KOTA KINABALU – A group of 46 civil organisations has called for the federal government to apologise after claiming that an Indonesian migrant worker was wrongfully caned in the Tawau prison on June 23.
In a joint statement today, the group led by the Malaysians Against Death Penalty and Torture stressed that migrant worker Sabri Umar was allegedly caned in the prison despite his high court appeal having not been heard yet following his conviction by the sessions court.
“The law (Section 311 of the Malaysian Criminal Procedure Code) clearly states that the caning sentence shall not be carried out until the appeal is heard and determined.
“The suspect cannot be caned until his appeal is heard and decided,” the group stressed.
Five of the 46 groups are Indonesian-based, namely: Federasi Serbuk Indonesia, Federasi Serikat Buruh Kehutanan Perkayuan dan Pertanian Serikat Buruh Sejahtera Indonesia, Federation of Indonesia Workers’ Awakening, Koalisi Buruh Migran Berdaulat Indonesia, and Migrant Care Indonesia.
Also joining the statement were groups from other countries and territories such as Hong Kong (Hong Kong Federation of Asian Domestic Workers Unions), Taiwan (Domestic Caretaker Union, Taoyuan City), Philippines (United Domestic Workers of the Philippines), United Kingdom (William Gomes Podcast), South Africa (South Africa Domestic Service and Allied Workers Union), Singapore (Singapore Anti Death Penalty Campaign), Japan (Japan Innocence and Death Penalty Information Centre) and Lebanon (Cross-Regional Centre for Refugees and Migrants).
International organisations such as Women of Colour/Global Women’s Strike, International Domestic Workers Federation, and International Women’s Rights Action Watch Asia Pacific were also part of the 46 groups issuing the joint statement.
The group also urged the government to abolish caning as a form of corporal punishment in Malaysia, and to immediately ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The group explained that on April 19, the sessions court convicted Sabri for committing an offence pursuant to Section 6(1)( c) Immigration Act 1959/63, and sentenced him to 11 months imprisonment and five strokes of the rotan. He was unrepresented at that time.
“The charge, however, is for those entering Malaysia without a valid pass, which a documented migrant worker like Sabri can never reasonably be found guilty of, for he was a documented migrant worker and his entry and presence in Malaysia were in accordance with the law.
“A perusal of court documents revealed that documents tendered by the Immigration Department to the court were false, as it stated that there were no records of entry and exit for Sabri.
“It failed to disclose the truth that Sabri was indeed a documented migrant worker for the past about seven years, and that he was in employment by one Fu Yee Corporation Sdn Bhd in Tawau, Sabah.
“His work permit also has been renewed by the Immigration Department in 2022, and should reasonably be valid for a year,” the group said.
In fact, the group stated the prosecution had failed in their duty to properly investigate before charging Sabri.
The appeal to the high court was filed on April 22, and this appeal had yet to be heard and decided upon.
Sabri was alleged caned by the authorities on June 23.
Employers and their responsibilities to workers
The group further stated that Sabri, who is a union member of the Sabah Timber Industry Employees Union, claims that his employer wrongfully terminated him on April 4, before he was arrested by the police on April 5, and was subsequently detained until he was charged and convicted on April 19.
However, Sabri managed to file a wrongful dismissal claim in the Industrial Relations Department on April 19 seeking reinstatement, whereby this process is ongoing.
The group described Sabri’s case as an unfortunate example of a bad employer that sometimes wrongfully terminates, and quickly, even forcibly, sends migrant workers back to their countries of origin.
This, the group stressed, denies migrant workers access to avenues of justice in pursuing claims of wrongful termination and reinstatement, and claims for wages/monies still owed to them by employers, among other legal claims.
The group said employers of migrant workers, even after the conclusion of their employment agreement, have the responsibility to ensure the safe return of the workers back to their countries of origin.
“Hence, even if the immigration work permit/pass that allows for legal presence ends, an employer has the duty to keep the migrant worker safe, including making needed applications for passes/permits to allow legal presence in Malaysia until the employer can arrange the return to the home country.
“Unfortunately, in Malaysia, many of the avenues of justice including labour departments, industrial relation departments, and even courts require physical attendance of the complainant/claimant, failing which it assumes that the migrant worker is no longer interested and the process to ensure justice ends.
“Some other worse employers may just cause the cancelation of permits that may even cause or facilitate migrants to be arrested, charged and convicted for being undocumented, and then deported,” the group said.
The group also claimed that Sabri’s employer, Fu Yee Corporation, apparently knew that Sabri was not an undocumented worker but failed to bring it to the attention of police, prosecutors, and the court.
Caning must be abolished
The group said Sabri’s case had raised concerns about whether others have been caned before their appeal is heard and disposed of.
Caning, the group stated, is a corporal punishment that inflicts serious physical and psychological injury, where victims are known to pass out even before the full sentence is carried out.
“The Immigration Act 1959/63 was amended and as of August 2002, and the sentence of caning was introduced for use against undocumented migrants.
“According to Prisons Department records, 47,914 foreigners were found to have violated the Immigration Act from 2002 to 2008.
“Of these, 34,923 were caned.
“The Malaysian Bar is unequivocally and unreservedly against all forms of corporal punishment, including caning or whipping, in accordance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and international human rights norms.
“Suhakam (Malaysian National Human Rights Commission) has also long recommended that the government prohibit the use of corporal punishment of caning and whipping,” the group added. –The Vibes, July 23, 2022
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