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Saturday, April 29, 2006

WE PROTEST HARRASSMENT OF LAWYERS BY POLICE


WE PROTEST HARRASSMENT OF LAWYERS BY POLICE
- Brave Lawyers Acted As Bar Leadership Procrastinates -


On 16th April 2000, a lawyer was forcibly pushed away from his client, angrily shouted at by Police Officers at the Petaling Jaya Police District Headquarters and then told he was going to be charged with obstruction of public servant in the course of his duties. He was there to protect his client in the execution of his duty. Instead he was thoroughly intimidated, pushed around and accused of a criminal offence and arrested.

On 18th April 2000, a group of about 15 young lawyers were there at the Ibu Pejabat Daerah Petaling Jaya to hand over a memorandum of protest, which was signed by 107 lawyers, to the Officer in Charge of the Police District(OCPD) of Petaling Jaya. That action was initiated by then young lawyers, N. Surendran and Charles Hector, who collected signatures from lawyers that Tuesday morning at the courts in Jalan Raja and Wisma Denmark and the memorandum of protest was handed over that very afternoon.

Then only did the Bar Council respond by sending a delegation to meet up with the Deputy Inspector General of Police on Thursday 20th April 2000, and thereafter, a press statement entitled “Arrest of lawyer in P.J. Police Station” was issued on the same day by the then President, Haji Sulaiman Abdullah.

All this happened 6 years ago, coincidently also in mid-April and at the same Petaling Jaya Police District Headquarters and the lawyer concerned then was Cheah Kah Peng.

27th April 2006 - Petaling Jaya Police District Headquarters

On Thursday, 27th April 2006, lawyers were back again at the Petaling Jaya Police District Headquarters handing over yet another memorandum of protest about police officers wrongfully harassing, arresting and detaining a lawyer on 18th April 2006 who was there at this police station representing and performing his duties as a lawyer for his clients.

On 18th April, lawyer S.Balasubramaniam, was at this PJ Police Headquarters in order to render legal assistance to his clients who had been detained by police. Despite repeated requests, the police refused to give him relevant information about, amongst others, the reason for the arrests and the status of his clients. Balasubramaniam was physically pushed and then unlawfully arrested by a plainclothes policeman. After being detained without reasons being given for his arrest, he was released after about 3 hours. On 19th April, he subsequently lodged a police report (PJ/004538/06) with regard the mistreatment by the police.

At about 12.00pm on the 27th, about 40 lawyers gathered at the PJ Police Headquarters to hand over a memorandum of protest which was supported by 112 lawyers to the OCPD.

Disappointingly, Mohd Hazam Abd Halim, the district police chief, refused to come down from his office and receive the protest memorandum, which finally was received by a Division Head, representing the OCPD. Mr George Varughese, the Selangor Bar Chairman and member of the Bar Council, handed over the memorandum of protest on behalf of the lawyers.

The members of the press were unreasonably stopped at the gate and prevented from even entering the compound of the PJ Police Headquarters. The lawyers protested this denial of access to a police station, which must and should always be open and accessible to any person but the police refused to budge and the media were forced to cover the event from outside the main gate.

The presence of a small team of riot-police, armed with their shields, protective helmets and batons was too much when it was only a group of lawyers, also officers of the court, who were there to peacefully protest what happened to one of their own and to hand over a protest memorandum.

Amongst the lawyers present were Sharmini Thiruchelvam, Francis Pereira, Shanmugam, N Surendran and some others were also there in April 2000. Young lawyer leaders, Will Fung and Richard Wee, Selangor Bar Committee Chairman, another member of the Bar Council, several former Bar Council members and senior lawyer, Chew Swee Yoke were also amongst the 40 who took the time and effort to be present at this protest. Sadly, the Chairman and the members of the Kuala Lumpur Bar Committee were noticeably absent at this protest involving what happened to a Kuala Lumpur lawyer.

Failed to take “…immediate action by making its stand or position openly and clearly”

Despite being notified of what transpired to Bala, and being faxed the relevant police report on or about 19th April, the slowness of the Bar Council and the Kuala Lumpur Bar to respond is appalling. Again, in 2006 lawyers have reacted and responded strongly before their own elected leaders in an incident about the harassment and wrongful treatment of a lawyer carrying out his professional duties as an advocate and solicitor.

The importance of a quick and strong response by the Bar have been repeatedly raised by the membership at General Meetings of the Bar, including the last one in October 2005.

For the record, at the Extraordinary General Meeting of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur on Saturday, 10 October 1998, Motion 4 (which interestingly was seconded by the same Bala Subramaniam) in item 1 of the said proposed Resolution read as follows “…The Bar Council, whenever such arrests and detention take place be it under any laws that are in connection with the said lawyer’s brief … [should] takes immediate action by making its stand or position openly and clearly that it is perturbed and opposed of such actions of the police or other authorities, by the issuance of a media statement and by whatever other means deemed appropriate.” Although this motion was not voted upon, it was agreed that the “…motion be treated as sentiments of the House”.

In 2000, in 4 days the Bar Council did make an official representation to the Inspector General of Police and cause the issuance of a media statement.

In 2006, despite being informed of the incident and having received a copy of the relevant police report of the affected lawyer on 19th April, both the Bar Council and the Kuala Lumpur Bar Committee is yet to make any protest to the IGP or the authorities, let alone issue any media statement stating “…openly and clearly that it is perturbed and opposed of such actions of the police or other authorities”.

The State Bar Committee cannot and should not abdicate their duty by giving reasons like the matter was already within the notice of the Bar Council, and as such it is best that it is the Bar Council rather than the State Bar Committee that makes an open and clear protest. All the more reason for members of the Bar to vote wisely and choose leaders who will ACT without fear and favour rather than repeatedly year after year voting in the same persons with well-known names with a pleasant smile.

Without Fear or Favour they acted ..


The 40 lawyers who turned up at the police station on the 26th, and the 112 who supported the memorandum of protested must be applauded for their action in upholding the cause of justice without fear and favour.

They did the legal profession proud when they courageously stood firm in the face of police intimidation, displaying posters with words like “No Harassment of Lawyers By Police”, “Let Lawyers Do Their Job” and calling for the expedition of the setting up of the Independent Police Complaints and Misconduct Commission (IPCMC) as the media cameras clicked away and George Varughese handed over the memorandum.

Lawyers cannot and should not just wait for the leadership of the Bar to react and respond when injustices and human rights violation occurs. Lawyers have to also act independently and immediately if the leaders are dragging their foot in the name of “expediency”, red-tapes or just simply pure fear.

The duty of upholding the cause of justice and human rights is also on the shoulder of each and every lawyer in the land – and sometimes just passing on information is just not enough to discharge this onerous obligation to act.

The police tried to suppress the impact and the publicity of the protest by suggesting that a couple of representatives go up and pass the memorandum of protest to the OCPD behind closed doors in the absence of the press, but all 40 lawyers stood firm and insisted that they will hand over the memorandum of protest in public, in front of media and all lawyers present as witnesses, to the OCPD – and at the end of the day this was what was done.

No fear was shown as the 40 stood there in the open, being aware also that some of these photographers maybe police photographers. Bravo my fellow lawyers, and we hope that more of the 12,000 will be there the next time such when such public actions is needed.

What happened to Bala and Cheah Kah Peng has also happened to other lawyers including Leonard Teoh, P. Uthayakumar and the 2 others, as was highlighted at the last Malaysian Bar AGM. I believe that there may be other cases of police intimidation and harassment of lawyers when carrying out their duties, but this information has just not come to the notice of lawyers or the Bar.

It is now of utmost importance that there be an immediate, strong and open protest of all such cases of harassment of lawyers by the police or other government personnel as and when it happens. N. Surendran put it well when he was reported saying, “If a lawyer can be treated like (Bala), then no Malaysian citizen can be safe as lawyers would not be able to do their job,”. Let us not forget that our Federal Constitution guarantees and justice demands the immediate right to a lawyer to person arrested.

There Will Always Be Brave Lawyers…

The Bar Council must immediately, start working together with the State Bar Committees, to set up mechanisms to ensure immediate responses whenever this kind of cases, and also when any other cases of violations of human rights occurs. Members have been asking for this for a very long time now, and in 1998 this was made very clear but until this date, obviously we still do not have it.

But rest assured, there still is and will hopefully always be lawyers who will come forward in the interest of justice and human rights – even when the official leadership is procrastinating.

