Marriages between Foreign Workers and Citizens in Malaysia

Chapter 13

In-between (II)Legality and Legitimacy: Marriages between Foreign Workers and Citizens in Malaysia

Chee Heng Leng Brenda S. A. Yeoh Rashidah Shuib

Introduction A recent study comparing Malaysia and Spain juxtaposed the concepts of borders and ‘confines’ to gain an insight on how the two states attempt to control migratory flows in different ways (GarcesMascarenas 2010a). In the Malaysian case, geographical borders are relatively porous, but after migrants have entered the country, the state seeks to contain them by imposing ‘confines’ upon them, understood as specifically ‘constituted and consolidated political, social and symbolic spaces’ (Garces-Mascarenas 2010a: 86). Explaining how legality and illegality are legally, politically and socially produced, the writer points out that the confine of legality reduces migrant workers to a temporary one-dimensional existence as foreign workers, while ‘illegal workers’ are 1

confined within a regime of deportability. Whether legal or illegal, migrant workers live ‘outside the border’ even while physically inside.

2 CROSS-BORDER MARRIAGE: Global Trends and Diversity

Surely one of the most profound ways by which migrant workers in Malaysia are constrained to ‘the outside’ derive from restrictions placed on the right to marriage and family life. Under a migration and employment regime that is designed to ensure temporariness, unskilled migrant workers who are allowed entry are not allowed to get married or bring their family members into the country with them. Those who are illegal, on the other hand, are not supposed to exist in any case, much less be entitled to enjoy the officially sanctioned institution of marriage. Nevertheless, it is a common observation that there are large numbers of migrant workers who have successfully made the transition from ‘foreign worker’ to ‘foreign spouse.’ Is this because of a ‘loophole’ in the laws that easily enables this transition? Or is it because of the different ways by which marriage may be constituted and legitimized? If there is a loophole, it begs the question as to why it would have been tolerated for such a sustained period of time. On the other hand, it may be argued that a disjuncture exists between official policy and practical implementation; but if so, the question arises as to why and how this may occur. De facto marriages in Malaysia are relatively uncommon when compared

to

western

countries,

particularly

among

the

Muslim

population. In Malaysia, it is common practice for marriages to be officially 1

registered—either

with

the

Registrar

of

Marriages

for

In this paper, the term ‘illegal’ is used to mean a migrant worker who does not have the requisite documentation for residence or work in a country, i.e. ‘undocumented’ or ‘irregular.’ The term does not qualify a person, but rather the person’s residential or work status, or activities. The term ‘illegal worker’ is problematic, and therefore we place it in within inverted commas.

In-between (II)legality and Legitimacy

3

non-Muslims, or the Islamic authorities for Muslims. Do migrant workers register their marriages with citizens despite official policy, or would there be other ways by which they go about legitimizing their unions? Would a citizen’s marriage to a migrant worker be considered illegal, but somehow seen as legitimate? This paper seeks to address these questions based on interviews with former migrant workers and their citizen spouses in Malaysia. In doing so, we will examine the constructs of legality/illegality and legitimacy, and investigate how these couples navigate between them in the nexus of migration and marriage. Beginning from the premise that legality and illegality are produced and constructed, we examine the tension that arises from a partial or imperfect construction, and the process by which it is contested with the alternative notions of legitimacy and sanction.

Methods The work for this paper is drawn from a larger research project on international marriage carried out from 2008 to 2011. A general understanding of the policy framework is based on the secondary literature, published government reports, and media articles, as well as interviews with government officials carried out in 2010. Case studies of migrant worker-citizen couples are drawn from a dataset of interviews with former migrant workers and their citizen spouses carried out from 2009 to 2011. Interviewees were identified according to a set of inclusion criteria. We only included marriages which were contracted in 1990 or after,


and where one of the spouses was a migrant worker (either holding a work permit or ‘illegal’) and the other was a Malaysian citizen at the time when they started the process of getting married. We included all individuals who told us they were married, without questioning their definition of ‘marriage,’ thereby accepting as married those who may not have officially registered their marriages with the relevant Malaysian authorities. Each informant was interviewed once, usually for about an hour. We tried as much as possible to carry out the interviews separately and not in the presence of other people, especially the spouse; and were successful in most but not all cases. In one case where the husband insisted on being interviewed together, we faced difficulties in eliciting spontaneous responses from the wife; but this proved to be an exception, as in the other few cases of joint interviews, both spouses were relaxed and forthcoming. There are particular challenges involved in interviewing undocumented migrants, but we found most of the difficulty in obtaining consent for interviews. Once the initial hurdle of trust was overcome, most of the interviews went ahead smoothly. Nevertheless, there are limitations in the depth of understanding that we could achieve with this approach compared to an ethnographical approach. The interviews were carried out in the west coast states of Peninsular Malaysia, primarily in the Klang Valley and the state of Penang, but also in the states of Selangor and Melaka. Interviewees were identified through personal networks of individuals. For example, an NGO worker introduced a few interviewees to us after obtaining prior consent, while our research assistant, an Indonesian graduate


5

student, introduced several others. Those whom we interviewed also introduced their friends to us. This process of interviewee identification is entirely arbitrary and coincidental, and has no claims to being representative of any particular population. There are obvious selfselection biases, for example, people who are less successful in legalizing their residence status or legitimating their marital status may be less inclined to talk to us. While disavowing any claims to representativeness, we nevertheless feel that the interview material provides valuable insights into certain processes and mechanisms that occur, and illustrates the rationale underlying the actions of the individuals.

