Malaysian Migration Hierarchy
This essay investigates Malaysia’s migration policy regime’s justification for using a hierarchy of rights to categorize migrants from different countries and categories in their policy to manage and sort out what the country could deem to be beneficiary to them or not. The essay is separated into four different parts: the role of hierarchical rights in society, policing migration, the hierarchy of rights of migrant workers in Malaysia, and migrants as individuals or as individuals of development.
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Malaysia’s migration policy regime has always been under scrutiny by international conventions and various civil rights groups. Centering around the application of a hierarchy of rights for migrants from different countries and migrant categories. The extent of this system being justifiable depends on the perspective of this issue. Commonly, the first instinctual answer would be to reject the notion of hierarchy even if it is one of the driving forces of the world. This is because an average citizen would rarely encourage the suffering of one for the betterment of another. However, in the eyes of the nation and its development, this hierarchy of rights proves to be a sufficient source in maintaining the migration flows and ensuring that benefits could be obtained, even from the exploitation of cheap labor. The hierarchy of rights for migrants is not as simple as a mere role leveling circulating between a few different categories of migrants but rather includes various aspects of class, gender, race, and country of origin. Hence, I stand on a line of uncertainty not fully concluding that this action is justifiable till a suitable understanding could be achieved in my research.
The Role of Hierarchical Rights in Society
In order to create a better understanding of the regime, there is a need to understand the role of hierarchy in our society. An individual's priority (their social rank, or position in the social hierarchy) to be able to access disputed resources remains to be an important factor in their survival (Chang, 2020). These rank differences are established from the vast history of wins and losses. History creates the hierarchies but is forwarded by individual decisions which interchange the hierarchy of the world as time goes on. A hierarchy offers a sense of predictability and assurance within the rankings even though the hierarchical power is unequally distributed, placing those at the bottom suffering the consequences of this distribution (DeDeo & Hobson, 2022). Nation states then use these rankings in their favor to govern and regulate, especially in the work of migration where the unpredictability of human movement becomes slightly manageable when placed into the accountancy of the supposedly common hierarchical attitudes. Although largely inconsistent and questionable in itself on the basis of rights and autonomy, it has proven to be beneficiary in many aspects of society. This is largely seen in Malaysia’s policy regime because this aspect of predictability enables increased efficiency of policing migration. Nevertheless, “hierarchies may help organize society for the benefit of all, but even the most extreme differences in rank may be the product of accident, not worth” (Kawakatsu, Chodraw, Eikmeier & Larremore, 2021).
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The establishment of the hierarchy in society demonstrates that there is a ranking in every aspect of an individual’s life where even fundamental rights are not ascertained. This looming threat of vulnerability from the uncertainty of the hierarchical structure paints a situation of desperation. Predominantly, via the chilling effect, that fear has on individuals’ exercise of their liberties (Sangiovanni, 2017). Furthering the notion that rights in the presence of hierarchy become a tool to control individuals. This is seen when the Universal Declaration of Human Rights (1948) is taken as an example and its articles are reduced to a set of fundamental rights. It demonstrates that this is a discourse already insinuated whenever the topic of human rights is mentioned. (Suárez Müller, 2018). There is a reason why it is named the Universal Declaration of Human Rights and not the Declaration of Universal Human Rights which indirectly states that there is a construct of hierarchy presented even within the fundamentals of human rights. This indicates that a hierarchical structure is already justified under international law and has become a necessary foundation to interpret the idea behind the hierarchy of human rights. (Suárez Müller, 2018). The application of migration to the hierarchy of rights signifies the prioritization of classifying migrants using the justification of securing sovereignty to maintain a sense of predictability and control with the migration flows. However, when we are at a point of time when the movement of people has never been stagnant, the importance of the statutes of migrant’s rights, especially the principle of non-refoulment can never be underestimated (Gilbert, 2012).
