This still haunts the Philippines, as it hosts the 50th year celebrations of the ASEAN in 2017, which also coincides with the 10th year anniversary of the declaration. The country, as a major labor sending state, is one of the key proponents of the instrument, as well as of migrant workers’ rights regionally and globally.
For the longest time, intra-ASEAN migration has been on the upswing. In 2012, it generated close to US$40 billion in remittances for the whole region.
But in ASEAN, where consensus is king, there has been a deadlock between receiving states – Malaysia and Singapore – and sending states – Indonesia and the Philippines – on the creation of a legally binding framework. It is complicated. Aside from countries’ differing agenda, ASEAN member-states have varying and inconsistent laws on labor and migration.
For this year, the Philippines chose the theme, “Partnering for Change, Engaging the World.” As host, the country has the power to steer the agenda in the direction they desire.
Philippine President Rodrigo Duterte said 2017 would be the year for a “people-centered” and “people-oriented” ASEAN, touching on the protection of labor migrants.
It was the Philippines, as chair of ASEAN 2007, which pushed for the adoption of the declaration. This year, the country is taking ownership of the issue, as it is still doing the same for the creation of an instrument. The question, however, remains: Will it be a legally binding one, like a treaty, or just a mere guideline to follow?
A legally binding instrument, aside from being obligatory, would put in place redress or dispute mechanisms for migrant workers in the region.
“There is an ASEAN protocol dispute settlement that will allow certain dispute settlement measures to kick in once we agree that the instrument is legally binding, for instance arbitration,” Cacdac said.
“I don’t think it will take away exploitation and abuse but the workers will have at least redress. They would know what their rights are in the receiving state, they can file complaints, they can have access to services guaranteed by all the states,” said Thetis Mangahas, former International Labor Organization (ILO) regional director.
Philippines softens stand on treaty
Hans Cacdac, administrator of the Overseas Workers Welfare Administration (OWWA) and a decade-long negotiator in the ASEAN Committee on Migrant Workers (ACMW) tasked to work on the instrument, said ASEAN labor ministers have already declared their intention to finish the “agreement” by April 2017.
The question is: What kind and how strong of an instrument would it be?
“It is already 85% complete. I can tell you it contains substantial points that are clearly protective of migrant workers across ASEAN. In areas such as access to justice, protection during recruitment process, humane treatment of migrant workers – things like these are already in the 85% text so I think there’s already a lot to gain alone. However, we need to seek consensus the ASEAN way,” Cacdac told Rappler.
Early February, Cacdac flew to Kuala Lumpur to meet with his Malaysian counterparts from the Ministry of Human Resources to discuss the declaration, the Philippine embassy said. Details of the meeting, however, were not divulged.
There are 3 main contentious issues that have delayed the establishment of an instrument: the legal nature of the document, inclusion of migrant workers’ families, and protection of undocumented workers.
For sending countries like Indonesia and the Philippines, they are in favor of everything. But receiving countries, such as Malaysia and Singapore, oppose them, as they just want a mere guideline.
At present, there is only one remaining issue left. But senior officials would not want to divulge it yet.
Foreign Affairs undersecretary for policy Enrique Manalo said the Philippines is set to hold the labor ministers’ retreat from February 19 to 21, to be held in Davao City, to settle it.
“Very briefly, that is one of the priorities of the Philippines this year. There’s really only one major issue remaining and what the Philippines is planning in fact is to host a retreat among labor ministers of ASEAN precisely to look at this issue,” Manalo said.
But some are unconvinced this would actually work.
“A retreat would work if you feel or you see that the major problem is confidence building and therefore they’re assuming that by bonding, that it might reduce the lack of confidence but I don’t think that is so,” Mangahas said.
DFA Assistant Secretary Hellen De la Vega, also the ASEAN-Director General for the Philippines, acknowledged the struggles on creating a legally-binding instrument, citing the different laws and “comfort levels” of each member-state. She also refused to say what the remaining issue is.
“Well I’m sorry I cannot say that. We are looking at the remaining 15%,” she told Rappler in an interview.
Directly asked how confident she is, De la Vega said: “You said the instrument is already 85% ready. I will also put my rating at 85%. All I can say is we will exert all our best efforts, this is all a matter of political resolve. We’ve been working through this, we hope we will be able to reach something. We hope that we’ll be able to reach something that we can give as a gift not only to migrant workers of our country but all in the region.”
Former Labor Secretary Rosalinda Baldoz, after the 2016 summit in Lao PDR, said that the Philippines is amenable to a non-binding instrument, as long as 4 parameters would be present. This is contrary to the hardline stance of Indonesia, the Philippines’ ally in pushing for a legal instrument.
Here are the 4 parameters set by the Philippines:
the immediate development of an action plan, with timelines to implement the Instrument
negotiation of bilateral labor agreements between ASEAN Member States
sharing and documentation of best practices
designation of national focal points on Instrument implementation in every ASEAN member-state.
Bleak prospect for an ASEAN treaty?
While Philippine officials are mum on the remaining issue, migration experts, who have dealt and negotiated in the ASEAN, said it may have to do with the legal nature of the instrument.