Blurring between the Illegal and Legal Undocumented migrants’ condition of illegality is legally and socially produced through historically specific processes (De Genova 2002). There could have been times in the past for instance when cross-border movements at particular locales occurred largely unregulated but later became restricted by the institution of laws and their implementation. Indeed, taking the longer view, it has been argued that states’ imposition of control over borders has become rigid over time, making regional interconnections that have habitually occurred over long periods in history become more and more difficult (McKeown 2010). In certain situations, acquiring the documentation for border crossing may become too expensive or difficult or even impossible, compared to the actual crossing and travel itself, particularly in light of historical experiences that may still be fresh in the collective memory.


Nevertheless, receiving states have made undocumented migration illegal, resulting in its conflation with criminality even though it may be considered, like prostitution or drug abuse, as a ‘victimless crime’ (Coutin 2005: 7). Coutin’s (2005) research on Salvadoran immigrants to the United States highlights the spatial

dimension

as key to understanding

criminalization, as convicted offenders are socially excluded and located in a separate social domain. At the same time, space is also key to understanding the process by which criminalization can be contested. While in theory, the legal and the illegal inhabit separate social and physical spaces, in reality, individuals move between these categories as they perform everyday social actions. For example, in some countries, people in the ‘legal domain’ could be utilizing pirated software side by side with ‘illegal migrants’ doing legal activities, such as shopping for groceries. According to Coutin (2005), the domains of the licit and the illicit are often indistinguishable and interdependent, thereby enabling the state of criminality to be contested. She points out that, “If illegal activities in some ways contribute to practices that are not taken to be illegal, and if such illegal actions are, at least in certain circles, part of the ‘normal’ way of operating, then the laws that criminalize such actions appear to be illegitimate” (Coutin 2005: 9). The association of undocumented migration with criminality may therefore be challenged because of this societal ambiguity. Besides this, it may also be challenged through what she terms spatial ambiguity, calling into question the good that can be gained from spatially separating migrants from the rest of society, and legal ambiguity, which challenges the


7

correctness of a particular law. In Malaysia, a migrant worker is confined within a legal space that restricts their rights, including the right to marry citizens. Nevertheless, marriage is governed by two different legal regimes—for non-Muslims and for Muslims—that operate independently of the migration regimes. Furthermore, migrant workers may have access to the legal institutions of their home countries and can move back and forth if necessary. While the recipient state attempts to produce and maintain the categories of the ‘legal’ and ‘illegal migrant worker,’ the workers themselves struggle to shape their own personal and intimate lives,

and

their

futures.

When

migrant

workers

develop

intimate

relationships with host country citizens, marriage can become part of this struggle. Migrants may use the institution of marriage to move from being ‘illegal’ to ‘legal’; marriage itself, however, may come to be understood and legitimized in complex and multi-layered ways. There is societal ambiguity which is related to the legal but illegitimate denial of rights to contract marriage, but there is also an ambiguity of transnational space that allows for selective access to the laws and norms of a country. The lives of the migrant workers/foreign spouses in our study highlight the fluidity of movement, as well as the breakdown of clear demarcations between the dichotomous categories of ‘legal’ and ‘illegal,’ and of ‘foreign worker’ and ‘foreign spouse.’ While a migrant worker may become a foreign spouse, the reverse may also occur; furthermore, spouses may at one and the same time be workers (Piper and Roces 2003). Nevertheless, in navigating the domains of the legalities and illegalities in migration, work, and marriage, the status of a migrant


worker turned foreign spouse in Malaysia is often precarious. As conceptualized by Goldring et al. (2009), this precarious status points to the fluidity and blurred demarcation between legality and illegality, and is particularly apt for describing the status of the foreign spouse whose legal right to reside in the country is dependent on the sponsorship of her/his Malaysian spouse.

The Guestworker Regime in Malaysia Historically, it may be said that Malaya/Malaysia was built on the movements of trade and the migrations of peoples. Through the nineteenth and early twentieth centuries of British colonial rule, there was large scale migration of labor in and out of the country, with immigration far exceeding the outflows. The Second World War was a watershed of sorts, as there was relatively little migration into the country in the following decades, when many countries of the region underwent political

transformation

to

become

new

nations.

