Migrant Labour and Inequalities in the Nepal–Malaysia Corridor (and Beyond)

Abstract

Malaysia is an upper middle-income country heavily reliant on migrant labour from 15 different countries to work in the manufacturing, construction, plantation, and service sectors. For Nepali citizens, Malaysia is a popular destination country in addition to the Gulf Co-operation Council (GOC) states. After Indonesians and Bangladeshis, Nepalis constitute the third largest migrant labour force in Malaysia. Drawing on the concept of “migration infrastructure” as a point of departure, this chapter examines the range of pre-existing everyday and structurally imposed migration inequalities faced by Nepalis along the Nepal–Malaysia corridor. It also elaborates on how these inequalities, which were relatively ignored or underplayed in the past, became accentuated and brought into public view during the COVID-19 global pandemic, and in its wake set in motion long overdue policy reforms.

Introduction

Like many countries in the Global South, both Nepal and Malaysia are deeply entangled with the kinetics of a neoliberal capital-intensive globalisation regime promoted and lubricated by an array of transnational institutions (Walby, 2009; MoLESS, 2023), nation-state bureaucracies, and local socio-economic networks. Among its many intersectional dimensions is a growing and expansive multi-scalar articulation of transnational finance capital with futuristic national planning policies and the varied involvement of local industries, businesses, and rent-seeking entrepreneurial activities (Graeber, 2011; Harvey, 2007, 2019; Smith, 2008; Walby, 2009).

At least for the last three decades, this trend has moreover mutated to include what could be characterised as an international division of mobile and flexible labour. The export of citizens from poorer countries to richer host countries of comparatively cheaper and more flexible and pliable migrant labour has been facilitated by a host of state and non-state intermediaries (Baas, 2020; Gammeltoft-Hansen & Sorensen, 2013; Henaway, 2023; Rodriguez 2010, 2023). What drives these citizens to go abroad for work is a mixed bundle of motivations. Among others, personal hopes of socio-economic uplift, adventure in a foreign country, escape from domestic travails, and the fulfilment of aspirations viewed as somewhat lacking or unobtainable in their own countries. However, in the host countries, foreign migrant workers (together with refugees) are categorised, surveilled, and governed in ways that are closely related to their precarious position within the capitalist value regime in extracting value (Rajaram, 2018). As non-citizens of Malaysia, this surplus population experience daily the logic and force of a differentiated “hierarchy of rights” (Nah, 2012) and bordering practices that resonate with the figure of Giorgio Agamben’s homo sacer (Garces-Mascarenas, 2015; Rajaram & Grundy-Warr, 2004).

At the time of writing, there are a least 15 different nationalities forming a significant part of the Malaysian labour force. Nepal migrant workers are estimated to be the third highest population after Indonesian and Bangladeshi citizens. This chapter draws from the concept of “migration infrastructure” (Xiang & Lindquist, 2014) as a point of departure to elaborate on how the different logics of operation and spaces of mediation found in the five dimensions of the migration infrastructure—the commercial, the regulatory, the technological, the humanitarian, and the social—work incommensurately to produce and modulate various kinds of migration inequalities. Based on fieldwork data collected on the life–work conditions and aspirations of Nepalis,¹ we begin by highlighting various everyday migration inequalities encountered and negotiated by them in deciding to leave their home country to work in Malaysia. From there, we address broader structural migration inequalities faced by Nepali and non-Nepali foreign migrant workers in Malaysia as identified, monitored, and globally reported by an influential agency with transnational reach, the US State Department, in ostensibly addressing the aforesaid. Finally, we review how the COVID-19 global pandemic brought into sharp relief and public view everyday and structural inequalities that were relatively ignored or underplayed in the past in Malaysia. Said differently, we elaborate on how the colliding and contradictory logics of operation of the migration infrastructure as found in Malaysia became accentuated by a highly mobile and non-discriminating actant that both compounded and confounded ascribed differences between citizens and non-citizens of the country.

Nepalis Migrant Workers in Malaysia: An Overview

According to the World Bank, Malaysia is an upper middle-income country (GNI per capita of US$10,570 in 2020) with a population of around 32.4 million. By comparison, Nepal is a lower middle-income country (GNI per capita of US$1,120) with a population of 29.1 million. Foreign employment plays a strong role in Nepal’s economy—contributing to 25% of GDP by latest estimates (MoLESS, 2023). Moreover, the latest population census reveals that around 7.5% of the citizens are out of the country (NPC and CBS, 2022).

Before the COVID-19 global pandemic struck, Malaysia was recorded to have a labour force of 15.8 million, the majority of whom (53%) were employed in the service sector. Various sectors in Malaysia depend heavily on foreign migrant labour (both the 2.2 million documented and estimated 2–4 million undocumented non-citizens) to function (see Figs. 14.1 and 14.2). About 70% of them were found in the plantation, manufacturing, and construction sectors (see Fig. 14.4).