Charles Hector
28th April 2006

40 lawyers protest police treatment of lawyer

Some 40 lawyers stage a protest outside PJ Police Headquarters


Contributed by Charles Hector
Friday, 28 April 2006, 08:11
Surendran, George and Charles handing over the Memorandum of Protest to a police officer
On 18.04.2006, lawyer S. Balasubramaniam, was at PJ Police Headquarters in order to render legal assistance to his clients who had been detained by police.Despite his repeated requests, the police refused to give him information about the reason for the arrests and the suspected offence that his clients were arrested for.S. Balasubramaniam was physically pushed and then unlawfully arrested by a plainclothes policeman.Balasubramaniam was released after 3 hours of detention without reasons being given for his arrest. He lodged a police report (PJ/004538/06) with regard his treatment by the police.We, the undersigned lawyers, are concerned and very disturbed by the police action of wrongfully harassing, arresting and detaining a lawyer who was there representing and performing his duties as a lawyer for his clients.
We demand that :-a. That S. Balasubramaniam’s complaint be immediately investigated by an investigation team independent of the PJ Police Headquarters;
b. That stern action be taken against all those police officers responsible for this incident;c. The police officers responsible be forthwith suspended pending investigation;d. That the CPO of Selangor/ IGP immediately gives an undertaking that there will be no repeat of such interferences with and/or harassment of an advocate carrying out his duties in any police station in Malaysia.

The 112 who supported the Memo
1 Sharmini Thiruchelvam Kuala Lumpur2 Colin anak Victor George Malaysian Bar3 Bernard Chong Malaysian Bar4 Fadzila Binti Said Malaysian Bar5 Dara Waheda Mohd Rufin Malaysian Bar6 Richard Wee Thiam Seng Kuala Lumpur7 L.Y.Lee Kuala Lumpur8 Charles Hector Petaling Jaya9 N.Surendran Kuala Lumpur10 Ahmad Zainuddin Dataran Palma11 Khaznim Dataran Palma12 Leena Ghosh Petaling Jaya13 Francis Pereira Kuala Lumpur14 Kasthury S* Petaling Jaya15 Vasandi K K. Vasandi & Co16 Ng See Kee Penang17 George Varughese Petaling Jaya18 Stanly Sinnapan Kuala Lumpur19 Moganamball Kuala Lumpur20 Edmund Bon Kuala Lumpur21 Jeremy Tan Jeremy & Sazlin22 Balakrishnan A Bala Naido & ..23 Nik Mohamed Ikhwan Kuala Lumpur24 Koong Len Sheng Kuala Lumpur25 Shanker Sivapragasam Kuala Lumpur26 Chin Pien Yee Kuala Lumpur27 Erene Lee Lin Lin Kuala Lumpur28 John You Choon Kit Kuala Lumpur29 Puspawati Rosman Kuala Lumpur30 Fazlina Pawan T eh Kuala Lumpur31 Nelson Awgang Kuala Lumpur32 John Yong Tee Kong Puchong33 Irene Song Lai Kuan Puchong34 David Charles Petaling Jaya35 Will Fung Kuala Lumpur36 R. Shamuga Nathan R.Shan & Associates37 Grudit Singh R.Shan & Associates38 Subajayanthi K Negeri Sembilan 39 Yee Seu Kai Ipoh40 Chong Kok Yew Ipoh41 Venkadesh Ipoh42 Zainorah Hassan Ipoh43 Mohd Syukri Yahaya Ipoh44 G. Balasunderam Ipoh45 Kerpal Singh Ipoh46 Feg Agis Ipoh47 Lim Ta Wai Ipoh48 Chan Kok Keong Ipoh49 Al Hundallah * Ipoh50 Lai Choe Ken Ipoh51 Ellanggovan * Ipoh52 Srividhya Ganapathy Kuala Lumpur53 Muhendaran Suppiah Kuala Lumpur54 Kavitha Guna Segaran Kuala Lumpur55 Liu Meng Wun Kuala Lumpur56 Modeshanantham V. Perak57 Leong Kow Hoo Perak 58 Amret Dhillon Perak 59 James Devadason Perak 60 Harbhajan Singh Perak 61 K.C.Lai Perak 62 Mary Lim Perak 63 Leon Julian Perak 64 Annou Xavier Kuala Lumpur65 Kee Seok Meng Kuala Lumpur66 Chow Wei Cheng Kuala Lumpur67 Lim Ching Liew Kuala Lumpur68 George Miranda Kuala Lumpur69 Gerald Samuel Kuala Lumpur70 Khor Lee Chin Kuala Lumpur71 Kenny Ng Bee Ken Kuala Lumpur 72 Lee Swee Seng Kuala Lumpur73 G.Nanda Goban Kuala Lumpur74 Yap Wai Kit Kuala Lumpur75 Tay Ka Ping Kuala Lumpur76 Lavinia Kumar Sendran Kuala Lumpur77 Oweo Olivia Meng Kuala Lumpur78 Shanthi Supramaniam Kuala Lumpur79 Unclear*** Sivananthan, Kuala Lumpur80 H** Kaur Sivananthan, Kuala Lumpur81 Lim Yap Kuala Lumpur82 Ong Bee Koon Kuala Lumpur83 Lilian Siew Kuala Lumpur84 Ravindran S Kuala Lumpur85 Yoong Kien Fah Kuala Lumpur86 Karina Yong Penang87 Theivanai Amerthalingam* Penang88 S. Kumaari Munusamy Penang89 Jessica Binwani Penang90 Chong Poh Ken Petaling Jaya91 Ng Kah Fei Petaling Jaya92 Tan Ban Cheng Penang93 Mohamed Fadly Zakaruya Kuala Lumpur94 Ravindran S Kuala Lumpur95 Leong Kong Meng Penang96 Radehayati Johateh Petaling Jaya97 R. Shanmugam Kuala Lumpur98 Augustine Anthony Ipoh99 Ng Poh Tat Ipoh100 Shaznam Haseena Ipoh101 Kenneth Gomes Kuala Lumpur102 Tha*** S*** Ipoh103 Sunder Singh Ipoh104 Edwin Seibel Ipoh105 Joshua Leong Ipoh106 Raden A.Shauki Perak Bar107 Christina Loke Kuala Lumpur108 Lee Woan Chyi Kuala Lumpur109 Sivarasah Rasiah Kuala Lumpur110 M. Puravalen Kuala Lumpur111 Chew Swee Yoke Kuala Lumpur112 Amer Hamzah Kuala Lumpur* Some of the names and addresses were unclear – we did our best to try to get it correct.

Friday, April 07, 2006

MIGRANTS AND RIGHTS IN MALAYSIA

MIGRANTS AND RIGHTS IN MALAYSIA

More Important Than Rights is the Access to Justice

Migrants are human beings not commodities. Migrants are father, mother, brother, sister, husband ,wife , son, daughter and uncle to other human persons. Migrant workers are workers entitled to equal treatment and all rights accorded to any worker. Migrant workers come to Malaysia, leaving their families and homes behind, to earn a living to support themselves and many a time their families back home. Many migrants do not have much of a choice, for the means of earning a living is scarce in their home country.

Today, there are about 1.8 million registered (or documented) migrant workers in Malaysia[i]. 15 countries now supply workers in various employment sectors in Malaysia with the largest number coming from Indonesia (1.2 million ) followed by Nepal which provides 170,000 workers.[ii] Other sending countries include India, Sri Lanka, Bangladesh, Pakistan, Burma, Thailand, Vietnam, Timor Leste and the Philippines

According to government estimates[iii], there is an equivalent number of unregistered (or undocumented) migrant workers in Malaysia, and today that means 1.8 million undocumented workers. It is my opinion that the actual figure of unregistered (or undocumented) migrant workers in Malaysia is about 5 million.[iv] This estimate is supported by the fact that In 2004, based on official entry-exit records, there were about 5,852,997 persons or 38% of the total arrivals overstaying. Now undocumented migrants can enter Malaysia easily by sea and land, avoiding immigration and customs authorities and that is the manner of entry employed by the majority of undocumented migrants.