Malaya

became

independent in 1957, and a new constitution, forged through negotiations and bargaining among ethnically based political leaders and the British, defined who among the diverse populations could become citizens. The new nation state began the consolidation of its borders with the passing of the Immigration Act in 1959. Some political realignments took place through the early to mid-1960s as Singapore and the North Bornean states of Sabah and Sarawak joined the federation to become Malaysia in 1963 in the face of political opposition from Sukarno-led Indonesia, and as Singapore later left to become its own independent state in 1965. The process of border consolidation continued with the


9

1968 Employment Restriction Act that required non-citizens to obtain work permits for employment, making the right to work co-terminus with citizenship (Wong 2006). The contemporary waves of labor migration into Malaysia largely began in the 1970s when the New Economic Policy kick-started an aggressive export-oriented and labor intensive industrial policy that led to rapid urbanization and the depletion of labor from the agricultural sector, particularly the plantations (Azizah 2006). For the first time since the end of the war, the official statistics in the 1970s showed a net migration surplus (Wong and Afrizal 2003). Since then, Malaysia has become one of the largest net importers of foreign labor in the region (Pillai 1999; Wong 2006). Through these decades, state policies have also undergone many changes. The state-imposed foreign contract worker system based on off-shore recruitment (referred to as the guest worker regime in brief) began to be implemented in the 1990s, leading to more stringent governmental control on employment for non-citizens (Wong 2006; Chin 2008; Garces-Mascarenas 2010b: Annex 3). Migrant workers who are recruited are subjected to a list of restrictions that include not being able to bring family members into the host country with them, and not being able to contract marriages with citizens, permanent residents, or even other foreign workers. In 2005, there were 1.7 million foreign workers with work permits, constituting 15 per cent of the labor force in 2005 (Economic Planning Unit Malaysia 2006: 239). In 2010, 1.8 million work permits were issued, of which about 50 per cent were to Indonesians. However, the Malaysian Federation of Employers estimates that there are three


times

as

many

undocumented

as

documented

workers

(Wong

forthcoming). On 13 July 2011, the government started a large scale operation to register all foreign workers, both ‘legal’ and ‘illegal.’ Termed the ‘6P programme,’ it incorporates an amnesty and legalisation exercise for undocumented workers with the eventual aim of instituting a biometric identification system. On September 2nd (‘Foreign workers who paid extra under amnesty can file case,’ The Star Online, September 2nd 2011), it was reported by the governmental news agency Bernama that over 2.5 million foreign workers had registered, of which “1.6 million were legal foreign workers while the rest (about 900,000) 2

were illegals.” If the figures from this registration exercise can be taken as reflecting reality, Indonesian workers were by far the largest group at about 46 percent of the total where undocumented workers outnumber documented workers (about 535,000 of some 897,000) (‘Indonesians top list in 6P exercise,’ The Star Online, August 18th 2011). Migration between Indonesia and Malaysia has been described as a migration system with multi-faceted inter-linkages in various domains (Wong 2006; Wong and Afrizal 2003). Long established, the flows were not curbed by the British colonial state, which sought to control migratory movements from other places. It was only during and immediately after the formation of Malaysia in 1963, when the political tensions between Indonesia and Malaysia crystallized as hostilities termed Konfrontasi, that migratory flows slowed down considerably. 2

These figures are probably still in flux. About a week earlier, the deputy secretary general of the Home Ministry was reported as announcing that out of the 2.2 million migrant workers registered, 1.2 million were illegal migrant workers (‘One million jobs to be filled by Malaysians before foreigners are made offers’ The Star Online, August 24th 2011).

In-between (II)legality and Legitimacy 11

Viewed from this historical perspective, the constraints of the migration regime are a recent imposition by newly evolved nation states on long existing regional movements of people. Jones (2000) provides a detailed exposition of the various ways in which Indonesians migrate in and out of Malaysia. Her book illustrates the blurred division between ‘legal’ and ‘illegal,’ and explains the complex interlocking agent system/s by which migrants from Indonesia cross the border into Malaysia, most often driven by economic circumstances to look for work. For example, migrants may enter the country legally either with a work permit or a tourist visa but later 3

become ‘illegal’ when they overstay or run away from their employers.

An important issue highlighted by Jones is that under the circumstances by which they migrate, some migrant workers who pay brokers to arrange their migration may not even know whether their migration is legal or illegal.

