Globalisation, Sovereignty, and Immigration Control: The Hierarchy of Rights for Migrant Workers in...

© Koninklijke Brill NV, Leiden, 2012 DOI: 10.1163/15685314-12341244

Asian Journal of Social Science 40 (2012) 486–508 brill.com/ajss

Globalisation, Sovereignty and Immigration Control: The Hierarchy of Rights for Migrant

Workers in Malaysia

Alice M. NahCentre for Applied Human Rights, University of York

AbstractSocial theorists examining the impact of globalisation on state power argue that sovereignty is being respatialised and rescaled and that it is no longer adequate to understand state sovereignty as operating evenly on a national scale over a population within a bounded territory. Neverthe-less, ASEAN states continue to adopt such a national framing of people and place, particularly in the construction of immigration control regimes. I argue that in order to understand the localised and spatialised exercise of graduated sovereignty and the selective introduction of neoliberal practices, it is necessary to recognise the signifĳicance of the immigration status of individuals and examine how the dividing practices of immigration control regimes permit the selective alloca-tion of rights to non-citizens. This paper examines Malaysia’s approach to international labour migration, noting that it makes diffferent biopolitical investments in diffferent types of non-citizens on the basis of a calculation of their potential contribution to the ‘nation’. Malaysia cre-ates a hierarchy of rights, giving greater rights to skilled workers, while restricting those of ‘unskilled’ workers. Malaysia punishes those who breach immigration laws severely. However, Malaysia’s modernist approach to immigration control fails to achieve intended results and I highlight a number of reasons why.

Keywordsimmigration, migrant workers, Malaysia, rights, sovereignty, globalisation

Introduction1

In order to understand the nature and impact of economic globalisation on the exercise of sovereignty, social theorists have focused on neoliberalism as a

1 This paper draws upon data collected from 2008–2011 for a doctoral thesis submitted to the National University of Singapore. This larger project involved participant observation; interviews with migrants, NGO workers, employers and other stakeholders; as well as the analysis of govern-ment reports, offfĳicial speeches, media statements, newsletters, memoranda, parliament records and case law related to immigration laws, policies and practices.

A. M. Nah / Asian Journal of Social Science 40 (2012) 486–508 487

political rationality and technique of administration that transforms state-subject relations. Drawing upon Michel Foucault, Aihwa Ong defĳines neoliber-alism as “a technology of governing ‘free subjects’ that coexist with other political rationalities” (Ong, 2007: 4). In a neoliberal approach, emphasis is placed on ‘governing through freedom’ — allowing subjects the freedom to choose, while promoting self-regulation and the idea of responsibility to soci-ety. However, Ong emphasizes, in non-Western contexts, this approach to gov-ernment is applied selectively, to some populations and in some spaces and not others. Indeed, neoliberalism, Ong argues, operates precisely through recalculating and repositioning diffferent groups in relation to global market forces. While some individuals have their freedoms extended, others are kept ‘unfree’.

In her earlier work, Ong put forward the notion of graduated sovereignty, arguing that new forms of global interconnectedness and flows of capital require new understandings of sovereignty, and that states treat segments of their population diffferently in relation to the demands of global markets (Ong, 1999, 2000). As Ong explains,

. . . to remain globally competitive, the typical ASEAN state makes diffferent kinds of biopolitical investments in diffferent subject populations, privileging one gender over the other, and in certain kinds of human skills, talents, and ethnicities; it thus subjects diffferent sectors of the population to diffferent regimes of valuation and control. This unequal biopolitical investment in diffferent categories of the population results in the uneven distribution of services, care, and protection; while some subjects are invested with rights and resources, others are neglected outright. Thus, globalisation has induced a situation of graduated sovereignty, whereby even as the state maintains con-trol over its territory, it is also willing in some cases to let corporate entities set the terms for constituting and regulating some domains. Sometimes weaker and less-desirable groups are given over to the regulation of supranational entities. What results is a system of variegated citizenship in which populations subjected to diffferent regimes of value enjoy diffferent kinds of rights, discipline, caring, and security (Ong, 1999: 217).

Ong and a number of scholars who apply her work to ASEAN states argue that sovereignty is being respatialised and rescaled; that it is no longer sufffĳicient to understand state sovereignty as operating evenly on a national scale over a population within a bounded territory (Amster and Lindquist, 2005; Bunnell and Coe, 2005; Holden and Demeritt, 2008; Ong, 2006a; Sparke et al., 2004). These scholars suggest the importance of examining the particularistic strate-gies of states in producing ‘ideal subjects’ in specifĳic zones of sovereignty and the efffects of these practices in reconstituting social relations.

However, what these scholars do not address is the remarkable steadfast-ness of ASEAN states in holding onto a Westphalian notion of state sovereignty,

488 A. M. Nah / Asian Journal of Social Science 40 (2012) 486–508

in particular, when constructing immigration control regimes. In ASEAN states, immigration control regimes operate as Foucauldian dividing practices (Foucault, 1982), splintering populations into categories through which power is exercised. This national framing of population and place undergirds prac-tices of sovereignty. In order to understand the specifĳic, localised and spatia-lised exercise of graduated sovereignty, we must fĳirst recognise the signifĳicance of the immigration status of individuals and how the dividing practices of immigration control regimes permit greater freedom to some, while restricting the rights of others.