Fig. 14.1

(Source Malaysian Parliamentary Report, 2014–2020)

Total number of foreign migrant workers holding valid temporary work permits (PLKS) in Malaysia

Fig. 14.2

(Source Malaysian Parliamentary Report, 2014–2020)

Total number of foreign migrant workers according to nationalities

In 2020, it was estimated by the Ministry of Human Resources that there were about 241,106 documented Nepali migrant workers in the country. Of this figure, 97% are men. Nepalis are mostly employed in the manufacturing (73%) sector followed by services (21%) and the remaining in agriculture and plantation as well as construction sectors (see Fig. 14.4). Noteworthy is that 95% of all Nepali migrant women are concentrated in the manufacturing sector (see Fig. 14.3). Except for a short period between 2020 and 2021 when a temporary ban and the COVID-19 pandemic impended Nepalis from moving abroad for employment, Malaysia has been among the top five destination countries of choice for Nepali men since 2008 when the government started keeping records of outbound Nepali workers. In 2019–2020, 23% of Nepali migrant workers applied for labour permits in Malaysia making it the third most popular country. During COVID-19 (2021–2022), this dropped to 8% and placed Malaysia in fourth position. By comparison, while Malaysia is not the popular destination for Nepali female labour migrants, what is interesting in that they are mainly employed in the formal manufacturing sector unlike in the Gulf Cooperation Council (GOC) countries where they are found only in the informal domestic sector.

Fig. 14.3

(Source Malaysian Parliamentary Report, 2014–2019)

Number of Nepali migrant workers (with PLKS) by gender

Fig. 14.4

(Source Malaysian Parliamentary Report, April 2020)

Total number of migrant workers by sectors and nationalities (with PLKS)

Becoming a Nepali Migrant Worker in Malaysia

Like many other foreign migrant workers in Malaysia, the primary motivation propelling Nepalis to leave their families behind and venture into a foreign land for waged labour is the hope of securing better livelihoods and futures for their respective households. In other words, these individuals are already entangled in an array of pre-existing inequitable socio-cultural, economic, and political structures and circumstances not of their making.

For example, some of the Nepalis’ experiences of inequality in the migration process are manifested in language. The official Nepali language used for facilitating the migration process is not the mother tongue of many migrants of plains origin (hereafter, Madhesi). This already creates a dependency on several layers of intermediaries for these migrants in helping them navigate the cumbersome process of getting government permits for labour migration. When combined with a lack of or little formal education—another common attribute of aspiring Madheshi migrants—the cost of migration becomes much higher compared to that for aspiring migrants of hills origin (hereafter, Pahadi). Thus, a Madhesi migrant who has primary education usually paid US$1,170 to a local broker while a Pahadi migrant who had completed lower-secondary education, for whom the mother tongue and the processing language are the same, would have paid as little as US$390 for going to Malaysia to perform the same kind of work. While language manifests as a tangible barrier in this particular instance, this distinction reflects the long history of marginalisation of the Madhesi people in Nepal.

Aspirations for migration are also transnationally generated and mediated by larger historical forces. In effect, these vectors provide the aspiring migrant with a larger migration frame beyond the local and nation-state imaginaries to evaluate their personal and collective circumstances (Carling & Collins, 2017; Xiang & Lindquist, 2014). Exposure to the outside world through media and easier communicational flow related to migration, education, and the different histories of labour migration in the origin country influences how these vectors act upon these aspirations and how aspiring migrants are able to conduct reality checks before investing in the migration process. Here, we see the interplay of the technological dimension with other dimensions of the migration infrastructure. For the Madhesis, labour migration beyond India is a current phenomenon dating only to around 10 years back while for the Pahadis, migration to the Gulf Cooperation Council states and countries of South-East Asia started more than 30 years ago. Well-established social networks to these destinations have often meant that for aspiring Pahadis, there are easy and reliable reference points to check for job security and the cost of migration as well as possible sources for support during times of difficulties.

Besides the aforementioned social networks, the migrants’ own skillsets, educational backgrounds, and prior migration experiences also shape their respective migration trajectories. According to the Nepal government records, only 0.002% of migrants going to Malaysia fall into the high-skill category compared to 53.2% in the skilled category and 38% in the unskilled category in 2021–2022 (MoLESS, 2023). Our Nepali interviewees came mainly from rural farming or semi-urban working-class backgrounds. Most live in extended and intergenerational family settings. Very few had education beyond Grade 10. The older ones, especially men, would have worked for some years in Nepal or in neighbouring India before deciding to try their luck further afield. A smaller number of men and women said they had worked in Gulf countries like Dubai or the United Arab Emirates before choosing Malaysia as an alternative destination.