Marriage in the Legal/illegal Migration Context: Cases from the Field In Malaysia, marriages for non-Muslims are registered by the Registrar

of

Marriages

(ROM)

under

the

National

Registration

Department. Assistant registrars of marriages licensed by the ROM operate throughout the country, usually but not exclusively, at temples, clan associations, and other public organizations. For Muslims, marriages are registered with the various state religious departments, which have 3

Work permits are specific in terms of employer; therefore, workers who wish to leave their employers but not return to their home countries have no choice but to run away, thereby entering the category of ‘illegal.’


offices at the district levels. Each of Malaysia’s 13 states has its own independent jurisdiction for Islamic marriage. Although there are differences over different periods, they generally follow a similar administrative model (Mohamad 2011). Our fieldwork covered a total of 56 marriages between migrant workers (including documented and undocumented) and Malaysian citizens. The breakdown in terms of the nationality of the foreign spouse was 23 Indonesian, 14 Bangladeshi, 9 Filipino, 6 Vietnamese, 3 Indian, and 1 Nepalese. In this paper, we will focus on the 23 Indonesian-Malaysian marriages, of which 19 were Indonesian women married to Malaysian men, and 4 were Malaysian women married to Indonesian men. For these, we obtained interviews from both husband and wife in 15 marriages, but only one spouse in each of the remaining 8 cases (7 wives, 1 husband). Pseudonyms are used in this paper and locations identified only at a general level in order to protect the identities of the interviewees. The majority of the marriages in our study occurred within the last decade (2000-2010), were Muslim marriages and were registered with the Malaysian Islamic authorities. A typical route taken to legalize these marriages is to go to Indonesia, register the marriage there, register with the Malaysian Consulate in Medan (Sumatra) or Pekanbaru (Riau), or the Malaysian Embassy in Jakarta, and then return to Malaysia, obtain a validation of the marriage certificate from the Indonesian Embassy in Kuala Lumpur and register with the Malaysian authorities. If the migrant worker has a legal work permit, she/he will return to their home country either upon expiry of the work contract, or give up the work permit and return. A period of at least six months


has to lapse before she/he can enter Malaysia again with the same passport. If there is no work permit, one could either leave Malaysia ‘illegally’ with the help of agents, or pay a fine to the authorities (this way may not always be available) and get a special travel document from the Indonesian embassy (upon payment of a fee). Usually, after the marriage is registered with the Malaysian authorities, the Immigration Department will then issue a one month social visit pass for the foreign spouse. The social visit pass issued is usually given for one month, three months, six months, and then one year, progressively although each one, three, or six-month period may be repeated a few times. Theoretically, a foreign spouse may apply for permanent residency after five years, but in reality, it is very difficult to obtain, and foreign spouses are often given social visit passes that have to be renewed annually for an indeterminate length of time (Chee 2011). Foreign spouses on these passes cannot legally be employed. In theory also, it was possible for a foreign spouse to obtain a work permit if he/she gets an offer for employment and the employer then applies for a work permit on his/her behalf. In reality, that almost never happens. Beginning from mid to late 2010, however, it has become easier for foreign spouses to apply for work permits, but the effect of this change was not felt by most of our Indonesian interviewees as of yet. Nevertheless, among our interviewees, we found a diverse range of pathways to the legalization and/or legitimation of marriage, including pathways that led to illegality rather than to legality. In almost all cases, migrants and their spouses, while searching for legality


Table 1. Main Characteristics of the Types of Pathways for Migrant Workers Marrying Citizens in Malaysia Type of pathways

Pre-marriage

Marriage

Post-marriage

Legal A pathways

Legal residence status with Legal but temporary Officially registered yearly renewable one-year residence and work in Indonesia and social visit pass. through work permit Malaysia Work and business usually conducted without legal permits.

Pathways B toward legality

Legal residence status with No work permit, i.e. Officially registered yearly renewable one-year residence and work in Indonesia and social visit pass. are both ‘illegal’ Malaysia Work/business activities usually conducted without legal permits.

C

Non-legal pathways

Pathways D toward illegality

Not officially No work permit, i.e. registered in residence and work Malaysia, but most are both ‘illegal’ are religiously sanctioned

No legal residence status, or legal residence status obtained through other means, usually unstable. Work/business activities usually conducted without legal permits.

Not officially Legal but temporary registered in No legal residence status. residence and work Malaysia, and also Not employed outside the through work permit not religiously home. sanctioned

and legitimation on the one hand, are also, arguably, involved in activities that may be considered ‘illegal.’ For discussion, we will divide these cases into four categories: (i) migrant workers with work permits who married and registered their marriages in Malaysia, becoming ‘legal foreign spouses,’ (ii) migrant workers without work permits who married legally and legalized their residence status after marriage, (iii) migrant workers without work permits who did not manage to legalize their marriage nor their residential status, and (iv) migrant workers with work permits who married but did not legalize their marriages. Table 1 provides a summary of the main characteristics of these four categories.