This argument runs counter to Ong’s assertion that mutations in citizenship are occurring as a response to globalisation such that “diffferent elements of citizenship (rights, entitlements, etc.), once assumed to go together, are becom-ing disarticulated from one another, and re-articulated with universalizing forces and standards” (Ong, 2006a: 499). Instead, I argue, drawing specifĳically upon the case of Malaysia, that immigration control regimes in ASEAN states continue to draw rigid distinctions: between a ‘citizen’ and ‘non-citizen’, between a ‘legal’ and ‘illegal’ person, and between diffferent categories of non-citizens. These distinctions are reifĳied through regulatory and punitive prac-tices that are increasingly biopolitical. It is precisely upon the basis of these distinctions that ASEAN states introduce neoliberal practices as exceptions to authoritarian rule (Ong, 2006b).

In this paper, I focus on Malaysia’s approach to international labour migra-tion. Malaysia hosts the largest number of non-citizens in Southeast Asia. It is a destination for work, tourism, education and asylum, as well as a place of transit to other regions in the world. Millions of non-citizens travel in and through Malaysia every year. In 2010 alone, it received 24,577,000 tourists (See, 2011).2 It also hosts around 3–4 million migrant workers, over 100,000 asylum seekers, refugees and stateless persons, an estimated 88,000 foreign spouses, 86,000 international students, and over 370,000 permanent residents. It is amongst the top 15 percent of countries with the highest numbers of inter-national migrants in the world.3

I argue that Malaysia adopts a modernist approach to immigration control, fragmenting migrant workers into diffferent categories on the basis of a calcula-tion of their potential economic contribution to the ‘nation’. Malaysia creates

2 In 2009, 23.65 million tourists contributed RM53.4 billion to the economy. Malaysia has plans to increase its number of tourists to 36 million and its tourist receipts to RM168 billion by 2020 (Bernama, 2010).

3 In 2005, the UN Population Division ranked it as the 26th country with the highest number of migrants in the world, based on offfĳicial statistics. However, if irregular migrants were included, it would be ranked 12th or 13th (Ratha and Xu, 2008).


a hierarchy of rights and freedoms, giving greater rights and permitting higher levels of integration to non-citizens with greater ‘potential’, while giving fewer rights and limiting the integration of those with less ‘potential’. Malaysia cre-ates this hierarchy in order to achieve two competing aims — to attract global capital and to allay the nationalistic concerns of citizens. Malaysia use difffer-ent techniques of power — sovereign, disciplinary and governmental — over non-citizens to keep them ‘in place’ (Nah, 2012).4

The strategic assignment of rights is clearly illustrated in recent changes to Malaysia’s policies on skilled workers. Concerned about its competitiveness in relation to foreign direct investment, it has been focusing on building a tal-ented workforce, a gap in resource made more pressing with the emigration of Malaysians.5 To address this gap, as I elaborate later, it has been easing the recruitment of expatriates and increasing their rights, granting permission to work to other groups of non-citizens with ‘potential talent’, and liberalising access to permanent residence for skilled workers.

Malaysia takes a very diffferent approach to semi-skilled or ‘unskilled’ work-ers. In contrast to Ong’s assertion that states neglect or cede control over less-desirable segments of the population to global corporations, Malaysia increases the regulation of these segments of non-citizens and weakens their position in order to maintain flexibility of control. It involves employers in the detailed regulation of foreign workers, holding them responsible for their recruitment and care. It enables employers to have the immigration passes of their foreign workers cancelled unilaterally. In so doing, the state delegates disciplinary power to employers. These effforts to regulate foreign workers would be for naught if Malaysia did not enforce its rules. It does so by conducting ‘national crackdowns’ and increasing the punishment of ‘illegal immigrants’ (pendatang tanpa izin). Sovereign power complements and allows for the exercise of disci-plinary power.

By restricting the rights and freedoms of foreign workers, the state is able to maintain flexibility of control. It enables itself to ‘dispose’ of surplus labour easily in times of economic downturn and to increase its stocks of labour quickly in prosperous times, while preventing longer-term integration. Non-citizens are marginalised in national narratives of success and become conve-nient scapegoats for societal problems (Dannecker, 2005).

Immigration control regimes based on a national framing of people and place and on an outdated modernist logic of categorisation, separation and

4 An elaboration of Foucault’s ideas on these techniques of power can be found in Dean (2010) and Foucault (1980, 1990, 2007, 2008).

5 In a report released in April 2011, the World Bank estimated that of the one million Malay-sians abroad, a third were skilled and contributed to a ‘brain drain’ (World Bank, 2011).


fĳixity have a high propensity for failure (see also Castles, 2004). In this paper, I discuss some reasons for such failure — rigidity and inflexibility in the immi-gration control system; the lack of attention to the institutions, processes and actors that stimulate irregular migration; and corruption in administration. These not only disrupt the neat categorisation of non-citizens, they prevent states from reaching their policy objectives. In spite of these failures, the Malaysian state persists in its modernist approach, guided by its national imag-ining of territorial sovereignty.

In the next section of the paper, I provide a brief background to Malaysia’s policies on international labour migration. I then review Malaysia’s approach to regulating migrant workers, highlighting the hierarchy of rights it creates through its immigration control regime. This is a followed by an examination of Malaysia’s recent attempts to build a pool of talent in Malaysia, which focus on increasing the rights of skilled workers. I then show how Malaysia has ben-efĳited from restricting the rights of foreign workers, drawing on employers as agents of regulation. I then look at Malaysia’s punishment of transgressors — specifĳically, its treatment of irregular migrants. Finally, I discuss some reasons why Malaysia’s immigration control regime fails to achieve its desired objectives.

