on Regional law/322448 (accessed Jul 25, 2012); Malaysian jailed for marital Strategies for Implementing the Recommendations from the rape, (Sydney Morning Herald Aug 6, 2009), online at http://news. Secretary-General’s In-depth Study on All Forms of Violence smh.com.au/breaking-news-world/malaysian-jailed-for-marital- against Women, with particular emphasis on harmful traditional rape-20090806-eb1q.html (accessed Jul 25, 2012). and cultural practices and the role of national women’s machineries, (26-27 April 2007), United Nations Conference Centre, Bangkok, 141 Islamic Family Law (Federal Territories) Act (1984), online at: ailand,17. http://www.agc.gov.my/Akta/Vol.%207/Act%20303.pdf (accessed Jul 25, 2012). 145 UPR, 16 (cited in note 10).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 527 that the Child Act is ‘guided by the principles of the psychological abuse. e Act includes ‘a de facto spouse’ Convention and aims at providing every child with care, which it denes as ‘a person who has gone through a protection and psychosocial assistance.’ form of ceremony which is recognized as a marriage ceremony according to the religion or custom of the While many positive policy measures have been taken, parties concerned, notwithstanding that such ceremony there is a need to ensure that the measures are e ective is not registered or not capable of being registered and that there is e ective use of resources.146 under any written law relating to the solemnization and registration of marriages’.149 is restriction to de jure and c. Assessment of State Policies de facto spouses discriminates againstwomen cohabiting with a man but who has not undergone any religious or e constitutional prohibition under article 8 does not customary marriage ceremonies. e Joint Action Group extend to gender discrimination by private companies for Gender Equality has proposed that the category of or individuals.147 e constitution also does not directly victims/perpetrators be broadened to include intimate partners, so that relationships outside of marriage can be address gender-based violence whether committed by the 150 state or non-state actors. included under the protection of the DVA. As the CEDAW Report acknowledges, the Domestic (i) Domestic Violence Violence Act is gender neutral: it covers spousal abuse against both men and women.151 As such, it is only e Domestic Violence Act denes domestic violence incidental that the Act’s primary beneciaries are women. broadly. e denition of domestic violence was widened e Report stated that most reported cases involve a to include psychological harm in 2011 following criticism woman victim: ‘In the year 2000, out of a total of 2,462 of the omission. Now, ‘domestic violence’ includes reported cases of domestic violence, 98 per cent of the causing physical injury, wilfully placing the victim in victims were women.’152 e numbers show that women fear of physical injury, compelling the victim to engage are most likely to be abused in a domestic relationship in any conduct (including sexual conduct), conning and thus most in need of protection from their spouses. the victim against his/her will, destroying property to cause distress to the victim, causing psychological or e CEDAW Report noted that the main recourse emotional injury to the victim, or causing the victim to the DVA provides is the right of a victim to apply for su er delusions using intoxicating substance without his/ protective orders (POs) against his/her abuser.153 One her consent (including where the consent was unlawfully critical question that should arise is whether or not a obtained). Where the victim is a child, his/her consent gender-neutral legislation such as the DVA is suciently to use intoxicating substance or any other substance is 148 sensitive to the psychological, physical and economic irrelevant. conditions that are more oen identied with women. e Act also covers domestic violence against children; the e DVA protects spouses, former spouses, children, any same criticism against this broad-brushed approach can other member of the family, and even any incapacitated be levelled here. is concern gave rise to the amendment adult living with the o ender from physical and in 2011, which expanded the denition of domestic violence to mental, emotional and psychological abuse.154 146 In relation to women’s rights for instance, the NGO Shadow Group recommended that the many policies and action plans be streamlined and consolidated. NGO Shadow Group Report (cited in note 13) (on article 104). 149 Ibid. 147 See e.g. Beatrice a/p At Fernandez v Sistem Penerbangan Malaysia 150 Women’s Aid Organization, Joint Action Group: e amendments & Anor [2005] 3 MLJ 681 (‘Federal Court decision’) highlighted by to the Domestic Violence Act are not comprehensive enough, (Oct 5, the CEDAW Committee in their deliberations on Malaysia’s report 2011), online at:http://www.wao.org.my/news_details.php?nid=18 where the Malaysian courts held that article 8 ‘does not extend 0&ntitle=e+amendments+to+the+Domestic+Violence+Act+ar its substantive or procedural provisions to infringements of an e+not+comprehensive+enough (accessed Jul 25, 2012). individual’s legal right by another individual’, thus limiting the scope of article 8’s prohibition against gender discrimination to matters 151 CEDAW Report, 456 (cited in note 8). involving state action. See Jaclyn Ling-Chien Neo, Malaysia’s First 152 Ibid, 103 (cited in note 8). Report to the CEDAW Committee, 13, Asian Yearbook of Int’l Law 303 (2007); Jashpal Kaur Bhatt, Gender Discrimination in 153 Ibid, 456 (cited in note 8). Employment - How far Does Article 8 of the Federal Constitution 154 Domestic Violence Amendment Bill passed, (Bernama Oct 4, 2011), guarantee gender equality?6 MLJ xliv (2006). online at: http://www.mmail.com.my/content/83714-domestic- 148 Domestic Violence Act (1994), 2. violence-amendment-bill-passed (accessed Nov 9, 2011).

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It should be noted however that the DVA does not (iii) Child Marriages criminalize domestic violence as a specic crime punishable by new penalties. It merely supplements Child marriage is prohibited among non-Muslims existing criminal legislation. Perpetrators of domestic unless one obtains special dispensation. e Law violence are prosecuted under general crimes in the Penal Reform (Marriage and Divorce) Act 1976 prescribes the Code. Consequently, there is a concern that charges for minimum age for marriage as eighteen years. e Chief domestic violence o ences under the Penal Code do not Minister of a particular State may in his discretion grant reect the seriousness of domestic violence which is oen a license authorising the solemnisation of a marriage of a more damaging because of its persistent and repetitive girl child who is under the age of eighteen years and has nature.155 In addition to the Penal Code, the Islamic completed her sixteenth year.162 Family Law Act (applicable to federal territories) makes it an o ence for any person to ill-treat his wife mentally, e legal age of marriage for Muslims is 18 for males and emotionally or physically.156 Section 127 of the IFLA 16 for females. However,there are developments towards states: ‘Any person who ill-treats his wife or cheats his wife lowering the legal age for marriage among Muslims.163 of her property commits an o ence and shall be punished Furthermore, current Sharia laws allow Muslims who with a ne not exceeding one thousand ringgit or with want to marry underage persons to do so by seeking the imprisonment not exceeding six months or both.’157 permission of the kadi.164 It has been argued that child marriage is not strictly prohibited under Islamic law (ii) Forced Marriages although scholars are divided on the issue. More attention and research is needed to determine de jure and de facto Ocially, forced marriage is not an accepted practice practice of forced marriages and child marriages in the in Malaysia society.158 e Law Reform (Marriage di erent states. Data on child marriages should also be and Divorce) Act 1976, which applies to non-Muslim disaggregated according to ethnic groups to distil cultural marriages, requires the Registrar of Marriage to be determinants on the problem. satised that both parties freely consent to the marriage before solemnizing the marriage (section 22(6)).159 (iv) Female Genital Mutilation Furthermore, it is an o ence for a person to use force or threats to compel a person to marry against his or her will Malaysia does not have specic laws prohibiting female or to prevent a person who has attained the age of 21 from genital mutilation. contracting a valid marriage.160 Invalidity of consent is a ground for voiding a marriage.Women formally have the (v) Sexual Harassment same freedom as men to choose their spouses. ere is no specialized omnibus legislation addressing Muslim marriages similarly require consent. Section 13 the problem of sexual harassment in Malaysia. However, of Islamic Family Law Act states that a marriage shall not aer much lobbying by women’s groups, the Malaysian be recognized or registered under the Act unless both parliament nally amended the 1955 Employment Act parties freely consent to the marriage and either the Wali in 2011 to include provisions dening sexual harassment (the woman’s guardian for marriage) or in the absence of 161 and putting in place a procedure for complaints to be Wali the Sharia Judge has also consented. investigated.165 e amended Employment Act now denes ‘sexual harassment’ as ‘any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural

162 See CRC Report, 131 (cited in note 9). 155 Joint Action Group: e amendments to the Domestic Violence Act are not comprehensive enough, (cited in note 150). 163 Malaysia To Allow Under Age Muslim Girls To Marry, (BTU Weekly Aug 14, 2010), online at http://www.bintulu.org/news/2010/08/04/ 156 CEDAW Report at ¶459 (cited in note 8). malaysia-to-allow-under-age-muslim-girls-to-marry.php 157 Islamic Family Law (Federal Territories) Act (1984), online at (accessed Jul 25, 2012). http://www.agc.gov.my/Akta/Vol.%207/Act%20303.pdf (accessed 164 See e.g. Kelantan Islamic Family Enactment (2002), §8. See also, Jul 25, 2012). Permission needed for underaged marriage: Sharia Court Chief 158 See CEDAW Report, 390 (cited in note 8). Judge, (e Star Mar 11, 2010), online at:http://thestar.com.my/ news/story.asp?le=/2010/3/11/nation/20100311130227&sec=nati 159 CEDAW Report, 390 (cited in note 8). on (accessed Jul 13, 2012). 160 Ibid, 390 (cited in note 8). 165 Employment (Amendment) Act 2011, http://www.parlimen.gov. 161 Ibid, 391 (cited in note 8). my/les/billindex/pdf/2011/DR152011E.pdf

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 529 or physical, directed at a person which is o ensive or 3. Implementation, Monitoring and Prevention humiliating or is a threat to his well-being, arising out of and in the course of his employment’.166 is legalizes a. Implementing and Monitoring Mechanisms the Code of Practice on the Prevention and Handling of Sexual Harassment in the Workplace,167 which provided ere appears to be a greater willingness on the part of non-binding working denitions of sexual harassment the government to channel resources into addressing and guidelines for employers on how to deal with it.168 the problem of domestic violence and child abuse, as well as to address rising sexual violence against women e new provisions are designed to ensure that internal in Malaysia. ere is also a greater e ort to address processes of a company so far as possible deal with the problem of abuse of domestic foreign workers in complaints of this nature.In particular, employers must Malaysia, following public outcry and increased pressure inquire into complaints received about sexual harassment, from sending countries like Indonesia. and take or recommend disciplinary action where sexual harassment has occurred. A person found ‘guilty’ of (i) Institutionalization sexual harassment may be dismissed, downgraded or suspended without wages for up to two weeks. Unlike e Ministry of Women A airs (now Ministry of other sections of the Act, the Bill o ers protection from Women, Family and Community Development) was sexual harassment to all employees, regardless of their established in 2001. It created the institutional structure salary. is presumably responds to one criticism that for a comprehensive approach towards protecting and merely amending the Employment Act to include sexual advancing women’s and children’s rights in Malaysia. harassment provisions would be of limited e ect since the In December 2004, this was complemented by the Act generally only applies to employees earning below 169 creation of a Cabinet Committee on Gender Equality RM1,500, thus excluding other categories of workers. chaired by the Prime Minister; this ensures that gender e Act makes it an o ence for an employer not to 170 issues, especially those under CEDAW, are being taken investigate a complaint of sexual harassment. into consideration at the highest level of government.171 As the NGO Shadow Report highlights, the creation of It should be noted that a 2006 Amendment to the Penal a separate Ministry has been a positive measure; as a Code now includes within its rape denition abuse of full-edged ministry, there has been an increase in sta authority to coerce a woman into having sex. e new capacity and, over the years, a steadily increasing budget section 375(f) provides that a woman’s consent to sexual allocation.172 For instance, the number of personnel in intercourse does not provide a valid defence to rape ‘when the Ministry increased from 67 in 2001 to 246 in 2006 the consent is obtained by using his position of authority and budget allocation has increased from RM4.11 million over her or because of professional relationship or other in 2001 to RM96.75 million in 2006. relationship of trust in relation to her’. is new section is aimed at protecting women who are vulnerable to the e Department of Social Welfare (housed under the sexual advances of their employers and superiors. Ministry) was restructured to create a Child Division in 2005. ACoordinating Council for Protection (vi) Violence against Sex Workers was established under the 2001 Child Act to advise the Minister of Women, Family and Community As the CEDAW Report stated, there are no special Development on all aspects of child protection as well as provisions relating to violence against a sex worker and to coordinate resources between various governmental in such an instance, the o ence would come under the departments involved in child protection.173 e Council Penal Code which legislates against acts such as assault, renders advice on the management and operation of using criminal force, wrongful restraint or connement Child Protection Teams throughout the country.174 and causing hurt or grievous hurt. is Council is chaired by the Director-General of the Department of Social Welfare and is represented 166 Employment Act (1955), 2. by relevant Government departments, child experts 167 CEDAW Report, 210 (cited in note 8). 168 Ibid., 211 (cited in note 8). 171 Responses to CEDAW Questions, 13 (cited in note14). 169 Women’s Centre for Change, Penang (WCC), Amendments to Employment Act To Address Sexual Harassment, (May 29, 2007), 172 NGO Shadow Group Report (cited in note 13). online at http://www.wccpenang.org/media/archive/107/(accessed 173 CRC Report, 129 (cited in note 9). Jul 25, 2012). 174 Ibid. 170 e punishment is a ne not exceeding ten thousand ringgit. Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 530 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study and NGOs.175 ese institutionalization measures are Development Councils in all states and parliamentary important advancements in the implementation and constituencies facilitate the implementation of monitoring process of women’s and children’s rights in governmental programmes and activities more e ectively general. at the grassroots level.183 A Child Unit was also set up at all state and district levels.184 (ii) Mainstreaming e CRC Committee observed that Malaysia’s CRC Report tends to focus on legal provisions rather than Gender focal points have been appointed in all 185 government ministries and departments. To raise de facto implementation of the conventions. e awareness, the Department of Social Welfare with the Committee also notes the lack of a national central funding support of UNICEF, trains social welfare ocers database on children and the lack of indicators to ensure and other governmental personnel to deal with child that data is collected and that they are disaggregated by abuse cases professionally.176 age, sex, urban, and rural area and by group of children in need of special protection,186 as well as by ethnicity. Due to the federal nature of Malaysia, most mainstreaming Furthermore, the Committee noted the lack of attention e orts have to be implemented at the state level. is and thereby insucient data on vulnerable groups of means that e orts and e ects are not uniform.More children, such as children of indigenous populations living in remote places, children of migrant workers and progressive and urbanized states like Penang and 187 Selangor tend to be more concerned and successful in child victims of tracking. mainstreaming gender awareness and implementing protection measures for women and children.177 For b. Complaints Process instance, the Penang government recently set up the Penang Women’s Development Corporation (PWDC), a e Malaysian Police Force records a high rate of special state-run body to promote gender equality.178 e successful closure of rape cases, i.e. 95.65% in 2009.188 PWDC will advise the state government in formulating policies to realise gender and social equality, undertake Malaysia considers ‘the best defence against child advocacy to promote good governance, as well as monitor abuse [to be] the public participation in reporting laws and policies that are gender discriminatory.179 As a the cases.’ agship programme, the PWDC will implement a 3-year Gender Responsive Budgeting project to mainstream e Malaysian government, through the Ministry, has gender equality in the budgetary process and policies sought to create awareness as to the prevalence of the of local governments.180 One of the expected outcomes problem of child abuse, as well as to educate the public of this project is to have ‘sex-disaggregated data’.181 e about the impact of violence. In a 2009 press statement, Penang state government has allocated RM1.5 million to the Minister for Women, Family and Community the PWDC’s programmes and operations for 2012.182 Development made a clear statement thatchildren who complain of abuse should be given the benet of the (iii) Grassroots Activation doubt, and the most immediate and broadest protection. She stated: e establishment of State Women and Family ‘When a child complains that ‘someone touched me’, the person to whom the child complained should 175 Ibid. take the matter seriously and immediately call the 176 Ibid. Department of Social Welfare, Police or Talian Nur 177 is may also be due to more activism among women’s groups in 15999 so that action can be taken to rescue the child. these states. Children at young ages do not lie about such matters. 178 Himashu Bhatt, Penang promoting gender interest policies, (e Sun Daily Mar 9, 2012), online at http://www.malaysianbar.org.my/ 183 Responses to CEDAW Questions at Annex III (cited in note14). legal/general_news/penang_promoting_gender_interest_policies. html(accessed Jul 25, 2012). 184 CRC Report, 108 (cited in note 9). 179 Bhatt, Penang promoting gender interest policies (cited in note 178). 185 CRC Concluding Observations, 2 (cited in note 18). 180 Ibid. 186 Ibid, 26 (cited in note 18). 181 Ibid. 187 CRC Concluding Observations, 25 (cited in note 18). 182 Ibid. 188 Report Tahunan 2009, 97 (cited in note 56).

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…. Non-abusing parents usually keep silent about are the subject matter of proceedings pending in a court the abuse because of fear, hopelessness and isolation of law or which have been nally decided by any court. or lack of support from other family members.’189 In other words, such investigations have to cease if the matter being investigated is brought before the court. Talian NUR, launched in 2007, now serves as a single point of contact for reporting, complaints and queries c. Protection and Rehabilitation concerning domestic violence, child abuse and even 190 natural disasters. Talian NUR also administers (i) Protective/Restraining Orders Childline Malaysia for children in need of assistance (see below under Non-State Actors). It replaces the e primary legislation empowering state intervention toll-free helpline Teledera, which the Department of in cases of violence against women and children are the Social Welfare startedin 1994 to allow members of the Domestic Violence Act and the Child Act. e DVA gives public and victims to report child abuse directly to the 191 women the right to obtain a court-issued protective order Department for immediate action. In its CRC Report, (PO) against her abuser. e Court may also issue an Malaysia noted that as of December 2005, a total of 4,163 interim PO pending investigation of an alleged domestic cases of child abuse and domestic violence were reported 195 192 violence o ence, or during the course of proceedings. through the hotline. is toll-free Teledera hotline was A court granting a PO is also empowered to grant other terminated on 15 January 2010 in a streamlining e ort to protective orders such as granting the right of exclusive channel complaints of all social problems an integrated occupation to a protected person and excluding the one-stop call centre Talian NUR 15999. ‘abuser’ from any shared residence. A court may also prohibit or restrain a person against whom the order Malaysia has not signed the Optional Protocol to CEDAW, is made from entering any protected person’s place of which allows the CEDAW Committee to consider residence, school or other institutions. e restrained individual communications concerning discrimination person may also be prohibited from making written or in Malaysia. Nonetheless, as the reports stated, the telephone communications with the protected person. Human Rights Commission of Malaysia (SUHAKAM) Besides that, the court may require an enforcement was established in 1999 with the mandate, inter alia, ocer to accompany the restrained person when entering to ‘inquire into complaints regarding infringements of the place of residence to collect his belongings.196 human rights’.193 In discharging this function, SUHAKAM may act on its own motion in addition to acting on Besides issuing POs, the court may also order the parties complaints submitted to it. SUHAKAM has the power to concerned to be referred to bodies providing counselling, advise the Government in relation to the complaints and 194 rehabilitation therapy, psychotherapy and reconciliatory recommend appropriate measures. e one constrain counselling.197 e law also provides that a protection is that SUHAKAM may not investigate complaints which order may be sought during any criminal proceedings where the accused is charged for a domestic violence 189 Ministry of Women, Family & Community Development, o ence under the Penal Code as a condition for the Press Statement: Child Abuse, Dato’ Sri Sharizat Abdul Jalil, accused to be released on bail or upon the compounding (Oct 11, 2009), online at: http://www.jkm.gov.my/index. of such o ence.198 php?option=com_content&view=article&id=500%3Abudak-mati- didera&Itemid=98&lang=en (accessed Jul 25, 2012). e reports state that Muslim wives have the alternative 190 Jabatan Kebajikan Masyarakat, Announcement: Penamatan of applying to the Sharia Court for a restraining order Talian Bebas Tol Teledera 1-800-88-3040, online at: http://www. against her own husband.199 Section 107(1) of the Islamic jkm.gov.my/index.php?option=com_content&view=article& Family Law Act empowers the Sharia court to order any id=617%3Apenamatan-talian-bebas-tol-teledera-1-800-88- person to refrain from acts of molestation pending any 3040&Itemid=98&lang=en (accessed Jul 20, 2012); see further matrimonial proceedings, or on or aer the grant of an Talian Nur Hotline Launched, (e Star Dec 5, 2007), online at: http://thestaronline.com/news/story.asp?le=/2007/12/5/nation/2 0071205131631&sec=nation (accessed Jul 20, 2012). 191 CRC Report, 190 (cited in note 9). 195 CEDAW Report, 456 (cited in note 9). 192 Ibid., 190 (cited in note 9).e CRC Committee commended the 196 CEDAW Report, 456 (cited in note 9). existence of such a hotline.CRC Concluding Observations, 57 (cited in note 18). 197 Ibid, 457 (cited in note 8). 193 CRC Report, 61-2 (cited in note 9). 198 Ibid. 194 Ibid. 199 Ibid, 458 (cited in note 8).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 532 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study order of divorce or annulment.200 However, to obtain 1997, they were established in 90 per cent of government such an order, the applicant must usually prove that there hospitals across the country. has been molestation in the past or that the wife is in a dangerous situation and that an order is necessary for her e standard protocol is that when a woman appears at protection.201 It is not clear if there are any di erences, the Accident and Emergency Department of one of these and if so, what the di erences are between a PO and a hospitals alleging injuries from domestic violence, the restraining order issued by the Sharia court. victim/survivor is rst examined and treated by a doctor and seen by a counsellor within 24 hours in a separate (ii) Shelters examination room to protect her privacy and to ensure condentiality.206 Subsequently, should it appear that the According to the CEDAW Report, there are ‘shelters victim will be in danger if she returns home, the doctor or for abused and battered women and children [that are] counsellor would arrange for her to go to an emergency provided by both governmental as well as voluntary shelter or admit her to the accident and emergency 207 organisations.’202 ese homes provide temporary shelter ward for 24 hours. If the patient chooses not to seek to women and children who are victims of violence. shelter, she is encouraged to return to see a social worker 208 Furthermore, the Rumah Nur (Women Centre) in at the hospital at a later date. She is also encouraged Selangor will be a dedicated shelter for foreign victims to make a police report at the police unit based in the 209 of tracking. ere are currently 11 Shelter Homes for hospital. In cases involving severe injury, the police see neglected, abused, abandoned and orphaned children the patient in the ward to record her statement and start 210 under the direct purview of the Department of Social investigations. Welfarein Malaysia.203 More information is required on the number of shelters available in Malaysia, and if A 2011 article on One Stop Crisis Centres in Malaysia such shelters are spread throughout the country and are shows that a close and clearly dened partnership accessible to both urban and rural women. ere needs between NGOs and health sta can be a very powerful to be more attention given to violence against women inuence to the legal and policy environment in in rural areas. e NGO Shadow Report for instance which health care services for domestic violence are 211 highlighted that there have been a number of cases of developed. e article concludes that it is critical to abuse against women in the agricultural estates (more gain high-levelsupport from the Ministry of Health in rural parts of Malaysia).204 order to institutionalize the response to violence across the entire health care system.212 Otherwise, without clear operational details and resources, policy implementation (iii) One-stop Crisis Centres at Government Hospitals cannot be fully ensured and taken to scale.213 e Ministry of Health in partnership with the National Council of Women’s Organisations (NCWO) and women’s groups, other agencies, established one-stop crisis centres at all major hospitals for proper and co- 206 United Nations Secretary General, In-depth study on all forms of ordinated management of rape and other forms of violence against women, General Assembly, Sixty rst Session, violence against women and children.205 ese crisis A/61/122/Add.1, at 92 (Jul 6, 2006), online at http://daccess- centres provide a broad range of services to help survivors dds-ny.un.org/doc/UNDOC/GEN/N06/419/74/PDF/N0641974. of violence, besides medical attention. ese include pdf?OpenElement (accessed Jul 2, 2012). protection, safe accommodation, support, counselling, 207 UN Secretary General, In-depth study on all forms of violence and legal assistance. e rst One-Stop Crisis Centre was against women, 92 (cited in note 206) established at the University Hospital, Kuala Lumpur in 208 Ibid. 1986 as the result of a campaign against violence against 209 Ibid. women by women’s organisations the previous year. By 210 Ibid. 211 Manuela Colombini, Siti H Ali, Charlotte Watts, and Susannah H 200 Ibid. Mayhew, One Stop Crisis Centres: A Policy Analysis of the Malaysian 201 Ibid. Response to Intimate Partner Violence, 9(25) Health Research Policy and Systems (21 June 2011), online at http://www.health-policy- 202 Ibid, 79 (cited in note 8). systems.com/content/9/1/25 (accessed Jul 25, 2012). 203 Statementon Agenda Item 65 (cited in note121). 212 Ibid. 204 NGO Shadow Report, article 14 (cited in note 13). 213 Colombini, Ali, Watts & Mayhew, One Stop Crisis Centres (cited in 205 CEDAW Report, 268 (cited in note 8). note 211).