Malaysian labour force for the 3rd quarter of 2005 according to the Malaysian Department of Statistics was 10,498,600[v] and that means that number of migrant workers (both documented and undocumented) is about 30% to 50% of the total Malaysian labour force. This fact of the growing number of migrant workers in Malaysia also tally with the figures of persons in the Malaysian prisons, where it was disclosed that 25% of the prison community were foreigners in 2003, and in 2004 it was stated that the number of foreigners exceed the number of local Malaysian in prisons.[vi] A recent report also did state that out of Malaysia’s 10.5 million strong labour force, 2.6 million are foreign workers.[vii]

Migrants in Malaysia are from a variety of countries, and this also include countries like Iran, Cambodia, Namibia, South Africa, China, Singapore, Nigeria, Peru, France, Taiwan, Columbia, Congo, Argentina and Uzbekistan.[viii]

Statistics obtained by the Bar Council Legal Aid Center (Kuala Lumpur) showed that migrant nationality breakdown in 2004 at the Sungai Buloh prison was Indonesia(174), India(75), Burma(67), Bangladeshi (47), Pakistani (24) and others (41). Others included those from Iran, Cambodia, Namibia, South Africa, China, Singapore, Vietnam, Sri Lanka, Nepal, Thailand, Nigeria, Peru and even France. Statistics obtained about migrant nationality breakdown in yet another prison, the Kajang Women Prison was: Indonesia(167), China(70), Philippines(57), Thailand (45), Vietnam(27), Taiwan(18), Burma(17), Cambodia (17) and Others(50). Others were from Bangladesh, Columbia, Congo, Argentina, Uzbekistan and Sri Lanka.

Whilst the majority are economic migrants, there is also a significant number of political migrants and/or refugees, and this would include the Acehnese, Burmese, Thais and also Filipinos.

Migrant workers are employed primarily in the construction, plantation, manufacturing and service sectors. There is also 320,000 registered foreign housemaids in Malaysia, of which 308,000 or about 96 percent are Indonesians. [ix]

There is also a large number of foreign sex workers in Malaysia where it is estimated that about 142,000 women involved in sex work. It was recently reported that in 2005, a total of 6,446 alleged sex workers were arrested, an increase of 12 percent from the previous year. Topping the list of foreigners arrested were Chinese citizens, who numbered some 2,824. Indonesians arrested was 1,606, Thais at 910, while the number of Filipinos arrested was 742. Other foreign nationals arrested for prostitution in 2005 included Vietnamese, Uzbeks, Indians and Cambodians.[x]

MIGRANTS AND THEIR RIGHTS UNDER MALAYSIAN LAW

Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’ makes it most clear that this guarantee of rights extends also to all persons, including migrant workers, be they documented or undocumented. 6 out of the 13 Articles under Part II of the Federal Constitution entitled ‘Fundamental Liberties’ uses the word “persons” as opposed to :”citizens”.[xi]

Arrest and Detention
Generally when a person is arrested in Malaysia, he/she must be brought before a Magistrate within 24 hours if the police wants to further detain him/her for purposes of investigation, and the police can with remand orders obtained from the magistrate detain a person up to a maximum of 14 days only.

However, when it comes “…to a person, other than a citizen, who is arrested or detained under the law relating to immigration…”, the police can arrest and detain him/her for a period of up to fourteen days before being compelled by law to produce the person before the Magistrate. Many migrant workers, when arrested, are held by the police for more than 24 hours in reliance of this provision. What is not clear is how long can persons under this category be remanded for?

Although, there is no provision that allows the police to resort to torture in the conduct of their investigation, there has been many reported incidence of torture in police custody. In February 2005, it was revealed that from 1990 until September 2004, there was a total of 1,583 deaths amongst prisoners recorded in the 28 prisons nationwide, with the highest number being in 2003 when 279 inmates died. During the same period 150 detainees died in police lock-ups or custody.[xii]

It must be pointed out that till this day in Malaysia there is no right to one phone call after being arrested and no right to immediate access to a lawyer (let alone friends, family and/or employer) in Malaysia.

Bail
The migrant has a right to be released on bail just like any other citizen. The disadvantage the migrant faces is the fact that he is a possible flight risk, and as such courts, even when they do grant bail generally imposes an additional conditions when it comes to foreigners like requiring their travel documents to be deposited in court. The other condition that is usually imposed is the requirement that the surety must be a Malaysian citizen.

In Malaysia, after being charged and one is allowed bail, money has to be deposited in court and the surety will have no access to this monies until the trial ends. When it comes to a foreigner, many a Malaysian worry about the fact that accused may abscond and if and when that happens the bail money could be lost forever – and as such it is indeed a difficulty task for migrants to find local persons to stand as sureties. The result is that many end up in the remand prisons languishing for months (even years) as they wait for their day in court .

In the past, it was a popular perception that it was near impossible for a migrant worker charged with a criminal offence to be released on bail pending his trial and sadly many did not even apply, let alone try to apply for bail.

In a case, that I personally handled some years ago, which involved 6 foreign nationals[xiii], the court in the first instance refused bail. But persistence, which included an application to the High Court for a revision finally resulted in the Magistrate allowing bail for these foreigners. In this case, the foreign nationals came to Malaysia on a social visit pass, which had expired during their detention, but even this did not stop the court from allowing the said accused persons to be released on bail. The Magistrate in this case even went further to direct the Immigration Department to issue Special Passes so that these foreigners could remain in Malaysia legally whilst waited for their day in court. The Court also did issue the necessary letters to the Immigration Department to facilitate in the application for Special Passes for these persons.

MIGRANTS AND THE EMPLOYMENT LAWS

In Malaysia, migrant workers have access to the Labour Court[xiv] and the Industrial Courts[xv] just like the local worker. The problem is that when Migrants come to the country, their very presence and their ability to work legally is linked to a work permit, which stipulates a particular employer. And when a migrant worker wants to refer his rightful claim to the Labour Court and/or the Industrial Relations Department, the usual thing that happens is that the employer immediately terminates his work permit and cease giving him employment, wages and board. Without a valid work permit, a migrant worker cannot legally work and earn a living in Malaysia. As such although a migrants has a right in law, the claiming of this right is practically impossible.


The case of Rajakannu Boopathy & 39 Others (The Gopis Construction Case) – at the Labour Court
In the case of Rajakannu Boopathy & 39 other Indian nationals, donations had to be sought to pay for food and board of these migrant workers whilst they pursued their claim against their employer, one Gopis Construction (Malaysia) Sdn Bhd, at the Seremban Labour Court. The minimum cost of maintaining one of this migrant was about RM5-00 per day, and that did not include money required for rental, utility bills and travel cost to and from the court.

At all times during their struggle for justice, these migrant workers ran the risk of being arrested and detained for not having proper travel documents and/or visa to allow them to continue to stay in Malaysia. They could legally not work and earn a living and had to rely on donations and goodwill of others. The Immigration Department finally agreed to issue Special Passes to allow them to stay legally in Malaysia, but not to work. RM100-00 was needed for a one-month special pass for each worker

Their claim was for wages of 3 to 6 months that their employer did not pay, and for the balance of wages based on their initially agreed wages right from the first day they started working in Malaysia until the day they filed their action in the Labour Court.

In this case the employer had gone to India, conducted interviews and skills test and thereafter made each worker a definite offer which included salary. Thereafter, in accordance to the requirements of Indian Law, they signed the standard form employment agreement which very clearly stipulates the wages they will receive, as well as their other employment rights. The workers signed the employment agreement before an authorized agent of Indian Protector of Emigrants (POE), and thereafter the employer signed the agreement before a designated officer of the Indian High Commission in Kuala Lumpur. Unfortunately original copies of the agreement were not given to the worker, and finally only a photocopy of this agreement was obtained from their agent in India.

After this POE employment agreement was executed, to comply with the requirements of the Malaysian Immigration Department, the employer that required the duly executed employment agreement to be submitted together with the application of a work permit, the employer rather than submitting the POE agreement did prepare another agreement, whereby in this agreement was far less than the sum stated in the POE Employment Agreement.
Before departure, the workers had to sign a whole lot of documents, whereby the workers unknowingly were made to sign yet another simple employment agreement, and this was on an official stamp paper (i.e. a document equivalent to a Statutory Declaration which had to be affirmed before a Judge and/or a Commissioner of Oaths). The employer left the space where the wages per month should have written in blank, and thereafter kept the originals of this stamped agreement with him.

It must be stated that the workers were generally unaware that they had in fact signed 2 other employment agreements, and thet only knew and believed that was only one agreement being the POE Employment Agreement.

When it came to the labour court trial, objections were made about the admissibility of the photocopied POE Employment Agreement, and as such we had to try and get an original copy of the said POE Agreement, which should have been kept by the POE in India and/or the Indian High Commission in Kuala Lumpur. To our dismay, both these parties did not have any copy of the original POE Agreements, let alone a photocopy of the said agreements in their possession.

The Immigration Department of Malaysia also did not have an original copy of the employment agreement submitted to them during the work permit application, and all they had was the copy of the agreement that was scanned into the computer record of the individual migrant worker.
On the other hand, the employer had in his possession the original copy of the stamped agreement.