International Labour Migration in Malaysia

Contemporary policies concerning the management of international labour migration in Malaysia can be traced back to the 1970s, when the demand for cheap labour grew signifĳicantly as a result of government effforts to restructure the economy (Pillai, 1999; Lim, 1988). Acute labour shortages in key economic sectors, such as plantation, manufacturing and construction, prompted an inflow of migrant workers, primarily from southern Thailand, Indonesia and the Philippines. The government tacitly approved of this, as it served to reduce the pressure on real wages, as well as to fĳill gaps in labour supply ( Jomo, 1988; Jones, 2000).

In the 1980s, the government began authorising large-scale recruitment of foreign workers from surrounding countries, beginning with Indonesia, the Philippines, Thailand, Bangladesh, India and Pakistan. The supply of cheap labour allowed employers to keep wages low and to remain competitive. In the mid-1980s, the Ministry of Human Resources estimated the presence of over 500,000 foreign workers, most of whom were employed in the plantation and construction sectors (Pillai, 1999). It was also in this period that the govern-ment began regulating the entry, exit and employment of foreign workers more deliberately. Malaysia signed the Medan Agreement with Indonesia in


1984, its fĳirst bilateral agreement with a sending country aimed at regularising the recruitment of foreign workers and reducing irregular movement.6 By the 1980s, Malaysia was classifĳied as an upper middle-income country (Fiske, 1982). Between 1987–1993, Malaysia transitioned from being a net labour exporter to a signifĳicant net labour importer (Lim, 1996).

In 1991, the Malaysian government introduced the Comprehensive Policy on the Recruitment of Foreign Workers as a temporary measure to overcome labour shortages. The Ministry of Human Resources expected the domestic workforce to grow enough to meet labour demands (Rohaizad, 1991). Actual numbers of foreign workers in Malaysia have fluctuated signifĳicantly over the years, as a result of policy changes. In 2010, there were 1.9 million authorised foreign workers employed in manufacturing (39 percent), construction (19 per-cent), plantations (14 percent), domestic work (12 percent), services (10 per-cent) and agriculture (6 percent) (Asrul Hadi, 2010). Most of these workers originated from Indonesia (50.9 percent), Bangladesh (17.4 percent), Nepal (9.7 percent), Burma (Myanmar) (7.8 percent) and India (6.3 percent). In addi-tion to this, there are an estimated 2 migrants with irregular status (Palani, 2011; Allard, 2011).

Since the 1970s, the government has also permitted the placement of expa-triates in Malaysia as an incentive for foreign direct investment and to facili-tate the training of Malaysian citizens. From 3,000–4,000 expatriates a year in the 1970s (Lim 1988), numbers rose to over 32,600 in 2006 with the top fĳive countries of origin being India (28.2 percent), Japan (14.8 percent), China (15.1 percent), the United Kingdom (8.6 percent) and Singapore (6.7 percent) (Kanapathy, 2008). The World Bank noted the presence of 32,583 expatriates in West Malaysia in 2010 (World Bank, 2011).

The government has been ambivalent about the presence of large numbers of migrant workers in Malaysia. It views them, in particular the signifĳicant Indonesian communities, as potential threats to national security (Liow, 2003). It has long been concerned about the dependence of the Malaysian economy on foreign labour, a problem it recognised as early as the 1990s. Compared to other countries in East Asia and Southeast Asia, Malaysia has the highest rate of reliance on foreign labour (Athukorala, 2006). Migrant workers also remit large amounts of money to their home countries.7 Last but not least, it has also

6 However, this agreement was inefffective at reducing irregular migration and was replaced with another bilateral agreement in 1988 (Government of Malaysia, 2006; Vohrah et al., 2004).

7 In 2006, Malaysia was the 10th highest remittance-sending country in the world, with out-ward remittances of more than US$ 5,560 million (Ratha and Xu, 2008). This amount includes unrecorded flows through formal and informal channels estimated by the Statistics Department.


been concerned about the impact of international labour migration on unem-ployment amongst citizens, particularly in periods of economic recession.

As a result of these concerns, the Malaysian government has adopted a pol-icy of temporary labour migration for over three decades, allowing the recruit-ment of migrant workers for time-limited periods. It has set a target of reducing overall numbers foreign workers to 1.5 million by 2015 (Agence France Presse, 2008). Only recently has it changed its approach towards skilled workers, open-ing up prospects for their longer-term integration in Malaysia (further elabo-rated below).

Regulating Migrant Workers: Creating a Hierarchy of Rights

The Immigration Department issues diffferent types of immigration passes to non-citizens depending on their reasons for entering and residing in Malaysia. Immigration policies and practices concerning migrant workers clearly difffer-entiate between expatriates (pegawai dagang), foreign workers ( pekerja asing) and foreign domestic workers (or foreign domestic helpers, pembantu rumah). Migrant workers do not apply for and hold these passes independently; their passes are employer-sponsored and issued against a specifĳic job.8 Employers must gain approval in advance to hire migrant workers and pay an annual for-eign levy of between RM 360 and RM 1,800 per worker.

Expatriates

The government regulates the employment of expatriates strictly. It allows foreign-owned private companies to place expatriates in ‘key posts’ — senior management positions which are permanently fĳilled by foreigners — in order to allow companies to “safeguard their interests and investments” (Malaysian Investment Development Authority, 2012). It also permits companies to hire expatriates to fĳill time-limited ‘executive’ (professional and middle manage-ment) and ‘non-executive’ (technical) positions where there is a shortage of trained workers.