A) Legal Pathways: from ‘Legal Worker’ to ‘Legal Spouse’ In the majority of our cases (13 out of 23), the migrant workers had a work permit when they met and married their spouses, and registered their marriages with the relevant Malaysian authorities. Even so, the pathways of legality are usually long and complicated, and take time and effort. In seeking these pathways, the couples are often aided by information from friends, religious authorities and civil servants. After marriage, the application for legal residence status as a spouse is repetitive, incremental, and time consuming. After a few years, the foreign spouses we interviewed usually manage to obtain annual social visit passes, but very seldom permanent residence. The residence passes that they hold do not allow them to work or conduct business in this country; however, most of them were either employed or involved in informal businesses, or conducting business activities in companies registered in the names of their Malaysian spouses. As such, they may be considered to be doing illegal work activities. The case of Mariam illustrates this. Mariam was 25 years old, separated from her first husband, when she left her three-year old son in Medan in 1998 to come to Petaling Jaya (PJ) to work in a factory. She explained that they all understood that they could not get married, but some of the workers did. “There were some who solemnized the marriage … they did not tell the factory … secretly. But cannot get pregnant, … not registered. I did not want that lah, I was afraid. … The Malaysian government has said, cannot solemnize the marriage, but we solemnize the marriage, means we are looking for trouble. Later if we get pregnant? We will need to abort the child. Want it to be holy, but we [would] have sinned.”


The marriage solemnization that she referred to was ‘nikah siri,’ sometimes referred to as ‘under the table,’ It is a means of legitimizing the marriage within the tenets of religion, and usually performed by a religious leader (ustaz) from Indonesia, who is recognised as such within the migrant Indonesian community but not by the Malaysian 4

authorities. In the words of another interviewee, Azalina, ‘… valid according to religion, just not valid according to the law.’ She was in a quandary when her current husband (then boyfriend) proposed, “If I solemnized the marriage, I could not work ….” She also had not officially divorced from her first husband at that point, although this was not the reason she gave for not wanting to get married ‘nikah siri.’ In the end, they waited until she had completed her contract in December 2001. They consulted the local religious office where they obtained the requisite forms that they had to fill, and received instructions on what they would have to do. She then went back to Medan, where she settled her divorce. Her new husband joined her in early 2002, and they registered their marriage at the Medan religious office. They were given a temporary marriage certificate which they had to take to the Indonesian Embassy in Kuala Lumpur (KL) for validation before registering it with the PJ religious office. She was given a one-month visa during which the official documentation had to be settled. When they finally received their marriage certificate (to replace the temporary one issued initially), she returned to Medan and brought her son with her. She then received a three-month social visit pass which was renewed three consecutive times, progressing to a

4

Wong and Arfan (2009) provide an ethnographic perspective on religious life within an Indonesian migrant community in Malaysia.


six-month social visit pass, again for three consecutive times, before finally being granted a one-year pass. Although Mariam came as a ‘legal migrant worker’ and then became a foreign spouse legally, she has engaged in business activities without the cover of a legal permit. Even before marriage, she carried out informal buying and selling of various items outside of her formal employment; and after marriage, she engaged in full time business using a company registered in her husband’s name. Technically, this is not allowed under the social visit pass issued to foreign spouses. Nevertheless, it was the norm for foreign worker spouses such as Mariam to engage in economic activities. Sal, for example, who had come from Nias to work in a factory (legally) and had married (also legally) a Malaysian in 2006, was running an internet café and a travel agency business when we met her. Another example is Linda from Medan (Christian, married a Catholic Chinese Malaysian in 2001) who was taking in home-based tailoring work.

B) Pathways toward Legality: from ‘Illegal Worker’ to ‘Legal Spouse’ Among our 23 cases, there were 4 cases of migrant workers without work permits who eventually married Malaysians and obtained valid residence passes as foreign spouses. The pathways from a situation of illegality toward legality were similar to the legal pathways, except that the migrant workers had to first find their way back to Indonesia without travel documents. This could be achieved either through the use of falsified documents, or travelling without documents (both ways arranged by agents). In particular time periods when the


Malaysian government has in place an amnesty program, a traveller could pay a fine and then obtain a legal temporary document from the Indonesian Embassy. When they reach Indonesia, they can get married and then enter Malaysia again as a foreign spouse, going through each of the bureucratic steps outlined earlier. Compared to the legal pathways, however, the pathways to legality may sometimes involve a considerable time lapse between

the religious marriage and the

registration of marriage with the authorities. Like the legal pathways, when legal residence status is achieved, the spouses often work illegally. The two stories of Yani and Rina illustrate these aspects. Yani, from Semarang, had first come to work in Malaysia in 1994, when she was 21 years old. After two work stints in electronics factories, she took on a gruelling and low paying two-year work contract in a plywood factory in Sarawak. She completed that, then went to KL in 2007, and with the help of a friend’s uncle, found a job in a restaurant. At this point, she no longer had a valid work permit when she was introduced to her husband by a friend. To get married, she paid RM1,200 for a ‘check-out memo’ from the Indonesian Embassy to go back to Indonesia. Her husband brought an ‘overseas marriage approval letter’ from the Religious Department of the state of Selangor (JAIS) to Indonesia, where they got married. They had their documents chopped at the Malaysian Embassy in Jakarta before marriage and registered there after the marriage was performed in Semarang. For her, it was important, “… as long as there is the certificate ….” They had followed the instructions from JAIS strictly. She said that the ‘JAIS people’ had told them that, “…if work permit holders marry here, it is considered illegal and not valid.” Even though