As such, given the fact of available admissible evidence, the fact that the employer Company was financially unstable and was then on the verge of insolvency and the fact that the migrant workers had been successful in another court action at the Kuala Lumpur High Court in changing their employer and getting the right to live and work in Malaysia for at least a further 2-3 years with a Social Visit (Temporary Employment) Pass[xvi], the migrant workers made the decision to settle the case and take the minimal sum offered by their ex-employer, where the figures was based on the wages as stipulated in the Employer’s stamped paper Employment Agreement.

The Rajakannu Case – Right to Change Employer and the Right to Live and Work in Malaysia whilst they pursue their rights in law

After the filing of the case against their employer, one Gopies Construction, their employer thereafter did not provide work, wages and/or board to these migrant workers. The workers survived on the kindness of many persons but this was and could only be a very short term solution. To continue to remain in Malaysia after the expiry of the Employment Pass, they relied on RM100-00 monthly Special Pass (which only allows them to stay BUT not work
The workers, after commencing their action in the Labour Court, then applied to the Director General of Immigration to allow them to continue to live and work in Malaysia with another employer (or alternatively on their own) to enable to pursue their rights under the Malaysian labour laws.

The Immigration Department responded by calling the workers in for various interviews. The workers also identified a potential Employer and furnished the Immigration Department with Employment Agreements signed with the potential employer company, which would become effective once the Immigration Department issued the requisite Work Permits. The first application to the Immigration Department for a variation of the terms and conditions of their work permit was made on 10/10/1999.

After about 10 months had lapsed, the workers had still not received any reply with regard their applications, and finally 36 of these migrant workers[xvii] files an action in the Kuala Lumpur High Court where the Director General of Immigration and the Immigration Department of Malaysia were named as Respondents. What was sort in this case was a court order to compel the Respondents to provide a reply to the migrant workers’ application.

Being an extraordinary applications, the battle in court was intense and finally just before the court handed down a judgment, the Respondents conceded and proposed the recording of a consent judgment which stated that the Director General of Immigration shall cause to issue Social Visit (Temporary Employment) Pass to all the applicants to enable them to live in Malaysia and work with Syarikat Central Generative Sdn Bhd (being the new employer). The consent judgment was recorded on 6/12/2000.[xviii] As such there was no judgment of the court, and there was nothing that others could use to further advance migrant rights in Malaysia.

The Rajakannu Case – Contempt proceedings against the Director General of Immigrations.

Following the recording of the consent order, despite the submission of the required application forms and the payment of levy by the new employer, the DG of Immigration delayed several months before issuing the work permits. When the permits were finally issued on 19-4-2001, it was discovered that the permits were for 1 year, beginning from the date their last permits had expired and as such the majority of the workers received lapsed permits, and others got permits that would expire in a couple of months thereafter.

Various letters were sent to the DG of Immigration asking him comply with the court order and issue new valid permits but no response was forthcoming from the DG of Immigration.

Again, the workers had to go to court and this time it was to commence committal proceedings against the DG of Immigration. Leave was obtained on 24/7/2001 and committal proceedings were initiated. Again after lengthy arguments, just before the court handed down the judgment, the DG of Immigration send a letter admitting his mistake.

In a contempt proceedings, the court can order arrest and detention, fine or cost if and when a person is found to be guilty of contempt. The Court was of the opinion that when a case involving a Public Officer carrying out his public duty , then arrest and/or fine may not be available. If fine, it will the government taking out money from one pocket and putting it into the other. The only realistic punishment would be cost, and this would be punitive cost.

In light of the DG of Immigration written admission of his mistake, the agreement that the Respondent to pay the Applicants cost of the whole action and the fact that the DG of Immigration had finally issued new work permits, the court yet again recorded another consent Judgment on 10/4/2002 stating also that cost be taxed and that the DG of Immigration shall not impede an application for an extension of the work permits by these migrant workers as and when their current permits expired.

The taxing officer taxed the cost at RM10,000-00 to be paid to all the 36 applicants, and this works out to slightly more than RM250-00 per person, and this was gross injustice done to these migrants, who had no work or wages by reason of the action/omission of the Respondents for almost 30 months. The applicants applied for a review of the cost awarded by the taxing officer and until this date the matter is still at the review stage.

The Rajakannu Case – Claim for Damages & Compensation against the DG of Immigration and others

On 30/4/2001, 31 of the workers commenced a civil action claiming for loss of wages from October 1999 until a date to be determined, being a sum of about RM640,000 plus damages.

This was done in light of the outcome of the earlier action and the acknowledgement of mistake by the DG of Immigration. It was then not possible to go for a claim of damages and compensation in the earlier action[xix] On the first hearing date, the Honourable Judge dismissed all the technical preliminary objections raised by the Federal Counsel and proceeded to record judgment in favour of the migrant workers. The Judge could not complete his judgment as he wanted the actual agreed salary for each individual worker. He adjourned the case and fixed another date so that this information could be provided to the court.

But on the next date, the Judge had a change of mind and asked the Federal Counsel to submit on his technical objections[xx], both of which were minor objections that could have been cured, and normally court would have asked the Plaintiffs to do the necessary to remedy these irregularities but this Judge stating that it was finally his discretion allowed the government’s lawyer’s objections and struck off the migrant workers suit with cost on 12/8/2002. The workers have since appealed to the Court of Appeal and this appeal is yet to be heard.[xxi] All we can hope for is that these migrants workers ultimately gets justice.

RIGHT TO LOVE, MARRY AND HAVE A FAMILY

Many migrant workers were having relationship with Malaysians, some even had children with locals, and some were even getting married to their local partner, and the Malaysian government reacted by allegedly[xxii] imposing a condition on work permits prohibiting marriage.

In one case, the marriage had occurred before the policy was made known and there were children of the marriage but before the matter could be taken to court the migrant husband unfortunately abandoned the wife and the family and left the country. Hence, we have to wait for another time when this matter could be brought before the court for a determination.

The fact that Malaysia today has ratified/acceded the UN Convention on the Rights of the Child would have a bearing in such cases since Article 3(1) is most clear that now the “..best interests of the child shall be a primary consideration”.

The fact that there exist children of migrants in Malaysia has just recently been acknowledged by the Malaysian government. In Sabah, one of the 13 States of Malaysia, where it was recently reported that there are about 36,000 children of migrants. It is good to note that special schools will be set up to cater for these children. What exactly is the number of children of migrants is still a mystery? What about children of a migrant with a Malaysian? Would the Migrant Parent be allowed to stay on in Malaysia with their children or would they be forced to return home? Will they be given multiple entry visas to enable them to have frequent visits to be able to spend adequate time with their children? Maybe, in the Maruly Azis case, the court will finally provide some answers to many of these questions.

MARULY AZIS CASE – THE RELEVANCE OF THE CRC.

In this case, the father, an Indonesian came to Malaysia in 1978. He applied and got an Entry Permit, and was then issued a National Registration Identity Card (NRIC) with a permanent resident status. He went back to Indonesia, married one Romita Hasibuan (an Indonesian national) and brought her back to Malaysia. Romita was able to stay in Malaysia by virtue of a “spouse visa”, which was a 6-month visa that had to be applied for by her husband. The marriage had resulted in 4 children, and by virtue of Malaysian law, all these children were Malaysian citizens. All the children were born in Malaysia, lived their lives in Malaysia and also was in Malaysian schools. On 23-3-2005, Abdul Mutalib went with his son, Maruly Azis, to the National Registration Department to apply for his son’s identity card (as he had reached the age of 12[xxiii]). Abdul Mutalib was then wrongly arrested, wrongly detained and thereafter wrongly deported back to Indonesia. The government claimed that he was a prohibited immigrant and he could not remain in Malaysia. Romita, the wife, being an Indonesian national also would not be able to stay on in Malaysia when her “spouse visa” expired. A campaign was initiated with the call to allow Romita and her family to be able to continue to live in Malaysia as one family.[xxiv]

As time of the expiry of the “spouse visa” drew near, a court action[xxv] had to be filed, and an application was made to enable Romita to continue to stay with her 4 children on 23/9/2006. On 26/9/2003, the applicants managed to get an ex-parte ad-interim order allowing Romita to stay until this application was heard and disposed off inter-parte. At the inter-parte hearing, the Federal Counsel proposed that a consent order be recorded to the effect that Romita could continue to stay with the children until the end of this case, and that the immigration Department would issue her a gratuitious special pass, whereby she would not have to make any payment until the whole suit is heard and disposed of. This order was recorded on 28/11/2005. Again, there will be no judgment recorded in this matter where there was reliance on the Child Rights Convention[xxvi]. This case is still pending, and the Immigration Department has issued the Special Pass to Romita.