In order to employ expatriates, companies must meet the requirement for paid-up capital — set at RM 250,000 for companies wholly owned by Malay-sians, RM 350,000 for companies jointly owned by foreigners and locals, and RM 500,000 for companies fully owned by foreigners. Only companies with for-eign capital of at least RM 500,000 are allowed to hire expatriates into key posts

8 The exceptions are skilled workers who qualify for a Residence Pass or for permanent resi-dence status, further elaborated below.


(Immigration Department Malaysia, 2011). Permission to hire a foreigner is contingent on the availability of local human resources. There are some posi-tions which expatriates are not allowed to fĳill — primarily supervisory, operator and technician positions in the manufacturing and constructing industries.

Expatriates with a contract of at least two years and with a salary of RM 5,000 a month or more are issued with an Employment Pass; those with smaller salaries and/or shorter contracts are issued a Visit Pass for Temporary Employ-ment (Pas Lawatan Kerja Sementara). Expatriates are allowed to work in Malaysia for up to ten years in key posts and executive posts, and for up to fĳive years in non-executive posts. They have the right to work, reside, marry and have their families with them,9 as well as to leave and re-enter Malaysia freely on their immigration passes. Spouses of expatriates on the Dependent Passes are allowed to work (PEMUDAH, 2010b).

Expatriates on Employment Passes and the Visit Pass for Temporary Employ-ment face a number of restrictions compared to non-citizens with permanent residence status. They are only allowed to acquire certain types of property with special permission. They need an employer as a sponsor for their immi-gration pass. They cannot change jobs without the permission of the Immigra-tion Department; if they do so, they must observe a three-month ‘cooling offf ’ period during which they cannot work. Their residence in Malaysia cannot count towards an application for citizenship as they are on time-limited immi-gration passes. However, they can apply for permanent residence after fĳive years of residence in Malaysia and citizenship after ten years of residence as a permanent resident.

Foreign Workers

The Malaysian government also regulates the recruitment of foreign workers strictly. In contrast to expatriates, ‘foreign workers’ are those who occupy semi-skilled or unskilled positions. Employers are only allowed to recruit individuals of specifĳic nationalities as foreign workers, and they are only permitted to work in specifĳic sectors, namely manufacturing, plantation, agriculture, construc-tion and services.10 Foreign workers must be aged 18–45 years and must earn salaries of less than RM 1,200 a month. Foreign workers are allowed to work for up to fĳive years, after which they must pass a skills test in order to stay on as a

9 Expatriates on Employment Passes are allowed to bring family members into Malaysia on Dependent Passes and Social Visit Passes, while those on the Visit Pass for Temporary Employ-ment can bring in family members on Long Term Social Visit Passes.

10 Exceptions are made for Thai cooks and rubber tappers who work in the Northern and East Coast states, who do not need these approvals.


skilled worker. Foreign domestic workers must be females,11 aged between 21–45 years and of the approved nationality (Immigration Department Malaysia, 2010b).

Employers are expected fĳind their own workers, a process referred to as ‘direct recruitment’; they are not permitted to use agents. Before coming to Malaysia, prospective foreign workers have to pass a comprehensive medical examination in an accredited clinic and complete an induction course run by authorised training providers. Upon arrival in Malaysia, they are required to undergo and pass a second medical examination at a clinic or health centre registered with the Foreign Workers Medical Examination Monitoring Agency (Fomema Sdn Bhd). They must be certifĳied medically fĳit and free of communi-cable diseases — and, for women, not pregnant — in order to have their immi-gration passes renewed. The Visit Pass for Temporary Employment is issued for three years and can be renewed on a yearly basis for another two years. For extensions into the second and third year, foreign workers must undergo another Fomema-approved medical examination. For extensions beyond fĳive years, foreign workers have to pass an accredited skills test.

The government holds employers “responsible and accountable for the behaviour and action of the foreign workers under [their] employment” (Ministry of Human Resources Malaysia, 2008). They are responsible for pro-viding foreign workers with adequate housing, healthcare, food and rest; for paying their workers on time; and for ensuring that their passes are renewed in a timely manner. In practice, employers keep the passports of foreign workers, even though this is contrary to the Passport Act 1966. The employer is respon-sible for reporting a foreign worker who absconds.

Foreign workers enjoy fewer rights than expatriates and skilled workers with permanent resident status. While most expatriates hold Employment Passes that permit transfer between jobs after a ‘cooling offf’ period, in practice, foreign workers cannot change jobs. They are not allowed to marry or to have their families with them. They cannot acquire property in Malaysia. They are also not permitted to leave and re-enter Malaysia freely on their immigration passes. They cannot apply for permanent resident status. Employers can apply for their immigration passes to be cancelled unilaterally, thus rendering them without legal status in Malaysia and subject to deportation.

11 Applications for male domestic workers can also be made at the Immigration Department if employers have a child or parent that is ill and requires intensive care (Ministry of Home Afffairs Malaysia, 2010).


Skilled Workers: Building a Pool of Talent in Malaysia12

In its 10th Malaysia Plan for the period 2011–2015, the government recognised that previously successful economic strategies — of maintaining a low-cost base and adopting factor-driven growth — are no longer sufffĳicient for future economic growth (The Economic Planning Unit Malaysia, 2010). It highlighted the imperative of shifting to higher value-added, as well as knowledge-inten-sive, activities in order for Malaysia to transition from a middle- to high-income country. Concerned about avoiding the ‘middle income trap’ — that is, “being neither a low cost imitator nor a high value add innovator” (The Economic Planning Unit Malaysia, 2010: 3) — it acknowledged that one of the key challenges in executing this new growth strategy was the lack of availabil-ity of a skilled workforce. It has been undertaking a number of initiatives to address this.