she knew of many migrant workers who had married Malaysians, she said, “… if we were caught by JAIS, we’d be imprisoned.” Noor, 31 years old, from Semarang, similarly was an ‘illegal migrant worker’ who now has residential status through marriage to a 35-year old Malay Malaysian lorry driver. Despite the emphasis on obtaining legality in marriage, both Noor and Yani had worked after marriage even though they knew that it was not legal. Noor’s case illustrates the imperative of carrying out economic activities despite the risk of being caught. Once, when she had opened and was operating a convenience store, four people (officers) came to check on her. (Apparently, one of her customers who owed her money had reported her.) She was not caught, but felt sufficiently threatened that she decided not to carry on with the business. Relating the incident, she said, “… I had a husband but people still disturbed. If I had no husband?” Now, she engages in direct selling—of health foods, clothing, and textiles. Rina, on the other hand, was able to obtain a work permit after marriage. In fact, she was only one of two of our female migrant interviewees who had managed to do so. Originally from Riau, her paternal uncle, a migrant contract worker in Malaysia, had arranged for her to follow a tekong (a middleman who brings migrants across the border to work, usually without work permits) into Malaysia in 2000 when she was 19 years old. In 2005, when she was working as a server (without a work permit) in a restaurant, she met her husband. Two years later, he proposed marriage. For Rina, whose uncle was still in Malaysia keeping a watchful eye over her, it was important that she got married ‘properly.’ But because the legalization process would be


long and would require her husband to travel to Indonesia with her, they first got married the religious way, officiated by a religious teacher from Indonesia. Following that, they went back to Indonesia, carrying the letter from JAIS, and registered their marriage with the Department of Religion (Kantor Urusan Agama, KUA) in Tanjung Pinang, Riau. After receiving the marriage certificate, they returned to Malaysia and registered with the Pejabat Agama Islam at the district of Hulu Selangor, where they were living. This was in February 2008. When we met them in 2010, she was on a one-year social visit pass. However, she also had a valid work permit, and was working in a factory. She explained, “I asked Immigration, they said [I] have to get a guaranteed job, but [I] have to get a letter from Immigration first. Like bring the form from immigration to prove that I can work there. …”

Husband interjects, “Validation from employer to be brought back

to Immigration, and fill up form, … validation [that she is] already working here.” She continued, “After that then they stamped my passport. So if there is Immigration operation, I won’t be caught. If there wasn’t this stamp, they will catch.”

C) Non-legal Pathways: from ‘Illegal Worker’ to ‘Illegal Spouse’ Among our interviewees, there were four migrant workers who were working without work permits when they got married to Malaysians, but subsequently either chose not to, or did not manage to, register their marriages in Malaysia. Three of these marriages were religiously sanctioned and legitimate, and in fact one of them has been officially registered in Indonesia. In the one remaining case where the marriage was not religiously sanctioned, the ‘ceremony’ was


witnessed by relatives. These cases, although few in number, reflect a diverse range of experiences. Nevertheless, with the exception of one case (Mel, see next paragraph), the others face common issues of instability and uncertainty. Without proper documents, these foreign spouses live a precarious existence, as they can be found out and deported at any time. Although all foreign spouses who have not received permanent residence status are dependent on their Malaysian spouses for the right to continue living in the country, these four spouses are particularly vulnerable to threats and potential abuse. In the one exceptional case, the issue of resident status was resolved through an innovative solution. Mel was 42 years old, a single mother with four children, when she went to Malaysia as a foreign domestic worker in 1995. After about a year, she ran away from her employer and worked illegally in a coffeeshop where she met her current husband Hee, who was separated (but not legally divorced) from his first wife. He proposed marriage, and she negotiated with him that he should make a work permit for her. She went to Medan where she made a new passport and obtained a new (foreign domestic) work permit with Hee as her employer. She said, “… After I got a permit and reentered Malaysia, I told him, ‘Now that you have made me a permit, if you want to marry me, you have to become a Muslim.’” Hee took about a year, but finally, he did convert, and they went back to Sunda, her hometown, to solemnize their marriage. Mel and Hee’s marriage is legitimized through religion, but not registered either with the Indonesian or the Malaysian authorities. In 5