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Easing into the question of the justification of hierarchical rights for migrants in Malaysia’s migration policy, it is important to first lay down the grounds on what and when it is considered to be a ‘border’. When borders could be understood as mirrors as opposed to physical boundaries or walls, it creates a picture of ambiguity and fluidity (Parmar, 2020) which solidifies the notion that it is merely a tool for nation states to keep individuals in or out whenever they see fit. Borders have been mostly understood to keep ‘others’ out in the name of sovereignty and security. Moreover, when the social progress of solidifying borders is made more possible due to the rise of exclusive nationalism through the idea of democracy and capitalism (Suárez Müller, 2018). Solidification of borders is increased when immigration legislation and its enforcements are made specifically to divide the world’s population into set ‘nationalities’ and ‘races’, allowing veiled decisions to be made daily about who is granted and denied entry (Parmar, 2020). People are then regarded as items of cultural inspection and vehicles of cultural expression and were denied human agency. This largely increases the criminalization of immigration violations and is dealt with severely due to the merger between criminal law and immigration law (Stumpf, 2006). Doing so encourages racial hierarchies and ensures unequal access to citizenship through heavily racialized lines across the globe (Bosworth, Parmar & Vázquez, 2018). Borders further fuel the roles of hierarchy and rights, creating the rationale of an increased migration policing in the name of security and state management.
The Hierarchy of Rights of Migrant Workers in Malaysia
This brings us to the situation of migration policing in Malaysia where the country tries to repeatedly control the flow of migrants but still remains to have one of the largest numbers of documented and undocumented migrant workers as of date (Anderson, 2021). Particularly when one of the common mishaps of drafting migration policies has been the wide gap between the goals of the policy itself and the measured results (Hollifield, Martin & Orrenius 2014). So far that most of Malaysia’s migration policies seem to backfire when the increased policing of immigration violations seems to create more beneficial reasons to be an ‘illegal migrant’ as compared to a legal migrant. Moreover, when the lack of regard for outcomes of unchecked complexities in policymaking creates a mutation in citizenship as a response to globalization. Thereby recreating, separating, and reshaping different elements of the citizenship that were once together but now have become more disconnected through the application of universalizing forces and standards (Nah, 2012). More so in the global South where the migration rates seem to increase with every passing year. As a result, immigration control systems such as within the ASEAN states will continue to make a strict distinction between "citizens" and "non-citizens," "legal" and "illegal," and various categories of non-citizens (Nah, 2012). Thus, in order to have a semblance of control and predictability among migrants Malaysia established a hierarchy of rights and freedoms among its migration regimes. This system of hierarchy is made to streamline the allocation of rights by permitting those who possess greater ‘potential’ (capital) with better rights while limiting the integration of rights to those with less ‘potential’ to attract a higher rate of global capital and ease the nationalistic concerns of citizens (Nah, 2012). These categories are differentiated between expatriates, foreign workers, and foreign domestic workers, each of who have different immigration policies and practices. Additionally, considering that Malaysia has not ratified most of the international conventions of human rights including ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) (United Nations Human Rights Treaty Bodies, n.d.), it does not come to a surprise when the country would rather encourage discriminatory responses to different categories of migrant workers and establish the hierarchy of rights as opposed to promoting equality or even non-discrimination (Nah, 2012). Nevertheless, it is noted that there is not necessarily a ‘right’ answer when it comes to developing policies, especially in the case of migration which then deigns Malaysia’s creation of the hierarchy of rights of migrant workers acceptable should it prove to be beneficial to the country (Anderson, 2021).
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Immigration policies and practices concerning migrant workers in Malaysia are not something they apply for themselves but are usually employer-sponsored and issued against a specific job. Aside from expatriates’ migrant workers are commonly not allowed to hold these passes individually and are usually heavily monitored by their employers. ‘Legal’ migrant workers are often limited in their legality. They are restricted in their employment and mobilization and almost always ended up with more debt than they arrived in which caused them to overstay after the expiration of their work permits to pay off their debts (SOMO, 2013). This then increases the attractive ability to be an ‘illegal’ migrant worker despite the threat of deportation or being physically “expelled” from the national territory (Garcés-Mascareñas, 2015). It creates a situation where public crackdowns are implemented in order to assert visible performances of territorial sovereignty (Nah, 2012). This is done through an increase of regulation that extends the powers of law enforcement agents, with various punishments being dealt out for immigration offenses such as whipping and detention. The hierarchical structure of rights between migrants creates an experience of immigrants in Malaysia as not so much crossing the border but rather being on the outside, even when physically remaining on the inside (Garcés-Mascareñas, 2015). As such, Malaysia’s dominance of the confine upon border control signifies the high restriction of rights due to the ease of illegality crossing the border (Garcés-Mascareñas, 2015). This is because Malaysian frontiers do not work as impenetrable walls but rather are known to be susceptible to bribes, both in the Immigration Department and among officers (Anderson, 2020). In general, Malaysia has since been continuously caught in a middle-income trap due to the government’s policy of maintaining the country’s export competitiveness and basing it on cheap foreign labor and a constraint of rights (Kaur, 2014). This goes to demonstrate that the country’s struggle to maintain the hierarchical structure of migrant rights backfired in the illusion of aspiring to obtain dominance within border control.