Mobility and migration experiences are also shaped by prevailing gender norms found in Nepali society. Some of the older married women we interviewed had already small family businesses like local sundry shops (kirana) or sewing shops in the localities they reside in. They decided to go abroad to work for the purpose of generating additional income for their households. By comparison, younger married women often come to Malaysia to work to be with their husbands who were already in the country and usually at their husbands’ requests. But this was pursued if it was fairly certain that they be working for the same company or at least in the same town. Their children would be left behind under the care of their grandparents. Another category of Nepali women who sought work abroad were widowed, divorced, estranged from their husbands or were experiencing domestic violence. Some also migrated as their husbands could not be the breadwinner for their families after being disabled due to injury or long-term illness. Like their male counterparts, young single women shared similar aspirations in wanting to see and experience the world beyond Nepal even while earning to provide better educational prospects for their younger siblings (like attaining a college degree and professional qualifications) and subsidise their parents’ daily expenses back home. However, before leaving their homes for work abroad, young single women have to seek the permission and blessings of their male guardians because of socio-cultural perceptions and government requirements. The parental fear that their daughters will not be able to find a willing spouse after several years abroad is a constraint that has to be assuaged by the aspiring female migrant worker before the next step can be taken. But, once successfully negotiated and over time, our interviewees tell us that their parents have usually become grateful for how their regular remittances have made their lives less difficult.

Apart from the reasons already cited, pre-existing economic inequalities found in Nepal also generate the motivation for migration. Migrants who choose to work in Malaysia and the Gulf Cooperation Council states usually come from financially poor backgrounds. Similarly, social customs such as dowry systems, low wages, lack of employment opportunities, and the difficulty of accessing capital in Nepal prevented them from producing enough funds to pursue some of their aspirations like buying land, upgrading their dwellings, and setting up small businesses like sundry shops, animal husbandry, and restaurants. Nepal is thus perceived by our interviewees as a country that was lacking in tangible opportunities that would help them improve their livelihoods and futures. In some cases, this lack was seen as more severe because of their historically marginalised social-economic, gender, class, and caste backgrounds. People of lower economic status and women, in particular, have no collaterals to secure loans from both formal and informal sources for their local entrepreneurship activities. Moreover, better-off neighbours would not usually trust them with loans if they wanted to start a small local business. Instead, these informal funding sources would prefer to give loans to these individuals if they opted to work abroad because of the anticipated high income of migrant labour and the high interest rates (in some cases, even up to 60%). In short, local financial systems help to promote migration over local entrepreneurships for economically less well-off Nepalis. Aspirations to climb up the social hierarchy of caste through the accumulation of wealth also drive migration. Nepalis, particularly from the so-called “low caste” groups, often see remittances as a way of helping to resettle away from their place of origin where they face caste-related discrimination (Chaudhary, 2020).

To be sure, the capacity to aspire and drive to pursue these dreams was often encouraged, if not prompted, by local recruiting agents (who can sometimes be their relatives) and residents from their own villages who had already taken the step to work abroad earlier, thus involving the social networks of the migration infrastructure characterised by Xiang and Lindquist. In some cases, local agents (occasionally involving human resource personnel from Malaysia) will target specific localities for regular recruitment drives especially if these places have garnered a reputation for producing residents with a good and reliable work ethic. Moreover, if siblings or relatives were already working in Malaysia, the pull is even stronger because of the knowledge that there will be someone physically close at hand to turn to in times of need or emergency. Interestingly, one of the oft-cited reasons by our interviewees for their preference for Malaysia was its apparent similar and favourable climate in comparison to the extreme weather conditions of Gulf countries. This viewpoint reflected the geographical origins of most of our interviewees who came from the lowland Terai region rather than the hilly or mountainous parts of the country. Some men also joked that the promise of freer access to alcohol and women companions was an additional powerful attractive draw.

Translating these aspirations into reality requires engaging further with another dimension of the expansive and labyrinthine migration infrastructure for the purpose of becoming a duly certified and legible foreign migrant worker as recognised and understood by state authorities (Scott, 1999). The first obstacle to overcome—with respect to the regulatory dimension of the migration infrastructure—is having to raise enough funds to secure an array of documents (passport, medical examination report, work visa, and so forth) that will certify and enable their onward mobility to Malaysia. For Nepalis, the choice of Malaysia among the other 153 labour destination countries is also a reflection of pre-existing socio-economic inequalities. As people of Pahadi origin can afford to get higher education, invest in learning the local language and acquiring skills, and pay higher migration costs, the common destinations are South Korea, Japan, Malta, Dubai, Romania, Poland, Spain, and other European countries where salaries and working conditions are better.

