Freedom of Association in Malaysia When One

Freedom of Association in Malaysia

When one talks about the foundation of a powerful civil society, freedom of association is very important for the foundation along with the rule of law, freedom of religion, freedom of expression and free and competitive elections. Freedom of association is also an important part of the pluralistic democracy (Tekle, 2010). The previous communist countries of the Central and Eastern Europe which had been, in the past, ruled by the a system which was so inflexible that it literally considered any sort of activities that were not according to the state control as a threat, this system treated such independent organizations that worked in order to expand the horizons of liberty in a very brutal and harsh manner (Puddington, 2008).

However, it is noteworthy that today even in all these countries of Central and Eastern Europe the freedom of association is very popular and this popularity of the freedom of association basically shows the extent of the fundamental changes that took place in this world since the end of Cold War (Aaron and Katherine, 2007). A lot of democratic transformations that have occurred in the past few decades in countries such as Ukraine, South Africa, Philippines and Serbia have been influenced by the freedom of association as it has played a very important role in these transformations (Aaron and Katherine, 2007; Puddington, 2008).

In the past few decades there has been an emergence of a new wave of authoritarianism and its major target is the civil societies (Estreicher, 2008). Due to this new trend of authoritarianism in many parts of the world, the freedom of association is being refused or not accepted as it was in the past and the reason for such responses are the associations or organizations that have been trying to pressurize groups such as human rights organizations, independent trade unions, political parties, groups that assess corruption or scrutinize abuse by security services; groups that champion minority rights or religious freedom, women's advocates and organizations that seek legal reform (Estreicher, 2008). They have been trying to provide people with a voice of their own so that they can express their opinions to the world, all these organizations and associations are being pressurized by these regimes in order to eliminate all types of sources of dissent and opposition (Estreicher, 2007 and 2008; Puddington, 2008).

It is very evident from a number of studies that freedom of association is under threat. Studies have shown that except for sub-Saharan Africa and Western Europe the associational rights have been declined in almost all the other regions of the world in the past recent years. In the former Soviet Union, Middle East and North Africa these associational rights are under particular pressure (Cihon, 2010).

It is also evident from this study that Latin America and the Asia-Pacific region are the ones in which the most pronounced declines have taken place in the past few decades although, in a few cases the declines are not very damaging to the country's long-term democratic prospects but at the same time a lot of cases have been shown in the study which shows the setbacks faced by the free institutions due to the forced or deliberate policies of the state (Cihon, 2010).

It has also been found by several studies that the rights of the trade unions which consisted almost solely of the associational rights in the past are not functioning very well under the authoritarian settings and even in some incases under democratic settings as well (Cihon, 2010).

The prominent political and cultural trends of the 21st century which are in complete opposition of the campaign to limit the civil society have greatly enhanced international trade relations and have included enhanced freedom of movement within the states and also globally and expanded access to information. All these regimes that have been working to suppress the freedom of expression have passed laws to hinder the working of non-governmental organizations (NGOs) and to ensure that their efforts are working, they have also silenced the press (Kozac, 2010).

Although the development in technology and the popularity of electronic media and internet has proved to be a hurdle for the authoritarian state's efforts to restrain press freedom, the evidences are still suggesting that the suppression of associational right probably won't be a difficult task. The core of the freedom of association is a right that is enclosed in the Universal Declaration of Human Rights and is also included in several of the United Nations covenants as well as embedded in the Organization for Security and Cooperation in Europe (OSCE), the charters of regional bodies such as the Organization of American States (OAS) and is also included in the agreements on worker rights that have also been adopted by the International Labor Organization (Kozac, 2010; Puddington, 2008).

The freedom of association is very important in an era in which many political parties and other organization's credibility has suffered as, the freedom of association can play a very important role in strengthening trade unions, NGOs and organizations that give voice to a common person (Atleson, 2008; Puddington, 2008).

Methods being used globally to control Freedom of Association

A number of similar techniques and tactcs are being used by different countries, which have been mentioned in several studies, to keep their civil societies in check but usually they have a suspicion towards the nongovernmental organizations. As the NGOs in these countries are considered very dangerous adversaries so usually these are controlled by the use of different tactics such as; involving the civil society groups to an extreme regime bureaucratic harassment and scrutiny (Atleson, 1983 and 2008).