For the sake of completion, Abdul Mutalib and Puan Romita also did file another suit against the Home Minister & 2 Ors, and this is also pending at the time of writing.

MIGRANT DOMESTIC WORKERS

There are today 320,000 registered foreign housemaids in Malaysia, and out of this 96 per cent or 308,000 are Indonesian migrant workers. There is very little of no protection for domestic workers in Malaysia’s employment laws at the moment.

“Domestic servant” is mentioned in the Employment Act 1955, and it means “ a person employed in connection with work of a private dwelling-house and not in connection with any trade, business, profession carried on by the employer in such dwelling house and includes a cook, house servant, butler, child’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use.”

In Malaysia, save for driving, a migrant domestic worker normally ends up doing all of these different jobs.

With regard the domestic servant, it is clearly stated that the following sections and/or Parts of the Employment Act are not applicable to them, being:-
Sec. 12 (Notice of termination of Contract)
Sec.14 (Termination of Contract for Special Reasons)
16 (Employees on Estates to be provided with minimum number of days’ work in each month)
22 (Limitation on advances to employees)
61 (Employers Duty to Keep Register)
64 ((Employers Duty to display notice boards)
IX (Maternity Protection)
XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service)
XIIA (Termination, Lay-Off And Retirement Benefits

In short, there is no protection for domestic workers under the Malaysian employment laws. Jordan has legislations to provide some rights and protections to domestic workers. In Taiwan, an Household Services Act is before their Parliament. In Malaysia, with over 320,000 domestic workers, it is time for some legislation to protect the rights of these domestic workers.

Although, the Malaysian Immigration Department “policy” or “guidelines of employment” do stipulate that a domestic worker is entitled to one day off – but in practice save for the Filipino worker, none of the other domestic workers seem to be getting any day off, let alone any time off. They are treated more like “property” than human beings. More like slaves than workers. Many do not even have the liberty to make phone calls to their families back home. Some are even given just 2 basic meals a day.

There has also many cases of abuse of domestic workers that have come to light – but alas without the freedom to leave the home (or their employers watchful eye), many may be suffering abuses in silence. Employer also hold on to passports and other travel documents of migrants, all with the alleged reason that they are afraid that the maid may run away (oh yes – run away maybe with their property or children..) Hence, there is very little opportunity for victims of abuse to even escape the abuser – let alone complain to their embassies, the Human Resource Ministry and/or the police. It comes as no surprise when the Deputy Human Resources Minister recently disclosed that only about 110 such cases mistreatment of Indonesian housemaids[xxvii] and other workers by their Malaysian employers were reported annually to the ministry since 2002[xxviii]

It must also be noted that many Malaysian employers of migrant workers, other than domestic workers, also do hold on to travel documents, wages and do deprive their employees freedom of movement and access to communication. In one shop, a Nepali worker, I spoke to recently, who has been in Malaysia several months have not even been allowed to step out of the shop – all he has seen and knows about Malaysia is what he sees from the shop entrance.

UNDOCUMENTED MIGRANT WORKERS

Some of these are really refugees from Aceh, Southern Thailand, Southern Philippines[xxix] and Burma, and of course they cannot come to Malaysia with the blessings of the sending country.
Some others come across the border because they just cannot afford the payments that they have to fork out to pay the agents and/or the various government authorities, and the fact that it is so easy and cheaper to just sail over or cross the border and find jobs here.

But alas being undocumented makes them vulnerable to abuse by the authorities, police and even “employers”.[xxx]

MIGRANTS ARE HUMAN NOT SAINTS

Migrants are human beings and not saints. Of course, there will migrant workers who abuse their employer, steal, commit murder, traffic in drugs and involve themselves in criminal activity. But what is sad is that for whatever reason, their crimes are highlighted more than others. There is no study to show conclusively that the percentage of migrants in the country involved in crime (or alleged to have committed crime) is higher than the percentage of local Malaysians involved in criminal activities. Some say the highlighting of crime committed by migrants is a strategy to get a better deal when the MOUs are signed between sending countries and receiving countries. Whatever the reason is, this perspective of migrants has resulted in prejudice against migrants.

DISCRIMINATION OF MIGRANTS BASED ON NATIONALITY

For the same work done, Indonesian migrants get the least remuneration compared with those from other countries.[xxxi] When it comes to Filipinos, they are the highest paid of all migrants.[xxxii] The cause could be that some government are more determined to protect their citizens than other government.

A BLEAK FUTURE UNLESS…

There are many other aspects of migrants and human rights that should be looked at but have not been done in this paper. Work Conditions, Exploitation by the Middle Man, Detention Conditions, Local Reaction to Migrants, Migrants and the Worker Unions and Crackdowns by the State are just some of the areas that could not be covered here.

What has been touched on is maybe just chapter one of a many chaptered book on migrant workers. Being human persons there is so many different aspects and facets of existence that need to be analyzed and discussed, and this paper only deals with a few.

There is definitely a need for legislation to protect labour rights and other rights of migrants. The 300,000 over domestic workers especially need legislation to protect their rights, There must also be a development of a mechanisms and procedures to ensure that there is real access to justice.

With the ratification/accession of the UN Convention on the Rights of the Child (CRC) and the CEDAW, there is great possibility that rights of migrants provided directly and indirectly in these conventions could be relied upon for greater recognition and protection of migrant rights.
Malaysia, with its 26 million population, has the largest disparity between the rich and the poor in Southeast Asia[xxxiii]. Malaysia’s top 10 percent of the population is 22.1 times richer than the poorest 10 percent. There is also growing unemployment within the local population. One of the reasons is the fact that Malaysian government, companies and institutions have been working towards becoming more efficient to be able to compete with the foreign companies, institutions and banks when the doors are open to free trade in compliance with the obligations of Malaysia under the World Trade Organisation (WTO) Agreements, the Asean Free Trade Agreement (AFTA) and the various other Free Trade Agreements it has entered into. In this drive to become more efficient, it is labour that is sacrificed and more persons are becoming unemployed. Jobs, especially permanent jobs, are getting more and more difficult to come by.

With the recent 40 cent increase of petrol price, the cost of living will also further increase. Bleak times are ahead for Malaysians, and this would also affect migrants/refugees in Malaysia.


Charles Hector
7th April 2006

[i] Vietnam News Agency (VNA), 22/9/2005 “Malaysia calls for regional cooperation against illegal migrant workers” stated the figure to be 1.7 million,

[ii] Bernama Report, 6/3/2006 “Malaysia Ready To Accept More Indonesian Housemaids” By Mohd Nasir Yusoff

[iii] According to a report by Amnesty International, government statistics indicate that through 1 June 2004, there were at least 1.3 million documented migrant workers working in Malaysia (an increase of about 500,000 since 2003) and between 700,000 to 1.2 million undocumented migrant workers.

[iv] (Star 27/9/2005), Records show that 15,452,112 foreign nationals entered Malaysia in 2004 but only 9,599,125 people left the country during the year – meaning that there were about 5,852,997 or 38% of the total arrivals overstaying.

[v] Statistics obtained from the Department of Statistics, Malaysia website , http://www.statistics.gov.my

[vi] In 2003, the Deputy Home Minister stated that over 25% of prisoners on Malaysian jails were foreigners, while by June 2004 there were now more foreign prisoners than Malaysians in jails. Now, it must be factored in that many a time foreigners either are not offered bail and/or cannot afford bail – and it is also not certain whether the figures include remand prisons, being where persons not yet convicted are held.

[vii] Malaysiakini(an AFP Report), 30/3/2006 “June Signing of Pact for Indon Maids”

[viii] Statistics obtained by the Bar Council Legal Aid Centre (Kuala Lumpur) showed that migrant breakdown in 2004 at the Sungai Buloh prison was: Indonesia(174), India(75), Burma(67), Bangladeshi (47), Pakistani (24) and Others (41). Others include migrants from Iran, Cambodia, Namibia, South Africa, China, Singapore, Vietnam, Sri Lanka, Nepal, Thailand, Nigeria, Peru and France. Statistics obtained showed that migrant breakdown in the Kajang Women Prison prison was: Indonesia(167), China(70), Philippines(57), Thailand (45), Vietnam(27), Taiwan(18), Burma(17), Cambodia (17) and Others(50). Others were migrants from Bangladesh, Columbia, Congo, Argentina, Uzbekistan and Sri Lanka.