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(iv) Child Protection Teams the care of such a child.219 e Court for Children may order parents or guardian of a child to attend ‘an e CRC Report highlights several measures taken by interactive workshop to enable them to establish positive the Department of Social Welfare to build the capacity relationship and mutual understanding in overcoming of its ocers to address the problem of child abuse. First, their problems towards a harmonious family.’220 e Child Protection Teams were established throughout Child Act also provides for the identication, reporting, the country to provide counselling, crisis intervention referral, investigation, treatment and follow-up of the services, and other support services. According to child in need of care, protection and rehabilitation.221 the reports, there were 131 Child Protection Teams established as of 2005. ese Teams are trained to (vi) Children’s Homes address issues pertaining to child welfare, with special focus on working with abused children, a ected families All Children’s Homes (run by the Department of Social and perpetrators.214 It appears from the reports that Welfare) are considered as Places of Safety.222 e Child Protection Teams are based in and manage Child duration of stay in the Homes is only for a specied Activity Centres and Crisis Intervention Centres. More period as determined by the Court for Children.223 e information is needed to analyse and better evaluate the children may be returned to their own families or placed work of such Child Protection Teams. by Social Welfare Ocers with suitable foster families.224 In 2010 the Department of Social Welfare have developed Secondly, the Child Activity Centres established by the minimum standards of care for children in care centres Teams conduct lectures, seminars and workshops on / homes managed by NGOs to ensure the child is parenting and other family-oriented topics.215 According protected and cared for in an institutional setting. is to the reports, the ‘activities carried out at the Child shows the government’s acknowledgment that ultimate Activity Centres have, in some ways, contributed to accountability in ensuring that children’s rights are upheld the prevention of many social ills such as child abuse, and their welfare promoted rests with the Government.225 child neglect, school dropout, truancy and moral 216 decadence.’ Furthermore, the reports state that such (vii) Profession of Social Work Centres established at state and district levels are aimed at mobilizing community participation to assist In April 2010, the Malaysian government approved Social the Department of Social Welfare in implementing Work Competency Standards to serve as guidelines for prevention programs and to deal with child abuse cases social workers.226 e Competency Standards aim to by coordinating locally based services to families and 217 equip and professionalize the human resource capacity children. of government to deliver quality primary, secondary and tertiary interventions in child protection.227 e (v) Court of Children competency standards will be used as a key tool for the government and the Malaysian Association of Social Furthermore, the Child Act empowers the Court of Children to separate the child from his or her parents or 219 Ibid., 202, 237 (cited in note 9). guardian where such parent or guardian have ill-treated, neglected, abandoned them, or have exposed the child to 220 Ibid., 180 (cited in note 9). moral danger, used the child as prostitutes or beggars or 221 Ibid., 236 (cited in note 9). have unlawfully transferred possession, custody or control 218 222 Ibid.,223 (cited in note 9).e Child Act, in section 54, states of the child. e Court will order such a child in need that such places of safety as those that have been gazetted by the of care, protection and rehabilitation to be cared for in a Minister accordingly for the care and protection of children. place of safety, place of refuge, in the custody of a foster 223 Ibid. parent, or in the care of a person who is willing and whom the Court considers to be t and proper to undertake 224 Ibid. 225 Ministry of Women, Family and Community Development, Child Protection and Child Welfare Services in Malaysia, Beijing High 214 CRC Report, 268 (cited in note 9). Level Meeting, at 10, (Nov 4-6, 2010), online at http://www.unicef. org/eapro/Malaysia_Beijing_paper_26_Oct_2010_FINAL.pdf 215 Ibid, 267 (cited in note 9). (accessed Jul 25, 2012). 216 Ibid, 268 (cited in note 9). 226 MWFCD, Child Protection and Child Welfare Services in Malaysia 217 Ibid, 356 (cited in note 9). (cited in note 225). 218 CRC Report, 202 (cited in note 9). 227 Ibid.

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Workers (MASW)228 to set up systems to generate e two national policies on children and child protection professional, competent and accountable social workers set the framework for two national reform processes.233 and deliver competent and timely welfare services. is According to Malaysia’s 2009 National Child Policy and will include building capacity to eciently prevent, Child Protection Policy, a holistic approach is needed to intervene and respond to incidences of abuse, neglect and protect and preserve the rights of children. e National violence among women, children and other vulnerable Child Policy directs the development of a conducive groups. Specically the Government approved the environment to safeguard the rights of children to following six recommendations: survival, protection, development and participation.234 e National Child Protection Policy and Child Policy i. Establish the National Competency Standards expressly aim to mobilize intra and inter-ministerial for SocialWork Practice and Education; involvement to address the needs of children and ii. Enact a Social Workers Act; community.ey also intend to maximize the e orts and iii. Set up a regulatory licensing board; leverage the roles of the private sector, media, civil society iv. Recruit social work graduates into social work and the community.e policies additionally encourage a positions inthe civil service; systematic approach to advocacy and building evidence v. Standardise all social work programmes in to help make in-depth analysis related to children, and Institutions of Higher Learning; propose interventions that would promote child well- 235 vi. Develop social work courses at certicate and being. diploma levels.229 e Legal and Advocacy Division of the Department of ere are further plans to pass a Social Worker Act to Social Welfare has taken steps to advocate child issues, legalise these requirements and to formally regulate the including conducting training courses on handling child profession of social work in Malaysia and strengthen the abuse cases throughout the country for social welfare provision of welfare services towards the care, safety and ocers. e Department of Social Welfare has developed protection of all citizens in Malaysia.230 Training Modules on Handling Child Abuse Cases with UNICEF’s funding, which are directed at training Social d. Prevention Strategy Welfare Ocers, members of the Child Protection Teams, Health Department, police and prison personnel 236 Malaysia sees gender stereotypes as a major contributory to handle child abuse cases professionally. More factor to violence against women (and children). us, information as to the scope and content of such courses, much of the national policies addressing this problem the ecacy of the training as well as whether there has focus on ‘awareness and training programmes relating been increase in the quantity of such courses conducted to understanding gender roles and expectations’.231 ese would be useful. include ‘[g]ender sensitisation courses … for agencies involved in the handling and management of domestic Malaysia has launched various campaigns to counter violence cases’ and the development of standard operating problems of gender-stereotyping and cultural . procedures to ensure better coordination between e Women, Family and Community Development agencies to increase e ectiveness.232 Committee on the Elimination of Discrimination against Women 228 See further Malaysian Association of Social Workers, Understanding (CEDAW), 16 (cited in note 231).See also Ministry of Women, the Social Workers Act, online athttp://www.masw.org.my/images/ Family and Community Development, National Women Policy socialact.html (accessed Jul 25, 2012). (2009), online at: http://sgdatabase.unwomen.org/uploads/ National%20Policy%20on%20Women.pdf (accessed Jul 25, 2012). 229 Child Protection and Child Welfare Services in Malaysia, 8 (cited in note 225). 233 Child Protection and Child Welfare Services in Malaysia (cited in note 225). 230 Ibid., 2. 234 Jabatan Kebajikan Malaysia, Kenyataan Akhbar: Dasar Kanak- 231 Datuk Faizah Mohd Tahir, Secretary-General of the Ministry Kanak Negara dan Dasar Perlindungan Kanak-Kanak Negara, of Women, Family and Community Development Malaysia, (5 September 2009), online at: http://www.jkm.gov.my/index. Introduction of Combined Initial and Second Period Report to the php?option=com_content&view=article&id=501%3A1592009- Committee on the Elimination of Discrimination Against Women dasar-kanak-kanak-negara-dan-dasar-perlindungan-kanak- (CEDAW), at 15 (New York May 24, 2006), onlineat:http:// kanak-negara&Itemid=98&lang=en (accessed Jul 25, 2012). www.un.org/womenwatch/daw/cedaw/cedaw35/pdf/Intro_ statementMalaysia_35th%20Session%20CEDAW.pdf (accessed Jul 235 Child Protection and Child Welfare Services in Malaysia at 7 (cited in 25, 2012). note 225). 232 Introduction of Combined Initial and Second Period Report to the 236 CRC Report, 120 (cited in note 9).

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Ministry is strong on public education campaigns; it most e ective civil society groups in the country. ere engages the services of the private sector including are broadly speaking two types of civil society groups public relations experts, advertising agencies and event addressing women’s rights, advocacy groups and service organizers to organize campaigns and conference to providers. Among advocacy groups are two sub-groups, generate visibility of women’s issues.237 Such campaigns those engaged in general advocacy and those engaged in include ‘Keluarga Bahagia’ (Happy Families), ‘Caring specialized advocacy for gender equality within Islamic Society,’ ‘Legal Literacy,’ and the ‘Morality and Character laws. Some more prominent advocacy groups for women Building for Children and Youth,’238 which broadly are: address social consciousness and family values. Other • Women’s Aid Organisation (WAO); campaigns are more directed, such as the Women against • All Women’s Action Society Malaysia Violence Campaign (WAVe),239 which raise awareness of (AWAM)245; children and women’s issues.240 e reports also state that • Women’s Centre for Change (Penang) (formerly Women and Family Development Councils implemented Women’s Crisis Centre); Seminars on Reducing Violence against Women in 219 • Tenaganita; parliamentary constitutions all over the country; in • Islam-focused advocacy group: Sisters in Islam; 2004, 15,485 participants supposedly beneted from the • EMPOWER seminars.241 In addition, the National Population and • Good Governance & Gender Equality Society Family Development Board also developed a Belaian Penang (3Gs).246 Kasih module in 1998 to equip parents with parenting knowledge and skills needed to handle children.242 Women NGOs in Malaysia are extremely active in Part of the module also educates parents on issues of advocacy, awareness and assistance e orts.ey have safety at home including possibilities of sexual abuse.243 become well organized, e ective in mobilization and in More information on the content, dissemination and enlisting media assistance in broadcasting issues a ecting e ectiveness of these campaigns/training would also be women. ey also provide strong community assistance useful. to survivors of violence. Many NGOs also provide legal advice and service to survivors. ere are also cooperative e Government’s Communications and Multimedia e orts between the respective state governments, on the Content Code prohibits obscene and violent content one hand, and women rights NGOs, on the other. which includes pornographic material, the portrayal of sex crimes (which includes rape, attempted rape, statutory Child rights activists usually focus on . rape and bestiality) as well as other non-consensual sex, e Mousedeer Group for example uses social media or violent sexual behaviour, child pornography and the to encourage children in Malaysia to be involved in portrayal of women, men or children as mere sexual active discussion about human rights.247 UNICEF also objects or in a demeaning manner.244 collaborates with local individuals and organizations to promote awareness of the rights of children. is is aimed 4. Role of Non-State Actors at changing parents’ mind-sets and empowering children. For example, UNICEF enlisted Marina Mahathir (a social ere is strong women’s rights activism in Malaysia. activist and daughter of former Prime Minister Mahathir Women’s rights NGOs are among the best-organized and Mohammad) as one of its advocates. Marina Mahathir pioneered the popular television programme 3R, which stands for Respect Relax Respond. It is an award-winning 237 NGO Shadow Report, art. 1-4 (cited in note 13). programme that addresses a range of issues a ecting the 238 CEDAW Report, 83 (cited in note 8). young, such as family ties, careers, romantic relationships, sexuality, and substance abuse.248 239 CEDAW Report, 83 (cited in note 8). 240 CRC Report, 190 (cited in note 9). 245 All Women’s Action Society, online at http://www.awam.org.my/ 241 Responses to CEDAW Questions, 19 (cited in note14). (accessed Jul 25, 2012). 242 CRC Report, 191 (cited in note 9). 246 Good Governance & Gender Equality Society Penang, online athttp://3gspenang.wordpress.com/(accessed Jul 25, 2012). 243 CRC Report, 191 (cited in note 9). 247 Mousedeer Group, online at http://themousedeergroup.wordpress. 244 Responses to CEDAW Questions, 14 (cited in note 14).Draed com/what-is-the-mousedeer-group/ (accessed Jul 25, 2012). pursuant to theCommunications and Multimedia Act (1998). See also3-4 of the Communications and Multimedia Content Code, 248 Meng Yew Choong, Advocating children's rights (e Star Dec 10, online at http://www.cmcf.my/download/CONTENT_CODE_ 2010), online at:http://thestar.com.my/lifestyle/story.asp?sec=lifefo (V6-Final).pdf (accessed Jul 24, 2012). cus&le=/2010/12/10/lifefocus/7574592 (accessed Jul 25, 2012).

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a. Assistance to Victims leaving their abusive partners.257

According to the CRC Report, non-state actors provide Women’s Centre for Change Penang also operates a assistance to child victims through the Family System shelter home where the women and their children can Children’s Homes (Rumah Tunas Harapan) scheme. e stay temporarily. Sta from the centre will accompany scheme is broadly conceived as an innovative alternative them to the police and hospitals to make ocial reports, to institutional care for children who are unable to and to other agencies such as the welfare department or stay with their natural families due to unavoidable the Courts. Since 2009, the Women’s Centre for Change circumstances (which presumably would include manages the Pusat Perkhidmatan Wanita S. Perai (PPW), abuse).249 Children are placed in groups of eight or ten in a project initiated by the Penang State Women, Family specially built homes under the care of married couples and Community Development. e PPW provides crisis selected from the community to act as foster parents.250 As intervention services such as direct counselling, telephone the report states, this scheme relied on partnerships and counselling, e-counseling, temporary shelter for abused collaborations among the government, corporate bodies, women and children, as well as legal advice. According NGOs, community based organizations and the National to its website, the WCC provides direct counselling to Welfare Foundation.251 As of 2006, there were 8 Homes more than 270 women, serves about 1,000 telephone with 25 house units operating with 225 children.252 calls for counselling, and provides emergency shelter to more than 10 women and 20 children each year.258 WCC e Women’s Aid Organisation (WAO) provides shelter expanded its services to provide victim support to rape for abused women and their children, as well as a Child survivors in court trials; in 2011, the WCC undertook Care Centre (CCC) for children of former residents at three rape cases, including that of a 4-year old child who the shelter. At the shelter, social workers o er face-to- was allegedly raped by a director of the kindergarten face counselling and telephone counselling. e WAO she attended. WCC also worked with the Deputy Public shelter is a Ministry-designated safe housefor victims Prosecutor’s Oce to educate and brief victims about the of domestic violence.253 e WAO publishes an annual court process prior to trial.259 review containing important data on the clients who receive its services. In 2011, the WAO counselled 104 In ,the Sarawak Women for Women Society women face-to-face, and 1,347 over the phone.254 About (SWWS) operates a crisis hotline for women and a 110 women received shelter with the WAO in 2011; one-stop centre to provide counselling and support for domestic violence was the main reason women sought survivors of domestic violence and rape.260 e SWWS’ shelter.255 Besides that, a total of 16 children lived at its work is crucial for women in rural areas. CCC where they are provided a home, education at local schools and a support system to meet their physical, Information outside of the reports does show that civil mental and emotional needs.256 society is very involved in providing assistance and protection to victims of violence. For instance, Childline In addition, WAO also runs an Anak Angkat program Malaysia, launched in 2010, is a national non-prot public which invites the public to sponsor children who were safety project aimed at creating a national 24-hour phone victims of domestic violence or whose mothers were victims of violence. e aim is to help pay for the daily 257 e monthly sponsorship is RM70 per month per child and goes living costs and school expenses of a child so as to reduce towards items such as school uniforms, books and stationery, milk the nancial burden on the women and children as the etc. We hope that you will commit to helping a child for a full year mothers seek and establish themselves in work, aer at RM860.00 (inclusive of an administrative fee of RM20). WAO also welcome one-o donations to the Anak Angkat Programme Fund. Women’s Aid Organisation, WAO Anak Angkat Program, 249 CRC Report, 226 (cited in note 9). online athttp://www.wao.org.my/WAOs+Anak+Angkat+Program me_39_4_1.htm (accessed Jul 25, 2012). 250 Ibid. 258 Women’s Centre for Change, WCC Services, online at http://www. 251 CRC Report, 226 (cited in note 9). wccpenang.org/services/ (accessed Jul 25, 2012). 252 Ibid. 259 Women’s Centre for Change, Annual Review 2011, online at: http:// 253 NGO Shadow Report (cited in note 13) (on article 7). www.wccpenang.org/files/docs/Annual_Review_2011_viewing. pdf 254 WAO, Annual Statistics 2011 (cited in note 114). 260 Group to Hold Seminar on Migrant and Human-tracking Issues, 255 Ibid. (e Star Jul 28, 2010), online at http://thestar.com.my/news/story. 256 Women’s Aid Organisation, WAO Services, online at http://www. asp?sec=sarawak&le=/2010/7/28/sarawak/6743063 (accessed Jul wao.org.my/Services_11_3_1.htm 25, 2012).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 537 service for children under 18 years who are in need of seminars in educational institutions and with community information, care and protection.261 It is the country’s groups were also used.266 is was supplemented by a rst helpline dedicated to children below 18. Childline broad public initiative called Citizens against Rape’ in is a collaborative e ort between non-governmental 1987 and again 2003. AWAM played a major role in the and private sector organizations in partnership with CAR initiatives. e CAR campaigns were reactions to government agencies such as the Ministry of Women, the brutal rape and of a nine year-old girl, Ang Family and Community Development (MWFCD), the May Hong, in 1987; and to the violent rape and murder Social Welfare Department Malaysia (JKMM), UNICEF of another young woman, Canny Ong.267 NGOs in the Malaysia, MCTF and Child Helpline International (CHI). JAG group disseminate information and run programs It aims to link children to short and long-term intervention to increase awareness about violence. For instance,WAO and rehabilitation services.262 While Childline deals with publishes on its website, among other helpful information, a wide range of issues involving children from eating 15 ways to help a survivor of violence, which includes disorders to serious abuse, it remains a useful avenue assuring the woman that she is not to blame.268 for children and other adults to report instances of child abuse. Indeed, the helpline service number 15999 has (ii) Campaigns gainst Domestic Violence been publicized through the mass media as an appropriate channel to report instances of child abuse. AWAM, WAO and WCC have been at the forefront of campaigning e orts against domestic violence. Not b. Prevention Programs only did they organize activities and petitions to raise awareness, they also successfully lobbied the government All NGOs run campaigns to raise community awareness to enact the Domestic Violence Act and, later, to amend it as part of preventive measures. e Association of Women to broaden the denition of ‘domestic violence’. However, Lawyers (AWL) organizes legal literacy programmes they have yet to achieve their initial goal of making to teach people about the legal rights of a rape survivor domestic violence a specic crime. Women’s groups have and legal protections against rape.263 Many women’s and been monitoring the implementation of the DVA. children’s organisations work closely with the Ministry of 264 Women, Family and Community Development. More (iii) Campaign Sexual Harassment Out (SHout) importantly, many women’s NGOs work closely with one another. e Joint Action Group (JAG) coordinated by In 2011, the women’s groups formed a joint-committee the All Women’s Action Society (AWAM) was formed specically directed at campaigning against sexual in 1986, comprising ten (now eleven) organizations harassment in Malaysia.269 e Sexual Harassment out concerned with gender equality. (SHout) Joint-Committee has the following objectives: • (i) Campaign against Rape To build awareness on the issue of sexual harassment at all levels of society, from homes, schools, workplaces to public spaces. JAG’s rst major collaboration was a public campaign • To have a specic law against sexual harassment against rape in1986-1987. It consisted of a traveling road either at Federal level or at State level. show to present issues concerning rape and domestic violence to communities through dramas, skits and e SHout campaign aims to educate women about workshop discussions.265 Street theatre, public opinion their rights and to draw the line between permissible surveys, petitions, exhibitions at shopping malls, and and impermissible attention so that they can identify