Almost all the interviewees took loans from relatives and friends, and, if there was enough collateral, from local banks and creditors. Only a tiny minority did not resort to this approach as they dipped into savings generated from a previous stint of working abroad. The median debt among our interviewees was US$800 with interest rates ranging from 14 to 18%. After securing work in Malaysia, they took between 6 months to 5 years to repay their debts. This is based on an average monthly salary of US$280 with interviewees spending very little on themselves for the purpose of remitting as much money as possible to their families and repaying back loans; some as much as two-thirds of their salaries. To earn more, almost all our interviewees opted to work overtime (12 hours) daily. While typically they have one day off in a week (in some cases, only one day off in a month) security guards, however, have no such benefits given the nature of their work. Even on public holidays, they are required to be on duty.²

The racialised discrimination between Nepali migrant workers noted earlier does not stop even when they are on the verge of leaving their country. Madhesi migrants shared how the Pahadi recruitment agents often make fun of them when they asked for explanations or when they were unable to understand the many rules the agents narrated in a brisk manner. They also feel discriminated against during the pre-employment orientation classes where the language used is the national Nepali language and not their mother tongue and local dialects. They are often put together with Pahadi migrants who already have a previous migration experience or have better information on the migration process. The training modules and the modus operandi of these trainings do not accommodate differences between novices and returnee migrants as well as Nepalis whose main language is not Nepalese. Due to this language barrier and a culture of racism against the Madheshi people, our interviewees shared how Madheshis were often herded into separate groups and spoken in a harsh and derogatory manner in the Nepal immigration checkpoints.

In situations where the Madheshi/Pahadi distinction is irrelevant, a foretaste of their collective enforced status as a lowly foreign migrant worker was palpably experienced at the border checkpoint of the Kuala Lumpur international airport. Many of our interviewees can still vividly remember experiencing cultural shock and embarrassment at the hands of Malaysian immigration officials in their first trip to the country. They were spoken to in harsh tones in a language they could not understand. When slow to act on their verbal commands, some were even slapped or kicked. While waiting to be processed by the officials, they had to squat on the floor in long rows.³ After being processed, the wait may extend into several hours (even stretching overnight if they arrived in the evening) without any food or water being supplied before local recruiting agents or their employers came to collect and whisk them to various destinations throughout the country. Eventually, a majority of Nepali migrant workers would find themselves concentrated in the highly urbanised and industrialised states of Selangor and Johor.

Having to quickly gain a basic and practical oral familiarity with the Malay language (the national language of Malaysia) was essential to navigating through their working lives and everyday existence in a foreign country. Nepali migrant workers either learnt this by themselves through trial and error or, more quickly, through the help of other Nepalis who have been working in Malaysia longer. With basic Malay, their life-worlds intersected not only with their immediate supervisors and co-workers of other nationalities but also with an array of Malaysians like salespersons, market vendors, policemen, and so forth. While some interviewees said they were able to make friends with co-workers of other nationalities, nevertheless, the norm is to stick to and rely on fellow Nepalis for support and camaraderie. This segmented sociality is reinforced by employers typically segregating their dormitories to house different nationalities as a way of building group morale. However, Madhesi interviewees shared that Pahadis who have been working in Malaysia for a longer time often do not readily extend their support and camaraderie to them. Instead, the latter continue their discriminatory attitudes even in a foreign land. Some said that while they had initially stayed with Pahadis, the distinctive differences in food, culture, etiquette, and languages between them became an additional burden to cope along with having to adjust to the new environment in Malaysia. Because of this, many eventually chose to live in separate accommodation.

Some of our interviewees were able to relate of the numerous “injustices” that they had personally faced or have heard about happening to their countrymen/women. These include being treated unfairly and harshly by employers, having to pay bribes when stopped by policemen, and being robbed by local gangs after payday. In particular, migrants with low skills, less exposure, and less formal education, and female migrants face higher risks of being cheated. They usually land in jobs that are more difficult than promised and have less benefits. Wage theft and workplace violation of rights are also more common among this group. Such difficult and exploitative circumstances often push migrants to run away from their original employers. A few of our interviewees admitted to being “runaways”—absconding from their legally designated workplace—and hence automatically becoming “undocumented” or “irregular” migrant workers as defined by the Immigration Act 1959. This excludes them from any protection and services from the state and further deepens their state of vulnerability.

This section has highlighted an array of everyday and structural migration inequalities encountered by Nepali migrant workers as an index of the collisions and contradictions between primarily the relational social, commercial, and regulatory dimensions of the migration infrastructure as found in Nepal and Malaysia. The next section looks at how the regulatory and humanitarian themes as embodied in the annual globalist Trafficking in Persons Report published by the US State Department frames and evaluates a selection of these migration inequalities in Malaysia and how they were, in turn, disputed by commercial and regulatory stakeholders in Malaysia.

Forced Labour in Malaysia: The Trafficking in Persons Report

Other reports highlighting the mistreatment and vulnerability of migrant workers in Malaysia over the years include Human Rights Watch (2004), Amnesty International (2010), Bhutta (2021), Verite (2014), Fair Labour Association (2018), and SOMO (2013). For a study of migrant workers’ access to redress options in Nepal, see Paoletti et al. (2014).

