Structural Violence against Domestic Workers
by Vivian Kuan and Hannah Nanneri Nanggai
In 2018, Adelina Lisao was a 26-year-old Indonesian migrant domestic worker who died from multiple organ failure due to anaemia, shortly after being rescued from her employer’s home in Penang. Her injuries were allegedly due to the severe abuse suffered at the hands of her employer.
Adelina was employed by Ambika M.A. Shan in 2015 and worked for her and her family in Bukit Mertajam, Penang. Adelina’s family alleged that Adelina had been illegally recruited and sent to work in Malaysia. The alleged illegal paperwork stated that Adelina was six years older than her actual age, which meant that she was a minor when she first started working in Malaysia.
According to the neighbours, Adelina was in poor physical condition and slept outside on the porch with the family’s dog. Adelina only had a straw mat, a pillow, and a blanket. Any attempt by the neighbours to help was futile, due to Adelina’s fear of speaking up. Neighbours also stated that Adelina could be heard screaming all day long. Adelina was eventually rescued on 10 February 2018 and died a day after being hospitalised. Following Adelina’s death, her employer, Ambika M.A. Shan was charged with murdering her, under section 302 of the Penal Code.
However, in April 2019, the High Court in Penang dropped the murder charge against her employer and granted her a full acquittal.
The Attorney General’s Chambers (AGC) later appealed this decision at the Court of Appeal. The Court of Appeal upheld the acquittal by the High Court.
(B) Situational Analysis
Working as a domestic worker doing daily household chores is not a dangerous job. However, it is worrying that Adelina’s case is also not the first of its kind. In 2008, a Malaysian was sentenced to jail for scalding a domestic worker with a hot iron and, in 2014, a Malaysian couple was convicted for starving an Indonesian domestic worker to death. These cases attracted nationwide interest and gained traction; however, with there being no specific legal mechanism for their protection, domestic workers are vulnerable and susceptible to abuse at the hands of their employers. There is no prevention; only publicity.
The lack of legal protection for the welfare of domestic workers in Malaysia has created a vacuum in terms of workers’ rights, and an environment for structural violence to thrive, which often goes unnoticed. Specifically, in Adelina’s case, based on the narratives shared by the neighbours, it appears that some form of abuse was continuously being inflicted upon Adelina. Upon her rescue, it was evident that she had suffered injuries, as she had burn marks and eventually died due to multiple organ failure due to anaemia. It is unlikely that a domestic worker would be exposed to any ‘occupational hazard’ that could result in an untimely death, such as that befell Adelina. There is a culture of violence perpetuated against domestic workers, and not enough is being done to check the aggression, humiliation, and abuse faced by many of them.
(C) Status of State Interventions
(C1) Judicial Intervention
Malaysia’s intervention in Adelina’s case was limited to judicial intervention. Save for the arrest, charge and trial of Ambika M.A. Shan, there was no other action by the Malaysian Government to address the structural violence against domestic workers.
Ambika M.A. Shan was charged for the murder of Adelina Lisao under section 302 of the Penal Code, which carries the mandatory death penalty. However, in a disappointing turn of events, the Deputy Public Prosecutor (DPP) informed the Judge that she was applying for an order of discharge not amounting to an acquittal (DNAA) upon the instruction of her superiors. It was reported that the Judge nonetheless gave Ambika M.A. Shan a full acquittal, as the DPP did not offer valid grounds for a DNAA despite repeated questioning concerning the reason for the application.
The acquittal was criticised by many — including Member of Parliament Steven Sim — and also provoked criticism and anger from Indonesia.
The AGC appealed against the acquittal on the ground that the Judge failed to consider the power of the Public Prosecutor — under article 145 of the Federal Constitution and section 376 of the Criminal Procedure Code — in determining the conduct of criminal prosecutions, when the Judge acquitted and discharged the accused under section 254(3) of the Criminal Procedure Code.
The Court of Appeal upheld the acquittal on the ground that the High Court Judge had exercised his discretionary power correctly in accordance with the law. At the time of writing, the matter is fixed for further appeal at the Federal Court.