Firstly, it has eased the recruitment of expatriates and increased their rights. In February 2007, the government set up a Special Taskforce to Facilitate Business (Pasukan Petugas Khas Pemudahcara Perniagaan, PEMUDAH) com-prising private and public sector members, in order to improve the delivery of public services. Since its inception, PEMUDAH has introduced a number of improvements with regard to the employment of expatriates, such as produc-ing a Guidebook on Employment of Expatriates (Government of Malaysia, 2007) and worked with the Immigration Department to defĳine the term ‘skilled worker’. It has also influenced the government to extend the length of time of Employment Passes from two to fĳive years per renewal, to process expatriate applications within seven days,13 and to allow the spouses of expatriates to work on Dependent Passes. These changes have made the application process for expatriates easier and also improved the quality of life of expatriates and their families.

In addition, in April 2011, the Malaysian government launched the Residence Pass initiative, “to attract top foreign talent and highly skilled foreign profes-sionals, who can contribute to the Government’s effforts to develop Malaysia into a high-income economy by 2020, in line with the Economic Transforma-tion Programme (ETP)” (TalentCorp, 2012). Highly qualifĳied expatriates who have lived and worked in Malaysia for at least three years on a continuous basis

12 The government is also undertaking a number of other initiatives targeting Malaysian citi-zens, such as investing in education and training initiatives (Fleming and Søborg, 2010) and pro-moting the return migration of Malaysians abroad (Hugo, 2011).

13 According to PEMUDAH: “With PEMUDAH’s intervention, there has been not only reduc-tion in processing time but also improvement in the approval process. In 2008, 97 per cent of the applications were processed within 7 days. In addition, a total of 30,321 passes were issued by the IMI, of which 86 per cent were processed within 3 days” (PEMUDAH, 2010b).


qualify for a Residence Pass. They are required to submit an application to the Residence Pass Panel, which prioritises those with potential to contribute to National Key Economic Areas (NKEAs), as well as to the aeronautics and bio-technology sectors (TalentCorp, 2011).14 Holders of the Residence Pass have more rights than those of Employment Passes. Residence Passes are issued to the holder (rather than the employer) and thus they have the freedom to change employers. Their spouses and children can also obtain a Residence Pass, which grants them the right to work and to study in Malaysia. However, the Residence Pass neither provides permanent resident status, nor the right to citizenship. As of 1 November 2011, more than 300 foreigners have had their applications for the Residence Pass approved (Teoh, 2011).

Aside from easing procedures for the recruitment of expatriates, the govern-ment has also been enabling other groups of non-citizens already residing in Malaysia to work. Since November 2008, foreign spouses on Long Term Social Visit Passes (LTSVPs) have been allowed to work without having to convert their passes to Employment Passes. This initiative was introduced “in line with the Malaysian Government’s policy to attract highly skilled, knowledgeable and talented foreign workers to the country” (PEMUDAH, 2010a).15 Around 87,830 foreign spouses, the number of people issued LTSVPs in 2010, stand to benefĳit from this provision (Immigration Department Malaysia, 2010c). Simi-larly, in 2009, the government also allowed non-citizens under the Malaysia My Second Home (MM2H) long-stay tourism programme to work part-time.16 From 2002 to February 2011, there were 15,316 participants on this programme, the highest numbers from China (2,522), Bangladesh (1,867), United Kingdom (1,685) and Japan (1,269) (Malaysia My Second Home, 2011). In 2009, this scheme was amended so that participants “aged 50 and above with specialized skills and expertise that are required in the critical sectors of the economy, are allowed to work not more than 20 hours per week” (Malaysia My Second Home, 2010).17

14 The government has identifĳied 12 NKEAs, namely: oil and gas; palm oil and related products; fĳinancial services; wholesale and retail; tourism; information and communications technology; education services; electrical and electronics; business services; private healthcare; agriculture; and Greater Kuala Lumpur (Najib, 2010: 39–40).

15 Pursuant to Malaysian Immigration Circular No. 31/2008.16 Introduced in 2002 by the Ministry of Tourism, MM2H is an initiative in which non-citizens

with sufffĳicient liquid assets and offfshore income are permitted to stay in Malaysia on ten-year multiple-entry Social Visit Passes. For more information on the programme, see Ministry of Tour-ism Malaysia, 2012. MM2H replaced the relatively unsuccessful Silver Hair Programme launched in 1988 (Chee, 2007; Ono, 2008). The validity period of the Pass depends on the validity period of passports. There are cases where MM2M holders have overstayed in Malaysia accidentally and had to pay a compound free.

17 Pursuant to Malaysian Immigration Circular No. 6/2009.


Finally, the government has also started to increase access to permanent residence for skilled workers, which it has controlled strictly since the late 1980s.18 For years, those who made applications for permanent residence sta-tus complained of long delays in decisions, sometimes for more than a decade.19 In 2009, however, the Ministry of Home Afffairs (MOHA) was set the task of accelerating the processing of approving permanent resident applications. In July 2009, the Ministry reported that it had received 34,523 applications for permanent residence between 2001 and 2008, of which it had approved 19,728 (57.1 percent), rejected 9,496 (27.5 percent) and were still processing 5,299 applications (15.3 percent) (Bernama, 2009).20

In his 2010 Budget Speech delivered before Parliament on 23 October 2009, Prime Minister Najib Tun Abdul Razak noted that in order to provide a “more conducive business environment” and to “create a more market-oriented economy”:

Concerted effforts to attract highly talented and skilled individuals from abroad are critical. Towards this, the Government will simplify the granting of Permanent Resi-dent (PR) Status to highly talented and skilled individuals to accelerate technology transfers and the transformation process. In addition, visas will be automatically granted to working and dependent expatriate family members within 14 days. PR sta-tus will also be extended to foreign men married to Malaysian women (Najib, 2009: 8).