On 23 March 2022, local newspapers reported Malaysia formally ratified the International Labour Organisation’s (ILO) forced labour convention known as Protocol 29 (P29).⁴ The then Minister of Human Resources, M. Saravanan, described it as “a historic moment for the country” and noted that Malaysia is only the second country in the 11-member states of the Association of Southeast Asian Nations (ASEAN) after Vietnam to ratify the protocol. In November of the previous year, the same ministry had launched the National Plan on Forced Labour (NAPFL) 2021–2025, developed with ILO, with the objective of eliminating the stigma of forced labour in Malaysia by 2030.

Five years earlier, Malaysia had ratified an ILO convention on the issue of minimum wage. In May 2022, during the Labour Day celebrations, the Ministry of Human Resources had announced that the minimum wage has been raised from RM1,200 (US$270) to RM1,500 (US$340) for all workers irrespective of their nationalities. This was met with widespread reservations from employers who felt that the move was ill-timed given that the country’s economy was still slowly recovering from the debilitating effects of the COVID-19 pandemic. Some warned that the increased labour costs will filter down to consumers to bear. By contrast, trade unions and migrant workers civil society groups welcomed this long overdue readjustment to keep up with the rising costs of living faced by low waged workers especially in urban centres.

A few confluent vectors have accounted for this apparent benevolent course of action, some propelled by the policing gaze of international peer pressure and others more contextually generated. Paradoxically, it was the global COVID-19 pandemic which had singularly exposed an array of inequities experienced by many foreign migrant workers in Malaysia to the public eye and subsequently hastened widely publicised efforts in redressing them, however belated they may be.⁵

At the international level, for several years Malaysia had been lowly categorised in the US State Department’s annual report of the Trafficking in Persons (TIP). In 2021 (and again in 2022), Malaysia’s status was downgraded to Tier 3 after being placed on the Tier 2 Watch List for the previous 3 years, an unflattering position last occupied in 2014. The highest achieved was Tier 2 in 2017. These ratings have financial implications as a Tier 3 position would restrict the country’s ability to receive foreign aid, loans from multilateral banks, and foreign investments. Moreover, items believed to be made through forced labour would be denied entry into the US market.

The 2021 (and 2022) TIP reports said the reason for the downgrade was because “the Government of Malaysia does not fully meet the minimum standards for the elimination of trafficking and is not making significant efforts to do so even considering the impact of the COVID-19 pandemic on its anti-trafficking capacity” (US Department of State, 2022, 369). It further noted that while the government took some steps to address trafficking through the prosecution and conviction of traffickers, provided protection services to trafficking victims, and conducted victim identification training to relevant officials like labour inspectors and immigration officials, and so forth, there were nevertheless still serious structural vulnerabilities to overcome.

Most were recurring and unresolved issues highlighted in earlier TIP reports. Among others, and more directly related to forced labour, it noted that the authorities continue to conflate human trafficking with migrant smuggling which subsequently impeded anti-trafficking law enforcement and victim identification efforts. By relying on victims to “self-identify” and not implementing SOPs to proactively identify victims during law enforcement raids, the authorities continued to inappropriately penalise victims for immigration and prostitution violations. This occurred even in raids on factories suspected of having forced labour, considered “the more prevalent trafficking problem in Malaysia” (US Department of State 2022, 371). Moreover, authorities often relied on reports of abuse from embassies representing foreign workers or from workers’ complaints of non-payment of wages and other violations rather than proactive screening efforts. During raids, trafficking victims were often treated like criminals (e.g., the wearing of handcuffs), and this inhibited them to speaking candidly to law enforcement officials. The report further noted that:

Employers utilise practices indicated of forced labour, such as restrictions on movement, violating contracts, wage fraud, assault, threats of deportation, the imposition of significant debts, and passport-retention—which remained widespread—to exploit some migrant workers in labour trafficking on oil palm and agricultural plantations; at construction sites; in the electronics, garment, and rubber-product industries; and in homes as domestic workers. Malaysian law allows employers to hold workers’ passports with the workers’ permission, but it is difficult to determine if workers have freely given permission, and some employers retain the passports to prevent workers from changing jobs (US Department of State 2022, 373).

Trafficking cases typically operate through criminal syndicates assisted by corrupt police and immigration personnel. Even when traffickers were caught and prosecuted, TIP reports noted that the results of investigations on high-ranking government officials complicit with forced labour crimes were not made public in the interest of transparency. A noteworthy exception was what transpired after the seismic political shift in 2018 when the first regime change in Malaysian political history happened at the 13th General Elections.⁶ A year later, the deposed former deputy prime minister, who also served as the minister of home affairs then, was charged with 40 counts of corruption on allegations of receiving kickbacks in visa issuance contracts for foreign workers. The COVID-19 pandemic stalled the court proceedings and is unresolved at the time of writing. The report also highlighted that in December 2020, the Malaysian government filed 19 charges against a disposable glove manufacturing company under the Workers’ Minimum Standards of Housing and Amenities Act (Act 446) for “inhumane living conditions” in migrant workers’ dormitories (US Department of State, 2022, 370). Nevertheless, it also observed that the government did not report investigating or prosecuting this company for human trafficking crimes despite credible evidence of debt-based coercion.