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As stated, the hierarchy of rights for migrants includes multiple factors of class, race, and gender. In this instance, the inherent unequal gender hierarchy in migration policies is focused on due to the innate patriarchal basis already presented in the world. Especially when there is an inherent idea that domestic work is not considered ‘real’ work and reinforces the stereotype that it is a ‘natural’ work for women. These women are usually robbed and denied of their economic resources, social status, and political voice and employed under highly abusive and exploitative systems (Miles, Lewis, Teng & Yasin, 2019). Additionally, they are also identified to be husband stealers, sexually licentious women, and mere extensions of female employers (Miles, Lewis, Teng & Yasin, 2019). For example, the Indonesian government imposed a moratorium on the recruitment of domestic workers for work in Malaysia due to the fresh cases of abuse and deaths at the hands of employers in 2009 (Kaur, 2014). Moreover, under Malaysian law, female migrants are not recognized as workers and are limited to the domestic sphere to work as ‘foreign domestic helpers’ and excluded from the workers’ rights protections (McGahan, 2009). This highlights a woman’s identity as a non-citizen, of a particular ethnicity or nationality, or either considered as an irregular or undocumented peoples renders them liable to be ill-treated by society despite there being laws and regulations to prevent such abuse from happening. In spite of their massive contribution to the remittance economy, the contributions and experience of migrant women towards the development of the country are very much ‘invisibilized’, especially within the document paradigm which tends to focus on high-skilled migrants such as expatriates (Raghuram, 2009).
However, despite there being almost no justification for the hierarchical structure of rights of migrant workers so far, one could not simply ignore the economical and developmental benefits applied through said hierarchy even at the expense of their rights. In fact, despite the criticism from a substantial number of social scientists, the idea that migration is considered a key driver of development remains to be a prominent feature within the global discourses (Muniandy & Bonatti, 2014). As remittance-senders, migrants from developing nations become suitable targets for policy efforts at the regional and international levels. This furthers Malaysia’s migration policy on the hierarchy of rights in ensuring that migrants who hold ‘potential’ have more rights as compared to those who do not. Which in turn encourages the usage of migration as a source for development and capitulates the MDN (migration-development nexus) as a highly important paradigm in the field of foreign policy, despite fierce opposition from migration scholars who caution against the repercussions (Muniandy & Bonatti, 2014). This indicates that in the migration-development paradigm, migrants are tasked with improving the economic conditions of their home communities through remittance payments and therefore are not so much identified as ‘agents’ of development but more as ‘carriers’ of it (Amaya-Castro, 2012). Nevertheless, there is a clear distinction between how migrants are treated in the ‘ethnic economies’ literature and the migration and development literature (Muniandy & Bonatti, 2014). While the latter focuses primarily on migrants’ ability to fund private businesses and public growth in the sending society, the former views migrants’ agency in terms of their capability to employ a variety of talents and resources to achieve upward social mobility in the sending nation (Muniandy & Bonatti, 2014). As an example, migrant and migrant communities in Kuala Lumpur imply that even temporary migrants are key actors in urban citizenship (Muniandy & Bonatti, 2014). Having said that, the focus on a migration development paradigm transforms development into a policy instrument that justifies and facilitates global inequality where migrants become a mere number on a board for economic benefit.
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In conclusion, I believe that it is unjustifiable to maintain a hierarchy of rights for migrants from different countries and categories. Through the research, there is an understanding of why most nation states decided on this migration policy for better management and development. There are various complexities and issues within this policy structure that simply denoting it as unjustifiable might be crass. However to my understanding, there is a limit to how far that hierarchical structure could carry on, and in this instance, time has proven to be the end of this structure, where the suffering of those below the hierarchy no longer benefits the development of the country.