Country Report on Human Rights Practices for 1988
MALAYSIA
.
Since independence in 1957, Malaysia has had a parliamentary
system of government based on free elections contested by
several parties, almost all of which are racially based.
Malaysia is a multiethnic society, with Malays comprising a
bare majority of the population, and the remainder consisting
of Chinese (about 33 percent), Indians (about 10 percent), and
several smaller minorities. The ruling National Front
(composed of three major and several minor parties) has won a
two-thirds or better majority in the federal Parliament in all
seven general elections since 1957, but opposition parties are
active and vocal participants in the political system and
occasionally hold power at the state level. A strong free
market economy, abundant natural resources, and a relatively
small population have helped Malaysia become one of the most
prosperous of the developing countries.
Internal security remains a concern in Malaysia. A major
Communist insurrection that began in 1948 and peaked in the
early 1950's still smolders in a few border areas, several
hundred persons reportedly died in intercommunal rioting
following the 1959 national elections, and the Government has
explicitly classified the country's serious drug problem as a
threat to national security. The Government cites all three
of these factors as justification for laws allowing preventive
detention of persons suspected of subversive activity or drug
trafficking. Other laws empower the Government to restrict
the right to free expression and association.
Important human rights concerns in Malaysia in 1988 related to
continued detention of some government critics and restrictions
on freedom of association, freedom of the press, and the
independence of the judiciary. Until the end of 1987, Prime
Minister Mahathir's administration had been comparatively
restrained in its use of Malaysia's Internal Security Act
(ISA). By mid-October 1987, the number detained under the ISA
had been sharply reduced to about 25 from 500 when Mahathir
took office in 1981. However, in late October and early
November 1987, in an effort it said was necessary to avoid
serious racial strife, the Government detained 106 more
persons under the ISA, closed 3 newspapers, and banned all
public assemblies. By November 1988, all but 16 of those
detained in October and November of the previous year had been
released, and the 3 newspapers were publishing again.
However, among the remaining detainees were five Members of
Parliament, including several top leaders of the major
Chinese-based opposition party.
In 1988 Parliament amended the Constitution and several laws
in ways that limit judicial review of executive actions. In
addition, the Lord President (equivalent to Chief Justice of
the U.S. Supreme Court) was dismissed by the King following an
investigation by a special tribunal, composed of Malaysian and
other Commonwealth judges, into charges of improper behavior.
The Government charged the Lord President, among other things,
with displaying bias and prejudice against the Government in
speeches dealing with the independence of the judiciary. Five
Supreme Court Justices were subsequently suspended for
activities associated with the case. Acting on the
recommendation of a special tribunal convened to hear the case
against the five justices, the King ordered the immediate
reinstatement of three of the justices and the dismissal of
the other two.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political Killing
There were no reports of political killings by the Government
or by any other organization.
b. Disappearance
There was no evidence of abduction, secret arrests, or
clandestine detention attributable to the Government or to
nongovernmental or opposition forces.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
There was no evidence of torture. Allegations of cruel,
inhuman, or degrading treatment or punishment are rare,
although several Malaysian citizens who were detained by the
Government in October 1987 claim that they were mistreated by
security authorities, especially during the initial stage of
their detention. Their allegations included charges of sleep
deprivation, threats and verbal abuse, and, in at least one
case, beating.
d. Arbitrary Arrest, Detention, or Exile
The Government can detain suspects without benefit of judicial
review under three laws: the 1960 Internal Security Act
(ISA), the Emergency (Essential Powers) Ordinance of 1969, and
the Dangerous Drugs Act of 1985.
The 1960 ISA, adopted by the British during the Communist
insurgency of the 1950 's, is aimed at controlling internal
subversion. It empowers the police to hold for up to 60 days
any person who may act "in a manner prejudicial to the
security of Malaysia;" further detention (in renewable 2-year
segments) must be authorized by the Minister of Home Affairs.