Key industry players in Malaysia were unhappy with the TIP 2022 report which maintained the Tier 3 status for the country. They questioned the credibility of the individuals engaged in preparing the report as well as the methods of assessment adopted and the nature of the empirical evidence gathered to arrive at their conclusion. For instance, the president of the Malaysian Small & Medium Enterprises Association said that despite a significant number of SMEs (about 80%) having embarked on making changes to comply with Act 446 as well as improving their remuneration packages for foreign workers, this “overall improvement” was not factored into the report and “does not reflect the reality on the ground”.⁷ In an editorial piece for the largest English daily in Malaysia, the writer opined that “something’s wrong” with the report since several of the countries placed in Tier 1 and Tier 2 were places where “human lives mean nothing” in comparison to Malaysia.⁸ In a parliamentary session, the Home Minister commented that the TIP Report was “subjective and not factual” given that the government has already taken many initiatives including improving present laws on anti-human trafficking and labour the past year.⁹

In Nepal, the main policy frameworks related to migrant protection are the Foreign Employment Act (currently being reviewed at the time of writing), the Labour Act, Human Trafficking and Control Act, and the Foreign Employment Policy. The Ministry of Labour Employment and Social Security has the primary responsibility for overall management and policy guidance, the Department of Foreign Employment regulates the migration process, the Foreign Employment Board takes responsibility for migrants’ welfare and protection, and the Foreign Employment Tribunal for justice and legal protection. The new Foreign Employment Information and Management System keeps data related to labour migration. There is also a national committee for controlling human trafficking in addition to the above. Other actors include the Department of Passports, diplomatic missions and labour attaché in destination countries, Department of Consular Support, and the Ministry of Women. The government works with private and public stakeholders such as the Nepal Association of Foreign Employment Agents and the Federation of Nepal Foreign Employment Orientation Agencies, I/NGOs, and UN Agencies. Although the policy on labour migration in Nepal is regarded as among the most progressive in South Asia, nevertheless, criticisms have been levelled on the efficacy of some Nepali embassies in providing sufficient support and protection to Nepali workers. In Malaysia, apart from the assistance of a handful of Malaysian NGOs, a small array of concerned Nepali individuals and community groups have turned to social media (particularly Facebook) to partially fill this lack by providing information, counselling, and emergency support. In sum, observers have highlighted how the severe lack of implementation and enforcement has impeded effective service delivery to Nepali migrants in Malaysia.¹⁰

As assessed by Lee and Pereira (2023, 8), this is because:

Vested interests of recruitment agencies and commercial entities in the labour supply industry prevail in both the receiving and sending countries, sometimes in joint ventures of nationals of both countries. The prospects of combatting forced labour ride significantly on the design, harmonization, and enforcement of bilateral arrangements.

Disease, State, and Labour in Malaysia

In the past, the migration infrastructures of both Nepal and Malaysia functioned in the absence of severe disruptions. However, under the extraordinary global reach of the COVID-19 pandemic, much of what was taken-for-granted was reconfigured. The humanitarian became more foregrounded even as the commercial and regulatory dimensions tussled in addressing the contagion while trying to keep the economy afloat in the face of a debilitated migrant labour force.

The outbreak of the first recorded COVID-19 case in Malaysia occurred in January 2020. After a significant spike in reported cases following a large Muslim religious gathering in late February, the first lockdown—the Movement Control Order (MCO)—was put in place in mid-March. This measure was partially relaxed in subsequent months when double-digit figures were reached. But this changed again after a state by-election in October 2020 produced a large spike in infections and another prolonged cycle of lockdown imposed.

At the beginning of the MCO, the Senior Minister for Security had urged Muslim Rohingyas who had attended the religious gathering to come forward voluntarily for testing regardless of their legal status because the government was “concerned about their wellbeing”. Rohingya community leaders responded that their alleged large presence at the said gathering was over-estimated. Subsequently, those who had gone for testing reported not being treated well at the clinics and hospitals.

This early and apparent benevolent stance towards undocumented non-citizens changed drastically in a matter of days. A series of crackdowns were carried out in places where migrant workers and refugees were known to reside. Those rounded up and detained included women and children. Undocumented migrant workers found to be COVID-19 positive were kept in separate make-shift hospitals while COVID-19 negative cases were detained elsewhere to await deportation. High COVID-19 infection rates were subsequently reported in the detention centres. In July 2020 when Al-Jazeera broadcasted an investigative documentary on the nature of these detentions, the Malaysian government did not take kindly to it. Among other punitive actions, the authorities revoked the work permit of the Bangladeshi migrant worker featured in the story and deported him, and raided the Al-Jazeera office.

