The recent amendments passed in Parliament to the Employment Act 1955 not only institutionalise outsourcing by recognising labour contractors as "employers" but also legalise forced labour through such form of employment.
It is a fact that the current form of outsourcing of workers through licensed companies has brought about clear conditions of slavery and forced labour where principal employers hold no responsibility to the workers.
Since 2006 when outsourcing of workers was brought about with the massive recruitment of Bangladeshi workers, there have been numerous cases of labour rights violations, of use of violence to silence and control workers, of non-payment of wages, and movement of workers to various forms of jobs without proper terms of contract.
Outsourcing of workers creates a situation of uncertainty for workers, and workers remain temporary or even find themselves out of work. In many cases, workers have been sold from one agent to another as a commodity, as slaves.
In the past three years, Tenaganita handled 2460 cases of migrant workers who have been abused through the process of outsourcing.
All the workers complained of non-payment of wages, some of them not paid for more than a year; many were locked up in the dormitories provided for by the outsourcing companies; many of the workers had their wages deducted, some for as much as RM35 merely for water; and all of them had their passports in the control of the outsourcing company.
These complaints amount to conditions of forced labour.
Two years ago, the Daily Telegraph (UK) investigated and reported on the practices of forced labour in hypermarkets in Malaysia.
The report found that through outsourcing, the workers were in a state of enslavement, working more than 80 hours a week, and earning between RM100 to RM250, after numerous deductions by the outsourcing company. This situation has not changed.
Instead of responding with swift and decisive action to these reports and evidence of how outsourcing leads to enslavement of workers in this 21st century Malaysia, the government has instead worked hard to institutionalise forced labour through the recent amendments to the Employment Act.
We ought to be reminded that in Article 6 of the most supreme law of the land, the Federal Constitution, clearly prohibits slavery and all forms of forced labour in Malaysia.
Forced and bonded labour is not only practiced through outsourcing but also through the employment of domestic workers in Malaysia.
In October, the Cambodian government froze the recruitment and placement of domestic workers to Malaysia as the country was seen as a very unsafe destination for Cambodian women and girls.
There have been numerous cases of abuse, violence and even deaths of domestic workers. In 2011 alone, 11 domestic workers died in Malaysia. Eleven Cambodian girls and women have died in Malaysia, and the police have not conducted even one investigation into their deaths.
In November this year, the Indonesian government lifted the two-year ban of domestic workers to Malaysia, with new arrivals of domestic workers slated for January 2012.
There remains, however, an absence of a legal framework to protect the rights, dignity and safety of domestic workers in Malaysia.
Domestic workers continue to be seen as "servants" in the Employment Act - this effectively excludes them from protections granted to ‘workers' under the Act.
In the newly signed Memorandum of Understanding (MOU) with Indonesia, the Malaysian government stated that domestic workers will get a day off and passports will be held by them.
This, however, isn't a guaranteed protection, as workers can apparently "work overtime" and their passports can be held by the employers for "safekeeping".
This MOU also fails in guaranteeing a decent basic wage for domestic workers, and no clear standard contract of terms and conditions of work.
In short, the same practices of control, bonded contract, violence and abuse against domestic workers continue to be facilitated by the state.
Forced labour of domestic workers is continuously normalised in Malaysia, and employers can act with impunity against the rights and dignity of domestic workers.
The eleven known deaths of Cambodian domestic workers are tragically not the only casualties in the institutionalised slavery in Malaysia. In 2011, the Embassy of Nepal recorded 233 deaths of their nationals in Malaysia.
From January to May 2011, the deaths of more than 300 Bangladeshi workers in Malaysia were recorded. That is an average of 4 to 15 deaths per week of Nepali and Bangladeshi workers in this country.
These deaths are typically chalked up as "sudden deaths".
That convenient description, however, does not adequately depict the horrific conditions of stay and work, of being forced to work for long hours without rest, of being deprived basic provisions of living that most of us take for granted, of these systematic abuses in Malaysia that migrants endured before dying.
At least more than 500 migrants in our midst didn't die suddenly - it is our duty to investigate what has led to their deaths, and it is our responsibility to prevent more migrants from dying in Malaysia.
These harsh and abusive conditions are exacerbated if a migrant is undocumented.
According to data from the Malaysian Immigration Department, 80 percent of undocumented workers arrived in Malaysia legally, but become undocumented through no fault of their own - they are often cheated by employers, and agents whom the migrants have paid large sums of money to for legal travel and work documents.
Some migrants are brought into the country on tourist visas, and thus unknowingly overstay.
Many more are brought under a ‘calling visa', that is not converted by the employer to a work permit ; others are brought in as ‘general workers' or under a ‘plantation visa' but made to work in other sectors, or ‘rented out' to various employers for work.
All these workers become undocumented in Malaysia - they are cheated, brought under false promises and trapped in exploitation in this country.
It is then the workers who have been made undocumented through systems and practices and policies in Malaysia, and not the agents and employers, who are punished by Malaysia's harsh immigration laws (which allows for whipping, a practice deemed to be torture under international law).
The undocumented status of these workers also renders them unable to access justice and redress, which bonds them to conditions equivalent to forced labour and slavery.
It is therefore not shocking that there are at least two million undocumented migrants in Malaysia. The ‘migration management method' of the state is one that is punitive towards migrants, encouraging of forced labour and friendly towards corrupt practices.
The 6P ‘amnesty programme' was supposed to more effectively manage migration. It has, however, unraveled to be a spectacular money-making venture for agents approved to register workers into the biometric system, while completely failing to address the root causes of what led migrants to be undocumented in the first place, or the factors that lead to their enslavement.
The paltry attempts by the Malaysian government to tackle human trafficking are reflected in the disgraceful conviction rate of traffickers.
From 2008 to July 2011, Majlis Anti-Pemerdagangan Orang (MAPO), the national council on human trafficking, handled 347 cases, which resulted in only 34 convictions. In many of the cases that did go to court, the perpetrators were acquitted due to a lack of evidence.
Many of the victims remain frustrated in the shelters as their cases take a very long time to be investigated.
There is also growing evidence of collusion and corruption between enforcement agencies and the traffickers as reflected in the GSS News Agency case where the victims were initially arrested and sentenced for illegal entry until pressure was mounted by the Malaysian Trades Union Congress (MTUC).
Despite the Anti-Trafficking in Persons Act (2007) and the collective chest-thumping by government officials on their ‘efforts to address trafficking', the reality remains that migrants remain at risk in Malaysia.
We therefore mark International Migrants Day today by calling on the government to end its complicity in violence and slavery.
We take note of this day to strongly urge ‘sending countries' to see Malaysia for what it is - a destination country that facilitates the degradation of rights and dignity of migrants.
And we call on the conscience and collective power of peoples of Malaysia and of countries of origin to end the enslavement of migrants, and to ensure good governance and the protection of rights of all workers, both citizen and migrant, is realised.
IRENE FERNANDEZ is executive director of Tenaganita.