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Panel 5. Migration, Gender, and the Law in Southeast Asia

Chairs: Emily Mahoney (School of Oriental and African Studies); Kristyna Andrlova (School of Oriental and African Studies)

In the last two to three decades there has been both an increase in cross-border migration for work in Southeast Asia and a feminization of this phenomena. Migrant workers are subjected to legal regimes that are usually specific to low-paid, low-skilled workers. While these regimes, particularly criminal and administrative sanctions, have been discussed, other issues such as the realisation and claiming of their contractual rights; the sources of information and education on rights; the dispute processes that are available to them; collective bargaining; the challenge and impact of international standards and the political and social space for migrant worker NGOs; and the changing patterns of gendered migration have not been explored sufficiently. The variety in the standards and laws of the various sending and receiving countries themselves poses a huge challenge to any efforts to work towards regional solutions for the better protection of migrant workers. This panel is interested in papers addressing these and other issues at the intersection of migration, gender and governance.

Session 1

Paper 1: Differences in legal treatments of migrant workers and foreign domestic workers in Malaysia

Merve Cardak (School of Oriental and African Studies)

This paper will focus on differences in legal treatments of migrant workers and foreign domestic workers in Malaysia.  The aim of the paper is to explore and compare whether there is a different treatment for migrant workers and female domestic workers under Malaysian employment legislation. In particular, first part of this paper will look at the legal differences created by law. On the second part, I will try to analyze different types of struggles migrant workers face in Malaysia such as abuses domestic workers face, threat of RELA Corps (Ikatan Relawan Rakyat Malaysia). Finally, I will argue that the main problem both groups share is the status of being migrant, not the gender differences among migrants.

Paper 2: Speaking for Migrant Workers: Political Voices & Silences in Singapore, 2000 – 2011

Anna Shihui Cai (School of Oriental and African Studies)

In 2000, the percentage of foreigners in Singapore’s labour force was 28.1%. This percentage grew to 34.7% in 2010. Importantly, Singapore’s non-resident workforce grew 76.8% from 615 700 in 2000 to 1.09 million in 2010. Of this, 870 000 are low-skilled workers primarily in construction, domestic labour, services, manufacturing and marine industries. Along with their steadily growing numbers, the plight of migrant workers in Singapore has also increased and has taken various forms. Yet, besides volunteers and workers from NGOs, it seems that these workers have little political representation.Starting from 2000, issues surrounding foreign workers such as conditions of their accommodation as provided by employers, their deployment in Singapore and their welfare have been debated in parliament sessions by politicians and various members of parliament. However, discussion on the plight of migrant workers started to give way to Singaporeans’ concerns on the increasing number of foreign workers in Singapore and their impact on other national issues. Further, migrant workers became scapegoats for various issues of national discontent in the lead-up to the 2011 General Elections (GE2011). The growing negative sentiment from the public and media towards migrant workers further sidelined issues related to their well-being and legal protections.By looking at parliamentary reports between 2000 and 2011 and various literature regarding Singapore’s GE2011, this paper shows that political debate regarding migrant workers and their plight has been consistent but limited, showing that there is space within political debate for migrant workers. Further, other national concerns and the welfare of Singaporeans will always take precedence over migrant workers, despite the nation’s steady dependence on them. Especially when elections draw near, it seems that the political voices for migrant workers grow silent.

Paper 3: Truly protecting Filipino Migrant Workers? Dilemmas of Philippine migration policy after ratification of the UN Migrant Workers Convention

Kristyna Andrlova (School of Oriental and African Studies)

This essay aims to trace the evolution of a migration policy adopted by Philippine authorities after 1995 – a year when a substantial change in direction of the policy towards greater protection of overseas Filipino workers was proclaimed and asserted both at international and national level by signing the UN Migrant Workers Convention and enacting a new Migrant Workers Law  – to explore whether the new approach helped tackle main problems of migrants encountered before, during and after deployment. Through legal analysis of main legal provisions and through the lens of actual economic and social situation, the essay affirms that despite clear prioritization of the protection of deployed migrants, the so called “humanitarian approach” largely fails to meet its goals. The essay suggests that this failure is due to various reasons lying not only in the Philippine´s position of sending country, usually considered as pawn rather than player in migration issues, but also in numerous internal dilemmas. By delineating these dilemmas and putting them in light of the current socio-economic situation, the essay shows overall impact of the effort made by the Philippine government and, ultimately, suggests possible ways for the Philippines to boost the protection of its nationals working overseas.