The Minister must inform detainees of the charges against them
and give them the opportunity to protest those charges to an
advisory board. The advisory board reviews each case at least
every 6 months. However, advisory board decisions and
recommendations are not binding on the Minister. Since the
recommendations of the advisory boards are never publicized
and are often not revealed to the detainee, it is difficult to
generalize about the regularity with which the recommendations
are accepted by the Government. It is believed, however, that
a recommendation to release a detainee is normally followed,
although sometimes with a delay of a month or two.
Prior to the ISA detentions of October 1987, the number of
long-term ISA detainees had dropped from nearly 500 in 1981 to
about 25. In October and November 1987, however, Malaysian
authorities, citing the need to act to avoid serious racial
strife, detained another 106 persons, including government and
opposition Members of Parliament, social critics, academics,
environmentalists, and religious activists. By November-
October 1988, all but 16 of these detainees had been released.
Some of those released are subject to various types of
restrictions such as requiring them to report to the police
periodically, to remain in their homes at night, or to refrain
from engaging in political activities. In addition, in 1988,
9 Malaysians from Sarawak and 23 from the northern States of
Kedah and Perwak were arrested under the ISA as arson suspects
and remain in custody. It is estimated that there are about
100 persons currently under ISA detention, including 16 of the
group of 106 detained in October 1987.
In July 1988, the Parliament amended the ISA to place
additional limitations on judicial review of detentions. The
amendments validate detention orders regardless of textual
inaccuracies in place or fact and prohibit legal challenges to
detention orders. These amendm.ents do not, however, proscribe
judicial review of the October 1987 detention orders.
The Emergency (Essential Powers) Ordinance of 1969 stemmed
from that year's communal riots. The State of Emergency
declared at that time has never been rescinded, although
Parliament regained its' legislative power in 1971. The
Emergency Ordinance gives the Government the power to detain
anyone "in the interests of the public safety or the defense
of Malaysia." As under the ISA, detainees must be informed of
the charges against them, and they can appeal to an advisory
board. Prior to amendments in 1988, the Governraent could
detain suspects under the Emergency Ordinance for a maximum of
2 years. The 1988 amendments to the legislation, however,
allov/ the Minister of Home Affairs to extend the period of
detention, validate detention orders with defects, and
prohibit legal challenges to the detention orders. In
previous years, the Emergency Ordinance was used by Malaysian
antinarcotics authorities to detain suspected drug traffickers,
but, since enactment of the Dangerous Drugs Act of 1985, the
Emergency Ordinance is no longer used for this purpose.
The Dangerous Drugs (Special Preventive Measures) Act of 1985
was enacted by Parliament to give the Government a specific
law under which suspected drug traffickers can be detained.
Suspects can be held under this law for successive 2-year
periods. However, certain due process safeguards not found in
the Emergency Ordinance and the ISA were incorporated in the
antidrug law. The police report on the detention must be
submitted to an "inquiry officer" who then sends his viev/s on
the detention to the Minister of Home Affairs. Also, the
opinion of the advisory board, following either its initial
hearing or its periodic review of each case, is binding on the
Minister. It is believed that about 890 suspects were in
detention under this statute as of August 1988. As with the
other two security statutes, the Dangerous Drugs Act was
amended in 1988 to validate detention orders with certain
defects and to prohibit legal challenges to detention orders.
With regard to forced or compulsory labor, see Section 6.c.
e. Denial of Fair Public Trial
Ordinary (nonsecurity-related) civil and criminal cases are
tried under a fair and open judicial system^ derived from
British jurisprudence. Charges must be levied against a
defendant within 24 hours of arrest, and police must decide
within 14 days whether to bring the case to court. Defendants
have the right to counsel, and lawyers are able to represent
clients without penalty to themselves. Bail is available, and
strict rules of evidence apply in court. Defendants may
appeal lower court decisions to the federal courts and, in
criminal cases, may also appeal for clemency to the King or
local state rulers, as appropriate.