261 Sagayam, Record High Child Abuse, (cited in note 37).e helpline 266 Organizations Addressing VAW: Malaysia (cited in note 265). reportedly received about 3,000 calls from children in six months since it was established. Of these, 484 reported abuses by parents. 267 All Women’s Action Society Malaysia, e Citizens Against Rape (CAR) Campaign, online at http://www.awam.org.my/car.html 262 Childline Malaysia, online at http://www.childlinemalaysia.com. (accessed Jul 25, 2012). my/15999Childline.aspx (accessed Jul 25, 2012). 268 Women’s Aid Organisation, Be A Friend: 15 Ways to Help a Survivor, 263 Association of Women Lawyers, online at http://awlmalaysia. online at http://www.wao.org.my/Be+a+friend+-+15+ways+to+he blogspot.com/ (accessed Jul 25, 2012). lp+a+survivor+of+VAW_67_62_1.htm (accessed Jul 25, 2012). 264 E.g. CRC Report, 192, 230 (cited in note 9). 269 All Women’s Action Society Malaysia, Press Statement: Launch of 265 Organizations Addressing VAW: Malaysia, online at:http://www. Campaign Sexual Harassment Out (SHout), (Sept 10, 2011), online unwomen-eseasia.org/projects/evaw/vawngo/vammys.htm at:http://www.awam.org.my/images/Press%20Statement%20 (accessed Jul 25, 2012). SHout.pdf (accessed Jul 25, 2012).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 538 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study sexual harassment, particularly in the workplace. e (v) Lobbying for Reform of Religious Laws Joint-Committee sees sexual harassment as a form of discrimination contrary to CEDAW and a form of e Sisters-in-Islam’s central objective is the advocacy violence against women. for the rights of Muslim women under Islamic (Sharia) laws. SIS has established a specic law reform project to (iv) An Integrated Approach to Preventing Child Sexual educate the public and lobby for better legal protection of Abuse Muslim women. SIS also seeks to sensitize Sharia lawyers, Kadis and Muslim counsellors to the discrimination and Since 1997, the Women’s Centre for Change (WCC, biases against women that exist in the Sharia laws, or in previously known as Women’s Crisis Centre) developed a their implementation. e organisation has published comprehensive and integrated approach to help parents, simple pamphlets such as ‘Can Muslim Men Beat their teachers, and children prevent and counter child sexual Wives?’ and ‘Are Women and Men Equal before Allah?’ to abuse. It launched a successful primary school project disseminate information to women who face abuse. to provide talks to teachers and students to increase their awareness of sexual violence and worked with the (vi) Services for Women in Rural Areas Young eatre Penang to conduct a drama roadshow titled ‘Ok Tak Ok’ (Ok Not Ok) to teach children to e Sarawak Women for Women Service provides a distinguish between good touches and bad touches, and range of services for women facing violence, including how to respond to possible situations of sexual abuse.270 young women from rural areas. As the only women’s ese e orts involve experts in child psychiatry and organisation providing support for rape survivors psychology, representatives from the police and the in Sarawak, SWSS lobbied for the creation of a Rape Social Welfare Department, and medical and social sta Survivor Support Group. Since 1989, this committee has from hospitals.271 brought together medical personnel, welfare ocers and representatives from the police department to provide Following that, WCC developed an educational package support for rape survivors. Rape victims are also assisted ‘Bijak itu Selamat’ (Smart is Safe) in 2001 to help teachers, at a special room in the General Hospital that has been school counsellors and educationists to teach children specially reserved for SWWS volunteers. SWSS also has a to be aware of the dangers of child sexual abuse. is Crisis Phoneline, which provides women with a listening package is specially produced for children between 10 ear, empathy and emotional assistance, assists them to and 12 years of age and consists of following materials. explore ways to resolve their crises and encourages them to make their own decisions. e WCC uses the ‘Bijak itu Selamat’ (BIS) package to conduct personal safety programmes in primary schools. c. Monitoring and Cooperation e programmes consist of a one-hour interactive session and a half-day workshop aimed at the following e government also closely involves NGOs in formulating objectives: policies on women and children. Representatives • Create awareness in children about preventing sexual from NGOs such as the National Council of Women abuse Organisations (NCWO) and All Women Action Malaysia • Help them di erentiate between good touch and bad (AWAM) have been appointed to sit on various advisory touch councils ‘in order to promote co-operation between • Teach them what steps to take if they are in a risky governmental agencies and NGOs’.273 NGOs have played a situation critically important role in highlighting areas of oversight • Encourage them not to keep secrets which make them and in suggesting needed improvements. e Joint Action feel uncomfortable Group for Gender Equality for instance, campaigned • Urge them to inform a trusted adult who can help them for a long time for a specic law on sexual harassment in Malaysia and in 2001 submitted a proposed Sexual WCC’s website contains extensive information about child Harassment Bill to the government.274 sexual abuse, how to identify and how to prevent it.272

270 Women’s Centre for Change, Children’s Programme, online at: http://www. wccpenang.org/outreach/children-programme/ (accessed Jul 25, 2012). 273 CEDAW Report, 21 (cited in note 8). 271 Organizations Addressing VAW: Malaysia (cited in note 265) 274 Women’s Centre for Change, Amendments to Employment Act To 272 Women’s Centre for Change, Child Sexual Abuse, online at:http:// Address Sexual Harassment, (May 29, 2007), online at http://www. www.wccpenang.org/child-sexual-abuse/ (accessed Jul 25, 2012). wccpenang.org/media/archive/107/ (accessed Jul 25, 2012).

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e Coalition of Malaysian NGOs in the UPR Process and children, its causes, the background of the victims (COMANGO) has recommended for more governmental and perpetrators (age, income levels, nationality, etc.), e orts to address rising violence against women in Malaysia. as well as information on how to alleviate and deal with the problems.278 A central aggregation and analysis of the Suggestions included the criminalization of marital rape, data would be helpful. legislation to prohibit sexual harassment and stalking, more ecient implementation of the Domestic Violence (ii) Need to Expand Perceived Coverage Act 1994, and active training of the police and judiciary 275 on gender awareness. is echoed many of the earlier Furthermore, there is a fundamental need to recognize recommendations by the NGO Shadow Report Group to that Malaysia’s human rights obligations extend also to CEDAW. ere has been much valuable work by NGOs indigenous women and children, as well as to foreign in Malaysia in collecting and publicizing much needed women and children. In general, it appears that there is data and information on the problem of violence against a severe lack of reliable data concerning rural, migrant, women and children. aboriginal or indigenous women.279 is would include data on the prevalence of and the root causes of violence 5. Progress Indicators and Challenges against such women.

a. Challenges (iii) More E ective Law Enforcement

(i) Need for Comprehensive and Comparable Data In Malaysia’s Millennium Developmental Goals Report, it was noted that there is a pressing need to address the low In general, the reports show that there is a need to rate of prosecution. e report noted that for rape, there broaden and deepen Malaysia’s data collection and were only 184 prosecutions in 2008, and 162 in 2009. e reporting practices to include more empirical data on concern is that the low rate of prosecutions makes it appear the prevalence of violence against women and children that perpetrators can commit violence against women with in Malaysia. Such data needs to be more comprehensive, impunity, indirectly rendering their actions‘acceptable’.280 showing for example the severity of such violence or otherwise, to the identity of the primary perpetrators Similarly, there is still concern over e ective of such violence, the breakdown of such cases by social implementation of the Domestic Violence Act.281 class, racial or religious groups, and so on. Malaysia noted Related laws such as the Evidence Act and the Criminal in its CEDAW Report that it has developed a Gender Procedure and Penal Codes still have to be amended. Disaggregated Information System (GDIS) to monitor the Furthermore, women’s groups express worry over the 276 progress of women’s program and activities. Malaysia’s attitude of frontline agencies, including the police. ere CEDAW Report stated that information available in the has been anecdotal observation that some police ocers GDIS include data on child abuses, drug addicts, incest, still consider domestic violence to be a private matter rape, molest, domestic violence and sodomy but that the and would sometimes ask the abused wives to go back 277 information are available only from 1997 to 2004. home.282 Gender sensitization among law enforcement authorities is crucial to ensure proper implementation. In any event, the GDIS should continue to be usefully applied to gather and analyse the necessary data on the 278 See e.g. Women’s Aid Organisation, Annual Statistics, online at: problem of violence against women and children. is http://www.wao.org.my/Annual+Statistics_21_6_1.htm (accessed data should be made publicly available. In the same vein, Jul 25, 2012); Women’s Center for Change, Annual Reviews, online the Police Force should release its collected data on sex at http://www.wccpenang.org/resources/annual-reviews/ (accessed crimes for broad dissemination to the public. Jul 25, 2012). 279 See e.g. CEDAW Report, 243, 354 (cited in note 8). It should be noted that the respective women’s non- 280 Malaysia: e Millennium Development Goals at 2010, at 58 (April 2011). governmental organisations collect valuable data on 281 Regina Lee, Concern over E ective Implementation of Domestic their clients, which can help to provide insights into the Violence Act, (e Star Dec 27, 2011), online at http://thestar.com.my/ prevalence of the problem of violence against women news/story.asp?file=/2011/12/27/nation/10160395&sec=nation (accessed Jul 25, 2012) 275 OHCHR Summary, 17 (cited in note 20). 282 See Women’s Action Organisation, e Domestic Violence Act (DVA) in Malaysia, online at http://www.wao.org.my/ 276 CEDAW Report, 83 (cited in note 8). Domestic+Violence_37_5_1.htm (accessed Jul 25, 2012); see also 277 Responses to CEDAW Questions at 12 (cited in note14). Lee, Concern over E ective Implementation of Domestic Violence Act.

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b. Progress Indicators (iii) Gender-Sensitizing Law Enforcement

Malaysia’s MDG report identied the following progress Although the DVA now includes psychological abuse indicators to promote gender equality and empower as a form of domestic violence, there is concern that women: frontline law enforcement and implementation agencies, 1. Ensuring mainstreaming of gender into all including the police, are not suciently well-acquainted government policies through establishment of a with the need to protect women and children against gender management system. such abuse.284 For instance, there is concern that there is 2. Integrating gender into strategic planning and a lack of qualied persons to determine if psychological implementation processes such that gender is abuse has taken place. Furthermore, existing counsellors included in all development targets. and psychiatrists may not be adequately qualied or 3. Implementing a gender and development budget experienced to deal with psychological abuse in a policy requiring all government departments and domestic situation. agencies to identify those components of their budget aimed at addressing gender issues. (iv) Public Health and Developmental Issue 4. Intensifying the implementation of gender training programmes in the public and private Malaysia’s Millennium Developmental Goals’ Report sector to improve skills for gender analysis and noted the worrying prevalence of violence against women. policy formulation. e Report recognized the need to recognize gender- 5. Training gender specialists in line ministries and based violence as ‘a public health and development sectors to implement gender mainstreaming. concern’. 6. Requiring public and private organizations to develop a gender equity policy–the Tenth Malaysia Plan’s objective of getting all organizations to (v) Gender Equality Act publish the gender and ethnic composition of e Ministry of Women, Family and Community their employees is a signicant step. Development has started discussions and consultations 7. Shaping public discourse by engaging civil with governmental agencies, NGOs, and SUHAKAM on society in identifying appropriate indicators and the proposal to enact a Gender Equality Act. SUHAKAM by regularly publishing the results of monitoring has stated that it is in full support of the proposal as it will and evaluation of these indicators. enhance women’s rights and promote gender equality.285

(i) Optional Protocol to CEDAW 6. Recommendations for Further Study

e ratication of or accession to the Optional Protocol Violence against women and children is a problem that to CEDAW would allow women a direct channel of has gained much attention in the past few decades, no less recourse. Malaysia has indicated that it will look into due to the success of women’s groups in mobilizing the the possibility of ratifying or acceding to the Optional public and with the support of the media. is success is Protocol ‘when and only if all obligations of the country manifest in the increased data collected and the attention to the provisions of the Articles in CEDAW have been that the government has given to the issue. Nonetheless, fullled.’283 there remain some areas of concern, which were alluded to earlier. ese are: (ii) Genderizing Laws (i) Inconsistencies between general laws and Sharia laws, especially where the former is more Despite enactment and revision of laws protecting women, protective of women and children. Practices such as the Domestic Violence Act and expanding the such as child marriages and subordination of law relative to rape, there remain several laws, which still wives have been justied on the basis of Sharia. indirectly discriminate against women and children. For instance the Evidence Act and the Criminal Procedure 284 Lee, Concern over E ective Implementation of Domestic Violence Code still do not a ord adequate consideration to the Act(cited in note 281). specic vulnerabilities of women and children victims. 285 Human Rights Commission of Malaysia (SUHAKAM), Annual Report 2010, at 56, online at http://www.suhakam.org.my/c/ document_library/get_le?p_l_id=35723&folderId=39678&name 283 Responses to CEDAW Questions at 31 (cited in note 14). =DLFE-10502.pdf(accessed Jul 25, 2012)

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ere is a need for Malaysia to reconcile the are those that‘do not fully comply with the [United States’ gap consistently with its CEDAW and CRC Tracking Victims Protection Act’s] minimum standards, obligations. Malaysia should also withdraw its but are making signicant e orts to bring themselves reservations to CEDAW and CRC, which were into compliance with those standards’. In addition, these justied on the basis of Sharia. countries have a signicant or signicantly increasing number of victims of severe forms of tracking or have (ii) Gap between law on the books and law in action failed to combat severe forms of tracking.289 due to lack of enforcement commitment. (iii) Incest and sexual abuse of children by family Tracking in persons mostly involves women and members need to be given more attention. children who are smuggled across borders and made More disaggregated data and analysis into the to work under extremely exploitive conditions.290 causes and how to prevent family sexual abuse Data provided by the Malaysian e Council for Anti- is critical. Tracking in Persons and Anti-Smuggling of Migrants (Majlis Antipemerdagangan Orang dan Antipenyeludupan (iv) Overt sexist and chauvinistic behaviour even Migran or MAPO) show that between 2008 and mid- among politicians was observed. Sexist remarks 2012, a total of 1,086 victims of human tracking have and behaviour should be condemned. been rescued and placed under Protection Order.291 A (v) Sexual harassment should be seen as a serious, breakdown of the relevant gures from 2008 to 2011 is and not a trivial matter. In this regard, data on as follows: the extent of the problem of sexual harassment Statistics for Tra cking in Persons Cases needs to be collected. FromFeb 28, 2008 to Jun 30, 3012 (vi) Sexual violence against indigenous women YEAR involves particular dimensions of power and CASES 2012 TOTAL needs special attention. 2008 2009 2010 2011 (till Jun 30, 2012) C. EXPLOITATION TOTAL CASES 17 151 132 116 119 535 TOTAL NO OF 20 217 195 159 137 728 1. Description of the Problem ARRESTED TOTAL NO a. Prevalence of Exploitation OF VICTIMS (INTERIM 85 956 870 445 567 2,923 (i) Tracking in Women and Children to Malaysia PROTECTION ORDER) TOTAL NO Malaysia is a major transit point for human tracking OF VICTIMS 286 29 206 471 218 162 1,086 in the Eastern and region. It is also a (PROTECTION 287 signicant destination statefor human tracking. ORDER)

Tracked persons are subjected to conditions of forced 292 labour; women and children are oen subjected to sexual Source: Ministry of Home A airs exploitation. Malaysia has been on the US Department’s Tracking in Persons’ Tier 2 Watch List for the past two In 2010, Malaysia amended its laws to di erentiate years (2010-2011).288 Countries on the Tier 2 Watch List voluntary from involuntary tracking. e former is 289 2011 TIP Report (cited in note 288); 2010 TIP Report at 47 (cited in note 288). 286 See generally UNICEF, Child Tracking in East and South-East Asia: Reversing the Trend, at 8 (August 2009), online at http://www. 290 Mohd Azhar Ibrahim, How is ‘Tracking in Persons’ Di erent from unicef.gr/pdfs/Unicef_Tracking_Report_Aug09.pdf (accessed the Smuggling of Migrants, Council for Anti-Tracking in Persons Aug 15, 2012). and Anti-Smuggling of Migrants, online at: http://mapo.bernama. com/tvs.php (accessed Aug 14, 2012). 287 Malaysia’s UPR at 93 (cited in note 10). 291 Ministry of Home A airs, Statistic Cases of Tracking in Persons 288 US Department of State, Tracking in Persons Report, at 223 (2010) and Smuggling of Migrants until June 2012, online at:http://www. online athttp://www.state.gov/g/tip/rls/tiprpt/index.htm (accessed moha.gov.my/index.php?option=com_content&view=article&id= Jan 25, 2012) (hereaer ‘2010 TIP Report’); US Department of State, 357&Itemid=854&lang=en(accessed Aug 15, 2012). Tracking in Persons Report: Malaysia (2011), online at http:// www.state.gov/j/tip/rls/tiprpt/2011/164232.htm (accessed Jul 25, 292 Ministry of Home A airs, Statistic Cases of Tracking in Persons 2012) (hereaer ‘2011 TIP Report’) . and Smuggling of Migrants until June 2012(cited in note 291)

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 542 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study classied as smuggling in migrants. is reduced the but were forced into prostitution by their captors.299 e number of persons classied as tracked persons since women were brought rst to and then to Malaysia a signicant number of those persons were instead on social visit passes.300 classied as smuggled migrants. Statistics for Smuggling in Migrants Cases (ii) Tracking of Malaysians From Nov 15, 2010 to Jun 30, 2012 Malaysia is also a very small source state; every year, YEAR CASES TOTAL a small number of Malaysian women and children, 2010 2011 2012 primarily of Chinese ethnicity, have been tracked TOTAL CASES 3 19 18 40 abroad to , Macau, China, and Japan for commercial sexual exploitation, and the United States.301 TOTAL NO OF 2 30 20 52 ARRESTED e Malaysian Ministry of Foreign A airs and NGOs estimate that fewer than 100 Malaysian women were TOTAL SMUGGLING OF 18 409 326 753 tracked abroad annually, and that the number had 302 MIGRANTS declined in recent years. Many of these women and

293 girls were from rural areas and were enticed by promises Source: Ministry of Home A airs of employment.

According to MAPO, women and children make up a (iii) Internal Tracking disproportionately large proportion of the victims. For instance, of the 977 victims rescued between 2008 and ere is also the problem of internal tracking. Women March 2012, 595 were women (about 61%) and 122 were and girls from rural areas, especially from East Malaysia, children (about 12%).294 are particularly vulnerable to tracking for sexual and labour exploitation in more prosperous states like e TIP Reports and other reports show that the majority Selangor and Johor.303 According to Tenaganita and of tracking victims are foreign workers who migrate Sarawak Women for Women Association (SWWS), there willingly to Malaysia, but subsequently subject to were many cases of Sarawak women who were promised exploitative work conditions.295 Tracked women victims jobs in West Malaysia but were later coerced into the sex are at high risk of being subject to sexual exploitation. A trade.304 In 2011, the Secretary-General of the Ministry signicant number of young women were falsely induced of Home A airs Mahmood Adam announced that 136 by promises of lucrative job contracts.296 Many recounted people had been rescued between January and August being recruited for work in Malaysian restaurants in 53 human tracking cases. Of the survivors, 8 were and hotels, and were granted ‘Guest Relations Ocer’ visas.297 ey were subsequently coerced into Malaysia’s 299 Jennifer Pak, Malaysia frees Ugandan women in tracking operation, commercial sex trade. Traditionally, the main source (BBC News Oct 18, 2011), online at http://www.bbc.co.uk/news/ countries of tracked women have been Indonesia, world-asia-pacic-15350021 (accessed Dec 12, 2011). , , ailand, China, the , Burma, 298 300 Rashitha A. Hamid, Sex Slaves Freed, (e Star Oct 18, 2011), , Bangladesh, Pakistan, and . In online at http://thestar.com.my/news/story.asp?le=/2011/10/18/ recent years however, the list of source countries have nation/9718776&sec=nation (accessed Dec 12, 2011). expanded. In October 2011, Malaysian police rescued 21 Ugandan women who had been lured with promises 301 2011 TIP Report (cited in note 288). of lucrative jobs and opportunities to study in colleges 302 See e.g. United States Department of State, Country Reports on Human Rights Practices for 2007: Submitted to the Committee on Foreign A airs U.S. House of Representatives and the Committee on 293 Ibid. Foreign Relations, online at http://www.hcfa.house.gov/110/41228a. 294 ere were 260 male adult victims. 439 Human Tracking Cases pdf (accessed Aug 13, 2012); United States Department of State, Investigated Since 2008 (Bernama Mar 28, 2012), online at http:// Country Reports on Human Rights Practices for 2008: Submitted mapo.bernama.com/news.php?id=655546 (accessed Aug 15, 2012). to the Committee on Foreign A airs U.S. House of Representatives and the Committee on Foreign Relations, online at http://www.state. 295 2011 TIP Report (cited in note 288), 2010 TIP Report at 223 (cited gov/j/drl/rls/hrrpt/2008/eap/119046.htm (accessed Aug 13, 2012). in note 288). 303 Group to hold seminar (cited in note 260). 296 See NGO Shadow Report, art. 6 (cited in note 13) 304 Stephanie Sta Maria, HRW: Malaysia has ‘excellent’ human tracking 297 2011 TIP Report (cited in note 288). system, (Human Rights Watch Aug 2, 2010), online at http://www. 298 2011 TIP Report (cited in note 288), 2010 TIP Report at 223 (cited hrw.org/news/2010/08/02/hrw-malaysia-has-excellent-human- in note 288). tracking-system (accessed Jan 25, 2012).