Session 2

Paper 4: Organising Migrant Domestic Workers in Singapore: The Changing Nature of the Labour Movement

Gabriela Marti (National University of Singapore)

Traditionally seen as unorganisable, domestic work has long been neglected by the conventional labour unions. The isolated, temporary, and informal nature of migrant domestic work in particular makes the effective organisation and mobilisation of migrant domestic workers (MDWs) difficult. In certain labour receiving states in Southeast Asia, such as in Singapore, furthermore, the organisation and association of MDWs are subject to a number of legal restrictions.

Using the case study of Singapore, a major receiving state of MDWs in Southeast Asia, this paper examines the barriers these workers face with regard to their organisation, association and mobilisation, and the solutions developed to surmount these challenges. While formal trade union membership of MDWs in Singapore does not exist, service and advocacy oriented NGOs are increasingly filling this gap, and are supplementing and replacing the conventional forms of workers’ organisation in labour unions. Notably, these organisations use virtual social networks, such as Facebook, to collectively organise and inform MDWs about their labour rights.

Drawing on in-depth, qualitative interviews with MDWs and members of NGOs in Singapore, this paper examines the growing significance of online social networks in the organisation of MDWs, and argues that these virtual spaces constitute a central strategy to mitigate the effects of the legal restrictions placed on MDWs’ formal organisation. Furthermore, the new, non-traditional forms of workers’ organisation through NGOs challenge and widen the established definition of organised labour, to include new forms of labour organising, and workers traditionally excluded from the formal labour movement.

Paper 5: An Examination of the Contract-Based Approach to the Management and Protection of Female Foreign Domestic Workers in Singapore

Reema Jagtiani (School of Oriental and African Studies)

Foreign domestic workers (FDWs) in Singapore receive minimal legal protection—with consequences for the equitable conditions of their employment. Their legal standing, vis-à-vis State-based immigration and employment regulatory frameworks, is marginal at best. Unlike most other workers in Singapore (local or otherwise), FDWs, who are employed in approximately every sixth Singaporean household, are governed not by the standard Employment Act, but by the Employment of Foreign Manpower Act (EFMA), which precludes a clear stipulation of the terms of their employment, including such major considerations as working hours, pay, duties to be performed, and rest entitlements. It has been suggested then that “they are at the mercy of contractual law” (Yeoh, et al., 2004); left to negotiate their wages and other terms of employment via private contracts for service as independent contractors. The State does little to ensure that these contracts are fair, failing to recognize that FDWs enter into a contractual relationship from a position of diminished bargaining capacity. Even so, given that the State has continued to employ a contract-based, rather than a rights-based approach, (Tan, 2010) to the management and protection of FDWs, this paper reviews the effectiveness of (private) contractual approaches to generating equitable terms of employment. Classical contract law, as well as the law of contract as it is generally applied in the courts of Singapore, is not typically concerned with the fairness of the bargain reached by the parties; relief is exceptional and any notion of justice is usually more concerned with procedural fairness over substantive fairness. Accordingly, this paper analyzes the narratives reproduced in court transcripts of cases involving the abuse of a FDW. The narratives are indicative of the unfairness of the bargain reached as well as of the limited recourse available to an aggrieved FDW in instances of possible duress (in the lead up to the formation of the contract) and/or inequality of bargaining power, for example. This paper also draws on feminist critiques of classical contract law, which argue for the law to be more sensitive to the ways in which social inequality and power relations affect the experiences of aggrieved parties. This will allow me, in my conclusion, to propose for enhanced statutory protections as a more effective means of securing fairer, more equitable working conditions for FDWs.

Paper 6: The genealogy of woman and child protection laws in the Strait Settlements to modern day Malaysia

Emily Mahoney (School of Oriental and African Studies)

In this paper I will look at the genealogy of woman and child protection laws in the strait settlements to present day Malaysia. Based primarily on secondary research, I propose that a common thread of discourse surrounding the protection of women and children from the colonial period until the present exists. I hope to investigate the discursive impact of this continuing narrative of protection to understand its distributive impacts in Malaysia. My legal analysis will include an examination of the regulation of sexuality implicitly through the language of gender, and explicitly in the governance of sexual acts, from the colonial period to the present. Throughout this analysis I will also discuss the relationship between nation-building, citizenship and state control of sexuality. As this is a paper based primarily on secondary scholarship I will end with proposals for further research and possible field work.