For instance, Russian government officials, under the terms of a 2006 law, have the right to check the NGO records. In addition, the state also has the permission to suspend any NGO due to vague reasons as well and this is applicable to any organization if it clashes with the Kremlin policies. It can also cancel out any of the NGO's programs and these new authoritarian regimes hardly if ever let go of their wars against nongovernmental sector (ICFTU, 2006).

Instead what these authoritarian regimes do is, they differentiate the civil society groups in a way that they show some patience towards the groups who are not very ambitious or whose democratic credentials are limited while, literally penalizing the NGO's that challenged the power of leadership directly (ICFTU, 2006).

For case in point, Egypt is lenient towards those Islamic states that are not promoting or working on the anti-regime agendas. Another type of organizations that often gets a lot of support from Egypt are the ones that are against its peace treaty with Israel. In fact, Egypt also promotes such institutions to protest against the democratic reforms. Whereas, the organizations that are often shut down by Egypt are the ones that are in the favor of democracy. Similarly, Russia is a lot more patient towards the organizations that have nationalist or communist orientation than it is towards those having liberal and democratic point-of-views (Kirchner, Pascal and Michael, 2010).

The trade unions are under the pressure of the authoritarian regimes as well as they have still not separated the special kind of attention that the NGOs deserve. Since the end of the Cold War the organized labor has suffered a very difficult time and this condition has worsened even more in the last several years (Kirchner, Pascal and Michael, 2010).

The unions face a lot of pressure throughout the world, even in the areas where the freedom of association is very common. United States provides a very clear example of this kind of scenario as, most of the organizations and institutes there are given complete associational rights and the ability to strive, yet according to the United States legal environment is very difficult for the workers to get themselves involved in collective contract negotiations with the top management, form unions and achieve bargaining rights (Kirchner, Pascal and Michael, 2010).

As a result, in the mid 1950s, approximately 35% of the workforce was unionized but by 2007 the unionization figure for the private sector was 7.5% which is outrageously low for a country that is so developed. Even the countries such as United Kingdom and Germany have a less steeper union membership decline rate than United States (Kirchner, Pascal and Michael, 2010).

Recently a very important role has been played by the unions in the struggle for freedom in countries like Iran and Zimbabwe and these unions have also played a great role in the establishment and later on expansion of free organizations and institutions in many countries like Africa (Kirchner, Pascal and Michael, 2010).

Therefore, desipte the fact that the trade and labor unions had the right to the independent actions in the former Soviet Union, theoretically speaking, but the existence of these unions outside the party and national controlled labor federations is discouraged by the regulations and the laws. The countries that have been mentioned in this study have bad to worse records of the observance of the labor rights (The International Bureau of the Permanent Court of Arbitration, 2003).

Even in the Middle Eastern countries the past traditions of the dominant party control over the local labor movements is still present in countries such as Egypt, the trade and labor unions have to be related to an umbrella federation which basically functions as a ruling party and thus it has a control of the union elections (The International Bureau of the Permanent Court of Arbitration, 2003). In some countries, laws have been made by the government which makes it impossible for the unions to accept the foreign assistance.

The absence of genuine unions is also said to be a cause of many job-site death accidents such as, in China where a completely state controlled and toothless union is present, there are thousands of workers that die each year in the accident during their jobs in factories and mines (The International Bureau of the Permanent Court of Arbitration, 2003).

There are a lot of laws in many countries which strongly restrict the right to strike and because of all this repression of the unions the labor unrest is increasing in a lot of countries such as, in China the labor unrest is increasing day by day because of the poor working conditions and huge amounts of layoffs being done (The International Bureau of the Permanent Court of Arbitration, 2003).

Freedom of Association in Malaysia

In 2007 Association of Southeast Asian Nations (ASEAN) Charter was signed by Malaysia in which it committed to supporting the human rights, freedom of association and democratic principles, but the government became very intolerant of the criticism that it was facing and due to this a lot of disturbances and crackdowns took place which worsened by the general elections in 2008. During that year migrant workers' ability and their rights were even more restricted under the legislative amendments because of which they can't make trade unions (Freedom House, 2008).

