Written by Asma Badrul Azmi, is a member of Akar Umbi Kita, a programme for emerging advocates against racial discrimination by Architects of Diversity, Imagined Malaysia, IDEAS and the European Union. This article is published in conjunction with the International Day for the Elimination of Racial Discrimination.

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I remember vividly that afternoon after the bell rang signalling the end of the school 8-year old me took the usual path down the academic building and saw a familiar figure with an umbrella waiting at a wire fence gate from afar. She looked sweaty and my mind wondered, just how long had she been waiting for me and my two other siblings. It is a routine for kakak to walk us back home, substituting the mothering duty which initially vested in my careered driven and professional mother. This dynamic of employer-mother and employee-kakak was explored in the findings of the International Labour Organisation (ILO)on the delegation of traditional reproductive role – maintaining the household and family responsibilities – by former to latter due to the former’s participation in the labour force. The level of delegation can vary from one employer to another, in kakak’s case though, it was not a complete delegation. Moreover, walking us back home was not her sole duty under the employment; it extended to the night when she needed to be extra vigilant taking care of the house when mother was on her on-call duty or at dawn when she had to help mother prepping our lunchboxes for school.

This narration is put forth to highlight the nuances and complexities in framing the role of foreign domestic workers (FDW) due to the character of the workplace being private and therefore informal. Besides, it is inevitable that a FDW might be wearing all kinds of hats from caretaker, fetcher, laundress, housekeeper, to a cook, and the list goes on when they are a live-in worker. These many hats worn by a FDW are because of an ambiguity surrounding the definition of “domestic work” which is generic and compromises heterogeneous activity.

Thus, leaving the job scope of domestic work to be as wide as the sky, prone to exploitation and abusive practices.

Knowing them: the foreign domestic worker

The FDW, also known as migrant domestic workers in its academic counterpart, is made up of two: work outside the nation and work in the domestic industry. The Employment Act 1955 defines a foreign worker to mean a foreign employee who is not a citizen. The migrant worker is defined by an international human rights instrumentas a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a State of which he or she is not a national. By comparing the two definitions, the characterization of foreign worker in Employment Act is too simplistic as it does not indicate that there must be a monetary consideration flowing out of the employment relationship, unlike the international convention. The lack of descriptive elements in the definition can be a problem if not addressed, as it provides legal leeway for employer to avoid responsibility.

The Employment Act is silent on the domestic worker but approaches it peculiarly, referring to a foreign domestic servant; a domestic servant who is not a citizen or a permanent resident. The use of the word “servant” is appalling as it connotes servitude. The use of such anachronistic terms reveals the age of the Act which was legislated before Malaya’s independence. After the proposed amendments made by International Labour Organisation, the Ministry of Human Resources had changed the term servant to an employee on its website. This minuscule change is insufficient, giving rise to urgency in amending the laws which suit the prevailing context of FDW in line with the International Laws. A reference to Article 1 (b) of Domestic Workers Convention 2011 is necessary where the domestic worker is defined as any person engaged in domestic work within an employment relationship. A domestic worker as Elisa Menegatti puts it “may work on a full-time or part-time basis; may be employed by a single household or by multiple employers; may be residing in the household of the employer (live-in worker) or may be living in his or her residence (live-out).” For this essay, a domestic worker may be working in a country where she/he is not a citizen.

All in all, FDWs especially in Malaysia are oftentimes being hired as live-in workers which requires them to work for private employment – relating to a household – to provide a service to the needs of the employer or that of his/her family,regularly and continuously. The private character of the job compounded with the live-in setting has left them susceptible to abusive practices by the employer and discriminatory local laws that often go unchecked. Does these aforementioned abuses of human rights directed to FDW, be one of the modern slaveries?

The modern slavery

Malaysia is unexceptionally committed to the pledge of the abolishment of slavery. This is reflected in Article 6 of Federal Constitution 1957, “No person shall be held in slavery and all forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes.” Positively, the protection afforded by the said Article encompasses both citizens and non-citizens, thus it extends to the FDW. However, it omits the word servitude which presents both in the 1956 Conventionand Article 4 of the Universal Declaration of Human Rights that no one shall be held in slavery or servitude: other forms similar to slavery. The 1956 Convention had somehow expanded the concept of slavery to include inter alia debt bondage, serfdom, child marriage, etc.It is important to note that this exclusion of ‘servitude’ by the Federal Constitution will question the commitment of Malaysia in abolishing all kinds of slavery including the contemporary form.