Persons detained under internal security legislation and for
certain classes of crimes, if their cases are brought to
trial, are tried under special procedures contained in the
Essential (Security Cases) Regulations of 1975. The accused
is allowed counsel but sometimes does not receive a statement
of the evidence prior to the trial; trial is by a single judge
without a jury; and witnesses may be examined in the absence
of the accused. Admissible evidence includes hearsay and
secondary evidence, testimony of children and spouses,
self-incriminatinq statements to police, and information from
seized records or communications. If the accused is found
guilty, the judge must impose the maximum penalty.
The Malaysian judiciary has traditionally been regarded by the
public and the legal community as committed to the rule of
law. The judicial system has exhibited over the years an
unusual degree of independence, not hesitating to rule against
the Government in criminal, civil, or occasionally even major
cases with political ramifications. An example of the latter
was the High Court ruling in February 1988 that the dominant
party in the Government coalition was illegally constituted.
The Constitution was amended in 1988 to delete the clause
vesting judicial power in the courts and substitute a clause
stating that the jurisdiction and power of the courts are
"conferred by or under Federal Law." Although the practical
ramifications of this constitutional amendment have not been
tested, some members of the legal community charge that this
amendment strips the judiciary of its constitutional basis of
authority, making it wholly dependent upon specific legislation
passed by Parliament. Another constitutional amendment
increases the discretion of the Attorney General to determine
where court cases initiated by the Government are heard.
In another development affecting the judiciary, the Lord
President of the Supreme Court was dismissed by the King on
August 8 following the recommendation of a tribunal which
heard the Government's charges against him. These included
bias and prejudice in speeches critical of the Government and
writing a letter to Malaysia's King raising objections to the
Prime Minister's criticism of the judiciary, thereby creating
misunderstanding between the Prime Minister and the hereditary
rulers. Five Supreme Court Justices were suspended for their
actions related to the Lord President's case. A second
tribunal appointed by the King ordered the immediate
reinstatement of three of the justices. The other two were
dismissed from office. Critics charge that one result of such
actions will be to reduce considerably the inclination of
judges to act independently of executive authority. The High
Court Order of October 6, 1988, releasing ISA detainee
Jamaluddin Othman is, however, an indication of continued
judical willingness to disagree with the Malaysian Government
on important issues.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
Generally, these rights are protected by law. However, under
the security legislation described above, the police may enter
and search without warrant the homes of persons suspected of
threatening national security and confiscate evidence from
them.
Section 2 Respect for Civil Liberties, Includinq
;
a. Freedom of Speech and Press
The Constitution provides for free speech and, in practice,
there are very few constraints on the freedom of expression in
conversations or private communications. There are, however,
some important limitations on freedom of speech and press.
For example, the Constitution also provides that freedom of
speech can be restricted by legislation "in the interest of
security... (or) public order." Thus the Sedition Act
Amendments of 1970 prohibit public comment on constitutionally
protected but "sensitive" issues such as citizenship rights
for non-Malays and the special position of Malays in society.
Since 1970, however, the Government has brought only a few
cases under the Sedition Act, and in the most recent incident
in 1986 the defendant, the President of the Bar Council, was
acquitted.