Under the Societies Act of 1996 the NGOs were to register themselves with the government. A society is defined by this act as a partnership, club, company or an association of seven or more people, including trade unions, businesses, political parties and schools (Lynd and Daniel, 2008).

Organizations that are suspected to have illegal purposes can be denied the registration be the Registrar of Societies (RoS). The Socialist Party and the Communist Party of Malaysia have not been given the registration on the basis that they may become a cause of threat to the national security. RoS also has the right to cancel out the registration of any of the already present organization for violating the act (Lynd and Daniel, 2008).

Rights of the workers in Malaysia

As per the Malaysian Trade Union Congress (MTUC), the membership of the trade union has over all increased but it has stridently declined with regards to the workforce growth. In 1995 the partition levels were 9.3% and they had dropped to 7.8% by 2006. A lot of rallies were organized by the MTUC in 2007 in the hopes of pushing a minimum-wage bill as a minimum-wage bill is not provided by Malaysia (Lynd and Daniel, 2008).

Workers belonging to some of the categories such as electronics sector, which is the country's largest industry and the public-sector workers are not allowed to join the unions under the 1959 Trade Union Act (TUA). In 2007 amendments were made to the Industrial Relations Act (IRA) and the TUA about restricting the worker's rights. The registrations could be refused or withdrawn by the director general of trade unions (Bronstein, 2009).

The U.S. government, in 2006, began its talks with Malaysia regarding a free trade agreement but in 2007 there was a raise of concerns regarding the lack of worker's rights and transparency during the negotiations. In January the trade pact was opposed by the Malaysian trade unions which had teamed up with the U.S.-based AFL-CIO labor federation, as they said that this trade pact would weaken the worker's rights further under the TUA and IRA (Bronstein, 2009).

Under the Employment Act of 1955, the migrant workers are not protected or allowed to join trade unions. These migrants are tied to a single employer under the work permits that they get and due to this the rate of their being abused increases a lot and they also have the fear of retaliatory deportation because of which most of the times they don't even complain about such abuse being done to them as, in the past there have been cases in which the migrants have been deported on protesting against abuse or their not getting their rights. Many of the Indian migrants workers, who were protesting outside the India's high commission about their unpaid wages, were beaten by the police in February 2006 (Brown, 2010; Carrell, 2006).

Freedom of Assembly and Association in Malaysia

Throughout the year 2007 the freedom of assembly was suppressed by the police as the government got irritated because of all the disturbances and crackdowns that were occurring before the 2008 elections. In January these crackdowns actually started when the first among the four demonstrations against the highway toll hikes were staged by the protesters. In these demonstrations a lot of arrests were made and the detainees included opposition leaders (Fudge, 2010).

These leaders were prosecuted under Official Secrets Act. The Coalition for Clean and Fair Elections (BERSIH) organized a rally in December in which the police shot down two unarmed protesters. Tear gas and water cannons were used by the police for the dispersion of the demonstrators (Malin, 2010).

In November, during two of the country's largest demonstrations the most severe crackdowns occurred. A rally was organized by BERSIH on November 10th, in which free and fair elections were demanded by 30,000 people. The police tried to prevent the rally from taking place but when they failed they used the tear gas and chemical laced water to disperse that crowd (Young and Gender, 2011).

Hindu Rights Action Force (HINDRAF) organized a rally on November 25, the purpose of this rally was to submit a memorandum regarding the biasness against the ethnic Indian to the British high commission. During the past few years the unrest had been increasing in the Malaysian Indian community regarding the bias that they faced in matters of religion and the favors that the ethnic Malays received in the job market (Young and Gender, 2011; Freedom House, 2008).

Before the rally in November three HINDRAF leaders were arrested and were charged under the Sedition Act. Even after all this approximately 40,000 people turned up for the rally in Kuala Lumpur and again the police had to use the tear gas and the chemical laced water to disperse the crowd. The HINDRAF leaders ran away from the country shortly after the rally as the Prime Minister Abdullah Badawi threatened that under the draconian International Security Act (ISA) all the protestors would be detained without trial. However, under the ISA five leaders were detained (Dau-Schmidt, 2009 and 2010).