In early April 2020, local media attention focused on South Asian (including Nepali) migrant workers residing in the old precinct of Kuala Lumpur popularly known as “Masjid India” (Indian Mosque). Because of high infection rates among them, the buildings where these workers stayed were placed under enhanced lockdown for a couple of weeks. The unhygienic and cramped living conditions of these buildings were publicly exposed and became viral talking points among concerned Malaysians and civil society groups. In the following months, more media exposes of this type were made alongside reports of high infection rates in the dormitories of factory migrant workers and make-shift accommodation at construction sites. The then Minister of Human Resources, M. Saravanan, accompanied a few of these raids and was reported as saying that the living conditions were “deplorable” and resembled “modern slavery”. This led quickly to the enforcement of Act 446 (amended in 2019) on the Workers’ Minimum Standards of Housing and Amenities. These standards adhered more closely to those set by the ILO. Failure to adhere to these standards would result in defaulters having to pay a fine of RM 50,000 (USD11,364) for every worker affected. In response, industry pleaded for a one-year extension to set their house in order given the dire economic situation they were mired in, a plea which was subsequently repeated two years later. In a Parliamentary sitting in December 2020, the Minister of Human Resources reported that more than 90% of foreign workers (estimated at 1.4 million) accommodation provided by their employers did not comply with Act 446.¹¹

High infection rates and clusters among foreign migrant workers prompted the government to proclaim mandatory testing for all foreign workers, and the costs to be borne by their employers. The business sector, especially the Small Medium Enterprises (SMEs), chorused the government to provide subsidies for testing. They cited greatly depressed cash flows and the spectre of bankruptcy should this directive be pushed through without any offer of financial aid. The government relented by allowing the state-run SOSCO (Social Security Organisation) funds to be used by employers for this purpose. However, it was later revealed that a significant number of documented foreign workers (between 30 and 40%) were not even put on this scheme by their employers in the first place. For the testing of undocumented migrant workers, employers also suggested that the government should pay for them as they did not want to face criminal action by revealing that they have this category of workers in their payroll. This tug-of-war about costs, responsibility, and the frequency of testing would persist for the remaining part of the year.

A similar exchange between the captains of industry and government officials was also evident in the debate between having to balance lives and livelihoods in the context of a pandemic. In the case of foreign migrant workers, the crucial role they play in keeping the wheels of industry and business turning in Malaysia became evident. When international borders opened briefly in the middle of 2020, tens of thousands of foreign migrant workers, mainly those from neighbouring Indonesia, had decided to return home given the uncertainty of the job situation and they wanting to spend precious time with their families during this difficult period. Moreover, as new hires were not allowed to come into the country, industry players lamented of severe labour shortages in the construction, manufacturing, and plantation sectors.

Because of persistent pleas from the captains of industry in Selangor, the most industrialised state in the country, the state authorities eventually allowed 50% of the workforce, mainly in the construction sector, to resume work by the end of April 2020. Rising unemployment figures¹² had prompted the government to suggest that these shortages be filled by Malaysian citizens. In response, employers assessed Malaysians as either unsuitable or disinterested in these 3D (“dirty, dangerous and difficult”) jobs. Severe labour shortages translated to massive loss in profits for the industry and, by extension, lower tax revenues for the government. For instance, in the palm oil sector, decade high prices meant literally millions of dollars of unpicked oil palm fruits were left to rot away every day. Similarly, rubber gloves manufacturers pleaded that the assembly line production needed workers to feed the extraordinary demand for their products as protective wear for COVID-19 frontliners.

By early June 2020, this economic conundrum was severe enough for the Malaysian Employers Federation (MEF) to suggest that the government should forsake enforcing issues of legality/illegality with regard to foreign migrant labour. Instead, the huge reservoir of undocumented foreign workers could be re-categorised as legally permissible labour. This would not only mitigate labour shortages but also have the additional benefit of generating much-needed revenue for the government coffers. At the end of 2020, the Malaysian government launched the Labour Recalibration Plan with a target of 250,000 undocumented migrant workers to be recruited by employers. Additionally, for every undocumented migrant worker recalibrated, the authorities required that a similar ratio of individuals be deported as a way to resolve overcrowding and reduce high COVID-19 infection rates in the detention centres. The authorities decided that the costs of deportation would be financed by the prospective employer.¹³