The Constitution also provides for freedom of the press. A
wide range of fact and opinion is available to the Malaysian
public in newspapers and magazines published in all of the
country's four major languages: Bahasa Malaysia, English,
Chinese, and Tamil. Major international and regional nevjs
publications also circulate freely. However, this freedon has
been subjected to important limitations. By virtue of the
Printing Presses and Puolications Act of 1984, all domestic
and foreign puolications must apply annually to the Government
for a permit. In December 1987, the Parliament amended this
act to broaden the legal definition of "malicious news" and
make its publication a punishable offense, to expand the
Government's power to ban publications which "alarm public
opinion," and to prohibit court cnallenges to suspension or
revocation of publication permits. An additional inhibiting
factor is that the Go/ernment or the business arms of the
leading political parties in the ruling coalition own almost
all the major newspapers as well as all the radio and
television stations. At the cime of the ISA detentions in
October 1987, the Government revoked the publication permits
of three newspapers: The Star (English), The Sm Chew Yit Pao
(Chinese) , and the Watan (Bahasa Malaysia) . Although this
revocation order was rescinded in March 1988 and all three
newspapers are now being publisned, the revocations and the
series of legislative amendments described above have resulted
in significant self-censorship by journalists and editors of
the daily newspapers. Nevertheless, opposition parties,
social action groups, and a number of private puolications
regularly provide detailed coverage of opposition political
activities and print viewpoints strongly critical of the
ruling coalition and its policies.
b. Freedom of Peaceful Assembly and Association
The Conrtitution provides for the rights of freedom of
peaceful assembly and association, although limitation of
those rignts is permitted in the interest of security and
puolic order. Thus the 1967 Police Act requires police
permits for large public assemblies. In practice, until
October 1937, few such gatherings, even for specifically
political purposes, were pronibited. In October 1987, the
Government banned all unauthorized assemblies. ;n 1988 there
appeared to nave been some loosening of the enforcement of
Police Act restrictions allowing open campaigning by
government and opposition candidates in a parliamentary
byelection in August. Other statutes limit the right of
association, such as the Societies Act of 1966, under which
the Government can refuse registration to organizations which
comment unfavorably on political or public issues. The threat
of deregistration under the Societies Act tends to inhibit
lobbying by public or special interest organizations, but it
does not suppress such activity entirely. April 1988
amendments deleted a section of the Act which made an entire
society illegal if a branch is illegal, gave the registrar of
societies additional power to restrict inspection of its
documents, and made it a crime to render assistance to illegal
societies. Another law affecting freedom of association is
the Universities and University Colleges Act, which requires
government approval for student associations and prohibits
such associations from engaging in political activity.
For a discussion of freedom of association as it applies to
labor unions, see Section 6. a.
c. Freedom of Religion
The official religion of Malaysia is Islam, and ethnic Malays
are legally bound in some civil matters, e.g., family
relations and diet, by Islamic religious laws administered by
state rather than by federal authorities. An Islamic
religious establishment is supported by government funds, and
it is government policy to "infuse Islamic values" into the
administration of Malaysia. However, the Constitution
guarantees freedom of religion, and the Government has refused
to accede to pressures for the imposition of Islamic religious
law beyond the Muslim community. Religious minorities, which
include large Hindu, Buddhist, Sikh, and Christian communities,
practice their faith with minimal interference by the
Government. There are persistent allegations, however, that
some state governments have been slow in approving building
permits for non-Muslim places of worship. Also, the Government
has limited the circulation of a popular translation of the
Bible in Bahasa Malaysia. Conversion to religions other than
Islam is permitted but not encouraged; proselytizing of
Muslims is, and has long been, proscribed by law in some
states and strongly discouraged in other parts of the country.
Government sensitivity on religious questions was evident in
the October 1987 ISA detentions of several Muslim and Christian
teachers and activists. In March 1988, the Government released
a "White Paper on the ISA Arrests" in which it asserted that
some Muslim groups were creating confusion in the Muslim
community by exaggerating the extent of Christian efforts to
convert Muslims. The White Paper also said that a pastor of a
local church who was detained in October 1987 had attempted to
convert Muslims to Christianity, a practice which has been
strongly discouraged for many years. The pastor has since
been released. In addition, the White Paper asserted that
some local Christian groups were guilty of subscribing to the
"liberation theology concept upheld by the Marxist group." In
response to the White Paper's charges, the Christian Federation
of Malaysia argued that there are fundamental differences
betvjeen Marxism and liberation theology, as accepted by the
Vatican, and categorically denied any connection between its
members and Marxist groups.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Aside from some former ISA detainees who have been released
with special restrictions placed on their movements, the
Government places no restrictions on the people's right to
travel within the country and live and work where they
please. There are also no known government restrictions on
emigration. Since there are no known Malaysian refugees in
other countries, there is no problem of repatriation.