[ix] Bernama Report, 6/3/2006 “Malaysia Ready To Accept More Indonesian Housemaids” By Mohd Nasir Yusoff

[x] Malaysiakini, 22/3/2006 – “More foreign sex workers arrested last year”

[xi] Article 5 (Liberty of the Person), Article 6(Slavery and Forced Labour Prohibited), Art.7 (Prohibition against retrospective criminal laws and repeated trials), Art. 8(Equality), Art. 11(Freedom of Religion) and Article 13 (Right to Property) are amongst the 8 Articles under Part II (Fundamental Liberties) of the Federal Constitution that applies to all persons. Art. 9(prohibition from Banishmjent and Freedom of Movement), Art.10(Freedom of Speech, Assembly and Association), Art.12 (Rights in Respect of Education) uses the word “citizen” and not “persons”.

[xii] Malaysiakini, 7/2/2005 - In Malaysia "...from 1990 till September last year[2004], a total of 1,583 deaths among prisoners were recorded in 28 prisons nationwide, with the highest number in 2003 when 279 inmates died. During the same period, 150 detainees died in police lock-ups or custody" (statistics from a 49-page parliamentary written reply by Prime Minister Abdullah Ahmad Badawi)

[xiii] Kuala Lumpur Magistrate Court (2) Criminal Case No: NO: D83-1427-99, D83-1428-99, D83-1429 -99, D83-1430-99, D83-1431-99 and D83-1432-99, Charles Hector & Amin Hafiz acted for the 6 persons from Uzbekistan

[xiv] Employees who generally have a monetary claim against their employer can make a complaint and the Labour Department, and if there is no resolution, then the Labour Court will convened and this will be chaired by a Labour Officer. Complaints of non-payment of wages, wrongful holding back of part wages,etc can be referred to the Labour Court.

[xv] If an employee is wrongfully and/or constructively dismissed by her employee, she has to make a complaint at the Industrial Relations Department(IRD) within 60 days days from the date of dismissal. The IRD will then call for a conciliation meeting between the Employer and the employee. If conciliation fails, the matter is referred to the Minister, who then refers or does not refer the matter to the Industrial Court. If referred to the Industrial Court, then the case goes to trial. Now, if the Minister does not refer the matter, then the employee has a right to apply for a Judicial Review (but here legal charges and cost is involved), so generally the matter ends here for the employee. In the Industrial Court, the employee’s claim is for re-instatement but at the end of the trial, the Court is at liberty to also award damages in lieu of reinstatement.

[xvi] The 40 Indian workers came into Malaysia as migrant workers under an Employment Pass (Rule 9 Immigration Regulations 1963), and with regard to this employment pass, the law stipulated that the minimum wages should be RM1,200-00 per month. This is in fact the one and only provision in Malaysian Laws that stipulate a minimum wage. The majority of the migrant workers in Malaysia only have a Social Visit(Temporary Employment) Pass (Rule 11(1)(ii) Immigration Regulations 1963) and here there is no stipulation of any minimum wage.

[xvii] When this matter started there were 40 workers, but 4 just could not take the stress and chose to return home and in the Kuala Lumpur High Court case (Usul Pemula No: R2-25-76 Tahun 2000)

[xviii] It was sad that the High Court did not hand down a Judgment on this case, for if that was done it would have been a precedent that other migrant workers could rely on in the struggle for migrant rights. One significant point would have been the right for the migrant worker to apply for a variation of his work permit, including the change of employer. Before this and still today, it is believed that only the employer has the right to apply for work permits and/or variation of the said permits. To date, it seems that there has been no other similar cases in the Malaysian Courts.
[xix] At that time, it was no possible to include a claim for damages in the 1st court action but today the Rules of the High Court has been amended and a claim of damages could be included in the 1st action.

[xx] One of the objections was that the Government of Malaysia was not named as a party. It is still believed that there is no need to specifically name the Government of Malaysia as a party , more so since the DG of Immigration and the Immigration Department of Malaysia were already named as parties.

[xxi] The lawyer was threatened with arrest under the Internal Security Act if we went further after the High Court dismissed the suit. In fact these threats, and other threats, were directly and indirectly made at the earlier stage in the first suit. One senior Minister also tried to get the workers to withdraw their suit. This is only what the lawyer understood by the words and actions. There was nothing in writing – only verbal communications to the lawyer alone.

[xxii] Allegedly – because to date the author has not seen any such condition in the written form. This could be one of those many unwritten policies that the Malaysian government is famous for. The policy is relied on when the Government wants to use it, and many other policies are denied when others want to rely on it. This is the problem with unwritten policies. For certainty, Malaysia must start having written policies that can be accessed by the public, and better still if these policies are gazetted.

[xxiii] In Malaysia, when a child attains the age of 12, he needs to apply for his National Registration Identity Card (NRIC).

[xxiv] The matter was taken to the Human Rights Commission, the Bar Council and even to Parliament. A signature campaign was initiated, which collected over 6,000 signatures, An urgent appeal was also initiated by the Migrant Forum in Asia. MFA and many other organizations also wrote in support for the re-unification of the family of Abdul Mutalib, Romita, Maruly Azis Bin Abd Mutalib (12 +), Sarah Nor Varah Hanim Binti Abd Mutalib(11+), Yonatan Adam Fauzi Bin Abd Mutalib(9+) and Ismael Syah Putra Bin Abd Mutalib(6+)

[xxv] Kuala Lumpur High Court Suit No: S4-21-239- 2005

[xxvi] In the case of Mohamad Ezam -v- Ketua Polis Negara (2002) 4 CLJ 309, a Federal Court case, it was stated in the judgment“In the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which member states can ratify or accede to and those principles will then have the force of law”. Now in 1995, Malaysia ratified/acceded the UN Convention on the Rights of the Child, and there is NO reservation with regard to Article 3(1), which states “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideratoion”. Further, unlike the United Kingdom, Malaysia did not have any reservation as to the application of the CRC to “...matters of immigration and citizenship law”
[xxvii] Malaysiakini 22/5/2004; “Housewife Charged for Horrific Maid Abuse” “…three charges of voluntarily causing grievous hurt to Nirmala Bonat (from West Timor), 19, with dangerous weapon - an iron and hot water - at her house at 33B-25-6, Villa Putera, Jalan Tun Ismail here in January, March and April this year.She is also charged with voluntarily causing grievous hurt to Nirmala with a metal cup at the same place at 3pm on May 17 this year…”
[xxviii] Bernama, 6/3/2006 “Malaysia Ready To Accept More Indonesian Housemaids”
[xxix] Malaysiakini 2/3/2005 “At least 100 Filipinos arrested in Immigration crackdown: official” “…Up to half a million Filipinos live in Malaysia, many of them families of refugees who fled a separatist rebellion on the Mindanao region of the southern Philippines in the 1970s…”

[xxx] Malaysiakini,28/2/2005 ‘100.000 Indon illegal workers ‘not paid wages’ “…About 100,000 Indonesian illegal migrant workers who have not been paid wages are refusing to return home even in the face of an imminent crackdown, claimed Indonesia’s Labour and Transmigration Minister Fahmi Idris today…”

[xxxi] Malaysiakini(an AFP Report), 30/3/2006 “June Signing of Pact for Indon Maids”

[xxxii] Malaysiakini, 13/2/2006 “Minister: No perks for Indonesian Maids” – “…The live-in maids often receive a salary averaging RM380 a month, far less than counterparts from the Philippines…” “..Home Affairs Minister Azmi Khalid said that allowing Indonesian maids to be hired under the country's labour law - which would provide for annual and sick leave, days off and overtime payment - would complicate matters for employers, said the New Straits Times” “..foreign maids in Malaysia are prey to physical, psychological and sexual abuse because of flawed government policies and typically work 16 to 18 hour days...”

[xxxiii] Malaysiakini, 2/2/2006 ‘M’sia has worst income disparity in SEA, gov’t flayed”

MIGRANTS AND RIGHTS IN MALAYSIA

MIGRANTS AND RIGHTS IN MALAYSIA

More Important Than Rights is the Access to Justice


Migrants are human beings not commodities. Migrants are father, mother, brother, sister, husband ,wife , son, daughter and uncle to other human persons. Migrant workers are workers entitled to equal treatment and all rights accorded to any worker. Migrant workers come to Malaysia, leaving their families and homes behind, to earn a living to support themselves and many a time their families back home. Many migrants do not have much of a choice, for the means of earning a living is scarce in their home country.