There are now a number of ways that skilled non-citizens can obtain perma-nent residence status in Malaysia — as a ‘high net worth individual’ (an indi-vidual investor with at least US$ 2 million fĳixed deposit in Malaysia), an ‘expert’, a ‘professional’ or by way of application through a points-based system (Immi-gration Department Malaysia, 2010a). Foreign spouses of Malaysian citizens can also apply on the basis of their marriage to a citizen. Skilled workers now have stronger prospects for longer-term integration in Malaysia.

18 Although permanent residents from Indonesia gained permanent resident status very eas-ily in the 1970s and 1980s (typically within 3–6 months), this practice ended in 1989 when state policy shifted to legalise irregular migrants (Wong, 2010).

19 Bina Ramanand, pers. comm. 21 January 2009; Asha Lim, pers. comm. 4 October 2010.20 Of the 9,468 appeal cases referred to the Home Minister, 2,333 (24.6 percent) were approved,

3,370 rejected (35.6 percent), and 3,765 (39.8 percent) were being processed. In total, therefore, of the PR applications received between 2001 and 2008, 63.9 percent were accepted at fĳirst instance and upon appeal, while 37.3 percent were rejected and 26.3 percent remained outstanding.


Foreign Workers: Maintaining Temporary Status

Malaysia’s effforts to woo skilled workers stand in sharp contrast with its man-agement of foreign workers. As stated earlier, Malaysia restricts the rights of foreign workers, keeping them on time-limited immigration passes with no prospects for permanent residence status or citizenship. The Immigration Act 1959/63 permits the Director of Immigration to cancel immigration passes at will, decisions which cannot be subject to judicial review except on procedural grounds (Section 59A(1)). This provides the government with great flexibility in issuing and cancelling immigration passes.

Malaysia’s view of foreign workers as a disposable, temporary workforce to supplement local labour is particularly evident during times of economic downturn. In the Asian Financial Crisis of 1997–1998 and the global recession of 2008–2009, for example, the Malaysian government engaged in the large-scale repatriation of foreign workers as a measure to address unemployment amongst citizens. In 1998, the government amended the Employment Act 1955 to prohibit employers from terminating the contract of a local employee for the purpose of hiring a foreign employee (Article 60M).21 It required that employers fĳirst terminate the services of all foreign employees before terminating the employment of local employees in response to redundancy (Article 60N). That year, the number of foreign workers dropped from 1,471,645 in 1997 to 1,127,652 (Azizah, 2001). In April alone, the number of authorized foreign workers reduced dramatically from 1,033,497 to 713,821 as a result of voluntary departures and repatriation (Scalabrini Migration Center, 2009). In the 2008–2009 crisis, the Malaysian government encouraged employers to adopt a ‘Foreign Workers First Out’ policy, eventually repatriating around 700,000 workers.22

Employers also have fĳirm control over the legal status of migrant workers. Only employers can apply for the renewal of immigration passes, migrant workers cannot. As such, migrant workers are dependent on the goodwill of their employers. The frequency of the renewals required — every year for for-eign workers and foreign domestic workers — has had an impact on their level of docility. There are a number of cases where employers have cancelled the immigration passes of foreign workers when the latter raised complaints.23 The sponsorship-based immigration system thus confĳigures the relationship

21 Employment (Amendment) Act 1998, Act A1026.22 Bardan, Shamsuddin. Interview by author, 8 March 2010.23 Sandanasamy, Florida, legal aid offfĳicer with a migrant rights NGO. Interview by author,

6 February 2010; Xavier, Joachim, legal aid offfĳicer with a faith-based group. Interview by author, 4 March 2010.


between employers and migrant workers, allowing the former to exercise del-egated state power over the latter.

As stated earlier, the government has been concerned about the impact of large numbers of migrant workers in Malaysia. It has tried to implement a number of initiatives to reduce Malaysia’s reliance on foreign labour. Firstly, in 2009 and 2011, it proposed to increase the amount of levy charged for each migrant worker. Firm resistance by employers, however, forced them to aban-don these plans. Secondly, the government tried to encourage employers to raise wages and to improve conditions of work in order to attract Malaysian workers. Offfĳicially, employers are not allowed to discriminate between locals and foreign workers in relation to wages and terms and conditions of services (Ministry of Human Resources Malaysia, 2008). However, in spite of the incen-tives offfered to local workers, Malaysians are still reluctant to take on some jobs and serious labour shortages remain.24 In short, attempts to reduce for-eign labour dependency have not been successful.

Irregular Migrant Workers: Punishing Transgressors

Effforts to control irregular migrants have worked in tandem with the govern-ment’s initiatives to regulate authorised migrant workers. Soon after the Malaysian government signed the 1984 Medan Agreement with the Indonesian government, to promote the authorised movements of Indonesian foreign workers into Malaysia and to reduce irregular migration, the Home Afffairs Minister launched a national campaign against irregular immigrants (Azizah, 1987). In 1985, the government deported 19,644 migrants, of whom 12,582 were Indonesians (Jones, 2000).25 In 1992, the government launched Ops Nyah I and Ops Nyah II, the former focusing on strengthening border patrols and the latter focusing on inland immigration operations. Under Ops Nyah II, the Immigra-tion Department arrested 54,155 migrants between July 1992 and December 1993 (Migration News, 1994). Public crackdowns were initiated again in 1995, 1997/8, 2002, and 2005.