Although there have been a few cases of Malaysian citizens
being denied passports on security grounds, Malaysians are
generally free to travel abroad. There are some restrictions
on travel by Malaysians to certain countries, such as Israel,
South Africa, China, and some Soviet Bloc countries.
Malaysia has provided first asylum to more than 230,000
Vietnamese refugees since 1975. It has cooperated closely
with international organizations and resettlement countries in
facilitating the eventual movement of the refugees to third
countries. Vietnamese refugees continue to arrive and be
accepted at Malaysian camps at a rate of 6,000 to 13,000 per
year (an estimated 13,500 in 1988) despite significant
domestic opposition to Malaysia's traditional open door
refugee policy. In April 1988, the Government announced its
intention to phase out its major Indochinese refugee camp
sometime in 1989 and its desire to convene an international
conference on refugees under the auspices of the U.N. High
Commissioner for Refugees (UNHRC) . Malaysia itself has
resettled over 8,000 Khmer Muslim refugees, but has not
accepted non-Muslim refugees for permanent settlement.
According to government figures, more than 40,000 Philippine
Muslims have legally settled in the state of Sabah since 1975.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Malaysia's parliamentary system is based on the British model.
The Prime Minister and Cabinet are responsible to Parliament,
from which they are drawn. National parliamentary elections,
which the Constitution requires at least every 5 years, have
been held regularly since independence in 1957 and have
included opposition candidates actively contesting
parliamentary seats. In addition, there are regular state and
local elections involving candidates from several political
parties. The opposition concedes that elections to date have
been free and fair; votes are cast secretly and recorded
accurately.
Through the United Malays National Organization (UMNO), Malays
dominate the ruling national front coalition of ethnic-based
parties which has controlled Parliament since independence.
However, non-Malays fill a number of cabinet posts. In August
1986, the National Front won 148 of the 177 seats in the House
of Representatives. Although the opposition regularly
criticizes government policies within and outside Parliament,
government positions generally prevail. Since 1957 there has
been a peaceful transfer of power in the Office of Prime
Minister three times, twice through resignation and once
through death.
In the most recent parliamentary elections, nine women won
election to the Parliament. In addition, 10 women serve as
Senators, 2 as ministers in the Government, and 3 as deputy
ministers
.
Opposition parties such as the Islamic Party of Malaysia
(PAS), have occasionally gained control of state governments.
Non-Malay parties have also controlled state governments; for
example the ruling party in the i.mportant state of Penang is
largely Chinese-based, and in Sabah a predominantly Christian
party is currently in power. In an important Parliamentary
byelection in August 1988, a former UMNO Mem'ber of Parliament
running in opposition to the Government was elected by a large
majority.
Eleven members of Parliament, 10 from opposition parties and
one from the Government coalition, were included among the
persons detained in October and November 1987. Five Members
of Parliament from the opposition Democratic Action PArty
(DAP), including the party leader and other top officials,
remain in detention. Based upon the Societies Act, which
proscribes detainees from holding office in legally registered
societies, the Registrar of Societies has ruled that the five
DAP leaders still in detention cannot continue in their party
offices. The Government maintains that the DAP
parliamentarians were detained in order to prevent an outbreak
of communal violence like that which occurred in 1969.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government rejects criticism of its human rights record by
international human rights organizations and foreign
governments and maintains that it is the duty of Malaysia's
citizens and media to counter efforts by outsiders to "tarnish
the country's image". Officials also criticize local groups
for "collaborating" with international human rights
organizations in their studies of the human rights situation
in Malaysia. Nevertheless, representatives of international
human rights organizations have visited and traveled freely in
Malaysia and are able upon request to meet with relevant
government officials. In 1988 the Government permitted
delegations from the International Committee of the Red Cross
and the Human Rights Commission of the International
Parliamentary Union to meet with ISA detainees as well as with
relevant government officials. In addition, American
officials and officials from other governments have met in
Malaysia with their Malaysian counterparts to discuss human
rights questions.