Indonesia, Mel’s marital status is not officially determined, and in


Malaysia, Hee is still legally married to his first wife. They both could probably go through the bureaucratic processes to respectively clear their paths to a legal marriage, but they have not chosen to do so. In their home, their wedding photograph is hung, and they are accepted as husband and wife by neighbours, relatives and friends, including Hee’s first wife and only son (with whom he maintains good relations). Hee practises as a traditional healer of sorts, and Mel is now semi-retired, but she used to complement his practice by giving traditional massages, specializing in massages for women who want to get pregnant, or who face pregnancy complications. Mel has brought two of her children to Malaysia to work, and they live with Mel and Hee. Mel’s residence in Malaysia is legalized by her work permit as Hee’s foreign domestic worker, and they have to pay RM900 for each renewal. She said, “Yes, expensive. … Well, what can I do. I’m old, my husband is sickly, if I want to follow the procedures, it will take very long time. … I’m 58. My husband is 64. … The important thing is that I’m here, I have my documents, and we’re married according to Islamic law. True, according to the country’s laws, it’s not right for me to be here because we didn’t report our marriage, but I have documentation, right?” While Mel’s resident status is dependent on Hee, it is no less unstable compared to another foreign spouse who has an annually renewable social visit pass which is equally dependent on the Malaysian 5

Mel’s second husband had gone to Malaysia to work in 1987, and had ‘disappeared’ and she had not heard from him since. She does not know what happened to him. According to an officer of the Indonesian Embassy in KL whom we talked to, cases of ‘disappearances’ can happen when a foreign worker dies and cannot be identified due to lack of documents on him that provide information on his real identity, family or hometown.


spouse. Compared to Mel, the other three foreign spouses we interviewed did not achieve such stability. Mimi’s case illustrates this. Mimi was a 39 year old divorcee when she came to Malaysia as a foreign domestic worker in 2004. She had left her three children (youngest 14 years old) behind. Unhappy with her employer, she ran away to a mosque, where she was allowed to stay in the store room, and where she found people who helped her find a job. While working, and at that time facing pressure from her employer to show her passport (which she did not have), she met Zakaria (47 years old at 6

the time). Zakaria is an informal (i.e. unregistered) self-employed agent who, among other things, obtains legal documents for migrant workers. He is also a member of RELA (People’s Volunteer Corps), a uniformed group empowered to arrest undocumented migrants (see Chin 2008). At 52 years old, Zakaria is married with four children, the youngest 16 years old. He has had a previous ‘second wife’ whom he had ‘let go,’ and was on the look out for another relationship. When he proposed for her to be his second wife, Mimi took some time to consider, discussing it with her sister in Indonesia over the phone. She decided to take up his offer. She explained that the marriage was “to take care of myself”, “… I don’t want people to look down on me because I am still single and alone … What if I fell sick or something happened here? What would happen to me? Who would take care of me?” 6

At this point, the stories of Mimi and Zakaria diverge in important details. According to Mimi, she was working in a cafe, and Zakaria was a customer there. They knew each other for about three months before he proposed to her, after which she took two weeks to give him an answer. According to Zakaria, she was working as a cleaner in a university, and they were introduced by an Indonesian woman who was a mutual friend. They have known each other for six years, while their marriage has been solemnized for four years, meaning that they knew each other for two years before their marriage was solemnized.


They travelled to Medan to perform the ‘akad nikah’ (religious marriage ceremony). However, they could not register their marriage with the Indonesian authorities because Zakaria could not produce any documents to either prove that he was single, or if he was married, that he has written permission from his first wife to contract a second polygamous marriage. In any case, she made a new passport to travel back to Malaysia, and was given a three-month visa by the Malaysian Consulate in Medan. Her husband claimed her to be his cousin, and the social visit pass was given to her to ‘visit relatives.’ Since then, she has been travelling in and out of the country to get her passport stamped with the social visit pass. There was a time when she was so frustrated she stayed home for several months, but she eventually decided to come back. According to them, his first wife still does not know that she exists. Her salary at the coffee shop is RM900 a month, which she continues to send back to her children in Indonesia, while Zakaria gives her RM500 or RM600 a month, and pays her room rental. When we met her in 2010, her social visit pass has lapsed. Zakaria had given her some money to leave the country and re-enter so as to obtain another social visit pass, but she has neglected to do so.

D) Pathways toward Illegality: from ‘Legal Worker’ to ‘Illegal Wife’ Among our sample, there were two cases of migrant workers with valid work permits who eventually became foreign spouses without any legal status or religious legitimation. Both these cases are marked by their residence status moving in the direction of greater instability and dependence, i.e. from legality to illegality. These cases did not manage


to attain religious legitimation due to complications of inter-religious marriage issues. In the case of Tuti and Lai, the situation that has resulted reflects heightened anxiety and uncertainty. Tuti is 30 years old, a Muslim Sundanese from Bandung. She and Lai consider themselves married, but it is a marriage that is not officially registered nor sanctioned by religion or custom. Lai is a 48-year old non-Muslim Chinese Malaysian, and they have a 3-year old son. Tuti had come to Malaysia to work in a factory in 1999, when she was 18 years old. After the fourth year, she went back to Indonesia. At that time, she had already known Lai for three years.