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Malaysians.305 It has been observed that many middle and lower class families in Malaysia have tended, for a long time, to see (iv) Child Tracking child labour as not abusive and even necessary for the welfare and prosperity of the family.314 However, there Child tracking is a growing problem in Malaysia, which are long-term negative e ects for the child who has to recorded 118 cases between February 2008 and October bear the stress of long and vigorous work hours. Many 2010.306 Between January and August 2011, a total of 10 child labourers neglect their school work or end up not boys and 15 girls were rescued from human trackers.307 attending school, thereby foregoing opportunities to ese children were subsequently detained in government acquire education and skills for their personal and future facilities.308 Reported forms of child tracking involve development. labour exploitation, sexual exploitation, forced marriage, criminal activities, armed conict, adoption and ere are also reported incidences of children being begging.309 Commercial sexual exploitation is the most used as beggars whether on their own or accompanied commonly reported purpose of child tracking.310 Small by adults. ere are likewise no ocial statistics on this. Nonetheless, the predicament of child beggars has been children and babies are also in high demand; syndicates 315 311 highlighted in media reports and by NGOs such as Suka use them to beg or they are sold to childless couples. 316 Women are also tracked to Malaysia for the purpose Society. ese reports suggest that in some instances, of selling their children for illegal adoptions.312 ere parents are responsible for ‘exploiting’ their children, are also cases where Malaysian children were bought or where as in other situations, syndicates are involved. abducted for sexual exploitation.313 b. Root Causes of Exploitation and Aggravating (v) Child Labour and Child Begging Practices

ere are no ocial statistics to show the number of (i) Socio-economic Factors children (under 15 years) who work in Malaysia. Many of these children work informally for their families, Poverty and/or persisting unemployment are key 317 whether in markets, hawker centres, plantations or farms. contributing factors to human tracking. Furthermore, substance abuse, which frequently leads to nancial and familial problems, as well as other stressors associated 305 136, including eight M’sians, rescued from human trackers, (e with nancial hardships, may also be a reason for Star Sept 30, 2011), online at:http://thestar.com.my/metro/story. parents to ‘sell’ their children to human trackers.318 asp?sec=nation&le=/2011/9/30/nation/20110930090045 (ac- cessed Aug 15, 2012). See also United States State Department, Children with low levels of education and lack viable Country Reports on Human Rights Practices for 2011: Malaysia employment opportunities are also more frequently (2011), online at:http://www.state.gov/j/drl/rls/hrrpt/humanright- vulnerable to exploitation because they are more likely sreport/index.htm?dlid=186286#wrapper(accessed Aug 15, 2012). 314 Samantha Wronski, Child Labor: e Perspective from Malaysia, 306 Kurniawati Kamarudin, Child Tracking in Malaysia, reproduced (Helium Sept 15, 2007), online at: http://www.helium.com/ by Council for Anti-Tracking in Persons and Anti-Smuggling of items/597531-child-labor-from-a-malaysian-perspective (accessed Migrants online at http://mapo.bernama.com/news.php?id=582786 Jan 25, 2012). (accessed Aug 15, 2012). 315 See e.g. Elan Perumal, Using children to do it, (e Star Apr 6, 2010), 307 136, including eight M’sians, rescued from human trackers, onlineat:http://thestar.com.my/news/story.asp?file=/2010/4/6/ (e Star Sept 30, 2011), online at http://thestar.com.my/metro/ starprobe/5999793&sec=starprobe (accessed Aug 15, 2012); Child story.asp?sec=nation&file=/2011/9/30/nation/20110930090045 and street beggars increasing in Tawau, (e Borneo Post Sept 8, (accessed Aug 15, 2012). 2011), online athttp://www.theborneopost.com/2011/09/08/child- 308 2011 TIP Report (cited in note 288). and-street-beggars-increasing-in-tawau/ (accessed Aug 15, 2012); Ops to curb child beggars, (New Straits Times Mar 15, 2011), online 309 UNICEF, Child Tracking in East and South-East Asia (cited in at http://www.asiaone.com/News/AsiaOne%2BNews/Malaysia/ note 286). Story/A1Story20110315-268145.html (accessed Aug 15, 2012). 310 Ibid. 316 Suka Society or Persatuan Kebajikan Suara Kanak-kanak Malaysia 311 Kurniawati Kamarudin, Malaysia Makes Inroads in Battling Human is a registered non-governmental organization set up to preserve Tracking, Council for Anti-Tracking in Persons and Anti- and promote the best interests of children, onlineat: http://www. Smuggling of Migrants online at:http://mapo.bernama.com/news. sukasociety.org/?page_id=2 (accessed Jul 15, 2012). php?id=574813 (accessed Aug 15, 2012). 317 UNICEF, Child Tracking in East and South-East Asia, 8 (cited in 312 Responses to CEDAW Questions at 18 (cited in note 14) note 286). 313 Kurniawati Kamarudin, Child Tracking in Malaysia (cited in 306). 318 Ibid.

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 544 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study to accept unskilled or lower-skilled employment such (iv) Governmental Commitment as domestic service or factory work.319 Discriminatory practices within their home countries may also restrict For some time, Malaysia saw its capacity to address the the opportunities available to certain groups of people problem of human tracking as being secondary to that thereby causing them to voluntarily allow themselves to of the source state. is is reected in its UPR which states be tracked or make persons more susceptible to abuse that ‘[t]he problem can never be solved by the transit or and exploitation.320 destination State’.328 Instead, ‘[t]he onus has to be on the source State to address the root cause of migration.’329 e (ii) Individual Factors UPR states: ‘Malaysia acknowledges its human rights obligations Factors relating to a person’s individual circumstances, to every person, but due to Malaysia’s porous borders life experiences, skills and knowledge, personal the inux is increasing despite pledges by source documentation and physical environment may states that they have taken progressive measures and also contribute to his/her susceptibility to human ranked higher in the Annual US State Department’s tracking.321 e lack of educational qualication and Tracking in Persons Report. e problem can never work opportunities can result in making one vulnerable to be solved by the transit or destination State. e onus labour exploitation as well as human tracking for labour has to be on the source State to address the root cause exploitation.322 Children living on the street also typically of the migration. lack proper adult supervision and support and are more All the actions taken by the transit and destination susceptible to exploitation.323 In addition, those lacking State would only be deemed as temporary as it would citizenship and/or proper ocial documentation are also be unable to address the root cause of the migrations. more vulnerable to labour and sexual exploitation.324 (See As such Malaysia feels that the international further chapter below on Stateless and Street Children.) community should place more emphasis on the source State both in nancial and capacity building.’330 Internal conict can also lead to displacement of persons, forcing them to move internally and across borders to Consequently, the Malaysian government have tended seek shelter and employment.325 eir conditions make to approach the problem as one concerning illegal them more susceptible to human tracking. immigration rather than as a human rights issue. As the NGO Shadow Report noted, many foreign women who (iii) Market Demand have been tracked for sex are charged with immigration o ences instead of prostitution, thereby making it harder 331 However, as has been observed, poverty per se does not to determine the extent of the problem. NGO Shadow cause tracking.326 Instead, the demand for cheap or Report states that it is crucial for the state to monitor and exploitable labour, for sex with children, for adoption provide statistics as to the number of arrests, prosecutions outside the legal channels, and for women or girls for and convictions obtained over the years under these laws 327 to assess the e ectiveness of these laws in dealing with marriage all contribute to the tracking phenomenon. 332 Malaysia still does not give sucient attention to address what appears to be a growing phenomenon. the tracking problem from the demand side. ere needs to be stricter laws and enforcement against persons Furthermore, many victims of tracking are also asylum who use the services of tracked women and children. seekers, refugees or stateless persons. However, their status as refugees and/or stateless persons are not always recognised and as such, they are subject to deportation 319 Ibid, 26. back to their home country aer being held in the 320 Ibid. Malaysian government’s shelters for tracked persons. It is said that many victims of tracking who were rescued 321 Ibid, 24. are placed in immigration detention depots. Conditions 322 Ibid. of the Malaysian immigration detention depots are 323 Ibid. 328 Malaysia’s UPR, 94 (cited in note 10). 324 Ibid. 329 Ibid. 325 Ibid, 27. 330 Ibid, 94-5. 326 UNICEF, Child Tracking in East and South-East Asia at 8 (cited in note 286). 331 NGO Shadow Report, art. 6 (cited in note 13). 327 Ibid, 8, 27. 332 NGO Shadow Report (cited in note 13) (on article 6).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 545 deplorable and completely unsuitable to house detainees, in prostitution, even those who have been tracked, are much less rescued victims of tracking. corroding public morality and even responsible for their own predicament.338 e illegality of their immigration ere are positive signs of change. In January 2012, status further dehumanizes them. Malaysia jointly hosted the Bali Process Workshop on Protection of Victims of Tracking in Persons with the (vi) Evolving and Developing Legal System for International Organization for Migration (IOM). It is Immigration increasingly shiing its policies towards a victim-centred approach, consistent with international standards (see Malaysia national immigration policy is still evolvingwhich below on change in policy to allow tracking victims to 333 requires more consistent and long-term planning. e work). status of migrants in Malaysia is not properly managed nor planned in the long term; they are not adequately ere is also evidence indicating that Immigration protected against unscrupulous recruitment agencies Ocers are themselves complicit in human tracking and employers.339 Furthermore, there is an absence of activities. Several NGOs drew attention to the human coordination between the various national Ministries rights violations and discrimination faced by non- involved in the management of migrant workers.340 e citizens. MWG-JUMP reported that deportees absence of written immigration policy or immigration testify that Immigration ocials collude with human 341 334 quotas reects an ad hoc approach, which contributes smugglers/trackers. It further reported that gender- to the abuse and discrimination of migrant workers, based violence is signicant amongst non-citizens including migrant women and children. with irregular status, since perpetrators are aware that victims are reluctant to lodge police reports for fear of 335 e HRW has criticised Malaysia’s process of employing getting arrested on immigration o ences. In 2010, nine migrant works.342 Under the current system, companies individuals, including seven Immigration Ocers, were are not responsible for sending unwanted migrant detained for their involvement in human tracking. workers back to their countries of origin.343 Furthermore, ey were detained under the Internal Security Act 1960 there are no strict laws prohibiting agents from imposing (ISA), which provides for detention without trial, instead heavy administrative fees on workers. is entraps them of being charged under the Anti-Tracking in Persons in a system of debt bondage, which is exacerbated in and Anti-Smuggling of Migrants 2007 (hereaer ‘Anti- 336 cases where the employers or the agents refuse to hand Tracking in Persons Act’). over the wages earned aer the employment period.e government does not screen or accredit the recruitment (v) Negative Public Misperception agencies for domestic workers.

e NGO Shadow Group report further identies (vii) Corruption negative public perception as one of the causes for 337 the lack of support and help for tracked victims. According to a 2011 Issue Paper by the United Nations Negative media imaging suggests that women involved Oce on Drugs and Crime, there are consistent indications that corruption plays an important role 333 First Batch of 32 Victims of Human Tracking to Work Here – Lee in facilitating and fostering the crime of tracking (Bernama Mar 7, 2012), online at http://mapo.bernama.com/news. php?id=650486 (accessed Jul 24, 2012); Five Human Tracking Victims Allowed to Remain and Work, (Bernama May 28, 2012), 338 Ibid. online at:http://www.bernama.com/bernama/v6/newsgeneral. php?id=669276 (accessed Jul 24, 2012); Soong Sook Kin, Tracking 339 International Federation for Human Rights (FIDH) & Suara Victims Allowed to Work, (e Sun Daily May 29, 2012), online Rakyat Malaysia (Suaram), Undocumented migrants and refugees in athttp://www.thesundaily.my/news/390996 (accessed Jul 24, 2012); Malaysia: Raids, Detention and Discrimination, at 6 (March 2008), online at http://www.dh.org/IMG/pdf/MalaisieCONJ489eng.pdf 334 OHCHR Summary at 49 (cited in note 20). (accessed Jan 25, 2012). 335 Ibid. 340 FIDH & SUARAM, Undocumented migrants and refugees in 336 Suara Rakyat Malaysia (SUARAM), Press Statement: Combating Malaysia (cited in note 339). Human Tracking Must Not Be At the Expense of Human Rights 341 Ibid. (3 November 2010), online at:http://idcoalition.org/suara-rakyat- malaysia-press-statement-combating-human-trafficking-must- 342 Sta Maria, HRW: Malaysia has ‘excellent’ human tracking system, not-be-at-the-expense-of-human-rights/ (accessed Jan 25, 2012). (cited in note 304). 337 NGO Shadow Report (cited in note 13) (on article 6). 343 Ibid.

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 546 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study in persons.344 e World Bank’s working denition of party to the UNCAC.350 corruption is ‘the abuse of public power for private benet’.345 Transparency International takes a broader Ocial corruption is a crime in Malaysia. ere is approach and understands corruption as ‘the misuse of increasing e ort to enforce the law and recent cases entrusted power for private gain’.346 Corrupt behaviour involve high-level ocials in the government. ere can be active (violating duties, accepting or transferring still remains an enforcement gap. Furthermore, there is bribes, and facilitating transactions) or passive (simply still a broadly held and persistent public perception of ignoring or failing to follow-up on indicators that widespread corruption and in government.351 corruption may be taking place).347 As was highlighted in At present, Transparency International (TI) Corruption a 2005 Council of Europe report, corruption can facilitate Perception Index (CPI) ranks Malaysia as the 60th least human tracking at many points: corrupt nation among the list of 183 countries worldwide (a) in the tracking chain e.g. recruitment included in the survey. is ranking however has been 352 or acquisition of victims, provision of declining for three consecutive years. e Whistleblower documentation, transportation within or across Protection Act was passed in 2010 to encourage persons countries, control and exploitation of victims, to disclose information on corrupt practices in both the and laundering of proceeds; public and private sectors. e whistleblower is immune 353 (b) in the criminal justice chain, e.g. refraining from from civil or criminal charges. draing and adopting legislation, investigate or prosecute o enders, or generally enforce laws; Corruption is a serious impediment for good governance. (c) in the victims support and protection chain, e.g. It is becomes egregious and abusive when corrupt ocials revealing or selling information on victims, or take advantage of the weak and the poor such as migrant preventing victims from testifying against their workers. According to the 2011 TIP Report, for instance, trackers.348 RELA volunteers have used the threat of immigration detention to extort money from migrant workers.354 According to the United Nations Convention against Corruption (UNCAC), manifestations of corruption c. Impact of Exploitation would include: bribery of national public ocials, foreign public ocials, and ocials of public international Women and children are tracked primarily for sexual organizations; embezzlement, misappropriation and and labour exploitation. ese women and children have other diversion of public property, trading in inuence, their rights violated at multiple levels: when she is forced abuse of functions, and illicit enrichment by public into prostitution, forced to have unprotected sex, is ocials; and bribery and embezzlement in the private physically abused, not paid for services and punished by sector, as well as laundering of the proceeds of crime, the law.355 eir health risks and special needs associated concealment and obstruction of justice.349 Malaysia is a with such exploitation needs to be further studied.

344 United Nations Oce on Drugs and Crime, Issue Paper: e e government recognises that tracked victims oen Role of Corruption in Tracking in Persons at 4 (2011), online at experience severe emotional trauma, and have taken http://www.unodc.org/documents/human-tracking/2011/Issue_ measures to provide psychological counselling in shelters Paper_-_e_Role_of_Corruption_in_Tracking_in_Persons.pdf (accessed Aug 15, 2012). 350 United Nations Convention Against Corruption (UNCAC), A/58/422 (2003), online at:http://www.unodc.org/documents/ 345 UNODC, e Role of Corruption in Tracking in Persons (2011) at treaties/UNCAC/Publications/Convention/08-50026_E.pdf 5 (cited in note 344). (accessed Aug 15, 2012). 346 Ibid. 351 United States State Department, Country Reports on for 2011: 347 Ibid, 6. Malaysia (cited in note 305). 348 Council of Europe, Tracking in Human Beings and Corrup- 352 Lee Yen Mun, Corruption Perception Index: Malaysia is 60th in the tion (2002), at 7-8, online at: http://lastradainternational.org/lsi- world, (e Star Dec 1, 2011), online at http://thestar.com.my/ docs/297%20Tracking%20and%20Corruption%20(PACO).pdf news/story.asp?le=/2011/12/1/nation/20111201123831&sec=nati (accessed Aug 15, 2012).See also Council of Europe, Convention on (accessed Jan 25, 2012). on Action against Tracking in Human Beings and its Explanatory 353 United States State Department, Country Reports on for 2011: Report (2005), online at: http://www.coe.int/t/dghl/monitoring/ Malaysia (cited in note 305). tracking/Source/PDF_Conv_197_Tracking_Erev.pdf (accessed Aug 15, 2012). 354 2011 TIP Report (cited in note 288). e Report states that this practice has continued although there are decreased reports of it. 349 UNODC, e Role of Corruption in Tracking in Persons (2011) at 6 (cited in note 344). 355 NGO Shadow Report (cited in note 13) (on article 6).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 547 for tracked victims. Counsellors point out that the Practices Similar to ; trauma experienced by the victims oen manifests in the • ILO Convention Concerning Forced or form of aggressive behaviour or suicidal tendencies.356 Compulsory Labour; • ILO Convention Concerning the Prohibition 2. De Jure State Responses and Immediate Action for the Elimination of the Worst Form of Labour, and a. Bases of State Responsibility • ILO Convention concerning Migration for Employment. Malaysia grounds its anti-tracking e orts in the following regional and international instruments: b. State Policies against Exploitation (i) e 2004 ASEAN Declaration against (i) Tracking of Persons Tracking in Persons Particularly Women and Children; Malaysia enacted a specialized legislation targeting anti- (ii) e United Nations Declaration on Human tracking in 2007360 and, following criticisms of under- Right; enforcement of the law, established the National Action (iii) CEDAW; Plan in 2010 as a proposed coordinated e ort to combat (iv) CRC; human tracking. e 2007 Anti-Tracking in Persons (v) United Nations Convention Against Act criminalizes human tracking and sets up a legal Transnational Organised Crime (UNTOC);357 mechanism for providing care, protection and shelter for (vi) UNTOC’s Protocol to Prevent, Suppress and the victims. It establishes the Council for Anti-Tracking Punish Tracking in Persons especially Women in Persons and Anti-Smuggling of Migrants (MAPO) and Children;358 whose function is to implement the Act, formulate policies (vii) Optional Protocol to the Convention on the and programmes to prevent and suppress tracking in Rights of the Child on the Sale of Children, persons including programmes in rendering assistance to Child Prostitution and Child Pornography tracked persons, formulate protective programmes for (‘OP on Child Sale, Prostitution and tracked persons and initiate education programmes to Pornography’); increase public awareness of the causes and consequences (viii) Optional Protocol to the Convention on the of the act of tracking in persons.361 Rights of the Child on the Involvement of Children in Armed Conict.359 e prescribed penalties for human tracking are maximum 15 years of imprisonment for tracking e signing of the OP on Child Sale, Prostitution in adults and 20 years for tracking in children. e and Pornography deserves special attention as it penalties are commensurate with those of other serious obligates states to criminalize the sale, prostitution o enses, such as rape. Section 12 of the Act states: and pornographic portrayal of the child, and to foster increased public awareness and international cooperation ‘Any person, who tracs in persons not being a in e orts to combat them. child, for the purpose of exploitation, commits an o ence and shall, on conviction, be punished with In addition, Malaysia’s state responsibility is also informed imprisonment for a term not exceeding een years, by the following conventions. and shall also be liable to ne.’ • Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Furthermore, section 14 states: ‘Any person, who tracs in persons being a child, for 356 Kurniawati Kamarudin, Helping Human Tracking Victims Get on the purpose of exploitation, commits an o ence and With Life (Bernama Sept 7, 2011), online at http://mapo.bernama. shall, on conviction, be punished with imprisonment com/news.php?id=611929 (accessed Aug 2, 2012). for a term not less than three years but not exceeding 357 Ratied in 2004. twenty years, and shall also be liable to ne.’ 358 e CEDAW Committee and the CRC Committee had urged Malaysia to accede to the Protocol. CEDAW Concluding Comments, 24 (cited in 360 e CEDAW Committee criticized Malaysia for not having enacted note 15); CRC Concluding Observations, 96 (cited in note 18). legislation on tracking and has not established a comprehensive plan to prevent and eliminate tracking in women and to protect 359 e CRC Committee had urged Malaysia to accede to the two victims. CEDAW Concluding Commentsat 23 (cited in note 15). Protocols. CRC Concluding Observations, 107 (cited in note 18). Malaysia announced its accession in 2011. 361 Anti-Tracking in Persons Act (2007), §§6, 7.

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e Act denes a ‘child’ as a person who is under the age Section 26A of the Anti-Tracking of Persons Act of eighteen years. criminalizes the smuggling of migrants: ‘Any person who carries out smuggling of migrants Tracking in persons is broadly dened under the Act commits an o ence and shall, on conviction, as the ‘recruiting, transporting, transferring, harbouring, be punished with imprisonment for a term not providing or receiving of a person for the purpose exceeding een years, and shall also be liable to ne, of exploitation.’362 Exploitation is further dened as or to both.’ including ‘all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, e smuggling of migrants is dened as: any illegal activity or the removal of human organs’.363 In 2010, the government amended the Act to broaden the ‘(a) arranging, facilitating or organizing, directly or denition of tracking to include all actions involved indirectly, a person’s unlawful entry into or through, in acquiring or maintaining the labour or services of a or unlawful exit from, any country of which the person through coercion, and to create a new o ence of person is not a citizen or permanent resident either smuggling of migrants which targets non-coerced acts of knowing or having reason to believe that the person’s illegal migration.364 entry or exit is unlawful; and (b) recruiting, conveying, transferring, concealing, Malaysia’s anti-tracking policies involving women and harbouring or providing any other assistance or children is said to be ‘viewed from a holistic perspective service for the purpose of carrying out the acts and not isolated from violence against women or abuse of referred to in paragraph (a)’, thereby targeting non- children or conned solely to migrant women.’365 Its anti- coerced acts of unlawful entry. tracking legislation is supplemented by other measures protecting women and children from rape, criminal According to the Secretariat of the Council for Anti- force and assault, kidnapping, abduction, slavery and Tracking in Persons and Anti-Smuggling of Migrants, forced labour.366 e Anti-Tracking in Persons Act the key distinctions between tracking in persons and supplements existing law such as the Penal Code which smuggling of migrants is determined as such:369 makes it an o ence to import, export, remove, buy, sell or dispose of any person as a slave or to accept, receive SMUGGLING OF TRAFFICKING IN PERSONS or detain any person against his will as a slave (section MIGRANTS 370).367 In addition, section 373A of the Penal Code makes it an o ence to use false pretences or false representations e instrument/international law e instrument/international to bring into Malaysia any woman for prostitution. Anti- involved is Protocol to Prevent, law involved is Protocol Suppress and Punish Tracking against the Smuggling of Money Laundering Act 2001 makes the tracking and in Persons, especially Women and Migrants by Land, Air and prostitution o ences under the Penal Code predicate Children under UN Convention Sea under UN Convention o ences, which means that proceeds from those unlawful on Transnational Organised on Transnational Organised activities can be frozen, seized and forfeited under the Crime. Crime. 368 Act . e main element to prove any o ence relating to tracking in e important element in the persons is exploitation and it may smuggling of migrants is the happen in a country without being cross-border occurrence. a cross-border o ence. It may also happen at the domestic level.

Involving consent of the 362 Anti-Tracking in Persons Act (2007), art. 2. Involving the elements of smuggled persons and prots exploitation, manipulation, threat for the people smuggling 363 Ibid. against victims. Continuous and syndicates. e smuggling repeated exploitation. activity ends upon arrival at 364 2011 TIP Report (cited in note 288); Amendment to the Anti- the destination. Tracking in Persons Act, DR 22/2010, online athttp://www.cljlaw. com/membersentry/bills/MY_FS_BIL_2010_22.asp(accessed Jul 25, 2012). 365 Malaysia’s UPR, 91 (cited in note 10). 369 Secretariat of the Council for Anti-Tracking in Persons and Anti- 366 Ibid. Smuggling of Migrants, Di erence between Tracking in Persons and Smuggling of Migrants, online at: http://www.moha.gov.my/ 367 CEDAW Report, 105(iii) (cited in note 8). index.php?option=com_content&view=article&id=919&Itemid=9 368 Ibid, 105(iv) 68&lang=en (accessed Aug 15, 2012).