While there are currently no organizations in Malaysia which
deal specifically with the protection of human rights, in
December a group of prominent citizens, including two former
prime ministers, declared its intention to establish one. At
present, a number of organizations, including the Bar Council
and various public interest groups, devote some time to human
rights activities. The Government tolerates their activities
but rarely responds to their inquiries or occasional press
statements. The Government has not acceded to any of the
international covenants on human rights, generally maintaining
that such issues are internal matters.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
The Government implements on an extensive scale programs
designed to boost the economic position of the ethnic Malay
majority which remains poorer, on average, than other
Malaysians despite its political dominance. These government
programs and policies limit, in varying degrees, opportunities
for non-Malays in higher education, government employment,
business permits and licenses, and ownership of new homesteads.
There are no laws or regulations restricting the political and
economic rights of women. Government policy supports their
full and equal participation in government, education, and the
work force. Women hold prominent positions in all sectors of
the economy. The position of women in society is conditioned
by the cultural and religious traditions of the country's
major ethnic groups. With a general resurgence of Islamic
piety among Malays, many Malay women have in recent years
tended toward close conformity with Koranic stipulations on
women's roles.
Section 6 Worker Rights
a. The Right of Association
The Trade Unions Act of 1959 and the Industrial Relations Act
of 1967 govern the right of workers to engage in trade union
activity. Unions may organize workplaces, bargain
collectively with an employer, form federations and join
international organizations. The Industrial Relations Act
specifically prohibits any person from interfering with,
restraining, or coercing a worker in the exercise of the right
to form or participate in the lawful activities of a trade
union.
The Trade Unions Act, which is administered by the Registrar
of Trade Unions, sets rules for the organization of unions,
their recognition at the workplace, the content of their
constitutions, election of their officers, and their financial
reporting requirements. (Parallel acts set the rules for
companies and societies.) The Act's definition of a trade
union restricts it to representing workers in a "particular
trade,- occupation, or industry or within any similar trades,
occupations, or industries." The Committee on Freedom of
Association of the International Labor Organization (ILO)
concluded that the free choice of unions to which workers wish
to belong should not in any way be limited by administrative
authorities' interpretations of union rules insofar as these
determine the scope of their membership.
Some critics of the Government's policy toward labor unions,
notably the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO) and Asia Watch, believe
that the arrest of V. David under the ISA in the government
crackdown late in 1987 (see Section l.d. above) demonstrated
labor leaders' vulnerability to the Government, which critics
assert, inhibits their carrying out legitimate trade union
activities. Mr. David has declared publicly that questioning
during his detention related only peripherally to his role in
the Malaysian Trades Union Congress (MTUC) and the Transport
Workers' Union (TWU) . He continues as MTUC Secretary General,
campaigned successfully for reelection to that position in
December, and has been allowed to travel abroad to trade union
meetings
.
Federations of trade unions similarly may cover only a single
trade or industry or similar trades or industries. The only
labor federations currently registered are one for public
servants and one for teachers. Two of the state-based textile
and garment workers' unions have applied to register a
federation and expect a favorable ruling from the registrar.
The MTUC, the main labor body in the country, is registered as
a society under the Societies Act (rather than the Trade
Unions Act) . Previous MTUC efforts to register as a trade
union federation under the Trade Unions Act were turned down
because of its broad membership. In November, however.
Parliament approved legislation which grants both the MTUC and
the Malaysian Employers Federation the status and rights
accorded trade unions, although both remain societies.