Despite the chattel slavery – the owners can treat such slaves as a possession – losing its relative importance in society, the slave-like institutions and practices are becoming more prevalent. With the increasing number of flagrant violations of human rights relating to evolving forms of traditional slavery, there is an impending need to identify the differences between the two. However, there is a difficulty in defining modern slavery whether it possesses a similar attribute to the traditional definition or has it evolved in its definition to suit the modern-day context. Attempts had been made by the scholars to address this lack of definition and context on the modern form of slavery although very academic. Claude concurs with the difficulty in defining slavery, where it “… is neither simple nor complete. The task of setting and enforcing international standards remains open-ended, a continuing challenge to individuals, NGOs, and governments alike”. A common approach in defining modern slavery is to include the discussion on forced labour as there is a close nexus between former and latter. Therefore, modern slavery and forced labour are two overlapping concepts distinct from one another but with a significant connection to each other. Amir Paz-Fuchs further substantiates, “if slavery is closely associated with ownership, forced labour is defined with direct reference to the world of work as all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

Besides, the modern forms of slavery are a result of poverty, as long there is still a huge income or wealth disparity, it will not cease to exist. Also, the economic factor is the central reason for the continuance of slavery that had subsequently metamorphosed into a modern form. Many authors recognized the new form of slavery founded on economic factors as propounded by Kevin Bales. Claude, observes that “this new form of slavery has existed for a long period but have become more prominent with the spread of wage labour, population growth, and labour trade.” Hence, in contemporary slavery, a human had become a form of global commodity due to the wave of industrialisation and capitalist economic model.

The live-in situation

The live-in situation of the foreign domestic worker resembles the exploitative character of slavery. Generally, the foreign domestic worker is a vulnerable and marginalised group exposed to exploitation on the grounds of their otherness, race, and sex. The exploitative racialized and sexualised treatment directed to the foreign domestic workers is on the grounds of nationality, low socioeconomic status, and foreignness. This racism premised on nationality is more common among the domestic work industry as Malaysia source of man force can be traced back to “its poorer immediate neighbours”. Therefore, it suggests that race-factor as a significant drive to exploit pervades the employment relationships and is not exclusively limited to the traditional master-slave relationship. The race factor in modern slavery – as suggested by Kevin Bales – is less relevant because of economic reasons. Nevertheless, this essay is of opinion that race alongside with economy is both equal factors in contributing to the continuance of forced labour and slavery which is evident by the marginalisation and exploitation of foreign workers, in developed and developing nations based on their vulnerabilities that associated with categorisation as ‘others’: unwanted, illegitimate, and always temporary nature. Additionally, the vulnerability is intensified in the case of FDW not only because of the mark of “otherness” but also to the engendered nature of its employment which attracts more female foreign workers.

The live-in situation unique to the FDWs enhances the private relationship dynamics between employer and employee, closely depicting the historical slavery institution where there is an intimate associate with master and mistress of the house. The live-in situation thereby exemplifies the blurry line of employment relations and slavery making it easier for exploitative practices to be performed intentionally or vice versa. In addition, the Asia Pacific Forum on Domestic Worker’s Rights also found, “when the domestic worker lives-in, then employers have the power to control the worker’s autonomy, mobility and communications with the outside world.” These forms of control are attributed to the character of enslavement, found in the judgement of Prosecutor v Kunarac. The International Criminal Court in its judgement had expanded the character of ownership to include a certain degree of control which amounts to a possession. Even so, control in the form of the employment relationship between the employer and employee – FDW – should be viewed as “terms and conditions of employment or restriction of freedom outside the employment relationship, instead of artificially extending the idea of ownership”.