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(ii) Child Act / Tracking in or Selling of Children sections 48 and 49 of the Child Act prohibit the unlawful transfer of possession, custody or control of child and e Child Act also criminalizes tracking and selling importation of child by false pretences respectively.374 of children. Section 48 for instance makes it an o ence for any person to take part in any transaction aimed at (v) Child Labour transferring or conferring possession, custody or control of a child for valuable consideration. e prescribed As highlighted in the CRC Report, Malaysia’s Children punishment is a ne not exceeding ten thousand ringgit and Young Persons (Employment) Act 1966 regulates the or to imprisonment not exceeding ve years or to both. employment of a child or young person in Malaysia. e Act prohibits the employment of a child unless under the (iii) Forced Prostitution following circumstances: a. employment involving light work suitable to his Malaysian law criminalizes the exploitation of women for capacity in any undertaking carried on by his sex, although prostitution itself is not a criminal o ense. family; Section 372 of the Penal Code makes it an o ence to sell, b. employment in any public entertainment, in let for hire, procure, buy or hire any person with the intent accordance with the terms and conditions of a that such a person is to be employed for prostitution and license granted in that behalf; have sexual intercourse with any other person within c. employment requiring him to perform or outside Malaysia.370 It is also an o ence to use false work approved or sponsored by the Federal representations or false pretences to bring or assist in Government or the Government of any State and bringing any person into or out of Malaysia with the carried on in any school, training institution or intention that the person is to be employed or used for the training vessel; and purpose of prostitution. Other related o ences include d. employment as an apprentice under a written receiving or harbouring a victim of forced prostitution, apprenticeship contract.375 restraining someone for prostitution, acting as an intermediary for prostitution, soliciting for prostitution, Similarly, the employment of a young person is prohibited and living on the earnings of a prostitute (sections 372, except under the following circumstances: 372A and 372B). In addition, section 373 criminalizes the a. employment as a domestic servant; owning of a brothel. b. employment in any oce, shop (including hotels, bars, restaurants and stalls), warehouse/ (iv) Child Prostitution godown, factory, workshop, store, boarding house, theatre, cinema, club or association; e Child Act supplements the Penal Code’s framework c. employment in any industrial undertaking of criminal laws against forced prostitution. Section 43 of suitable to his capacity; and the Child Act specically provides that it is an o ence for d. employment on any vessel under the personal a person to sell, procure, harbour, detain and advertise charge of his parent or guardian.376 any child for the purpose of prostitution or having sexual intercourse either within or outside Malaysia.371 A child is dened as a person who has not yet completed A child is dened under the Act as someone below 18 his/her fourteenth year of age, while a young person is years of age. e prescribed punishment under section dened as a person who is above fourteen years old but 43 is a ne not exceeding RM50,000 or imprisonment has not yet completed his/her sixteenth year of age. for a term not exceeding een years or both.372 Persons acting as an intermediary, or who aid, abet or control Exploitation in the form of using a child for begging is the prostitution of a child may also be punished; the criminalized under section 32 of the Child Act.377 e prescribed punishment is a ne not exceeding RM50,000 causing or procuring of a child for the purposes of ‘begging, and imprisonment for a term between 3 to 15 years, and receiving alms, whether or not there is any pretence of whipping of not more than six strokes.373 In addition, singing, playing, performing or o ering anything for

370 CEDAW Report, 105(iii). 374 CRC Report, 207 (cited in note 9).is is presented as fullling Malaysia’s obligations under article 11 of the CRC. 371 See CRC Report, 354 (cited in note 9). is is presented as fullling Malaysia’s obligations under article 34 of the CRC. 375 See section 2(2) of the Act. CRC Report, 347 (cited in note 9). 372 Child Act, art.43;CRC Report, 354 (cited in note 9). 376 See section 2(3) of the Act. CRC Report, 348 (cited in note 9). 373 Ibid, 354. 377 See generally CRC Report, 145 (cited in note 9).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 550 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study sale’ is prohibited and punishable by imprisonment of such exploitation is criminal in nature.380 up to two years and a ne of up to ve thousand ringgit. e same section criminalizes the causing or procuring Malaysia’s policies di er based on whether the person of a child to carry out ‘illegal hawking, illegal lotteries, exploited is a foreign national or a Malaysian national. gambling or other illegal activities detrimental to the e policies also di er according to whether the exploited health and welfare of the child’. A person having care of Malaysian national is below 18 years of age. In the latter the child may also be prosecuted under this section for situation, there is a stronger policy for the protection allowing a child to be on the street, premises or place for and rehabilitation of such exploited girls. us, girls the prohibited purposes. found to have been exposed to moral danger or involved in prostitution are placed in rehabilitation centres 381 (vi) Rape and Abuse of Authority throughout the country (see Child Act). e primary agency monitoring and implementing such measures is the Social Welfare Department (as opposed to the Police A 2006 Amendment to the Penal Code inserted a new 382 basis for invalidating consent of a woman so as to Force). constitute rape. e new section 375(f) provides that a woman’s consent to sexual intercourse does not provide 3. Implementation, Monitoring and Enforcement a valid defence to rape ‘when the consent is obtained by using his position of authority over her or because of a. Monitoring Mechanisms professional relationship or other relationship of trust in relation to her’. is new section is aimed at protecting (i) Legal Framework and Prosecutorial Practices women who are vulnerable to the sexual advances of their employers and superiors. Malaysia now has in place a legislative framework specially targeting human tracking and has increased the number of convictions obtained under the Anti-Tracking Act.383 c . Assessment of State Policies Between 2008 and March 2012, a total of 621 persons had been arrested for tracking in persons.384 Of these, 412 According to the National Plan on tracking of persons, persons had been charged and 78 convicted.385 In 2011, the main sources of reference for the Anti-Tracking the government prosecuted and successfully convicted 11 in Persons Act are the Protocol to Prevent, Suppress sex tracking o enders and three individuals involved in and Punish Tracking in Persons, especially Women labour tracking; the convicted o enders were sentenced and Children (TIP Protocol) and the Protocol Against to three to eight years’ imprisonment.386 In another case, the Smuggling of Migrants by Land, Sea and Air, which in 13 February 2012, a national was jailed a supplement the United Nations Convention Against total of 23 years (to run concurrently) and sentenced to Transnational Organized Crime (UNTOC). Malaysia four strokes of the cane for entering the country illegally, signed and ratied the UNTOC, and acceded to the TIP smuggling of six persons in his car in January, and having Protocol in 2009. According to the Ministry of Home 17 false visit passes.387 A airs, as at 2010, up to 180 people have been prosecuted under the Anti-Tracking in Persons Act.378 However, there remains an implementation gap. e Malaysia takes a crime and punishment perspective on the problem of tracking and exploitation of women and 380 CEDAW Report at 106 (cited in note 8). children. It further identies the Royal Malaysian Police 381 Ibid, 109. as the main law enforcement agency addressing the 382 Ibid. problem of tracking and exploitation, while the Social 383 2011 TIP Report (cited in note 288). Welfare Department plays a secondary role in protecting and rehabilitating women below the age of 21 who have 384 Ministry of Home A airs, Statistic Cases of Tracking in Persons been victimized or coerced or forced into prostitution.379 and Smuggling of Migrants until June 2012(cited in note 291); 439 Human Tracking Cases Investigated Since 2008 (Bernama Mar 28, is crime and punishment approach also means that 2012) (cited in note 294). action against exploitation of women can only be taken if 385 439 Human Tracking Cases Investigated Since 2008 (Bernama Mar 28, 2012) (cited in note 294). 378 180 people prosecuted under Anti-Tracking in Persons Act 2007, (e Star Jan 31, 2010) online at http://thestar.com.my/news/story. 386 2011 TIP Report (cited in note 288). asp?le=/2010/1/31/nation/20100131131420&sec=nation(access 387 Myanmar Man Gets 23 Years, Four Strokes for Immigration, People ed Jan 25, 2012). Smuggling O ences, (Bernama Feb 13, 2012), online at http://mapo. 379 CEDAW Report, 104 (cited in note 8). bernama.com/news.php?id=645248 (accessed Jul 24, 2012).

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2011 TIP Report highlights that there are still cases with a foreign donor, international organizations, and which Malaysia have yet to e ectively investigate and NGOs, the lack of understanding of human tracking prosecuteits o enders in 2011.388 At the end of 2011, for by many Malaysian front-line ocers, such as police and instance, a total of 141 tracking cases remained pending immigration, continues to hinder the identication and in Malaysian courts.389 ere is also a high acquittal rate in proper investigation of tracking cases and identication tracking cases – at 68% in 2011. Observers attribute this and assistance to tracking victims.396 high rate of acquittal to lack of adequate victim-witness protection (whose testimonies are key evidence).390 Some Furthermore, it is not clear if there is e ective inter-agency also attribute this to poor judicial training on human coordination among the Council on Anti-Tracking tracking.391 of Persons, the police, Department of Immigration, Attorney-General’s Chambers, Department of Welfare Furthermore, Malaysia has yet to ‘address problems of in carrying out all of the steps involved in ghting government complicity in tracking.’392 ere are reports tracking, including identifying a location, performing of collusion between police and tracking o enders.393 raids, identifying the victims, providing them with A case against a Malaysian immigration ocial arrested services, taking statements from victims, investigating in July 2009 for the tracking of Burmese refugees to criminal activity, prosecuting the perpetrators, as well as ailand is still pending.394 assisting victims with return and repatriation.397

(ii) Key Agencies As the CEDAW NGO Shadow Report Group emphasized, while statistics on tracking and prostitution might Malaysia has also established an Inter-Agency Committee be dicult to obtain due to the nature of the crime, it on Protection and Rehabilitation of Tracked Victims in is important for the Government (especially the Royal which NGOs and academicians are also members.395 Malaysia Police and the Department of Immigration) to put in place mechanisms to identify the extent of the problem and analyse the patterns and movements of One of the key issues that this Committee needs to tackle 398 is to change perceptions among law enforcement ocers tracked persons in and out of the country.’ and the public such that, instead of seeing the women and children criminals, they are seen as victims in need of (iii) Informal and Underground Child Labour compassion and help. Practical issues such as providing tracked victims with translators who can speak their e nature of child labour (informal and within the home language would allow them to communicate their domestic setting) and of other forms of child exploitation problems and allow them to seek the legal, medical and (tending to be underground) makes it more dicult emotional help they need. for governmental monitoring. Nonetheless, the existing legislative framework under the Child Act allows legal While authorities continued some anti-tracking training action to be taken wherever such exploitation becomes for ocials with responsibilities to combat tracking, known. including trainings conducted through cooperation b. Complaints Process 388 Sumitha Shaanthinni Kishna, Talk on US Tracking in Persons (TIP) Report and Advocacy to Combat Human Tracking, e government’s policy of detaining tracking (Malaysian Bar Jan 16, 2012) online at:http://www.malaysianbar. org.my/sub_committee_on_migrant_refugees_immigration_a/ victims against their will (see section below) provides talk_on_us_tracking_in_persons_tip_report_and_advocacy_to_ a disincentive for victims and their advocates to bring combat_human_tracking_9_dec_2011_.html (accessed Jan 25, cases to the government’s attention or to cooperate with 2012);NGO Shadow Report (cited in note 13) (on article 6). authorities.399 ere is no specialized complaints process 389 2011 TIP Report (cited in note 288). for women and children victims of exploitation, or for members of the public to report tracking or exploitation 390 Ibid.

391 Ibid. 396 2011 TIP Report (cited in note 288). 392 Kishna, Talk on US Tracking in Persons (TIP) Repor (cited in note 397 e NGO Shadow Group had criticized the government for lacking 388); NGO Shadow Report (cited in note 13) (on article 6). inter-agency coordination. NGO Shadow Report (cited in note 13) 393 2011 TIP Report (cited in note 288). (on article 6). 394 Ibid. 398 NGO Shadow Report (cited in note 13) (on article 6). 395 Malaysia’s UPR, 93 (cited in note 10). 399 2011 TIP Report (cited in note 288).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 552 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study o ences.400 e hotline for cases of tracking is 999, of Malaysia, Malaysian Maritime Enforcement Agency, which is the general number for emergency police and Royal Malaysian Customs and Labour Department.407 ambulance services. 401 c. Protection and Rehabilitation Since the launch of Talian NUR, the Council for Anti- Tracking in Persons should also list 15999 as a possible According to the 2011 TIP Report, Malaysia has some, contact. Malaysia’s immigration policies of charging though limited and inadequate, e orts at improving victims with immigration o ences and lack of protection victim protection in recent years.408 ere remain serious for victims of tracking (detention in government concerns concerning Malaysia’s legal framework for facilities)402 may discourage victims from coming forward addressing victims of tracking, as well as the conditions even if they had the opportunity to do so. to which these victims are subjected.409

e UPR states that Malaysia is setting up a One Stop First, the government continues to treat victims of Information Centre which would provide comprehensive tracking as illegal aliens and subject them to deportation information on the statistics of trackers and victims’.403 to their countries of origin aer their cases have been e lack of a one-stopcentre was one of the criticisms heard.410 e Anti-Tracking in Persons Act legally raised by the NGO Shadow Group in relation to Malaysia’s provides immunity to tracking victims for immigration CEDAW Report.404 However, it appears that this one stop o enses such as illegal entry, unlawful presence, and centre is only informational. e NGO Shadow Group’s possession of false travel documents.411 Nonetheless, proposal was for the establishment of a one-stop centre victims continued to be detained and deported, where tracked victims can access the full range of thereby treated akin to illegal immigration o enders.412 legal, medical and emotional assistance needed for the Furthermore, some victims who were not formally individual situation.405 Further information is required identied as tracked persons are routinely processed on the work of the Centre, including its progress and as illegal migrants and held in prisons or immigration e ectiveness. ere also needs to be more information on detention centres prior to deportation. Foreign embassies the accessibility of the Centre and as to how information have complained that Malaysian authorities do not always about the Centre itself is disseminated so that tracked inform them that their nationals have been detained in victims may access the information and help available shelters, and have not always granted diplomatic mission there. As noted by the NGO Shadow Group, sex workers access to these nationals.413 are oen subject to close monitoring and control by syndicates and are therefore unable access information Secondly, victims identied by authorities are issued for help. It is therefore vital that when the opportunity an ‘interim protection order’ or‘protection order’ presents itself for them to get out, they or any person which allows their detention in ‘shelters’ (‘places of helping them know exactly whom they can call for help.406 refuge’ under sections 44 and 51 of the Anti-Tracking erefore, the public also needs to be made aware of in Persons and Anti-Smuggling of Migrants Act).414 where and how to access help for tracked victims. ese shelters are operated by the Ministry of Women, Family and Community Development.415 Residents are Enforcement of the Anti-Tracking in Persons Act lies with the Royal Malaysian Police, Immigration Department 407 Council for Anti-Tracking in Persons, Information Leaet on Tracking (cited in note 401). 400 Ibid. 408 2011 TIP Report (cited in note 288). 401 is is what is stated on the informational leaet for the Council for 409 2011 TIP Report (cited in note 288). Anti-Tracking of Persons: ‘What must you do if you come across elements of tracking in persons and smuggling of migrants? Call 410 See 2011 TIP Report (cited in note 288) and Malaysia’s UPR, 92 999.’Council for Anti-Tracking in Persons, Information Leaet (cited in note 10). on Tracking, online at http://sgdatabase.unwomen.org/uploads/ 411 2011 TIP Report (cited in note 288). Information%20leaet%20on%20tracking.pdf(accessed Aug 1, 2012). 412 Ibid. 402 Kishna (cited in note 392). 413 Ibid. 403 Malaysia’s UPR, 92 (cited in note 10). 414 2011 TIP Report (cited in note 288). See also Council for Anti- Tracking in Persons, Information Leaet on Tracking (cited in 404 NGO Shadow Report (cited in note 13) (on article 6). note 401). 405 Ibid. 415 ere are three shelters for women (one in Sabah and the other 406 Ibid. two in Kuala Lumpur), one for children victims (in Kuala Lumpur),

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 553 provided accommodation, meals, recreational activities However, certain conditions have to be satised. Not only and counselling.416 Suspected and conrmed foreign must the victim provide personal consent and approval tracking victims are detained in the shelters for 90 from their respective diplomatic missions, they must also days, or more oen, longer pending the resolution of show that their safety is not guaranteed if they return their cases.417 e conditions of detention can be said to their country of origin and that they have entered to amount to re-victimization: they are not allowed to the country legally.426 Under this changed policy, 32 work (except temporary jobs within the shelter), and are Bangladeshi workers who were former victims of human conned to the shelter.418 tracking for labour exploitation were allowed to take up employment in March 2012. An additional ve Indian Furthermore,while Malaysia has endeavoured to provide nationals who were also victims of human tracking counselling services to the victims of tracking in for labour exploitation were allowed to stay and work in persons,419 there are suggestions that such services remain Malaysia in May 2012.427 limited and inadequate. For instance,the 2011 TIP Report states that the residents have little or no access to legal or is new policy has its limits. It only a ects victims psychological assistance provided by the government or released from shelter homes, i.e. whose cases have been NGOs.420 e facilities did not employ medical ocers or resolved.428 ose detained in shelters under protection trained psychologists. Instead, the government reported orders are still not allowed to work; instead, they are given employing two counsellors who visit the shelters on a temporary jobs in shelter homes.429 Also, it remains to be weekly basis but their level of expertise and training was seen how this change in policy would assist sex tracking not clear.421 According to the 2011 TIP Report, victims victims or child tracking victims. had experienced being locked in their rooms, handcu ed On the other hand, Malaysian women who have been to and from court appearances, subjected to body involved in prostitution and/or have been sexually patdowns and searches prior to entering the facilities.422 exploited are housed in centres called ‘Rumah Nur’ all In addition, they were frequently not informed about the over the country.430 Such centres o er rehabilitative legal processes to which they were subjected, or of why or programs such as ‘education (formal and non formal) as for how long they were being detained.423 well as vocational training for instance handicras, ICT literacy and other relevant skills to prepare them for re- ere are positive developments. In January 2012, the entry into society.’431 Although the CEDAW Committee Ministry of Home A airs announced a new policy to requested the Malaysian delegation to provide ‘a provide better protection for victims of human tracking description on the e ectiveness of [the rehabilitative and by allowing victims of labour exploitation cases to work protective measures]’, this was not provided. Such centres in Malaysia aer they have been released from the shelters are primarily for Malaysian women. Women below 18 (i.e. aer their cases have been resolved).424 ese victims years of age who have been involved in prostitution are no longer have to return to their country of origin.425 placed in rehabilitation centres.432 ese centres provide protection and rehabilitation programs such as formal and one shelter for male victims (in Melaka). Kamarudin, Helping education, religious/moral education, vocational training Human Tracking Victims to Get on with Life (cited in note 356); and counselling.433 see also 2011 TIP Report (cited in note 288). 416 Council for Anti-Tracking in Persons, Information Leaet on Tracking (cited in note 401). news.php?id=640002 (accessed Jul 25, 2012). 417 2011 TIP Report (cited in note 288). 426 First Batch of 32 Victims of Human Tracking to Work Here – Lee 418 Ibid. (cited in note 333). 419 Malaysia’s UPR, 92 (cited in note 10).Kamarudin, Helping Human 427 Five Human Tracking Victims Allowed to Remain and Work,(cited Tracking Victims to Get on with Life (cited in note 356). in note 333); Soong Sook Kin, Tracking Victims Allowed to Work, (cited in note 333). 420 2011 TIP Report (cited in note 288). 428 Victims of Tracking Allowed to Take Up Employment in Malaysia 421 Ibid. (cited in note 425). 422 Ibid. 429 Ibid. 423 Ibid. 430 Responses to CEDAW Questions, 19 (cited in note 14). 424 First Batch of 32 Victims of Human Tracking to Work Here – Lee 431 CEDAW Report, 110 (cited in note 8). (cited in note 333). 432 Ibid. 425 Victims of Tracking Allowed to Take Up Employment in Malaysia, (Bernama Jan 13, 2012), online at http://mapo.bernama.com/ 433 Responses to CEDAW Questions, loc.cit.

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In November 2011, the government announced that understanding the job contract, making sure the salary it was in the process of draing a Memorandum of is reasonable and consistent with the scope of work, Understanding to participate in DNA-Prokids, a program verifying the agency/company’s credentials, sharing founded by Dr Jose A. Lorent at the University of Granada information on the job and destination country with in Spain aimed at creating an international DNA database family, and to arm oneself with the address and telephone to help match and reunite victims of child-tracking of the embassy at the destination country.441 Besides these with their families.434 e orts, the government also provided anti-tracking training to Malaysian troops prior to their deployment 442 d. Prevention Measures abroad on international peacekeeping missions.

Malaysia raises public awareness on tracking in Furthermore, there is increased cooperation with NGOs persons by conducting seminars and workshops as to improve anti-tracking responses. For instance, well as disseminating brochures.435 e government the government provided a group of 125 women’s acknowledged in its National Action Plan that organizations with $64,500 in funding to promote capacity building and awareness programs related to the problem of tracking, its seriousness and its 443 implications for national security and human rights are human tracking. ere are also state-level (as opposed not fully understood by the Malaysian public, as well as to federal-level) e orts; for example, the state of Selangor 436 created its own state level anti-tracking council in 2011 government agencies, the private sector and NGOs. As 444 such, public awareness campaigns are required to educate sta ed with leaders from the NGO community. the public and to disseminate information widely.437 It recognizes that e orts to combat and prevent tracking Unfortunately, as the 2011 TIP Report pointed out, there in persons require the support and cooperation of all is a lack of measures to address the problem from the sectors including participation of civil society.438 demand side. No measures have been taken to reduce the demand for forced labour or commercial sex acts.445 e Ministry of Women, Family and Community Development publish pamphlets on the indicators of 4. Role of Non-State Actors tracking; these pamphlets are distributed at border checkpoints.439 e Department of Social Welfare a. Assistance to Victims has also implemented preventive measures against sexual exploitation of women by raising community Women’s groups in Malaysia are closely involved in awareness about gender equality and women’s rights. providing assistance to victims. For instance, groups is includes Legal Literacy Programs, which were such as Tenaganita and WAO o ers services for women implemented in 219 parliamentary constitutions all in need of support and assistance, and this includes over the country by Women and Family Development tracked women and girls.446 Councils.440 Recommendations to avoid being tracked include: making sure there is an ocial job o er letter, Several NGOs that provided comprehensive services to tracking victims reported that they no longer refer cases to the police, as it is clear that doing so was detrimental 434 Fadzli Ramli, DNA Database Sharing an Innovative Way to Fight 447 Child Tracking, (Bernama Nov 14, 2011), online at http://mapo. to the welfare of the victims. Additionally, the referral bernama.com/news.php?id=626803 (accessed Aug 14, 2012); of victims to authorities led to the transfer of custody Fadzli Ramli, Saving Child Tracking Victims with DNA, (Bernama to government facilities, where NGOs were reportedly Dec 29, 2011), online at:http://mapo.bernama.com/news. barred from additional contact with the victims.448 php?id=636978 (accessed Aug 14, 2012). 435 Malaysia’s UPR, 93 (cited in note 10). 441 Council for Anti-Tracking in Persons, Information Leaet on Tracking (cited in note 401). 436 National Action Plan against Tracking in Persons (2010-2015), p. 6, online at: http://sgdatabase.unwomen.org/uploads/NAP%20 442 2011 TIP Report (cited in note 288). on%20Tracking%20in%20Persons%20-%202010%20to%202015. 443 Ibid. pdf (accessed Jun 25, 2012). 444 Ibid. 437 Ibid. 445 Ibid. 438 Ibid. 446 NGO Shadow Report (cited in note 13) (on article 6). 439 2011 TIP Report (cited in note 288). 447 2011 TIP Report (cited in note 288). 440 Responses to CEDAW Questions at 19 (cited in note 14). It was stated that in 2004, 30, 799 participants attended the Legal Literacy Programmes. 448 Ibid.