As of December 1987, there were 409 individual unions in
Malaysia with over 606,000 members (10.4 percent of total
employment). Union membership has been stagnant since 1983,
due in part to the decline of Malaysia's largest union, the
National Union of Plantation Workers, resulting from the
replacement of union-organized plantation workers by
unorganized contract labor; and in part to the 1985-86
recession, which particularly affected the most wage-based
sectors of the economy. Unions are independent both of the
Government and of the political parties. While unions are not
permitted to engage in political activity, individual trade
union leaders have served in Parliament (V. David, the MTUC
Secretary General, is currently a Member of Parliament for an
opposition party) and individual union members belong to
political parties. Malaysian trade unions are free to
associate with the appropriate international trade
secretariats, and a number of Malaysian labor leaders play
major roles in international labor affairs. The MTUC is
affiliated with the International Confederation of Free Trade
Unions (ICFTU). The Secretary General of the National Union
of Plantation Workers is President of the ICFTU, and the MTUC
Secretary General has actively participated in the ILO
governing body.
While strikes are legal and do occasionally occur, critics
claim that this right in practice is severely restricted. The
Industrial Relations Act of 1967 requires the parties to
notify the Ministry of Labor that a dispute exists before any
industrial action may be taken. The Ministry's Industrial
Relations Department can then become actively involved in
conciliation efforts. If conciliation fails to achieve a
settlement, the Minister has the power to refer the dispute to
the Industrial Court, which effectively becomes compulsory
arbitration. A strike is prohibited while the dispute is
before the Industrial Court, and no action may be taken in
respect of an award made by the Industrial Court. Industrial
Court awards are the exception rather than the rule, however,
representing only about 18 percent of all collective
agreements registered in 1987. The remaining agreements were
reached through bargaining between management and labor.
b. The Right to Organize and Bargain Collectively
Collective bargaining is the norm in Malaysian industries
where workers are organized. Malaysia's system of
conciliation and arbitration seeks to promote negotiation and
settlement of issues without industrial action. However,
Malaysian law, especially the Industrial Relations Act,
restricts collective bargaining rights through compulsory
arbitration.
In a complaint to the ILO, the MTUC alleged that the 1980
amendments contain prohibitive and oppressive antiunion
provisions which erode the basic rights of workers, restrict
union activities, and result in government and employer
interference in the internal administration of unions. In
1983 the ILO urged the Malaysian Government to amend these
laws further to bring them into conformity with the ILO
convention on the right to organize and to bargain
collectively. Many union leaders also believe that creation
of the Industrial Court to handle industrial disputes further
weakened their collective bargaining rights.
In 1987 the Government proposed labor law amendments which
would have altered the definition of wages (used for
calculating overtime pay) and would have clarified the legal
status of in-house unions (nowhere mentioned in the Trade
Unions Act). The proposals were withdrawn in the face of
union opposition in favor of a general review of Malaysia's
labor legislation, presented to the tripartite National Labor
Council (NLAC) in May. Union leaders took exception to
several of the revised proposals, particularly the amendment
to clarify the legal status of in-house unions, one to
classify all government departments as "essential services,"
and one to restrict legal representation in Industrial Court
cases. The first of these provisions was dropped from the
amendments submitted to Parliament and approved in late 1988,
and the other two were modified to meet, in part, union
objections. The MTUC has welcomed parts of the package,
particularly the provision granting it the status of a trade
union and one making Industrial Court awards directly
enforceable by application to the High Court. The MTUC also
won more than it gave up on the definition of wages, employers'
request to reduce retrenchment benefits, coverage of the
Employment Act, and back pay in unfair dismissal cases.
Employers gained modest reductions in annual and sick leave
and a reduction of overtime rates from a maximum of 4.5 times
basic pay to 3 times basic pay. The MTUC still opposes the
amendment which restricts legal representation at Labor
Ministry conciliation hearings (but continues to allow
representation in the Industrial Court) ; and a provision
allowing the Government to declare any industry an "essential
industry.