The Malaysian Volunteer Corps (Ikatan Relawan Rakyat, RELA), a paramili-tary civilian volunteer organisation established in 1972 and authorised to arrest irregular migrants, has been the most controversial group. Since 2005, when RELA volunteers were given these powers,26 RELA has been on an active recruitment drive. As of 31 January 2011, it had 2,593,263 registered members

24 Bardan, Shamsuddin. Interview by author, 8 March 2010.25 In contrast, as Jones notes, only 2,910 Indonesians were deported three years earlier.26 Pursuant to the Essential (Ikatan Relawan Rakyat) (Amendment) Regulations 2005.


(Ministry of Home Afffairs Malaysia, 2011a). From 1 March 2005 to 31 December 2009, RELA personnel arrested 111,852 immigrants, of whom 43,052 were in Selangor, 24,361 in Perak, and 24,361 in Kuala Lumpur (Ministry of Home Afffairs Malaysia, 2011b). There have been many complaints about the way that RELA conduct raids, with reports of them destroying valid identity documents and using unnecessary violence. Non-citizens have reported extortion, stealing and manhandling during arrests (Migrant Rights International and Migrant Forum in Asia, 2008). Between 2005–2008, the Immigration Department detained 216,373 persons (with the assistance of RELA), of whom it had deported 191,583 by 2009, the largest numbers back to Indonesia (104,026), Philippines (32,687), Burma (18,986), Bangladesh (14,433) and Thailand (9,481) (Lee, 2009).

The most recent exercise to address irregular migration was launched in July 2011, and is ongoing at time of writing. Referred to as the ‘6P programme’, this exercises involves six stages of activity — registration ( pendaftaran), legal-isation ( pemutihan), amnesty ( pengampunan), supervision ( pemantauan), enforcement ( penguatkuasaan) and deportation ( pengusiran). Registration under the 6P includes the biometric capture of the information of both docu-mented and irregular migrants. The fĳirst stage of the 6P programme, registra-tion, was implemented between July and August 2011. During this period, the government registered 2,320,034 migrants (Mazlinda and Rahman, 2011), of whom an estimated one million had legal status while 1.3 million were undocu-mented (Bernama, 2011b).27 The government will embark on the fĳifth stage of the programme, namely enforcement, in mid-April 2012.

Public crackdowns are visible performances of territorial sovereignty (Nah, 2011; Hedman, 2008). Over the years, they have been strengthened by changes in legislation that extend the powers of law enforcement agents and increase the punishments meted out for immigration offfences. In 2002, the Immigration Act was amended, introducing whipping of between one to six strokes for those who enter Malaysia illegally (Section 6(3), Immigration Act) as well for those who employ more than fĳive non-citizens without a valid Pass (Section 55B(1,3)).28 Between 2002 and 2008, 34,923 non-citizens were whipped for immigration offfences, of whom 60.2 percent were from Indonesia, 14.1 per-cent from the Philippines, 13.9 percent from Burma, 3.6 percent from Bangla-desh, 2.8 percent from Thailand and 5.4 percent from other countries (Dewan Rakyat, 2009). Lawyers advocating for migrants and refugees in magistrates courts and sessions courts at immigration detention depots observed an

27 These fĳigures do not include refugees, who also registered themselves in this programme (Bernama, 2011b). Of the number of irregular migrants, 62,156 were aged 18 and below (Azril, 2011).

28 Immigration (Amendment) Act 2002 (Act A1154).


increase in whipping being meted out as a form of punishment (Koya, 2007). Amnesty International (2010) describes the practice of judicial whipping as follows:

Across Malaysia, government offfĳicials regularly tear into the flesh of prisoners with rattan canes (rotan) travelling up to 160 kilometres per hour. The cane shreds the vic-tim’s naked skin, turns the fatty tissue into pulp, and leaves permanent scars that extend all the way to muscle fĳibres. Blood and flesh splash offf the victim’s body, often accompanied by urine and faeces. This gruesome spectacle is kept hidden from public view.

The pain inflicted by caning is so severe that victims often lose consciousness as a result. Afterwards the sufffering can last for weeks or even years, both in terms of phys-ical disabilities and psychological trauma. As a punishment that intentionally inflicts severe pain and trauma, caning violates the absolute prohibition against torture and ill treatment under international law (Amnesty International, 2010: 5).

The Failure of Categories

As outlined above, Malaysia’s immigration control regime relies upon the strict categorisation and separation of non-citizens. However, such ‘state simplica-tion’ (Scott, 1999) fails to capture the realities experienced by non-citizens and the complexities of cross-border flows. As a result, non-citizens slip in and out of immigration categories, and millions reside in Malaysia without legal status. Not only is this a constant source of frustration for bureaucrats, it increases signifĳicantly the vulnerability of non-citizens. Why does Malaysia immigration control regime fail to achieve desired results?

First, this national framing does not account for a number of non-citizens who have diffferent and valid reasons for entering and residing in Malaysia. For example, Malaysia does not provide status for asylum seekers, refugees, state-less persons and those in need of humanitarian assistance.29 As mentioned above, it also does not recognise the status of the families of almost two million registered foreign workers. These groups of migrants are forced to choose between entering and residing in Malaysia illegally or entering on diffferent types of visas (e.g., as a tourist, student or migrant worker). Those who take the latter approach often ‘overstay’, thus losing their immigration status.