Today, there are about 1.8 million registered (or documented) migrant workers in Malaysia[i]. 15 countries now supply workers in various employment sectors in Malaysia with the largest number coming from Indonesia (1.2 million ) followed by Nepal which provides 170,000 workers.[ii] Other sending countries include India, Sri Lanka, Bangladesh, Pakistan, Burma, Thailand, Vietnam, Timor Leste and the Philippines

According to government estimates[iii], there is an equivalent number of unregistered (or undocumented) migrant workers in Malaysia, and today that means 1.8 million undocumented workers. It is my opinion that the actual figure of unregistered (or undocumented) migrant workers in Malaysia is about 5 million.[iv] This estimate is supported by the fact that In 2004, based on official entry-exit records, there were about 5,852,997 persons or 38% of the total arrivals overstaying. Now undocumented migrants can enter Malaysia easily by sea and land, avoiding immigration and customs authorities and that is the manner of entry employed by the majority of undocumented migrants.

Malaysian labour force for the 3rd quarter of 2005 according to the Malaysian Department of Statistics was 10,498,600[v] and that means that number of migrant workers (both documented and undocumented) is about 30% to 50% of the total Malaysian labour force. This fact of the growing number of migrant workers in Malaysia also tally with the figures of persons in the Malaysian prisons, where it was disclosed that 25% of the prison community were foreigners in 2003, and in 2004 it was stated that the number of foreigners exceed the number of local Malaysian in prisons.[vi] A recent report also did state that out of Malaysia’s 10.5 million strong labour force, 2.6 million are foreign workers.[vii]

Migrants in Malaysia are from a variety of countries, and this also include countries like Iran, Cambodia, Namibia, South Africa, China, Singapore, Nigeria, Peru, France, Taiwan, Columbia, Congo, Argentina and Uzbekistan.[viii]

Statistics obtained by the Bar Council Legal Aid Center (Kuala Lumpur) showed that migrant nationality breakdown in 2004 at the Sungai Buloh prison was Indonesia(174), India(75), Burma(67), Bangladeshi (47), Pakistani (24) and others (41). Others included those from Iran, Cambodia, Namibia, South Africa, China, Singapore, Vietnam, Sri Lanka, Nepal, Thailand, Nigeria, Peru and even France. Statistics obtained about migrant nationality breakdown in yet another prison, the Kajang Women Prison was: Indonesia(167), China(70), Philippines(57), Thailand (45), Vietnam(27), Taiwan(18), Burma(17), Cambodia (17) and Others(50). Others were from Bangladesh, Columbia, Congo, Argentina, Uzbekistan and Sri Lanka.

Whilst the majority are economic migrants, there is also a significant number of political migrants and/or refugees, and this would include the Acehnese, Burmese, Thais and also Filipinos.

Migrant workers are employed primarily in the construction, plantation, manufacturing and service sectors. There is also 320,000 registered foreign housemaids in Malaysia, of which 308,000 or about 96 percent are Indonesians. [ix]

There is also a large number of foreign sex workers in Malaysia where it is estimated that about 142,000 women involved in sex work. It was recently reported that in 2005, a total of 6,446 alleged sex workers were arrested, an increase of 12 percent from the previous year. Topping the list of foreigners arrested were Chinese citizens, who numbered some 2,824. Indonesians arrested was 1,606, Thais at 910, while the number of Filipinos arrested was 742. Other foreign nationals arrested for prostitution in 2005 included Vietnamese, Uzbeks, Indians and Cambodians.[x]

MIGRANTS AND THEIR RIGHTS UNDER MALAYSIAN LAW

Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’ makes it most clear that this guarantee of rights extends also to all persons, including migrant workers, be they documented or undocumented. 6 out of the 13 Articles under Part II of the Federal Constitution entitled ‘Fundamental Liberties’ uses the word “persons” as opposed to :”citizens”.[xi]

Arrest and Detention

Generally when a person is arrested in Malaysia, he/she must be brought before a Magistrate within 24 hours if the police wants to further detain him/her for purposes of investigation, and the police can with remand orders obtained from the magistrate detain a person up to a maximum of 14 days only.

However, when it comes “…to a person, other than a citizen, who is arrested or detained under the law relating to immigration…”, the police can arrest and detain him/her for a period of up to fourteen days before being compelled by law to produce the person before the Magistrate. Many migrant workers, when arrested, are held by the police for more than 24 hours in reliance of this provision. What is not clear is how long can persons under this category be remanded for?

Although, there is no provision that allows the police to resort to torture in the conduct of their investigation, there has been many reported incidence of torture in police custody. In February 2005, it was revealed that from 1990 until September 2004, there was a total of 1,583 deaths amongst prisoners recorded in the 28 prisons nationwide, with the highest number being in 2003 when 279 inmates died. During the same period 150 detainees died in police lock-ups or custody.[xii]

It must be pointed out that till this day in Malaysia there is no right to one phone call after being arrested and no right to immediate access to a lawyer (let alone friends, family and/or employer) in Malaysia.

Bail

The migrant has a right to be released on bail just like any other citizen. The disadvantage the migrant faces is the fact that he is a possible flight risk, and as such courts, even when they do grant bail generally imposes an additional conditions when it comes to foreigners like requiring their travel documents to be deposited in court. The other condition that is usually imposed is the requirement that the surety must be a Malaysian citizen.

In Malaysia, after being charged and one is allowed bail, money has to be deposited in court and the surety will have no access to this monies until the trial ends. When it comes to a foreigner, many a Malaysian worry about the fact that accused may abscond and if and when that happens the bail money could be lost forever – and as such it is indeed a difficulty task for migrants to find local persons to stand as sureties. The result is that many end up in the remand prisons languishing for months (even years) as they wait for their day in court .

In the past, it was a popular perception that it was near impossible for a migrant worker charged with a criminal offence to be released on bail pending his trial and sadly many did not even apply, let alone try to apply for bail.

In a case, that I personally handled some years ago, which involved 6 foreign nationals[xiii], the court in the first instance refused bail. But persistence, which included an application to the High Court for a revision finally resulted in the Magistrate allowing bail for these foreigners. In this case, the foreign nationals came to Malaysia on a social visit pass, which had expired during their detention, but even this did not stop the court from allowing the said accused persons to be released on bail. The Magistrate in this case even went further to direct the Immigration Department to issue Special Passes so that these foreigners could remain in Malaysia legally whilst waited for their day in court. The Court also did issue the necessary letters to the Immigration Department to facilitate in the application for Special Passes for these persons.

MIGRANTS AND THE EMPLOYMENT LAWS

In Malaysia, migrant workers have access to the Labour Court[xiv] and the Industrial Courts[xv] just like the local worker. The problem is that when Migrants come to the country, their very presence and their ability to work legally is linked to a work permit, which stipulates a particular employer. And when a migrant worker wants to refer his rightful claim to the Labour Court and/or the Industrial Relations Department, the usual thing that happens is that the employer immediately terminates his work permit and cease giving him employment, wages and board. Without a valid work permit, a migrant worker cannot legally work and earn a living in Malaysia. As such although a migrants has a right in law, the claiming of this right is practically impossible.

The case of Rajakannu Boopathy & 39 Others (The Gopis Construction Case) – at the Labour Court

In the case of Rajakannu Boopathy & 39 other Indian nationals, donations had to be sought to pay for food and board of these migrant workers whilst they pursued their claim against their employer, one Gopis Construction (Malaysia) Sdn Bhd, at the Seremban Labour Court. The minimum cost of maintaining one of this migrant was about RM5-00 per day, and that did not include money required for rental, utility bills and travel cost to and from the court.

At all times during their struggle for justice, these migrant workers ran the risk of being arrested and detained for not having proper travel documents and/or visa to allow them to continue to stay in Malaysia. They could legally not work and earn a living and had to rely on donations and goodwill of others. The Immigration Department finally agreed to issue Special Passes to allow them to stay legally in Malaysia, but not to work. RM100-00 was needed for a one-month special pass for each worker

Their claim was for wages of 3 to 6 months that their employer did not pay, and for the balance of wages based on their initially agreed wages right from the first day they started working in Malaysia until the day they filed their action in the Labour Court.

In this case the employer had gone to India, conducted interviews and skills test and thereafter made each worker a definite offer which included salary. Thereafter, in accordance to the requirements of Indian Law, they signed the standard form employment agreement which very clearly stipulates the wages they will receive, as well as their other employment rights. The workers signed the employment agreement before an authorized agent of Indian Protector of Emigrants (POE), and thereafter the employer signed the agreement before a designated officer of the Indian High Commission in Kuala Lumpur. Unfortunately original copies of the agreement were not given to the worker, and finally only a photocopy of this agreement was obtained from their agent in India.