"
Labor standards in free trade zones are the same as those in
the rest of Malaysia. Workers at many companies located in
the free trade zones are unionized, especially in the textile
and electrical products plants. Enterprises granted "pioneer"
status (whether or not located in a free trade zone) are
protected from union demands for terms of employment exceeding
those specified in the Employment Act of 1955 during the
period of their pioneer status (normally 5 years). The
restriction does not apply to wages or benefits not covered by
the Employment Act (see Section 6.e. below).
Malaysia's electronic components industry, dominated by
American and Japanese firms, has been the focus of
unsuccessful union organizing efforts since the late 1970's.
In 1980 the Government ruled that the electronics industry was
sufficiently different from the electrical industry for
Malaysian law to preclude the existing Electrical Industry
Workers Union (EIWU) from organizing electronics workers. In
response to a complaint by the International Metalworkers
Federation under ILO Convention 98, the ILO urged the
Malaysian Government to "apply its legislation in a manner so
as to allow representative trade union organizations" and
recommended that the "legislation be interpreted in a less
restrictive manner." Although there is no specific legal
provision barring the formation of a separate union to
represent electronics workers, the Government's application of
the law has in practice made it impossible to form such a
union. In late September, the Government announced that
workers in the electronics industry would henceforth be
allowed to unionize. In October, however, the Government said
that permission applied only to in-house unions. The legal
basis for this restriction remains unclear.
c. Prohibition of Forced or Compulsory Labor
Malaysia is a party to ILO Convention 105 prohibiting forced
or compulsory labor. Malaysia has effective legal sanctions
against such abuses. Although the ILO has in the past
criticized Malaysia for requiring prisoners and ISA detainees
to work, Malaysia defends the practice as part of its prisoner
rehabilitation program.
d. Minimum Age for Employment of Children
Employment of children is covered by the Children and Young
Persons (Employment) Act of 1966, which stipulates that no
child under the age of 14 may be engaged in any employment
except light work in a family enterprif3e, in public
entertainment, wcrk performed by the Government in a school or
training institution, or employment as an approved apprentice.
It is illegal for children to work more than 6 hours per aay,
more than 6 days per week, or at night. The law is
effectively enforced.
e. Acceptable Conditions of Work
Malaysian wages are relatively high for its level of
industrialization and higher than in all neighboring countries
except Singapore. The Employment Act of 1955 sees working
hours not to exceed 8 hours per day or 44 hours per week
(5 1/2 days), sets overtime rates tor hours in excess of
those, and mandates public holidays, annual leave, sick leave,
and maternity allowances for workers. Most such provisions
are at least on a par with standards in industrialized
countries. Minimum standards of occupational health and
safety are set by law and enforced by a unit of the Ministry
of Laoor. Severance benefits are provided under the Employment
(Termination and Lay-off Benefits) Regulations of 1980. The
Employees Provident Fund (EPF) Ordinance of 1951 requires
employers and employees to contribute to a fully funded
retirement program. Some 90 percent of workers are covered by
either the EPF or the Government's own pension plan for public
servan;;s. The Workmen's Compensation Act of 1952, and the
Social Security Act provide disability and workman's
compensation benefits.
There :s no national minimum wage legislation, but certain
classes of workers are covered by minimum wage laws: retail
clerks, hotel and restaurant employees, cinema workers, and a
few others, totaling approximately 140,000 workers. By local
standards, and taking into account various worker benefits
received by most workers, Malaysian wages provide a decent
standard of living for workers and their families. The
effective minimum wage fcr unskilled labor in the urban areas
is about $90 per month. Plantation work is increasingly being
done by contract workers, including numerous illegal immigrants
from Indonesia, in part due to a sliortage of Malaysians
interested in such work. Working conditions for contract
workers often are significantly below those of direct hire
plantation workers, many of whom belong to the National Union
of Plantation Workers. Additionally, many of the immigrant
workers, particularly the illegal ones, may not have access to
Malaysia's system of labor adjudication.
