Barriers for Migrant Workers in Accessing Justice in Malaysia

As stated in Article 8 of the Federal Constitution of Malaysia, all persons are regarded equally under the law. This fundamental human right protects all individuals, including migrant workers. However, despite this protection, migrant workers continue to face significant challenges in accessing justice in Malaysia.

One major barrier is the lack of knowledge and language skills among migrant workers. Language and knowledge barriers prevent migrant workers from being adequately informed about and accessing their rights. The majority of the migrant workers are not aware of the law, which means they are unaware of their rights to pursue legal actions against their employers. In Malaysia, the government frequently fails to demonstrate sufficient dedication to enhancing migrant workers’ awareness, which consequently makes it challenging for them to realise when their rights are being violated.

Moreover, migrant workers who come to Malaysia hail  from various nations such as Vietnam, Bangladesh, and Indonesia. Hence, many are unable to communicate with their Malaysian employers in English or Bahasa Malaysia (Malay Language). This language barrier places them in a passive position relative to their employer, as they struggle to express their concerns, seek assistance, or avoid misunderstandings  due to their lack of fluency in the local languages.

Furthermore, the laws, policies, and procedures governing migrant workers are exclusively available in Bahasa Malaysia and occasionally in English. Even if migrant workers - possess a limited understanding  of Malay language, it is incorrect to assume that they are capable of fully comprehending the laws. Consequently, they would be empowered by a comprehensive understanding of the law.

Another significant challenge is the lack  of legal aid services for migrant workers. The existing Malaysian legal aid scheme does not particularly provide legal aid to migrant workers. The challenges that migrant workers encounter in accessing justice in Malaysia are significantly exacerbated by the absence of legal aid services. Even when migrant workers  are aware of their rights and understand the law, they rarely receive dedicated support throughout the lifecycle of a case. The Bar Council Legal Aid Centre is the sole legal aid institution with a mandate to provide assistance to non-citizens. Nevertheless, they lack the resources to represent migrant workers in all criminal charges or civil proceedings.

Additionally, Malaysia encounters funding constraints in engaging  private solicitors to address these matters. As a result, migrant workers often to receive advice about their employment or immigration situation, if at all, from non-lawyers. These advisers may include law students volunteering at a legal assistance center, NGO representatives, union representatives, and more. While these advisers are valuable, they may not be completely equipped to provide migrant workers with a comprehensive understanding of their legal rights and options.

Fear of retaliation further prevents migrant workers from accessing justice. Many migrant workers are apprehensive about seeking assistance from authorities due to fear of retaliation or the  belief that “one law is for the rich and another is for the poor.” Consequently, they are often unwilling and afraid to file complaints against their employers because they may be terminated for doing so. To avoid dismissal , loss of income and forced repatriation without financial security, migrant workers may opt to remain silent, refuse to exercise their rights, and refrain from filing complaints against their employers.

Due to these social issues, even when migrant workers are being abused, they fear filing complaints. The threat of termination and deportation compels them to endure the abuse silently. Many often adopt the mindset that they came to Malaysia to earn money, not to access justice, leading them to tolerate unfavourable and abusive working conditions rather than seek legal recourse.

To address these challenges, several advocacy measures must be taken. Firstly, migrant workers must be provided with  accurate, free, and accessible information on redress mechanisms in languages they  understand, ensuring that they are fully aware of their rights and the steps available to seek justice. Secondly, the Department of Labour, in collaboration with civil society organisations, should implement wide-ranging public information campaigns specifically designed to educate migrant workers in key languages about their employment rights,  responsibilities, and available resources if their rights are violated. 

Furthermore, the Malaysian government should increase the capacity of the Department of Labour’s existing hotline to handle  complaints and offer guidance in the primary languages spoken by migrant workers. In addition, legal schemes such as the Legal Aid Bureau (Biro Bantuan Guaman) and the Yayasan Bantuan Guaman Kebangsaan (YBGK) should be made available to migrant workers. Therefore, the Legal Aid Department and the Government of Malaysia should reassess  the eligibility criteria to allow migrant workers the same access to legal aid as any Malaysian citizen, particularly in light of the fact that migrant workers,too, are an underprivileged group. Moreover, trade unions and workers’ organisations should extend support to migrant workers, helping them access grievance mechanisms and offering tangible and practical support throughout the process of addressing their concerns. It is imperative that migrant workers who file complaints are safeguarded from reprisals or threats of reprisal, which could otherwise result in termination and loss of their employment.

In conclusion, although the Federal Constitution promises equality before the law, migrant workers continue to face serious barriers in accessing justice. By improving access to information, expanding legal aid services, and protecting migrant workers from retaliation, Malaysia can move closer to ensuring that justice is truly available to all.