Activists and lawyers were arrested while they were doing an illegal march which marked the International Human Rights Day on December 9. Edmond Bond, was arrested because he was preventing the officials from destroying the Human Rights Day banners, he was the Bar Council Human Rights Committee chairman (Casebeer, 2010).

Freedom of Association and the Right to Collective Bargaining in Malaysia

No. 87 on Freedom of Association along wit the Protection of the Right to Organise has not been ratified by Malaysia but Convention No. 98 on the Right to Organise and Collective Bargaining was ratified by Malaysia in 1961 (Twomey, 2010).

In order to join a union or make a union, which most of the workers are allowed to do, there are very lengthy procedures and along with those procedures there are some restrictions as well that are applied by the freedom of association. The registration for the trade union can be refused or taken by the Director General of Trade Unions (DGTU), who is responsible for the inspection and supervision of the trade union (Twomey, 2010).

A trade union can be suspended for up to six months by the Minister of Human Resources in the interest of the public order or the national security. According to a report by the MTUC in 2004 that often 18-24 months are taken by the recognition claims to settle, especially if a disagreement or dispute occurs (Upex, 2006).

Also, the power of making a final decision of settling a union recognition rests with the Minister of Human Resources, who doesn't make use of his power very quickly. A list of cases was presented in 2003 in ILO showing where the DGTU had randomly denied the bargaining and organizational rights. In 2004 further cases of this sort were presented (Friedman, 2007).

Employees are not allowed to be organized in the executive and managerial positions according to the Industrial Unions, neither are they allowed to be entrusted with the matters regarding securities or of confidential nature. Workers who work in the field of the information technology are thought to come under the "confidential" category (Friedman, 2007).

The Industrial Relations Act of 1967, which was amended in 1980, lemmatizes the scope of collective bargaining especially in the chosen "pioneer" enterprises and the public sector. The entire electronic industry was made a union-free sector as it was chosen as a pioneer industry in 1972 on the creation of the free trade zone. Although the electronic industry's pioneer status failed after 10 years but the registration for the national unions is still not allowed. The idea behind this rule is that in the competition for attracting more and more investments the low labor cost can prove to be a comparative advantage (Friedman, 2007).

More than 100,000 workers have been denied in the industry and most of them are women because only the in-house unions are allowed in the electronics sector. As they don't have any other options the workers who make in-house unions face serious hurdles. The working conditions have been kept inferior and the wages very low just because of the consistent refusal of the effective industrial unions. The electronic industry is dominated by many multinationals and therefore, has used its influence and power to oppose the union recognition for many years. These provisions have been criticized a lot of times by the ILO Committee on Freedom of Association (Friedman, 2007).

The Malaysian Trade Union Congress (MTUC) under which the public and private sector comes, is not known as the trade union confederation in the law as the general unions are prohibited (Friedman, 2007).

The workers within the public sector are permitted to organize within a profession, ministry, activity or department. Employees that belong to the constitutional bodies have the permission to join the internal trade unions only. Employees that are in police or defense don't have the permission to either join or form their own trade unions (Friedman, 2010).

Although there is no specific law against the migrant workers joining the trade unions but the government has publicly mentioned that they do not encourage the migrant workers to join these trade unions and it is also mentioned in the work permits that these migrant workers are given that they are not allowed to join any associations but there are no legislative restrictions regarding it (Friedman, 2010).

However, due to this restriction being mentioned in the work permits the employers think of this as a ban on their joining the associations and that they would be laid off if they did it. From all this females get affected the most as most of the working females are Indonesian they work at very low wage rates and along with that suffer from verbal and physical abuse (Friedman, 2010).

Although the "domestic servants" are included in the category of the employees in the 1955 Employment Act and it does protect them from late or irregular payment of wages but what this act does not include are the maternity leaves, public holidays, rest days, annual leave, hours of work and sick leaves (Friedman, 2010).

The domestic workers also don't get any retirement, termination or lay-off benefits. Indonesia and Malaysia has this common agreement according to which the employer can hold the worker's passport because of which not only the workers freedom of movement is restricted but he also can't return back to his own country (Alston, 2005; Hogler, 2004).