By early 2021, it was reported that only 8.5% of documented foreign workers in six high risk states in the country were sent by their employers to be mandatorily screened for COVID-19 despite the provision of free test kits supplied by SOSCO to clinics throughout the country.¹⁴ Moreover, local media exposed a scam involving several clinics selling fake results for a fee of between RM300–500 each (USD68–114). When the government announced intentions of imposing a total lockdown again because of high rates of infections, SMEs rallied together to plea for targeted lockdowns (conditional MCO) and more financial aid. Despite the provision of numerous stimulus packages in the previous year by the government, SMEs lamented this was not enough and thousands of businesses would continue to fold up as they had already exhausted most of their savings in the previous year to pay for rentals, salaries, and so forth. They counselled for closer consultations between government and industry stakeholders before any firm decisions are made.¹⁵

During this time, the Nepal government arranged for repatriation flights to bring Nepali workers back home. More than 51,000 Nepalis returned between 15 June and the end of August 2019. However, there were still around 250,000 migrants registered for return in Nepal embassies who were left on their own to find their way back home. The Nepali government could not do much to resolve numerous reported cases of abuse of migrant workers during the pandemic.

Up to the first half of 2022, the complaint by SMEs and large businesses of a severe shortage of labour (estimated to be around 1.2 million) persisted and remained largely unresolved.¹⁶ This was amplified by a brief diplomatic tiff between Indonesia and Malaysia. As noted earlier, Indonesians currently constitute a large majority of foreign migrant labour in Malaysia. While this impasse was eventually resolved, it underscored the strong bargaining position of a labour sending country in an extraordinary time involving the intersections between disease and capital.¹⁷ In the case of Nepal, after a major cross-border investigation exposing collaborated corruption and charging of exorbitant fees to workers by Nepali and Malaysian officials and private companies, the then Minister, Mr Gokarna Bista, banned Nepalis from going to Malaysia for employment in May 2018. The investigation revealed that Malaysian businesses and Nepali middlemen in Kathmandu were allegedly working under the political protection of the former deputy Prime Minister of Malaysia and influential politicians and bureaucrats in Kathmandu to cheat Nepali workers. It revealed that they had illegally taken more than USD450 million from aspiring Nepali workers between September 2013 and April 2018. Following the ban, the two governments signed a Memorandum of Understanding (MoU) which among others required employers to pay for visa fees and air tickets when taking Nepali workers. It was decided that salaries be paid in the first week of every month. The MoU also called for a joint working group to work out the technical details of implementation. Unfortunately, some points of disagreements, such as the devolution of medical testing institutions to provincial level, could not be resolved even after September 2019 when the Nepal government had removed the ban. Moreover, the MoU failed to work on important issues specific to the corridor such as high number of workplace accidents, unidentified deaths, and high suicide rates as well as issues of inequality related to class, gender, and skill levels.

Conclusion

In the last three decades, the closely intertwined migration infrastructures of Nepal and Malaysia have worked efficiently to facilitate the transnational flow of labour and remittances. On the one hand, the import of cheap, pliable, and flexible labour from Nepal into Malaysia has helped to drive the national economy in Malaysia. Similarly, it has also contributed substantially to the household economy in Nepal. Nevertheless, together with migrant labour from other Asian countries, Nepali migrant workers occupy a precarious surplus position within the capitalist value regime of extracting value. Moreover, as the non-citizens of Malaysia, they experience daily the logic and force of a differentiated “hierarchy of rights” and “bordering practices” in reminding and keeping them in their place, a manifestation of what we have called structural migration inequalities.

As noted, for the aspiring Nepali migrant worker, the decision to go to Malaysia is itself a manifestation of a pre-existing set of socio-economic inequalities already inherent in Nepali society. Much of the current migration policies, though important for migrants, do not adequately address or take into serious account these long-standing inequalities. Both in the country of origin and in the host country, these prevailing kinds of discrimination have been perpetuated in the daily life of the Nepali migrant. Similarly, the dominant migration-for-development discourse largely focuses on economic benefits and undervalues the social and mental wellbeing of the migrant worker. Moreover, these issues are currently not prioritised as policy and implementation goals in the national, regional, and global migration policy frameworks such as the Global Forum for Migration and Development and the Global Compact on Migration.

In terms of the migration infrastructure concept, it is evident that the commercial dimension currently dominates and cause all other dimensions to orbit around its logic of operation and spaces of mediation, notwithstanding the periodic interventions of the regulatory, humanitarian and even the social, and its wake constituting the range of everyday and structural migration inequalities discussed in this chapter. Ironically, it is COVID-19, an unanticipated vector that sits outside the migration infrastructure, that has exposed this appalling state-of-affairs to public view, a perspective hitherto largely confined to civil society groups and concerned politicians and academicians. As to whether the attitudinal and policy changes set in motion in recent times to address some of these migration inequalities can be sustained to bear tangible and equitable outcomes for Nepali migrant workers in particular and other foreign migrant workers in Malaysia in general for the foreseeable future remains to be seen.