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b. Prevention Programs e reports suggest several recommendations to address Civil society has been increasingly involved in engaging the problem of tracking in women and children: the public in preventing human tracking generally. First, it is crucial for the state to monitor and provide For example, SUHAKAM publishes and disseminates statistics as to the number of arrests, prosecutions a helpful Anti-Tracking in Persons Brochure.449 On 9 and convictions for tracking in order to assess the December 2011, the Bar Council of Malaysia hosted a talk e ectiveness of the laws in dealing with tracking.452 on ‘US Tracking in Persons (TIP) Report and Advocacy to Combat Human Tracking’, in collaboration with the Secondly, there is a need to establish monitoring Coalition against Modern-Day Slavery in Asia (‘CAMSA’) mechanisms on the enforcement of laws and policies and with the support of Embassy of the United States, related to tracking in women and the exploitation of Kuala Lumpur (‘US Embassy’).450 irty participants, prostitutes.453 comprising representatives of SMRIA, Malaysian Trades Union Congress, civil society organisations and law irdly, there needs to be e ective and equal enforcement students, attended the talk.451 of current laws against the entire network that sustains the tracking industry, and not just the women and c. Monitoring and Cooperation children who are tracked and exploited. is includes brothel owners, agents who bring in the women from NGOs and UNICEF work closely to deal with child other countries and clients who solicit sex services.454 tracking and sexual exploitation of children. For instance Against Child Tracking (ACT) Asia conducted Fourthly, the public and enforcement agents need to a four-day workshop in February 2011 in collaboration be better educated as to the problems of tracking and with child rights organisation P.S. Save the Children. exploitation so they may see tracking and exploitation as human rights violation rather than as purely and issue 5. Progress Indicators and Challenges of crime and punishment.455 Law enforcement ocers need to be trained to identify rapidly and accurately It is commendable that Malaysia has given increasing victims of tracking so as to be able to render the attention to address the problems of tracking in women necessary assistance and protection.456 and children as well as of street children and stateless children, all of whom are especially subject to economic e National Action Plan identies nine main goals and sexual exploitation. However, while several measures that will lead to the realisation of the national vision in have been taken, including the passing of legislation such as combating tracking in persons while ensuring e ective the Child Act and Human Tracking Act to address these implementation of the National Action Plan: issues, more needs to be done to squarely deal with these 1) Improve the anti-tracking response by problems. It is possible that there is still a misconception strengthening legal framework. that the primary responsibility of such problems lies with 2) Implement integrated action among the home countries of the tracked women and children enforcement agencies. as well as of the undocumented migrants. As such, these 3) Raise public awareness through information issues tend to be seen as foreign (rather than domestic) dissemination to the public. problems that just happen to occur in Malaysia. 4) Provide protection and rehabilitation services that conform to international standards in Furthermore, although Malaysia has acknowledged that collaborations with the NGOs. tracking in persons is a major crime and violates basic 5) Combating labour tracking. human rights, the current framework is still rooted in 6) Design and perform integrated training of treating tracking as an immigration problem. More personnel involved in implementing Anti- needs to be done to overhaul the current framework and Tracking in Persons Act 2007. the attendant attitudes of persons in positions of authority towards tracked victims. 452 NGO Shadow Report (cited in note 13) (on article 6). 449 SUHAKAM, Anti-Tracking in Persons, online at http://www. 453 Ibid. suhakam.org.my/anti_tracking_in_persons(accessed Jan 25, 2012). is was also noted in the 2011 TIP Report (cited in note 288). 454 Ibid. 450 Kishna (cited in note 392). 455 Ibid. 451 Ibid. 456 Ibid.

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7) Develop information management system tracking is required to better understand and combat for government agencies involved in ghting tracking of women and children in Malaysia. tracking in persons. 8) Develop local and international partnership. Lastly, there is a need to review and map out the 9) Strengthen Governance.457 background of persons convicted of tracking to determine if existing prosecutorial practices and In ensuring the sustainability of the outlined measures, convictions are adequately directed at all culpable specic parameter and systematic evaluation approach is persons, and not only those who are disadvantaged vital to assess the e ectiveness of the e orts.458 (e.g. foreigners and/or low-level assistants) and/or less acquainted with the criminal justice system. 6. Recommendations for Further Study D. ABUSE AND DISCRIMINATION IN MIGRATION Exploitation is not one incident but the result of an entire worldview that fails to see each and every human being as 1. Description of the Problem valuable and imbued with dignity. e current legal and political system of Malaysia still has a tendency to view a. Prevalence of Abuse and Discrimination in tracking and exploitation as primarily a law and order, Migration and economic issue; as opposed to it being a human rights issue. ere needs to be systematic and targeted According to the Migration Working Group and the e orts to change this. Northern Network for Migrants and Refugees’ (MWG- JUMP) representations to the UPR Working Group, Furthermore, it is likely that the escalating racial and Malaysia hosts around 2.1 million documented migrant religious rhetoric in the country contributes to an overall workers, amongst whom there were 315,703 domestic intolerant environment that sees people of a di erent workers in 2009.462 It is further estimated that there may race, colour, religion, socio economic status as unequal be an additional estimated 1.9 million undocumented and less valuable. Not only is there a need for better and migrant workers in the country,463 although there is no clearer data on the extent of exploitation of women and reliable way of determining the numbers. Most female children in the forms mentioned above, there is also a documented migrant workers in Malaysia are domestic need to interrogate why Malaysians are willing to engage workers. in such exploitative acts, as well as the possibility that the hostile (racist and intolerant) environment engendered (i) Domestic Workers by the constrictive democratic space causes or at least contributes to such systemic exploitation in the country. Migrant domestic workers in Malaysia are exposed to various kinds of abuse and discrimination such as physical In addition, specic data and in-depth analysis of the role 459 abuse, sexual abuse, psychological abuse and economic of corruption in tracking in persons remains limited. victimization, including restrictions on movement, is is detrimental to establishing integrated and non-payment of wages, passport conscation, or debt e ective strategies to understand and combat tracking 464 460 bondage. Abused domestic workers report employers in persons. It has been hypothesized that states with beating and overworking them, withholding their salary, high level of corruption also tend to be states with low 461 subjecting them to malnourishment and deny them standards and e orts against tracking. Considering contact with family.465 Furthermore, domestic migrant the allegations of corruption, more attention and scrutiny on the interrelations between corruption and human 462 OHCHR Summary, 49 (cited in note 20). See also 2010 TIP Report at 223 (cited in note 288). 457 National Action Plan Against Tracking in Persons, 8 (cited in note 436). 463 2010 TIP Report at 223 (cited in note 288). 458 Ibid, 7. 464 See NGO Shadow Report (cited in note 13) (on article 11);2011 TIP Report (cited in note 288); SUHAKAM, Migrant Workers and 459 UNODC, e Role of Corruption in Tracking in Persons (2011),6, Undocumented Persons in Malaysia: Research Findings, (Nov 24, (cited in note 344). 2008), online at:http://www.suhakam.org.my/c/document_library/ 460 See generally UNODC, e Role of Corruption in Tracking in get_le?p_l_id=35723&folderId=213272&name=DLFE-7704.pdf Persons (2011) (cited in note 344). (accessed Jul 25, 2012). 461 Council of Europe, Tracking in Human Beings and Corruption, 8, 465 Responses to CEDAW Questions at 17 (cited in note 14). (quoting (cited in note 348). report E/CN.4/2003/75/Add.1 of 27 February 2003, 1079).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 557 workers are also subject to forced connement in training 39 cases in 2005, 45 in 2006, 39 in 2007 and 42 in 2008.473 centres where the workers live in squalid quarters, with However, incidences of domestic worker abuse tend to be inadequate food and water.466 Systematic abuse and highly publicized and the severity of those few incidences discrimination of migrant domestic workers start from of abuse have tended to invoke public outcry. the moment of recruitment in their home country and is not conned to the host country or limited to their It should nonetheless be noted that the low number of employers.467 Such restrictive conditions have been reported police cases may also be due to under-reporting: described as ‘indicative of tracking.’468 rst, because many domestic workers continue to su er in silence partly because they lack knowledge of their Most reports of domestic worker abuse involve Indonesian rights or are unable to gain access to such authorities; workers since they form about 90% of domestic workers and secondly, because many prefer to approach their own in Malaysia.469 Consequently, most of the abused maids embassies for help. have been Indonesians who report beatings, torture, harsh and exhausting working conditions, failure of Indonesian media reports had claimed in 2009 that there employers to pay salaries and even rape. Indonesia has were up to 150 complaints of abuse, overwork, ill treatment criticized Malaysia as being the most problematic of all and unpaid salaries lodged by maids each month.474 e Asian countries that hire Indonesian domestic workers.470 police reports show that most cases of physical abuse (beatings) were carried out by wives of the employer, e CEDAW Committee expressed concern about the their children, relatives, and even by agents.475 In 2009, lack of legislation and policies on the rights of migrant Indonesia declared that it has ceased sending domestic workers, particularly migrant domestic workers who are workers to Malaysia aer news reports highlighted gory mostly women.471 At present, ocial police statistics do incidents of Indonesian domestic workers tortured not provide separate statistics on domestic worker abuse by employers.476 e ban was only lied in 2011 aer cases. Most of the available data on the extent of and Malaysia signed a Memorandum of Understanding modes of migration and violence, abuse, exploitation of guaranteeing more protection for Indonesian domestic migrants, the impact of their countries of origins, and the workers. extent of their vulnerability are from non-governmental sources, media reports, and are based on anecdotal Nonetheless, even though the reported cases of abuse accounts. form a small percentage of the number of domestic workers, the accounts that have surfaced have shocked e number of abuse cases involving domestic workers the public for their inhumanity and brutality. e police is relatively low, considering the number of workers department has stated that more than 65% of the cases present in Malaysia. Malaysia’s response to the CEDAW reported involved sexual abuse of maids aged between Committee states that less than 1% of workers (not 25 and 35. Between 2005 and 2008 for instance, police gender disaggregated) have lodged complaints of abuse handled 85 cases of maids who were raped, mostly by before the Ministry of Human Resources and other employers; and 29 cases of outrage of modesty.477 ere relevant authorities.472 e police department has also have also been instances of deaths following brutal stated in media reports that the number of reported abuse beatings by their employers. In 2011, Cambodia banned cases is not very high, especially relative to the number of its citizens from working as domestic workers in Malaysia domestic workers in Malaysia. For instance, there were following the death of three Cambodian maids, as well as accusations of abuse including two reported rapes and

466 HRW, Help Wanted, (cited in note 26). 473 Veera Pandiyan, Only a small percentage of domestics are abused, (e Star Jun 28, 2009), online at:http://thestar.com.my/news/story. 467 HRW, ey Deceived Us at Every Step,(cited in note 27); Human asp?le=/2009/6/28/focus/4212862&sec=focus (accessed Jan 25, Rights Watch, Help Wanted, (cited in note 26). 2012). 468 2011 TIP Report (cited in note 288). 474 Pandiyan, Only a small percentage of domestics are abused (cited in 469 Frankie D’Cruz, Slave Maids a Black Mark for Malaysia, (Malay note 473). Mail Online Jun 12, 2009), online at http://www.mmail.com.my/ 475 Ibid. content/maid-abuse-malaysia-tortured-souls-our-homes (accessed Nov 10, 2011). 476 Karishma Vaswani, Indonesia Acts in Maid Abuse Row, (BBC News June 25, 2009), online at http://news.bbc.co.uk/2/hi/8118806.stm 470 D’Cruz, Slave Maids a Black Mark for Malaysia (cited in note 469). (accessed Nov 10, 2011). 471 CEDAW Concluding Comments, 25 (cited in note 15). 477 Pandiyan, Only a small percentage of domestics are abused (cited in 472 Responses to CEDAW Questions at 17 (cited in note 14). note 473).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 558 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study forced isolation.478 Several Cambodian domestic workers IMM13 immigration stay pass. ese immigrants oen also report of their employers refusing to pay their fail to register their children’s birth.485 Without a birth wages.479 certicate, the child would not be able to trace his/her family’s country of origin and therefore would be unable ere is also a problem of minors working as migrant to apply for a passport.486 Under those circumstances, domestic workers in Malaysia. Lax monitoring and the child would be stateless or at a high risk of being supervision of agency practices have facilitated this. stateless.487 Foreign minors are not allowed to work as domestic workers in Malaysia. For example, according to the It has been highlighted that many undocumented Women’s Aid Organisation, three out of the nine migrants did not register their children’s birth because, migrant domestic workers who sought shelter with the in order to obtain a birth certicate in Malaysia, migrants organisation in 2011 were younger than 20 years old.480 are oen required to produce a valid passport for each is is even though they possessed passports stating parent and a certicate of marriage-- documents which that they were 21 years of age.481 e youngest migrant they are unlikely to possess.488 Even if parents are able to domestic worker the WAO sheltered in 2011 was a 12 register the birth of their children and are able to obtain year old from Cambodia.482 birth certicates, the citizenship status of their children can be uncertain. Malaysia does not grant citizenship by More needs to be done to fully understand the extent birth; children born in Malaysia are citizens only if one of the problem of discrimination and abuse su ered parent is a citizen of Malaysia.489 ese undocumented by migrant domestic workers in Malaysia, but more children or even those with foreigner status in their birth importantly a stronger commitment on Malaysia’s part is certicates su er discrimination in many aspects. needed to address the problem. e lack of citizenship or documentation proving their (ii) Undocumented/Stateless Children status makes these children especially vulnerable to exploitation and tracking.490 ere are no ocial As the CRC Committee noted, there is a lack of relevant gures on the total number of undocumented and/or data on ‘non-Malaysian children living in Malaysia.’483 stateless children in Malaysia. It has been estimated that Non-Malaysian children born in Malaysia, including there are at least thousands of street children in Sabah asylum-seeking/refugee children and children of itself, mostly of Filipino descent.491 ese numbers have undocumented migrant workers, are at high risk of yet to be accurately veried since many of these children not being registered at birth.484 According to NGO and are transient and highly mobile – moving within the city, international organizations, many stateless children were born to Filipino and Indonesian immigrants of irregular status in Sabah. Most of these immigrants entered the 485 Undocumented Children in Sabah Vulnerable to Statelessness (cited in note 500); e International Observatory on Statelessness, country illegally whereas others are refugees holding Report on Malaysia, online at http://www.nationalityforall.org/ malaysia(accessed Jun 24, 2012). is problem is also noted in 478 Accounts from Cambodia's Community Legal Education Centre, the United States State Department’s Country Reports on for 2011: which helps abused domestic workers. Isabelle Lai & Lim Wey Malaysia (cited in note 305). Wen, Cambodia bans its citizens from working as maids in Malaysia’, 486 Undocumented Children in Sabah Vulnerable to Statelessness (cited (e Star Oct 15, 2011), online at: http://news.asiaone.com/News/ in note 500) AsiaOne+News/Malaysia/Story/A1Story20111015-305100. html(accessed Jul 25, 2012). 487 Undocumented Children in Sabah Vulnerable to Statelessness (cited in note 500); e International Observatory on Statelessness, 479 Eileen Ng, Cambodian Maids Speak of Abuse, (Associated Press, Report on Malaysia (cited in note 540). Aug 18, 2011), online athttp://globalnation.inquirer.net/9503/ cambodian-maids-speak-of-abuse(accessed Jul 25, 2012); P. Aruna, 488 e Many Faces of Statelessness, (NTS Alert Feb 2010), online Cambodian ban long overdue, say human rights groups, (e Star at:http://www.rsis.edu.sg/nts/HTML-Newsletter/alert/NTS-alert- Oct 17, 2011), reproduced online at: http://www.malaysianbar. feb-1002.html (accessed Jun 24, 2012); Undocumented Children in org.my/legal/general_news/cambodian_ban_long_overdue_say_ Sabah Vulnerable to Statelessness (cited in note 500). human_rights_groups.html(accessed Jan 25, 2012). 489 Undocumented Children in Sabah Vulnerable to Statelessness (cited 480 WAO, Annual Statistics 2011 at 28 (cited in note 114). in note 500). 481 Ibid. 490 is problem was also noted by UNICEF in its 2009 report on child tracking: UNICEF, Child Tracking in East and South-East 482 Ibid. Asia(cited in note 286). 483 CRC Concluding Observations, 25 (cited in note 18). 491 Undocumented Children in Sabah Vulnerable to Statelessness (cited 484 Ibid. in note 500)

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 559 from city to city and even across Sabah’s porous borders. predicament of these undocumented/stateless children e CRC Committee expressed regret in its concluding have led to increased attention on the issue.500 observations that ‘[a]s regards children living and/or working in the streets, particularly in Sabah … [Malaysia] Besides Sabah, another locality that has been identied could not present studies on the extent and nature of this for the higher concentration of stateless and/or street problem’.492 children is Chow Kit in Kuala Lumpur. Presently, the Malaysian government have identied more than 500 Furthermore, a signicant number of undocumented children have of primary and secondary school age children end up living on the streets when their parents are without proper education in the Chow Kit area.501 is arrested for their undocumented status and deported.493 corresponds with NGO and media reports concerning e CRC Committee noted that while Malaysia expressed a large number of children loitering at night in the back a rm intention not to separate migrant children from streets of Chow Kit, with some as young as six-years old.502 their migrant parents to be deported, the implementation Children in Chow Kit are oen neglected by the mothers/ of current provisions of the Immigration Act 1959/63 parents, as well as exposed to the risk of child labour, child (Act 155) has resulted in detaining and deporting migrant tracking, sex work and exploitation by drug dealers and workers without e ective e orts to prevent the separation pornographers.503 ey also are at high risk of multiple of children from their parents.494 Consequently, unless diseases including mumps, chicken pox, rubella, skin they have other family or guardian in Sabah, most aictions and sexually transmitted diseases.504 It should children whose parents have been deported end up living be noted that street children in Chow Kit are not limited and working on the street at a very young age, and oen only to children of undocumented migrants; a signicant in sh markets.495 ese street children earn meagre sums number are of Malaysian origin whose parents have for labour-intensive work and are discriminated against neglected to register their births. A collaborative study by the local population who see them as undesirable between UNICEF and the Education Ministry revealed or criminal elements.496 ese children are also targets that there were many homeless children in the Chow for arrest and detention by immigration and police; in Kit area who were unable to get proper education due to 2006 for instance, Sabah police arrested about 160 street poverty and the poor environment.505 children for unknown reasons.497 e CRC Committee 498 noted such ‘cleaning operations’ with concern. (iii) Refugees and Asylum Seekers

It should be noted that monitoring irregular migration in In 2011, Malaysia entered into a ‘people swap’ agreement Sabah is a problem that extends beyond street children. with Australia, according to which 800 asylum seekers e historical, cultural and geographical conditions of would be sent to Malaysia in exchange of 4,000 United Sabah make it highly susceptible to intractable irregular 499 Nations veried refugees.e 800 include unaccompanied migration. NGO and media reports highlighting the children (children who are alone). e pact was heavily criticized because Malaysia is not a signatory to the 492 CRC Concluding Observations, 93 (cited in note 18). 493 e International Observatory on Statelessness, Report on Malaysia 500 See e.g. Dina Zaman, Faceless Street Kids of Chow Kit, (e Star (cited in note 540). Jul 31, 2008), online at:http://thestar.com.my/columnists/story.as 494 CRC Concluding Observations, 36 (cited in note 18). p?le=%2F2008%2F7%2F31%2Fcolumnists%2Fawriterslife%2F2 1913840&sec=awriterslife (accessed Jul 25, 2012); Undocumented 495 Undocumented Children in Sabah Vulnerable to Statelessness (cited Children in Sabah Vulnerable to Statelessness, (Refugees in note 500) International Bulletin, Jun 13, 2007), online at http://www.rentl. 496 Ibid. org/policy/eld-report/malaysia-undocumented-children-sabah- vulnerable-statelessness(accessedJan 25, 2012). 497 Undocumented Children in Sabah Vulnerable to Statelessness (cited in note 500); Camilla Olson, Street Children in Malaysia,(Refugees 501 Education for Chow Kit kids, (e Star May 7, 2012), online at:http:// International Blog Jan 13, 2009), online at:http://www.refugeesi- thestar.com.my/news/story.asp?le=/2012/5/7/nation/11243569&s nternational.org/blog/street-children-malaysia(accessed Jun 24, ec=nation(accessed Jun 24, 2012). 2012). 502 Jasbant Singh, Helping Malaysia's Street Children, (Al-Jazeera 498 CRC Concluding Observations, 93 (cited in note 18). English, Aug 6, 2007), online at http://www.aljazeera.com/news/ asia-pacic/2007/07/2008525172813676892.html(accessed Jun 24, 499 Vijayakumari Kanapathy, Controlling Irregular Migration: e 2012). Malaysian Experience, ILO Asian Regional Programme on Governance of Labour Migration Working Paper No.14 at 2 (July 503 Zaman, Faceless Street Kids of Chow Kit (cited in note 500). 2008), online at http://www.ilo.org/wcmsp5/groups/public/--- 504 Ibid. asia/---robangkok/documents/publication/wcms_160587.pdf (accessed Jul 25, 2012). 505 Education for Chow Kit Kids (cited in note 501).