(C2) Ban by Indonesia
Back in 2009, following the reports of abuse against Indonesian domestic workers, Indonesia instituted a two-year ban on sending migrant workers to Malaysia. The ban was imposed despite there being a revised Memorandum of Understanding (MOU) between Malaysia and Indonesia in 2006 on the recruitment and placement of Indonesian domestic workers. The ban came to an end on 30 November 2011.
During this ban, Malaysia and Indonesia entered into a revised MOU. Among others, it specified that a joint task force be formed between both countries for the purposes of protecting the welfare of the Indonesian migrant domestic workers, and investigating any issues in respect of their fundamental rights.
Despite there being a framework for understanding between the two nations, Malaysian laws and policies surrounding the protection of domestic workers remain insufficient. Following Adelina’s death, the Indonesian Government considered reinstating the ban against Malaysia by halting the recruitment of Indonesian domestic workers to Malaysia. The Indonesian Ambassador to Malaysia proposed restructuring the employment administration process in order to mend strained diplomatic ties between the two countries resulting from repeated cases of abuse against Indonesian domestic workers in Malaysia.
(C3) Employment Laws in Malaysia
The employment of a domestic servant is provided for under the Employment Act 1955, which, however, does not appear to be applicable to migrant domestic servants. Furthermore, subparagraph 2(5) of the First Schedule excludes the applicability of the following provisions, where domestic servants are concerned:
(a) Section 12 (notice of termination of contract);
(b) Section 14 (termination of contract for special reasons);
(c) Section 16 (employees on estates to be provided with minimum number of days’ work in each month);
(d) Section 22 (limitation on advances to employees);
(e) Section 61 (duty to keep registers);
(f) Section 64 (duty to display notice boards);
(g) Part IX (maternity protection);
(h) Part XII (rest days, hours of work, holidays and other conditions of service); and
(i) Part XIAA (termination, lay-off, and retirement benefits).
While these are very general provisions, there is no specific piece of legislation that provides basic protection for domestic workers. In contrast, countries like Taiwan and Jordan have laws that specifically protect the rights of domestic workers.
In Malaysia, the primary terms of employment appear to be the agreement between the employer and the private agencies that supply the domestic workers. There is no direct contractual relationship that would protect the basic rights of the domestic worker themselves.
In 2017, Tenaganita along with several other non-governmental organisations (NGOs) drafted a Bill for migrant domestic workers to address the loopholes in the Employment Act in the hope of seeing the Bill tabled in 2018. The status of the draft Bill is unknown, at the time of writing.
(C4) International Labour Standards
Malaysia has ratified 18 International Labour Organization (ILO) Conventions, which include six Fundamental Conventions, two Governance Conventions, and 10 Technical Conventions.
However, Malaysia has yet to ratify the Domestic Workers Convention, 2011 (No. 189) (C189) and Recommendation No. 201 — Domestic Workers Recommendation, 2011 (R201). The Recommendation is, in essence, supplementary to C189.
C189, if ratified, would apply to all domestic workers and would obligate Malaysia to take measures to ensure the effective promotion and protection of human rights of all domestic workers (article 3). C189 specifically provides that countries shall take measures to ensure domestic workers enjoy effective protection against all forms of abuse, harassment, and violence (article 5).
The ratification of C189 is necessary to ensure that migrant domestic workers are able to enjoy the same legal protections as local domestic workers. This would also improve the diplomatic ties between Malaysia and Indonesia.
(1) Ratify C189 and R201, and develop suitable laws and policies (including reviewing existing ones). It is important and urgent that there are laws that define and enforce basic employment protections such as working hours, minimum rest periods, holidays and sick leave, overtime payment, and minimum wage protections.
(2) Recognise social security and social protection, and develop mechanisms for reporting and complaints.
(3) Revise policies and guidelines to allow direct hiring as opposed to contractual arrangements with private agencies.
(4) Be transparent regarding the joint efforts of the Joint Task Force pursuant to the revised MOU with the Indonesian Government.
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