“It’s all about the the binding issue. If it’s optional, why are they so contentious when it is up to them? If there’s a stalemate, it’s got to be that. Most likely it is that issue that is holding it back,” said Mangahas.
Mangahas said Malaysia and Indonesia have the two most polarizing views on the legally binding instrument. Indonesia has an all or nothing mindset, which is understandable as a sending state.
A factor to this is the bilateral relations between the 2 states. Indonesia has condemned Malaysia’s treatment of Indonesian migrant workers, which make up majority of the documented and undocumented workers in Malaysia.
“It is irreconcilable with the other so it’s a question of who gives in between the two. Indonesia doesn’t want to give in on this. Malaysia doesn’t want to give in on this. Indonesia is for a legally binding. They don’t want a diluted instrument. I think they’re all for binding or nothing,” she said.
Indonesia is not keen on backing down. Its strong resolve to push for migrant workers’ rights has all the more intensified under the administration of President Joko Widodo, following criticisms against his predecessor.
“The current Indonesian government has placed the protection of overseas Indonesians as one of its main foreign policy priorities following strong criticism of the previous government’s perceived neglect amidst a number of cases of mistreatment against Indonesian migrant workers,” said Ibrahim Almuttaqi, head of the ASEAN Studies Program at The Habibie Center in Jakarta.
“Despite Jakarta’s influence on the region, it would seem it has struggled to break through the current impasse. That is not to say that Indonesia will give up, it recognizes that this is a complex issue and will take many years to resolve,” he added.
Malaysia Bar Council’s Dato M Ramachelvam also opened the possibility of a “hybrid instrument.”
“In which case, some provisions which have been agreed by all members to be binding and the ones which are in dispute not binding,” said Ramachelvam, also the chairman of the council’s Migrants, Refugees and Immigrant Affairs committee.
But for some, having a non-legally binding instrument would not set a good precedent.
“If you give in, the legally binding instrument would likely never happen because your already agreed to a non-legally binding one. It’s a short-term solution that would be the reference point for the next 20 years. Others would tell the Philippines and Indonesia: ‘We already granted your request for an instrument. If you have this instrument, why do we need a legal document’? It doesn’t give you the opening to pursue it further,” said De Dios, member of the ASEAN Committee on Women and Children and a delegate to the United Nations.
The issue of migrant workers has been staring ASEAN in the face for a decade now. Some have lost hope while others continue to hang on to it.
For undocumented workers, a regional agreement would help them in their plight in the region.
Erika*,37, and Fe*, 34, want an end to recruitment agencies and employer’s non-compliance to their contracts, which in their case was the main reason they had to run away from their Malaysian employers and become undocumented workers.
STATELESS. Undocumented Filipina migrant worker Erika*, 37, with her 11-month-old son, who has no nationality and citizenship to date. Photo by Camille Elemia/Rappler
They are hopeful that the ASEAN or their host country would be able to stop these agencies from collecting exorbitant fees from them.
“I hope they can help us, even with the agencies,” Fe said.
It all boils down to the political will of both the sending and receiving countries.
“In our view, the outstanding issues hampering the work are beyond labor and immigration technical issues. It is more about lack of political will,” said Abdulkadir Jailani, former Indonesian negotiator in the ACMW.
Former ambassador Rosario Gonzales, former Philippine Representative to the ASEAN Intergovernmental Commission on Human Rights (AICHR), said ASEAN was built on the basis of compromise. It’s not enough for receiving countries, she said, to just oppose the instrument, without adjusting its laws or policies.
“It used to be when we founded it, it was about consenus. If a state is not ready, then it should come forward and say what alternatives they are offering. That was consensus building not like this,” Manalo said.
“Singapore and Malaysia – they don’t want to change their national laws. Why are you not changing it? It’s been 10 years. Where’s the political will?” she added.
Rappler reached out to Malaysia’s Ministry of Home Affairs, tasked to formulate and oversee immigration policies; the Ministry of Human Resources, which supervises labor affairs and negotiates in the ACMW; as well as its ASEAN Secretariat, but they all declined interview requests.
“It should be elevated to President Duterte because it has taken so long. He should tell the DFA that he wants this. They should face the summit and tell it to the heads of state,” the former envoy said.
ILO’s Manuel Imson, also project coordinator of the ASEAN Triangle Project on migrant workers, said it all boils down to the nations’ leaders. The ministers negotiating in the committee, after all, just echo what their seniors tell them.
“In the final analysis, it all boils down to political will. Those working on this are really dependent on the country position defined by higher government levels because this is what they echo in the technical meetings. So in a case where there are issues like these, sa taas na ang decisions,” he said.
ASEAN, for its part, is working inch by inch while there is still no consensus – through information sharing, endless meetings, sharing of best practices, and the creation of an Asean Qualification Reference Framework (AQRF), which is a common referencing system for workers in the region.
“So you know that if I am a tourist professional, a tour guide of this level in Cambodia, I’m equivalent to a tourist guide in Manila of this certain level. A common referencing system to promote better mobility of workers,” Mangahas said.
But as ASEAN continues its debate, migrant workers – documented and undocumented – could only rely on their home country’s bilateral agreements and memoranda of understanding with other ASEAN nations for protection. – Rappler.com