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United Nations convention on refugees, raising questions UNHCR had registered about 97,000 asylum-seekers about the treatment of the 800 asylum seekers it has and refugees, of which 19,700 were children below the agreed to accept.506 Malaysia’s immigration detention age of 18.515 However, UNHCR has acknowledged that a centres are over-crowded and detainees are subject to large number of people are still waiting to be registered poor living conditions.507 ere was also criticism that by the United Nations High Commissioner for Refugees the move would endanger the lives of the young, thus for refugee status determination.516 Refugees and asylum- violating the CRC, to which Australia is a party.508 e seekers have no legal right to work in the country. ey worry is that asylum seekers, particularly children, could do not receive assistance from the government, and some face starvation and abuse, failure to attend school and be resort to working without authorization to survive.517 at risk of being detained for more than 4 or 5 years once e UPR Working Group noted that as of 1 August 2008, they arrive in Malaysia.509 the UNHCR had registered 41,405 persons of concern, of which 11,172 were children.518 Furthermore, it was e Australia-Malaysia deal is now in abeyance aer noted that an additional 61,314 Muslim refugees from a the Australian High Court struck it down.510 Lawyers nearby country reside in Sabah with documented status representing asylum seekers successfully challenged under IMM13 work permits.519 It is estimated however the deal on the basis that Malaysia was not a signatory that thousands more individuals remain unregistered and to the UN Refugee Convention and therefore could not outside UNHCR’s protection.520 guarantee the protection of asylum seekers sent from Australia, including unaccompanied children.511 e Prior to 2009, both UNHCR-registered and unregistered High Court agreed, ruling that under Australian law the asylum seekers, refugees and stateless persons were government could not send asylum-seekers to any country considered irregular migrants by most government that could not adequately protect them.512 Despite this, agencies, in particular the Immigration Department Australia has told Malaysia that it is still keen to go ahead and People’s Volunteer Corps (Ikatan Relawan Rakyat or with the deal, but must rst get the support to bring the RELA), which continued to arrest them for immigration matter to Parliament.513 o ences.521 However, beginning in 2009 the government provided preferential treatment to those individuals Malaysia estimates that there are almost 178,000 refugees, carrying a UNHCR card.522 Reports of government stateless persons and other ‘people of concern’ to the deportation of some refugees and asylum seekers with United Nations in the country.514 As at January 2012, the UNHCR refugee cards e ectively ceased.523 Nonetheless, there remain occasional reports by refugees of needing to 506 Australia, Malaysia to Sign Asylum Seeker Deal Next Week, pay bribes to police to avoid detention, despite carrying a (Channelnewsasia Jul 22, 2011), online at:http://www. UNHCR card.524 channelnewsasia.com/stories/afp_asiapacific/view/1142363/1/. html(accessed Jun 24, 2012). 28, 2011), online athttp://thestar.com.my/news/story.asp?le=/2011/10/28/ 507 Angeline Loh, Australia-Malaysia deal endangers asylum nation/9787994&sec=nation (accessed Jul 25, 2012). seekers, (Aliran Aug 1, 2011), online athttp://aliran.com/6209. html(accessed Jul 24, 2012). 515 S. Kishokumari, 97,000 Refugees and Asylum-seekers Registered with UNHCR (Bernama Mar 15, 2012), online at http://mapo. 508 e Church Accuses the Government of Not Respecting the UN bernama.com/news.php?id=652600 (accessed Jul 24, 2012). See Convention for the Protection of Children, (Agenzia Fides Jun 7, also Amnesty International, Abused and Abandoned: Refugees 2011), online at:http://www.des.org/aree/news/newsdet.php?idn Denied Rights in Malaysia (cited in note 85). ews=29185&lan=eng(accessed Jul 24, 2012). 516 Loh, Australia-Malaysia deal endangers asylum seekers (cited in 509 Ibid. note 507). 510 Bonnie Malkin, Australia’s ‘Malaysia Solution’ blocked by High 517 Amnesty International, Abused and Abandoned: Refugees Denied Court, (e Telegraph, Mar 22, 2012) online at: http://www. Rights in Malaysia (cited in note 85). telegraph.co.uk/news/worldnews/australiaandthepacific/ australia/8732810/Australias-Malaysia-Solution-blocked-by-High- 518 OHCHR Summary, 9 (cited in note 20). Court.html(accessed Jul 25, 2012). 519 Ibid. 511 Malkin, Australia’s ‘Malaysia Solution’ blocked by High Court (cited 520 Ibid. in note 510). 521 Ibid. 512 Ibid. 522 United States State Department, Country Reports on for 2011: 513 Australia Still Keen on Refugee Swap Deal, (e Star Oct 29, 2011), Malaysia (cited in note 305). online at:http://thestar.com.my/news/story.asp?le=/2011/10/28/ nation/9787836&sec=nation(accessed Jul 25, 2012). 523 Ibid. 514 Najib Tun Razak, War on Human Tracking Must Continue, (e Star Oct 524 Ibid.

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Prior to 2009, prison and immigration detention to their countries of origin.533 is is symptomatic of the centre ocials tended to deny the UNHCR access to existing legislative and policy framework, which does not unregistered asylum seekers in detention. However this adequately protect the rights of foreign workers, thereby has since changed. Since 2009, immigration detention exposing them to discrimination. centres have scheduled UNHCR visits to interview some unregistered potential refugees. rough these interviews, (i) Social Isolation in a Domestic Environment the UNHCR secured the release of 1,351 refugees from 525 detention centres from January to August 2011. Domestic migrant workers are especially vulnerable

526 to abuse and discrimination because they work in the ere have also been incidences of refoulement. For domestic environment and are thereby shielded from instance in August 2011, the government deported public observation.Domestic migrant workers are to China 11 ethnic Uighur individuals who had been 527 socially isolated because they oen do not have contact denied access to the UNHCR. is attracted strong with their family and friends. Many are not allowed a day condemnation from several human rights groups who o (except for Filipina workers) and may be conned to feared the Uighurs would be mistreated, tortured, or 528 the employer’s home, oen with little outside contact. killed upon their return. e government justied the Letters may be monitored, telephone calls curtailed or deportation on the basis that the individuals had been banned. 534 involved in a people-smuggling ring and that China had requested their extradition.529 ree others, who had applied for refugee status with the UNHCR, were charged (ii) Slave-Owner Mentality with possession of falsied documents, released on bail, and at year’s end were awaiting trial.530 Two others were It has been suggested that Malaysians’ abusive practices released without being charged.531 arise from cultural misunderstandings about the nature of domestic help. Human Rights Watch for example has observed that some Malaysians adopt ‘a slave owner b. Root Causes of Abuse and Discrimination in mentality in their relationship with their foreign domestic Migration and Aggravating Practices help.’535 According to the Women’s Aid Organization, many Malaysians have negative perceptions of migrant According to reports, Malaysia sees the presence of domestic workers, which contributes to the frequency, foreign workers as a temporary phenomenon. In its UPR, and severity of abuse.536 Foreign domestic workers are Malaysia states that the employment of foreign workers oen viewed as culturally inferior, sometimes ‘less than ‘is a measure to overcome the current shortage of labour 532 human’, and not considered as deserving of the same in the country.’ Employers who employ foreign workers respect and consideration given to other human beings.537 are subject to certain conditions, one of which is the responsibility of eventually returning foreign workers e following factors the Malaysian Women’s Aid Organization identied contribute to domestic migrant workers’ especial vulnerability to abuse by their 525 United States State Department, Country Reports on for 2011: employers: Malaysia (cited in note 305). 526 e forced return of a person to a country where he or she faces .OHCHR Summary at 9 (cited in note 20). e MWG-JUMP Report cited the U.S. Committee for Refugees and Immigrants (USCRI) report that in 2007, nearly 2,300 asylum 533 Ibid. seekers and refugees were deported to ailand, of which at least 534 Women’s Aid Organization, Migrant Domestic Worker Abuse, online 14 were deported by ai authorities to Myanmar, of which 3 were at:http://www.wao.org.my/Migrant+Domestic+Workers_54_5_1. arrested by Myanmarese authorities upon arrival. See MWG-JUMP htm(accessed Jun 25, 2012). Submission (cited in note 24). 535 See generally, M. Bakri Musa, e Distracting Bilateral Issue of 527 United States State Department, Country Reports on for 2011: Maids, (Malaysia Insider Aug 10, 2010), online at http://www. Malaysia (cited in note 305). themalaysianinsider.com/breakingviews/article/the-distracting- 528 Ibid. bilateral-issue-of-maids-m.-bakri-musa/ (accessed Jul 24, 2012); Lindsay Murdoch, Maid in Malaysia: A Story of Beatings, Abuse, 529 Ibid. (e Age, Jan 18, 2012), online athttp://www.theage.com.au/world/ 530 Ibid. maid-in-malaysia-a-story-of-beatings-abuse-20120117-1q4ml. html (accessed Jul 25, 2012). 531 Ibid. 536 WAO, Migrant Domestic Worker Abuse(cited in note 534). 532 Malaysia’s UPR, 27(cited in note 10). 537 Ibid. Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 562 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study

(iii) Unfair Terms born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph’‘are ere is no standard, fair contract of employment citizens by the operation of law’. As such, it is open to or adequate legislation to protect migrant domestic Malaysia to recognize children born in Malaysia who are workers. Domestic work is oen de-valued and domestic not registered as citizens of another country to be granted workers are not considered as ‘proper’ employees. ere citizenship. is however has not been done. is a tendency for state and local policies to safeguard the interests of employers, rather than migrant domestic (vi) Public Prejudice workers.538 e CRC Committee has also identied ‘negative public (iv) Economic Discrimination attitudes and against street children’ as a factor exacerbating their dicult situation.544 For instance, it has e Malaysian government’s policy towards migration is been observed that the local population in Sabah tends to one of a temporary solution to a domestic problem. is see street children who are forced by circumstances to live can contribute to discriminatory and/or abusive practices in the sh markets as undesirable or criminal elements.545 against domestic workers since they are seen as transient. Street children in Chow Kit face similar discrimination As stated in its UPR, Malaysia sees the employment of and more because of their mothers’ sex work. is is foreign workers as a necessity to ‘overcome the current why some conservative segments of society are not shortage of labour in the country.’539 e government fully supportive of initiatives to assist street children in does not encourage or facilitate foreign workers settling Chow Kit; they are concerned that the initiatives may be in Malaysia. It stated in the UPR that ‘[t]he employment perceived as sanctioning prostitution since the children’s of foreign workers is subjected to certain terms and mothers are not prosecuted.546 As an activist who has conditions, such as, the responsibility of employer for the been working to provide a safe environment for street return of foreign workers to their countries of origin and children in Chow Kit observed: ‘Many people think it is the provision of suitable living condition and wages.’540 useless to help such children, claiming that they would Furthermore, Malaysia appears to regard the protection eventually end up like their parents.’547 of foreign workers as primarily a function of its foreign 541 relations with the source countries. Its UPR refers to (vii) Legal Deciencies and Corruption two agreements with the Government of Indonesia as positive measures in addressing the problem of migration Malaysia’s immigration policies do not distinguish 542 and employment of foreign workers. between refugees, asylum seekers, tracking victims, and undocumented migrants. is means that there is (v) Statelessness no calibrated response to the specic vulnerabilities and predicament of each irregular migrant. is critically e plight of stateless/undocumented street children has undermines their human rights. Corruption exacerbates come to public attention only in more recent times. A the matter when labour and immigration ocers make direct cause is the failure of the Malaysian government migrants pay for services that should be free. ere are to grant children born in Malaysia citizenship. Malaysia increasing incidences of corruption and extortion to 543 has chosen not to adhere to the principle of jus soli. which undocumented asylum seekers and even UNHCR- However, this is mitigated by article 14(1)(b) of the conrmed refugees are vulnerable.548 Federal Constitution, read with section 1(e) of Part II of the Second Schedule, which provides for the possibility Furthermore, the government does not have a consistent that children born to non-citizens in Malaysia may gain or well thought out policy to deal with legal migrants who citizenship. e relevant provision reads: ‘every person 544 CRC Concluding Observations, 93,(cited in note 18). 538 Ibid. 545 Undocumented Children in Sabah Vulnerable to Statelessness (cited in note 500). 539 Malaysia’s UPR, 27, (cited in note 10). 546 Singh, Helping Malaysia's Street Children (cited in note 502). 540 Malaysia’s UP, 27, (cited in note 10) (emphasis added). 547 Doc: Treat children of sex workers like other kids, (e Star Jul 9, 2006), 541 Malaysia’s UPR, 28, (cited in note 10). online at:http://thestar.com.my/news/story.asp?le=/2006/7/9/nati 542 Ibid. on/14776370&sec=nation(accessed Jan 25, 2012). 543 Undocumented Children in Sabah Vulnerable to Statelessness (cited 548 Loh, Australia-Malaysia Deal Endangers Asylum Seekers (cited in in note 500). note 507).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 563 are refugees or asylum seekers. For instance, when it started of domestic workers or of undocumented/stateless street implementing the 6P amnesty program for undocumented children, although Malaysia did provide some response workers, it suddenly decided (without clear explanation) as to measures taken to protect domestic workers from that it would also include documented workers. Later, abuse and discrimination. In general however, there the Home Ministry announced abruptly that refugees is a need to reinforce the commitment that Malaysia’s would also have to be registered. ousands of refugees CEDAW and CRC obligations extend to women and with UNHCR cards, including the elderly, young children, children regardless of nationality. is is especially since and mothers with babies, stood in waiting for hours in a Malaysia committed to protecting and promoting the cramped place, only to be told that they had to come the rights of migrant workers when it signed the ASEAN next day as the Immigration department could only register Declaration on the Protection and Promotion of the up to 2500 persons a day.549 According to information Rights of Migrant Workers in 2007. received from refugees who had registered, they received slips called ‘Slip Pendaaran PATI’ which had another b. National Policies against Abuse and statement: ‘Tujuan: Pulang Ke Negara Asal’ (Purpose: Discrimination in Migration Return to Home Country).is return slip has created a host of uncertainties and fears among the refugees that they (i) Entry into Malaysia: Immigration Act and Passports could now be deported to their country of origin despite Act the fact they are recognized as refugees by UNHCR.550 e Immigration Act 1959/63 (Act 155) forms the c. Impact of Abuse and Discrimination in cornerstone of the Malaysian immigration system. In Migration addition, the Passports Act 1966 (Act 150) species requirements relating to presentation of passports on Migrant women and children can su er from serious entering or leaving Malaysia, and possession of the health problems due to malnutrition and abuse. ere relevant visas. Entering and staying in Malaysia without are reported instances where domestic migrant workers a permit (illegal entry) is punishable with a ne of up to are not properly sent home to their countries aer their 10,000 ringgit (US$2,915), imprisonment of up to ve period of work expires, but are le on their own without years and, since 2002, ‘whipping of not more than six money or documents.551 is may drive them to despair strokes’. e same punishment, including caning, applies and to work on the streets as prostitutes to earn their to those who unlawfully re-enter or reside in Malaysia way home. Children who are le behind nd no way of aer they have been deported. Overstaying a visa is supporting themselves except on the streets and in vice punishable by a ne and imprisonment on the same activities. ere is a heavy social and economic cost terms as illegal entry – up to 10,000 ringgit and ve years involved in the abuse and discrimination of migrant – although caning is not included. e same punishment women and children. ere needs to be more systematic applies to those who enter or leave Malaysia other than at study on the physical, psychological, and social impact of an authorized immigration control post. abuse and discrimination against women and children in migration. (ii) Immigration Enforcement

2. De Jure State Responses e police and a volunteer citizens’ police force, the People’s Volunteer Corps (RELA) are authorized by a. Bases of State Responsibility law to examine people’s identication documents and investigate their immigration status. RELA has been Malaysia’s CEDAW Report and CRC Report did not criticised for conducting raids targeting illegal migrant discuss the issues arising from abuse and discrimination communities in which refugees, asylum seekers, and tracking victims are detained along with allegedly 549 Tenaganita, Malaysian Immigration Creates Confusion and illegal migrants.552 is practice has reportedly decreased Fears Within Refugees, (Aug 24, 2011), online at http://www. compared to previous years.553 tanmawomen.org/index.php/2011/08/24/malaysian-immigration- creates-confusion-and-fears-within-the-refugees/ (accessed Jun 24, 2012). 550 Tenaganita, Malaysian Immigration Creates Confusion and Fears within Refugees (cited in note 549). 551 See e.g. Murdoch, Maid in Malaysia: AStory of Beatings, Abuse 552 2011 TIP Report (cited in note 288). (cited in note 535); HRW, Help Wanted, (cited in note 26). 553 Ibid.

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(iii) Payment of Wages e UPR states that in view of the inux of foreign workers from Indonesia, Malaysia reached an agreement According to Malaysia’s responses to the CEDAW with Indonesia to appoint qualied teachers and develop Committee, foreign domestic workers are protected syllabus for schools established by Humana, an institution under the provisions of Part III (Payment of Wages) of established through mutual cooperation between the the Employment Act 1955 (the Act).554 is means that educational agencies of both countries, for children of any domestic worker, whose salary has been unfairly foreign workers from Indonesia.562 It also states that withheld by her employer, is entitled under the law to the government also constantly engages with various lodge a complaint with the nearest Department of Labour international organizations such as the United Nations (DL) for action to be taken against the errant employer.555 Children’s Fund (UNICEF), the Oce of the United e responses also noted that the government is taking Nations High Commissioner for Refugees (UNHCR), steps to formulate memorandums with sending countries and civil societies, to ensure that children of illegal to ensure domestic workers are socially protected and immigrants attend informal classes conducted by NGOs, that their working environment is enhanced.556 such as, through community-based schooling.563

(iv) Citizenship and Education c. Assessment of State Policies

Malaysia’s UPR states that non-citizens can be accepted e CEDAW Committee noted the lack of legislation into Government-assisted schools, as long as the or policies protecting the rights of migrant workers, provisions of the Education Regulation are fullled particularly migrant domestic workers who are mostly and approval from the Ministry of Education had been women,564 as well as the lack of laws or regulations obtained.557 e Report did not say what such provisions concerning the status of asylum-seekers and refugees that are; neither did it explain how approval from the Ministry include women.565 of Education can be obtained and the success rates of such applications. On the other hand, other observers (i) Restricted Registration System have noted that children without documentation (e.g. birth certicates) are not able to attend government Several discriminatory laws and policies contribute to 558 schools. e CRC Committee have also noted that the vulnerability of domestic workers in Malaysia. Firstly, many asylum-seeking and refugee children, among Malaysia practices a restricted registration system that them the Muslim children from Myanmar, including the permits migrant workers to enter Malaysia on work Rohingya refugee children who have lived in Malaysia permits that restrict them to be employed only by their since 1990s, lack access to formal education, because of sponsor employer.566 is is exacerbated by the fact that a 559 their undocumented/stateless status. e UPR states migrant worker’s employment can be terminated, and the that non-citizens are nonetheless free to enrol in any worker’s work permit cancelled, by the employer at any 560 private schools throughout the country. According time.567 Without the permit, the migrant worker becomes to Refugees International, the cost of attending private immediately subject to deportation. Such a registration schools is prohibitive for most families, although there system restricting workers to the specic employer are church and community organizations in Sabah that discriminates against migrant workers and generates 561 o er private education at a reduced cost. conditions of vulnerability, especially for domestic workers. As the South East Asia National Human Rights institutions Forum (SEANF) noted, registration systems restricting workers to only the employer who 554 Responses to CEDAW Questions at 17 (cited in note 14). 562 Malaysia’s UPR,37, (cited in note 10). 555 Ibid. 563 Ibid. 556 Ibid. 564 CEDAW Concluding Comments, 25-6 (cited in note 15). 557 Malaysia’s UPR,37, (cited in note 10). 565 Ibid, 28-9. 558 United States State Department’s Country Reports on for 2011: Malaysia (cited in note 305). 566 See also Philip S. Robertson Jr., Migrant Workers in Malaysia – Issues, Concerns and Points for Action, Commissioned by 559 CRC Concluding Observations, 84, (cited in note 18). the Fair Labor Association (October 2008), online at: http:// 560 Malaysia’s UPR, 37 (cited in note 10). www.fairlabor.org/fla/_pub/SyncImg/fla_occasionalpaper_ 561 Undocumented Children in Sabah Vulnerable to Statelessness (cited migrantworkersinmalaysia.pdf (accessed Jan 20, 2012). in note 500). 567 Robertson Jr., Migrant Workers in Malaysia (cited in note 566).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration A ecting Women and Children in ASEAN: A Baseline Study MALAYSIA 565 brought them into the country may also ‘fuel irregular e extent to which domestic workers are protected migration because migrant workers with grievances (and from discriminatory practices depends primarily on the facing debts from recruitment fees) will ee into the ability of their source countries to negotiate for better underground economy when they are not permitted to terms with the Malaysian government. Indonesian and change their employer.’568 Cambodian domestic workers oen work for monthly wages of 400 to 600 ringgit (approximately US$133 to 575 (ii) Mandatory Health Checks and Deportation 200). Filipino domestic workers are the best protected, with the highest salary and guaranteed rest days. Filipina Secondly, migrant workers are subject to mandatory domestic workers in Malaysia earn the highest salary, at US$400 a month, because of requirements imposed by health checks while in Malaysia. If the worker is found with 576 one of the communicable diseases on the government’s the Philippines government. exclusion list (such as TB, HIV/AIDS, etc.) or is found to be pregnant, he/she is automatically excludable and will Following Indonesia’s moratorium on sending maids to be deported without treatment or medical assistance.569 Malaysia, the two countries have now agreed, among other safeguards, that the minimum wage for Indonesian is has disproportionate impact on domestic migrant 577 workers who have been abused or sexually assaulted maids would be set between RM600 and RM700. as it causes them to fear obtaining help in case they are deported.570 Furthermore, since migrant workers are (iv) Abuse of Power not allowed to marry,571 a domestic worker found to be pregnant even through consensual sex has no option of ere have been complaints that the police and RELA marrying her partner but will instead be deported and employ questionable tactics to harass, extort and abuse separated from her partner.ese policies violate the migrants during raids and immigration checks. RELA’s migrant women’s right to health (to treatment and the approach is particularly problematic, consisting of condentiality of results), as well as their reproductive crude proling based on apparent race or ethnicity, and rights (to have a family, children).572 It should be noted a general attitude of ‘arrest now, investigate later’. ere that Malaysia practices a single entry policy, which does are also reports that these largely untrained RELA agents not allow migrant workers to enter the country with their frequently subject the people they arrest to humiliation, spouse/partner.573 physical abuse, the and extortion.578

(iii) Lack of Wage and Other Protection On 17 March 2007, the Malaysian Bar Council passed a motion at its Annual General Meeting, calling for irdly, Malaysia has resisted introducing a minimum the repeal of the legislation that established RELA and wage for domestic workers. In the absence of government extended the powers of RELA ocers to, amongst other regulations, employment agencies and employers typically things, enforce immigration law.579 is has received set domestic workers’ salaries based on their country support from human rights groups who take the view of origin instead of their education and experience.574 that the involvement of poorly trained volunteer RELA ocers who are paid to secure arrests in the enforcement 568 Human Rights Commission of Malaysia, South East Asia National Human Rights institutions Forum (SEANF) Paper on Migrant 575 Human Rights Watch, ey Deceived Us at Every Step,(cited in note Workers 2010, at 18 (2010), online at:http://www.aseannhriforum. 27); Malaysia MoU Fails to Provide Needed Safeguards forMigrant org/attachments/059_SEANF_Paper_on_Migrant_Workers_-_ Workers (cited in note 574). Final.pdf (accessed Jan 25, 2012) (hereaer ‘SEANF Migrant 576 Malaysia MoU Fails to Provide Needed Safeguards forMigrant Workers Paper’). Workers (cited in note 574). 569 NGO Shadow Report, art. 12, (cited in note 13). 577 ‘One maid, One task’ Ruling Doesn’t Exist, Insists Putrajaya, 570 Ibid. (Malaysian Insider Mar 19, 2012), online athttp://www. themalaysianinsider.com/malaysia/article/one-maid-one-task- 571 Ibid. ruling-doesnt-exist-insists-putrajaya/(accessed Jun 24, 2012). 572 NGO Shadow Report (cited in note 13) (on article 12). 578 Amnesty International, Abused and Abandoned: Refugees Denied 573 SEANF Migrant Workers Paper (cited in note 568) Rights in Malaysia (cited in note 85). 574 Malaysia MoU Fails to Provide Needed Safeguards forMigrant 579 e Malaysian Bar, Motion for the End of the State of Emergency Workers, (e Jakarta Post Jan 6, 2011), online athttp://www. and an End to Law Enforcement by the Untrained and Armed thejakartapost.com/news/2011/06/01/ri-malaysia-mou-fails- People's Volunteer Corps (RELA)(Mar 17, 2007), online at:http:// provide-needed-safeguards-migrant-workers.html(accessed Jan www.mfasia.org/mfaStatements/F95-MalaysiaBarResolution.html 25, 2012) (accessed Jan 25, 2012).

Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 566 MALAYSIA A ecting Women and Children in ASEAN: A Baseline Study of immigration law is highly questionable.580 e fact that those powers can be exercised without a warrant violates Malaysia’s policy responses to the problem of due process of law, and the conduct of RELA ocers in undocumented/stateless street children do not raids on migrant communities is of extreme concern.581 appear to be informed by standards set by CRC or the Despite assurances from the Director General of recommendations from the CRC Committee. Instead, Immigration that RELA’s immigration enforcement role the policy responses appear to be motivated by public would end in 2009, NGOs and the UNHCR conrmed order concerns and a domestic outlook. For instance, that they are still operating in that role.582 Malaysia launched a nation-wide amnesty program called the 6P Program (Program Penyelesaian Menyeluruh Undocumented/Stateless Street Children Pekerja Asing dan Pendatang Asing Tanpa Izin or Illegal Immigrant Comprehensive Settlement Program) in 2011, which could have positive impact on the status of e CRC Committee expressed concern at the absence 588 of a legal framework in Malaysia for the protection of undocumented/stateless children. refugee and asylum-seeking children.583 In particular, the Committee regretted that Malaysia has not acceded e six-step program involves registration, legalization, to the 1951 Convention relating to the Status of amnesty, monitoring, enforcement and deportation. Refugees and its 1967 Optional Protocol, nor to the ose required to register include foreign nationals who 1954 Convention relating to the Status of Stateless entered the country illegally and are now working and Persons or to the 1961 Convention on the Reduction of living in Malaysia, foreign nationals who have overstayed, Statelessness.584 e Committee is particularly concerned foreign nationals who have abused their entry permit, or have falsied passes or travel documents and foreign that the implementation of the current provisions of 589 the Immigration Act 1959/63 (Act 155) has resulted in nationals who have violated their permits. Children of illegal immigrants are also required to register under detaining asylum-seeking and refuge children and their 590 families at immigration detention centres, prosecuting the program. Under the program, registered workers them for immigration-related o ences and subsequently may be allowed to stay if they wish to do so and if the imprison and/or deporting them.585 ministry determines that there is a need in the sector they work in.591 More than 2.3 million foreign workers and undocumented workers reportedly registered under the Malaysia made representations during the UPR process 592 that it is improving its legislative framework and has program. However, there is, as yet, no disaggregated instituted administrative arrangements to provide data on how many illegal/undocumented women and assistance and protection to persons claiming refugee children registered, and no information on actions taken status and/or asylum seekers in possession of identication to further resolve the problem of statelessness amongst documents issued by the UNHCR.586 Malaysia also some of these children. stated that it has established a Technical Committee to coordinate implementation of recommendations of the Furthermore, the government may aggravate the CRC Committee, including the protection of the rights predicament of undocumented/stateless children by of children of minority groups, indigenous peoples and requiring the National Registration Department to issue migrant workers.587 red birth certicates to children born to foreigners in

580 FIDH & SUARAM, Undocumented Migrants and Refugees in 588 Portal Berita iKDN, Soalan-soalan Lazim Program 6P, online Malaysia (cited in note 339). at:http://portal.ikdn.gov.my/2011/06/soalan-soalan-lazim- 581 Ibid. program-6p/(accessed Jan 24, 2012). 582 Amnesty International, Abused and Abandoned: Refugees denied 589 Azril Annuar, 6P Programme to Register Illegal Immigrants, (e rights in Malaysiaat 9 (cited in note 85). Sun Jun 23, 2011), online athttp://www.malaysianbar.org.my/legal/ general_news/6p_programme_to_register_illegal_immigrants. 583 CRC Concluding Observations, 82, (cited in note 18). html (accessed Dec 13, 2011). 584 Ibid. ; see also Report of the Working Group on the Universal Periodic 590 Azril Annuar, 6P Programme to Register Illegal Immigrants (cited in Review, 2, (cited in note 21). note 589). 585 CRC Concluding Observations, 82, (cited in note 18). 591 Soalan-soalan Lazim Program 6P (cited in note 588) 586 Report of the Working Group on the Universal Periodic Review, 2 592 More the [sic] 2.3m foreigners register under 6P programme(Malaysian (citied in note 21) Insider Dec 1, 2011), online athttp://www.themalaysianinsider. 587 Report of the Working Group on the Universal Periodic Review at 3 com/malaysia/article/more-the-2.3m-foreigners-register-under- (cited in note 21). 6p-programme/(accessed Jan 24, 2012).

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Malaysia.593 is distinguishes them from Malaysian lodging a complaint is high.597 e police department has babies who will receive green-collared birth certicates. publicly stated that it would investigate crimes regardless e government states that this is to ensure that such of whether the complainant is a migrant worker.598 ‘foreign’ babies do not automatically gain Malaysian However, this may not apply to undocumented migrant citizenship.594 is policy is in response to public workers. In relation to complaints of domestic worker discontent with illegal immigration in Sabah. abuse, the police department has stated that whenever a domestic worker makes a complaint, the standard ere have nonetheless been some positive measures procedure is to inform the respective embassy, rescue undertaken by the government. For instance, NUR the victim (if necessary), and ensure that the victim is SALAM is a children activity centre established in sheltered.599 e police would also inform the maid agency collaboration between the Department of Welfare’s Pusat and notify Interpol about the case and the whereabouts Aktiviti Kanak-Kanak (PAKK) and Yayasan Salam. It of the victim.600 As stated above, SUHAKAM provides a provides programs for all children in and around the possible recourse for domestic migrant victims. Chow Kit area.595 Furthermore, the Education Ministry has plans to set up a school o ering free education to c. Protection and Rehabilitation homeless children in the Chow Kit area. e school, called Jalinan Qaseh Guidance Centre, would o er training in In its UPR responses, Malaysia stated that it has basic skills such as reading, writing and mathematics at introduced guidelines on the requirements for employers the primary school level.596 for the recruitment of foreign domestic workers on the treatment and protection of the rights of foreign domestic 3. Implementation, Monitoring and Enforcement workers.601 e Malaysian government only recently agreed to greater protection for Indonesian domestic a. Monitoring Mechanisms workers aer the two governments signed a protocol on 30 May 2011 to amend several provisions in the 2006 e reports do not study mechanisms that monitor public Memorandum of Understanding for the employment of authorities and private organizations and individuals in domestic workers. e amendments included making it a their implementation and observance of laws protecting requirement for an employer to have a working contract female migrant workers and migrant children. In relation with the domestic worker personally, xing the cost of to domestic workers, the reports also do not identify any recruiting Indonesian maid at RM4,511, guaranteeing accreditation and monitoring system to ensure respect of one day rest day per week and allowing domestic workers 602 rights and good practices among recruitment agencies. to keep their own passport. Neither is there a system in place for monitoring of workplaces of migrant women. e monitoring process e CRC Committee stated that in light of articles 3 and is piecemeal and depends largely on complaints of abuse 22 and other relevant provisions of the Convention, and made to the police department, as well as to the respective taking into account the Committee’s General Comment embassies. No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin b. Complaints Process (CRC/GC/2005/6), Malaysia should take the following measures: e Bar Council has stated that redress for criminal o ences perpetrated against migrants is unlikely as the possibility of arrest of a migrant complainant when 597 Malaysian Bar Council, Bar Council's Report Submitted to the UN Human Rights Council for its Universal Periodic Review, 3.6 (cited in note 25).

593 Hiew King Cheu,New Born Non-Malaysian be Given Red Birth 598 Pandiyan, Only a Small Percentage of Domestics are Abused (cited in Certicates, (DAP Malaysia Mar 22, 2011), online at http:// note 473). dapmalaysia.org/english/2011/mar11/bul/bul4502.htm(accessed 599 Ibid. Jan 23, 2012). 600 Ibid. 594 Hiew King Cheu,New Born Non-Malaysian beGiven Red Birth 601 Addendum to the Report of the Working Group on the Universal Certicates(cited in 593). Periodic Review (cited in note 22). 595 Nur Salam, online at http://nursalam.bbnow.org/about.php (ac- 602 Ahmad Fuad Yahya, Indonesia ocially allows domestic maids cessed Jun 23, 2012). for Malaysia, (My Sinchew Nov 17, 2011), online at http://www. 596 Education for Chow Kit Kids (cited in note 501). mysinchew.com/node/66563(accessed Jan 24, 2012).

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a) Take urgent measures not to detain children that Malaysia ratify the International Convention on in connection with immigration proceedings the Protection of the Rights of All Migrant Workers unless it is necessary to protect their best and Members of eir Families and to seek technical interests- and then for the shortest time possible, assistance from the International Organization for and establish a screening process to ensure that Migration (IOM).607 groups with special needs, such as refugees and asylum-seekers, including their children, are 4. Role of Non-State Actors rapidly identied; b) Accede to the 1951 Convention relating to the a. Assistance to Victims Status of Refugees and its 1967 Protocol as well as to the 1954 Convention relating to the Status (i) Legal Assistance of Stateless Persons and to the 1961 Convention on the Reduction of Statelessness; e Women’s Aid Organization (WAO) and Tenaganita c) Develop a legislative framework for the are two NGOs who have provided assistance to domestic protection of asylum-seeking and refugee migrant workers who have complained of abuse.608 children, particularly unaccompanied children, in line with international standards; WAO’s website states that it has put in place the following d) In the absence of a national law on refugees, protocol to handle complaints of abuse by domestic amend the Immigration Act 1959/63 (Act 155), workers: or at least make use of the exception foreseen a) ling complaints with the police, Welfare and under Section 55 of the Immigration Act, with Labour Departments a view to legalizing the status of asylum-seekers b) processing applications with the Immigration and refugees in Malaysia; Department, e) If detention is necessary in a particular, c) gathering medical reports, and other evidence of abuse, exceptional case, take all measures necessary to d) assisting women in obtaining lawyers and initiating make this as short as possible and provide for civil and criminal suits, special protection and assistance measures for e) lobbying the media for case coverage and refugee and asylum-seeking children and their advocacy.609 families while in detention, in line with relevant international standards.603 Tenaganita has a Legal Aid Clinic that handles cases of employment violations (e.g. unpaid wages, wrongful d. Prevention Measures dismissal, harassment), exploitation of workers etc.610 Yayasan Salam, an NGO working in the Chow Kit with e Ministry of Human Resources has put in place the support of the Malaysian government, has helped a compulsory half-day seminar on workers’ rights 604 some children obtain birth certicates so that they may for foreign domestic workers and their employers. register to attend government schools.611 Furthermore, there is now a requirement that a portion of a domestic worker’s salary must be placed into a bank account in the employee’s name.605 is is aimed at 607 Ibid. reducing wage disputes. 608 For instance, Tenaganita stated in August 2010 that it rescued and handled 41 cases of Cambodian domestic workers who complained e CRC Committee recommended that Malaysia take of discrimination and abuse. In all of the cases, the passports of regional initiatives for negotiations with neighbouring the domestic workers were held by their employers, they were not countries in order to establish agreements on measures given a single day-o for rest, and none of them had a contract signed directly with the employer. Irene Fernandez, Malaysian to deal with the high number of cross-border migrants Employers and the Misery of Cambodian Maids, (Harakah Daily, and the various related problems in a constructive Aug 12, 2011), online at http://en.harakahdaily.net/index.php/ way and in full compliance with international human berita-utama/press-unedited/3328-malaysian-employers-and-the- rights standards.606 e Committee also recommended misery-of-cambodian-maids.html(accessed Jan 24, 2012). 609 Women’s Aid Organization, Migrant Domestic Workers, online at:http://www.wao.org.my/Migrant+Domestic+Workers_54_5_1. 603 CRC Concluding Observations, 83, (cited in note 18). htm#prob(accessed Jun 24, 2012). 604 2011 TIP Report (cited in note 288). 610 See Tenaganita, online at http://www.tenaganita.net/?p=593 (ac- 605 Ibid. cessed Jun 24, 2012). 606 CRC Concluding Observations, 89, (cited in note 18). 611 Doc: Treat children of sex workers like other kids (cited in note 547).

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(ii) Shelters for Abused/Homeless Female Migrants aims to strengthen the formulation and implementation of recruitment and labour protection policies and Tenaganita also runs a shelter to provide care, protection practices.618 and rehabilitation to female victims of migration abuses and tracking. WAO’s shelter also takes in domestic A number of local NGOs and SUHAKAM are active on workers who have been abused or abandoned. the issue of stateless children, doing research, conducting workshops, and running public awareness campaigns.619 (iii) Community Assistance In relation to street children, there are also creative initiatives to engage children in the Chow Kit area. Yayasan Salam helps street children and seeks to create a ChowKit Kita620 was started by two individuals, Fahmi safer environment for these children.612 e organization Reza and Lew Pik-Svon, as a community-mapping project collaborates with the Malaysian Department of Welfare by teens and for teens of Chow Kit. e aim is to engage to run a 24-hour Children Activity Centre where children children in the area so as to create a sense of belonging are taught English and participate in activities such as and self-empowerment. drawing, singing and dancing.613 Yayasan Salam has plans to convert a three-storey oce space into a hostel to c. Monitoring and Cooperation house the children.614 In their representations to the UPR Working Group, the b. Prevention Programs Migration Working Group and the Northern Network for Migrants and Refugees Jaringan Utara Migrasi Women’s organizations such as WAO and Tenaganita dan Pelarian (MWG-JUMP) recommended that the have been involved in campaigning for stronger legislative Malaysian government extend an invitation, inter alia, to protection for domestic migrant workers. Tenaganita the Special Rapporteur on the Human Rights Situation advised Cambodia to continue its moratorium on its of Migrants and the Working Group on Arbitrary citizens working as domestic workers in Malaysia.615 Detention.621 MWG-JUMP noted that there have been Measures advocated include obligating the Ministry of numerous reports of excessive violence and abuse by the Human Resources and Labour Department to conduct Immigration Department of the Ministry of Home A airs arrival orientations for migrant domestic workers during and the Malaysian Volunteer Corps (RELA) created which migrant workers can be provided with emergency in 1972 to assist, maintain, and safeguard peace and telephone numbers and other resources for dealing security. Ocers arrested asylum seekers, refugees and with abuse.616 Domestic migrant workers should also be stateless persons, including pregnant women, children informed of their rights. At the same time, employers and babies, during Immigration-RELA operations and should undergo educational training or provided a guide denied those without UNHCR documents access to the outlining employers’ responsibilities, application processes UNHCR while in detention.622 Some claimed that RELA and a list of o ences and their penalties under law.617 ocers destroyed their UNHCR documents at the point of arrest.623 MWG-JUMP expressed concern that RELA e ILO Tripartite Action to Protect Migrant Workers ocers have been granted wide powers but are exempted from Labour Exploitation (the TRIANGLE project) from prosecution.624 collaborates with local constituents and partners in Malaysia to study local attitudes and promote local understanding of migrant workers. e broader project 618 International Labour Organization, Tripartite Action to Protect Migrants within and from the GMS from Labour Exploitation (TRIANGLE Project), online athttp://www.ilo.org/asia/whatwedo/ 612 Ibid. projects/WCMS_145664/lang--en/index.htm(accessed Jan 24, 2012). 613 Nur Salam, online at http://nursalam.bbnow.org/about.php 619 United States State Department, Country Reports on for 2011: (accessed Jun 24, 2012). Malaysia (cited in note 305). 614 Doc: Treat children of sex workers like other kids (cited in note 547). 620 ChowKit Kita, online athttp://www.chowkitkita.com/?page_ 615 Hamzah Nazari, Cambodia govt must maintain moratorium: id=53(accessed Jun 24, 2012). Change foreign worker laws, says Tenaganita, (Malay Mail Online 621 OHCHR Summary, 3, (cited in note 20). Jan 20, 2012), online athttp://www.mmail.com.my/content/89106- cambodia-govt-must-maintain-moratorium(accessed Jun 24, 622 MWG-JUMP Submission, 17, (cited in note 24); OHCHR Summary, 2012). 5, (cited in note 20). 616 WAO, Migrant Domestic Workers (cited in note 609). 623 Ibid. 617 Ibid. 624 Ibid.

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5. Progress Indicators and Challenges 3. Refugees and asylum-seekers need to be protected from abuse and extortion.629 Domestic Workers 4. Malaysia has to immediately cease all operations by RELA and to revoke their power and privileges. e paper on migrant workers issued by the Southeast Asia National Human Rights Institutions Forum Malaysia should ratify the 1951 UN Convention relating (SEANF) in 2010, emphasized that a human rights to the Status of Refugees and its 1967 Protocol, the major approach mediated through the core concept of ‘national international instruments governing refugee protection. treatment’ should form the foundation of ASEAN Furthermore, it should ratify the following international countries’ approach to migrant workers. ‘National treaties to strengthen its commitment to international treatment’ is non-discriminatory treatment that ensures standards protecting and promoting the rights of refugees migrant workers receive treatment no less favourable and asylum-seekers: than the treatment accorded to nationals of the labour • International Covenant on Civil and Political receiving state.625 Non-discrimination on the basis of Rights (ICCPR); nationality is foundational to protecting migrant workers • UN Convention against Torture and Other from exploitation. SEANF recommended that the Cruel, Inhuman or Degrading Treatment or proposed regional ASEAN instrument for the protection Punishment (CAT); and promotion of the rights of migrant workers must • International Convention on the Elimination of require ‘the elimination of all forms of discriminatory All Forms of Racial Discrimination; policies and practices against migrant workers and • International Covenant on Economic, Social ensure[] that all aspects of laws and regulations on wages, and Cultural Rights (ICESCR); labour, housing, social protection, access to grievance • 1990 International Convention on the handling and legal procedures and judicial redress and Protection of the Rights of All Migrant Workers other relevant anti-discrimination laws, are equally and Members of eir Families. applied to all categories of migrants in adherence with 626 the principle of ‘national treatment’’. In addition, the Undocumented/Stateless/Street Children SEANF recommended the ratication of IL Conventions 97 and 143, the two key ILO Conventions related to e CRC Committee made the following migration, as well as the International Convention on recommendations to Malaysia: the Protection of the Rights of All Migrant Workers and Members of eir Families.627 a) Undertake a study on children living/working in the streets to identify the magnitude of this problem and based on the results of this study Refugees and Asylum-Seekers develop a comprehensive national strategy with the active participation of street children, Malaysia needs to re-haul its immigration system: NGOs and relevant professionals to address the 1. One of the rst and most crucial steps is to situation of street children; provide refugees and asylum-seekers with formal b) Ensure that children living in the streets are not legal status and establish a system of registration unlawfully arrested and detained, protect them where they are issued with identity documents. from and, where needed, secure ese documents should come with access to their access to adequate legal services; relevant entitlements including the right not to be c) Ensure that street children are reached through subjected to arbitrary arrest or detention. trained street educators and counsellors and 2. Refugees and asylum-seekers should be given the provided with adequate identity documents, formal right to work.628 nutrition, clothing and shelter as well as with social and health services and educational opportunities, including vocational and life skills training, in order to support their full development; 625 SEANF Migrant Workers Paper at 14 (cited in note 568) 626 SEANF Migrant Workers Paper at 15 (cited in note 568) 627 SEANF Migrant Workers Paper at 16-7 (cited in note 568) 628 Amnesty International, Abused and Abandoned: Refugees denied rights in Malaysia at 18 (cited in note 85). 629 Ibid.

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d) Provide street children with adequate recovery given and measures taken. Periodic evaluation of the and social reintegration services for physical, ecacy of these measures is necessary to ensure that the sexual and substance abuse and promote problem is adequately addressed. reunication with their families, when it is in the best interests of the child; Furthermore, critical surveys and analysis of the social e) Raise awareness about children living in the and personal conditions of employers who mistreat their streets in order to change negative public domestic workers is necessary to ensure that prevention attitudes about them; and programs can be better designed to address the problem f) Collaborate with and support NGOs working of domestic worker abuse. with and for street children and seek technical assistance from, among others, UNICEF.630 e Committee also recommended that in the light of article 7 of the CRC, Malaysia ‘continue to implement an ecient and at all stages free-of-charge birth registration system, which covers its territory fully, and undertake awareness-raising campaigns to reach the most remote areas of its territory.’631 More specically, the Committee recommended that Malaysia ‘improve the birth registration system of non-Malaysian children born in Malaysia, children of single mothers and children born in remote areas of the country.’632 Furthermore, it urged Malaysia to allow children without ocial documentation access basic services, such as health and education, while waiting to be properly registered.633

6. Recommendations for Further Study

More information on the number of stateless and street children in Malaysia is required. It is acknowledged that such data is dicult to collect due to the transient nature of these children’s movements. Nonetheless, the lack of data not only makes it dicult to determine the appropriate policy responses, but also to determine the amount of resources necessary to ensure that these children are cared for.

ere remains much confusion about the status of refugees and asylum seekers; there are reports that law enforcement ocers treat them the same as illegal migrants. While Malaysia has sought to represent itself to the world as a liberal and progressive country committed to protecting the rights of refugees and asylum seekers,634 NGO reports suggest systemic and widespread violations of their rights.635 ere have been increasing attention

630 CRC Concluding Observations, 94, (cited in note 18). 631 CRC Concluding Observations, 45, (cited in note 18). 632 Ibid. 633 Ibid. 634 Tun Razak, War on Human Tracking Must Continue, (cited in Denied Rights in Malaysia at 18 (cited in note 85); FIDH & note 451). SUARAM, Undocumented migrants and Refugees in Malaysia (cited 635 See e.g. Amnesty International, Abused and Abandoned: Refugees in note 339).

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Jaclyn Ling-Chien Neo Violence, Exploitation, and Abuse and Discrimination in Migration 660 MYANMAR A ecting Women and Children in ASEAN: A Baseline Study

e Human Rights Resource Centre (HRRC) would like to thank these institutions for their tremendous support that made the study on Violence, Exploitation, and Abuses & Discrimination in Migration Aecting Women in Children: A Baseline Study possible :

For further information about HRRC:

Human Rights Resource Centre University of Indonesia - Depok Campus Guest House Complex (next to Gedung Vokasi) Depok Indonesia 16424 Phone/Fax : (62 21) 786 6720 Email: [email protected] Web: www.hrrca.org