Second, the rigidity and inflexibility of the employer-sponsored work pass system is a cause for failure in immigration control. The work pass system does

29 For further elaboration on the status of asylum seekers, refugees and stateless persons in Malaysia and the implications of Malaysia’s failure to incorporate them into its formal regime, see Nah (forthcoming, 2011, 2010) and Hedman (2008).


not allow migrant workers to move freely between jobs. Migrant workers who use legal channels often have to pay large sums of money to agents and often arrive in Malaysia saddled with heavy debt. Those who sufffer from rights abuses are either forced to opt for voluntary return, stay in exploitative jobs or run away. Desperate to recoup their losses and to pay offf debts, many end up working illegally in Malaysia (Ahsan Ullah, 2009; Benjamin, 2010).

Matters are not helped by the existence of poor avenues for justice for non-citizens (Nah, forthcoming; Santhiago, 2011; Tenaganita, 2003). In addition to those exploited at work, victims of fraud and trafffĳicking have no efffective way of seeking redress for wrongs. Migrant workers are often left in a quandary, working without documents until they save up enough money to return home (Ahsan Ullah, 2009; Jones, 2000). The Immigration Act prevents the judicial review of immigration decisions on procedural grounds. The judiciary has also been inefffective at supervising the exercise of power by immigration offfĳicers and at prompting immigration reform.

Fourth, Malaysia’s immigration control regime is concerned primarily about ensuring that non-citizens meet the requirements for legal entry and with pun-ishing those whose do not. Insufffĳicient attention is paid to the institutions, processes and actors that cause, stimulate and contribute to irregular migration. Malaysia’s primary objects of surveillance and discipline are non-citizens — comparatively fewer resources are dedicated to dismantling smuggling net-works, prosecuting recruitment agents who cheat migrants, addressing cor-ruption in immigration bureaucracy, and clamping down on the production of fake documents which lead to migrants being in an irregular situation. Numer-ous studies indicate that such malpractice is extensive and that non-citizens, unable to rely on state protection, have had to develop individualised coping strategies (Ahsan Ullah, 2009; Ishida and Shahid Hassan, 2000; Lê, 2010; Jones, 2000).

Fifth, the decision-making power held by immigration offfĳicials, coupled with the lack of transparency in process, creates conditions for corruption. Immigration offfĳicers have also been arrested and convicted for receiving bribes for a variety of reasons, including allowing irregular entry into Malaysia (Siti Nursuraya, 2010) and extending social visit passes (Mageswari, 2010). The Selangor branch of the Malaysian Anti-Corruption Commission (MACC) esti-mates that since 2009 between 1,000 and 1,500 migrants enter Malaysia daily through irregular routes, with around 35 percent of them giving bribes of between RM 70–100 to avoid going through proper immigration procedures (Bernama, 2011a; Malaysian Anti-Corruption Commission, 2011: 35). MACC arrested 11 Immigration offfĳicers in 2010, with RM 231,608.36 in cash and saving


accounts, as well as assets worth RM 117,400. Corruption amongst immigration offfĳicers subverts Malaysia’s policy goals for immigration control.30

Conclusion

In order to ensure high economic growth, Malaysia has had to rely on migrant workers, both ‘skilled’ and ‘unskilled’, since the 1970s. Over the past three decades, the Malaysian economy has become highly dependent on foreign labour, a matter the state is keen to rectify. In this paper, I have focused on how Malaysia makes diffferent biopolitical investments in diffferent types of migrant workers on the basis of their potential contribution to the nation. I point out that it assigns rights strategically, granting more rights to skilled non-citizens in order to build a pool of talent in Malaysia while restricting the rights of for-eign workers in order to keep them transient. It only permits foreign workers to work in Malaysia on time-limited immigration passes for a limited number of years. It holds the power to cancel their immigration passes at any time.

Malaysia has also been taking fĳirm steps to curtail irregular migration, pun-ishing severely those who commit immigration offfences. These diffferent responses to diffferent categories of migrant workers create a hierarchy of rights, rather than promoting equality or non-discrimination. This is a direct result of the government’s attempts to reposition itself favourably in relation to global capital, while allaying the concerns of citizens. In doing so, it hopes to achieve Vision 2020, making Malaysia a high-income country.

In summary, in order to understand the efffects of globalisation on the spa-tialised, graduated exercise of state sovereignty, it is necessary to consider how the state conceptualises the place of non-citizens in society and how it opera-tionalises this imagination through its laws, policies and practices on immigra-tion control. ASEAN states remain wedded to the national framing of people and place. Their immigration control regimes operate through the categorisa-tion and separation of populations. Through these dividing practices, they are able to introduce rights and freedoms for some non-citizens while restricting those of others.

An inflexible immigration control regime based upon a modernist, national framing of people and place rather than a consideration of the complexities of migration, the changing motivations and needs of migrants, and the

30 Ironically, however, corruption provides interstices in the immigration control regime that help asylum seekers and refugees survive in Malaysia and avoid the brutal punishment meted to irregular migrants (Nah, forthcoming).


interconnections of diffferent immigration regimes, has a high propensity for failure. Such failure has not only been the source of great frustration for the Malaysian government, they have resulted in signifĳicant vulnerabilities for a large number of non-citizens in Malaysia.

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