Furthermore, the terms and conditions of employment of FDW in Malaysia are not properly codified under specific legislation either in the form of domestic workers or foreign workers. The laws relating to foreign workers, on the other hand, is not just fragmented and scattered as can be seen in the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (ATIPSOM) 2007, Penal Code, Immigration Act 1963, and Employment Act 1955, but also lack of comprehensiveness pushing further marginalisation of the foreign domestic worker. The ILO suggests that “various systemic vulnerabilities give rise to an asymmetry of power between employers and employees which often leads to exploitation in the form of forced labour.” For instance, the job scope of the FDW is not particularized and enumerated and thus leaving the sole discretion to the employer. Under section 10 (1) of the Employment Act, employees who are employed for a term of more than a month are entitled to have a written employment contract. The act, unfortunately, does not explicitly require what are the fundamental conditions and terms that should be included lest unjust enrichment, as a consequence of unequal bargaining power. Moreover, having no ceiling on the scope of jobs to the employment of FDW, they are forced to work at irregular and long hours, doing various household works from taking care of children to cleaning and more. All of this is for an underpaid wage, which does not commensurate with the amount of work that the worker does under her course of employment.

The closest safeguard of rights of FDW in Malaysia is the Employment Act particularly Part XI and Part XII. The hours of work and conditions of service found in Part XII of the Act, do not provide absolute protection of basic employment rights. This is suggestive from the language of the Act which generally ensures subpar protection of employment rights e.g. a compulsory one rest day a week and hours of work which should not be extended to more than 8 hours but is rather a qualified right. In the instance where the type of employment falls under the proviso, the protection can be discounted. Extending to the nature of domestic work, which is continuous, a FDW can be compelled to work for more than 8 hours and even worse to work on the rest day. This kind of derogation of employment rights, alas, is the one that is permitted by law. In contrast to the employee of traditional employment, though abusive work conditions, a FDW cannot afford to run away. This is tied to the character of a workplace which is a household that the worker lived in.

The Employment Act and any other laws have no extensive coverage on neither penalising the abusive practices on employment nor abusive conduct of employers. The High Court in Nirmala Bonat v Yim Pek Ha held the employer accountable for the abuses of Nirmala, who is an Indonesian FDW on the ground of breach of duty of care as the employer in exercising the standard of care expected of him and also in ensuring the reasonable welfare, security, attention and protection was given to the plaintiff. By referring to the general duty of care under torts, it elucidates the dark reality of Malaysia where regulations governing FDW is close to nil. One thing to note, the court in Malaysia is still shy in labelling this abuse of rights of FDW tantamount to modern slavery or domestic servitude, different from the approach of the European Court of Human Rights, and American Court. The general attitude to FDW is negative and the public tends to perceive them as a group of second class, however it is not impossible to have a change.

The way forward: improvements and suggestions

The government of Malaysia has recently introduced the online maid system (SMO) which allows a household to recruit domestic foreign workers directly without any agent or middlemen. Some took this leap of change positively, “We believe that employers can save a lot of money if they can hire directly instead of going through employment agencies. There will be a lot of savings,”. Zarina Ismail, nonetheless, is against it because the “domestic workers and employers suffered from its lack of an oversight mechanism.” The lack of oversight mechanism in the process of recruitment is not a mutually exclusive argument to abolish SMO. It can also happen with the recruitment by agents evidently by the numbers of migrants entering through illegal means e.g. bribing the coastal guard in Sabah or crossing over from Batam to Pasir Gudang and many other borders. One thing is for sure, as long as the legislation regulating foreign domestic workers – from recruitment to the employment stage – are grossly inadequate that renders it non-existent, an effective centralised oversight mechanism by the government is just far from realisation.

Thus, an absence of an overarching regulatory body in the industry has created a porous system resulting in irregular standards of working conditions from one household to another and further exposing the foreign domestic worker to human rights abuses. Malaysia’s failure to accord these vulnerable individuals with legal protections and further protect them from being exploited in their course of employment resulting from the live-in condition is a classic representation of developing countries unwillingness or unreadiness to adopt the international standard of Human Rights. To borrow the word of Claude E, “As in so many other aspects of human rights, the willingness and ability to enforce change (particularly at levels above the nation-state) remain far weaker than the verbiage of international agreements would suggest.”

Author’s Note: Kak Rokiah, Kak Jawariah, Kak Ene, Kak Suriani this is a long due piece that I owe to each of you in return for your utmost sincerity and warmth tending to five children. The reason for inscribing their names is to honour their individuality and to highlight that they are not merely adding up to the statistics of foreign domestic worker in Malaysia rather individuals whom I crossed paths with, and who have significantly impacted my life.