In January 2004, she came

back to Malaysia, entering with a tourist pass, when Lai sent her the airfare and suggested to her that she can come back and study English as well as work. According to Lai, he had intended to marry her, but due to an unexpected and abrupt turn of events that coincidentally happened just as she returned, the small factory that he was operating ran out of business, plunging him into economic crisis. They had started living together in 2005, and their child was born in March 2006. There are multiple layers of complexities in this case. A primary barrier appears to be the reluctance of Lai to convert to Islam in order to legitimize their marriage. Lai feels that it is not a problem for him, but it is difficult for him to go against his mother’s wishes. Due to their financial problems, they are now dependent to a certain extent on Lai’s mother and his relatives. When we talked to her, Tuti said that she had wanted to go back to Indonesia for a long time already, but because she had long overstayed her social visit pass, she is now ‘illegal,’ and Lai could not


muster sufficient funds to send her and her son back. Before she had her son, Lai had once given an agent RM3,000 to arrange for her return, but the agent had taken the money without delivering anything. Meanwhile, their son does not have a birth certificate yet, and they live in constant fear of being caught by the authorities. In the second case, we only managed to talk to the Malaysian husband, Raja, who is a 60-year old Hindu Tamil Malaysian. Raja, estranged from his first wife and adult daughter, married Nuki (not officially registered), an Indonesian from Central Java, seven years ago when she was 28. He explained his marriages to us, “…No....I never wanted to divorce her [his first wife] ... but I wanted to marry Nuki as well ...” When we asked how he married her without divorcing his first wife, he said, “Well, you can do that in Indonesia ... Nuki and I went to Indonesia to seek her parents’ permission to marry and I was refused because I was not a Muslim. Nuki’s father brought a kadi to talk to me but I vehemently refused to convert into Islam ... we came back to Malaysia ... few months later Nuki converted herself into a Hindu and we were married in a simple ceremony with the help of my friends. … In a small temple ... no priest was in attendance. We just exchanged garlands, and I tied the traditional thali string around her neck.” We never managed to speak directly to Nuki. According to Raja, Nuki goes back to Indonesia periodically in order to get her passport stamped and re-enter Malaysia (presumably on one to three month tourist passes). Together they have two daughters and a son, all born in Indonesia with Indonesian birth certificates.


Summary and Concluding Remarks Within the last four decades, there have been attempts at streamlining Malaysian migration policy and regulations with regards to work and marriage. Although the rule that disallows marriage for migrant workers remains in force, it continues to be possible for work permit holders to register their marriages with citizens so long as they give up their work permits. It almost seems as though it is a purely administrative procedure that is required; that to remain within the legal domain, the migrant worker only has to choose between work and marriage. In this context, our research shows the porous nature of the boundary between legality and illegality, and the ways in which migrant workers move back and forth through this boundary in their negotiation of marriage, work, and life. Whether legal or illegal, however, the legitimation of marriage remains important to our interviewees, and is achieved through community religious institutions when it is not possible to do so through national institutions. All our interviewees work or engage in income generating activities before and after marriage, even when it is illegal (as in the cases of foreign spouses without work permits) for them to do so. These work activities may be seen as occupying the interstitial space between legality and illegality. Although not legal and they could be arrested and detained if caught, it is not considered illegitimate, as testified by the very many who are neither ‘caught’ nor reported by the people around them. It would seem that society considers their working to be a legitimate social activity, particularly when they are ‘helping their husbands,’ although it is not confined to this. This is reflected by


a well-known public figure, Michael Chong, Head of the Public Services

and

Complaints

Department

of

the

Malaysian

Chinese

Association (a political party that is a member of the ruling coalition Barisan Nasional) who highlighted the plight of a Vietnamese woman who was detained for working in her husband’s apparel stall in a news conference, saying “These foreign wives are helping their husbands. No salary is paid. Is this employment? Why do they need a work permit to help their husbands?” (The New Straits Times, May 22nd 2008, ‘Chong: Many foreign wives being detained’). Nevertheless, even if illegal activities or residence may be deemed legitimate, it creates for the migrant worker/foreign spouse a precarious existence, and an uncertain future. This can be seen clearly in the unfortunate circumstances of some migrant workers who did not manage to register their marriage and legalize their residence status. For them the inability to gain religious or customary sanctions may contribute to additional layers of difficulty and uncertainty.

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Acknowledgment The Singapore Ministry of Education Academic Research Fund funded the research project ‘State Boundaries, Cultural Politics and Gender Negotiations in International Marriages in Singapore and Malaysia’ (MOE AcRF Tier 2 Grant No: T208A4103), the Asia Research Institute, National University of Singapore rendered valuable infrastructural and administrative support, and the Women’s Development Research Centre (KANITA), Universiti Sains Malaysia provided institutional sponsorship and support. We are grateful to Ruth Mary Paul, Kamini Kuppusamy, Mohd Iqbal and Fadli Sirait for their assistance in the field.