After this POE employment agreement was executed, to comply with the requirements of the Malaysian Immigration Department, the employer that required the duly executed employment agreement to be submitted together with the application of a work permit, the employer rather than submitting the POE agreement did prepare another agreement, whereby in this agreement was far less than the sum stated in the POE Employment Agreement.

Before departure, the workers had to sign a whole lot of documents, whereby the workers unknowingly were made to sign yet another simple employment agreement, and this was on an official stamp paper (i.e. a document equivalent to a Statutory Declaration which had to be affirmed before a Judge and/or a Commissioner of Oaths). The employer left the space where the wages per month should have written in blank, and thereafter kept the originals of this stamped agreement with him.

It must be stated that the workers were generally unaware that they had in fact signed 2 other employment agreements, and thet only knew and believed that was only one agreement being the POE Employment Agreement.

When it came to the labour court trial, objections were made about the admissibility of the photocopied POE Employment Agreement, and as such we had to try and get an original copy of the said POE Agreement, which should have been kept by the POE in India and/or the Indian High Commission in Kuala Lumpur. To our dismay, both these parties did not have any copy of the original POE Agreements, let alone a photocopy of the said agreements in their possession.

The Immigration Department of Malaysia also did not have an original copy of the employment agreement submitted to them during the work permit application, and all they had was the copy of the agreement that was scanned into the computer record of the individual migrant worker.

On the other hand, the employer had in his possession the original copy of the stamped agreement.

As such, given the fact of available admissible evidence, the fact that the employer Company was financially unstable and was then on the verge of insolvency and the fact that the migrant workers had been successful in another court action at the Kuala Lumpur High Court in changing their employer and getting the right to live and work in Malaysia for at least a further 2-3 years with a Social Visit (Temporary Employment) Pass[xvi], the migrant workers made the decision to settle the case and take the minimal sum offered by their ex-employer, where the figures was based on the wages as stipulated in the Employer’s stamped paper Employment Agreement.

The Rajakannu Case – Right to Change Employer and the Right to Live and Work in Malaysia whilst they pursue their rights in law

After the filing of the case against their employer, one Gopies Construction, their employer thereafter did not provide work, wages and/or board to these migrant workers. The workers survived on the kindness of many persons but this was and could only be a very short term solution. To continue to remain in Malaysia after the expiry of the Employment Pass, they relied on RM100-00 monthly Special Pass (which only allows them to stay BUT not work

The workers, after commencing their action in the Labour Court, then applied to the Director General of Immigration to allow them to continue to live and work in Malaysia with another employer (or alternatively on their own) to enable to pursue their rights under the Malaysian labour laws.

The Immigration Department responded by calling the workers in for various interviews. The workers also identified a potential Employer and furnished the Immigration Department with Employment Agreements signed with the potential employer company, which would become effective once the Immigration Department issued the requisite Work Permits. The first application to the Immigration Department for a variation of the terms and conditions of their work permit was made on 10/10/1999.

After about 10 months had lapsed, the workers had still not received any reply with regard their applications, and finally 36 of these migrant workers[xvii] files an action in the Kuala Lumpur High Court where the Director General of Immigration and the Immigration Department of Malaysia were named as Respondents. What was sort in this case was a court order to compel the Respondents to provide a reply to the migrant workers’ application.

Being an extraordinary applications, the battle in court was intense and finally just before the court handed down a judgment, the Respondents conceded and proposed the recording of a consent judgment which stated that the Director General of Immigration shall cause to issue Social Visit (Temporary Employment) Pass to all the applicants to enable them to live in Malaysia and work with Syarikat Central Generative Sdn Bhd (being the new employer). The consent judgment was recorded on 6/12/2000.[xviii] As such there was no judgment of the court, and there was nothing that others could use to further advance migrant rights in Malaysia.

The Rajakannu Case – Contempt proceedings against the Director General of Immigrations.

Following the recording of the consent order, despite the submission of the required application forms and the payment of levy by the new employer, the DG of Immigration delayed several months before issuing the work permits. When the permits were finally issued on 19-4-2001, it was discovered that the permits were for 1 year, beginning from the date their last permits had expired and as such the majority of the workers received lapsed permits, and others got permits that would expire in a couple of months thereafter.

Various letters were sent to the DG of Immigration asking him comply with the court order and issue new valid permits but no response was forthcoming from the DG of Immigration.

Again, the workers had to go to court and this time it was to commence committal proceedings against the DG of Immigration. Leave was obtained on 24/7/2001 and committal proceedings were initiated. Again after lengthy arguments, just before the court handed down the judgment, the DG of Immigration send a letter admitting his mistake.

In a contempt proceedings, the court can order arrest and detention, fine or cost if and when a person is found to be guilty of contempt. The Court was of the opinion that when a case involving a Public Officer carrying out his public duty , then arrest and/or fine may not be available. If fine, it will the government taking out money from one pocket and putting it into the other. The only realistic punishment would be cost, and this would be punitive cost.

In light of the DG of Immigration written admission of his mistake, the agreement that the Respondent to pay the Applicants cost of the whole action and the fact that the DG of Immigration had finally issued new work permits, the court yet again recorded another consent Judgment on 10/4/2002 stating also that cost be taxed and that the DG of Immigration shall not impede an application for an extension of the work permits by these migrant workers as and when their current permits expired.

The taxing officer taxed the cost at RM10,000-00 to be paid to all the 36 applicants, and this works out to slightly more than RM250-00 per person, and this was gross injustice done to these migrants, who had no work or wages by reason of the action/omission of the Respondents for almost 30 months. The applicants applied for a review of the cost awarded by the taxing officer and until this date the matter is still at the review stage.

The Rajakannu Case – Claim for Damages & Compensation against the DG of Immigration and others

On 30/4/2001, 31 of the workers commenced a civil action claiming for loss of wages from October 1999 until a date to be determined, being a sum of about RM640,000 plus damages. This was done in light of the outcome of the earlier action and the acknowledgement of mistake by the DG of Immigration. It was then not possible to go for a claim of damages and compensation in the earlier action[xix] On the first hearing date, the Honourable Judge dismissed all the technical preliminary objections raised by the Federal Counsel and proceeded to record judgment in favour of the migrant workers. The Judge could not complete his judgment as he wanted the actual agreed salary for each individual worker. He adjourned the case and fixed another date so that this information could be provided to the court.

But on the next date, the Judge had a change of mind and asked the Federal Counsel to submit on his technical objections[xx], both of which were minor objections that could have been cured, and normally court would have asked the Plaintiffs to do the necessary to remedy these irregularities but this Judge stating that it was finally his discretion allowed the government’s lawyer’s objections and struck off the migrant workers suit with cost on 12/8/2002. The workers have since appealed to the Court of Appeal and this appeal is yet to be heard.[xxi] All we can hope for is that these migrants workers ultimately gets justice.

RIGHT TO LOVE, MARRY AND HAVE A FAMILY

Many migrant workers were having relationship with Malaysians, some even had children with locals, and some were even getting married to their local partner, and the Malaysian government reacted by allegedly[xxii] imposing a condition on work permits prohibiting marriage.

In one case, the marriage had occurred before the policy was made known and there were children of the marriage but before the matter could be taken to court the migrant husband unfortunately abandoned the wife and the family and left the country. Hence, we have to wait for another time when this matter could be brought before the court for a determination.

The fact that Malaysia today has ratified/acceded the UN Convention on the Rights of the Child would have a bearing in such cases since Article 3(1) is most clear that now the “..best interests of the child shall be a primary consideration”.

The fact that there exist children of migrants in Malaysia has just recently been acknowledged by the Malaysian government. In Sabah, one of the 13 States of Malaysia, where it was recently reported that there are about 36,000 children of migrants. It is good to note that special schools will be set up to cater for these children. What exactly is the number of children of migrants is still a mystery? What about children of a migrant with a Malaysian? Would the Migrant Parent be allowed to stay on in Malaysia with their children or would they be forced to return home? Will they be given multiple entry visas to enable them to have frequent visits to be able to spend adequate time with their children? Maybe, in the Maruly Azis case, the court will finally provide some answers to many of these questions.

MARULY AZIS CASE – THE RELEVANCE OF THE CRC.

In this case, the father, an Indonesian came to Malaysia in 1978. He applied and got an Entry Permit, and was then issued a National Registration Identity Card (NRIC) with a permanent resident status. He went back to Indonesia, married one Romita Hasibuan (an Indonesian national) and brought her back to Malaysia. Romita was able to stay in Malaysia by virtue of a “spouse visa”, which was a 6-month visa that had to be applied for by her husband. The marriage had resulted in 4 children, and by virtue of Malaysian law, all these children were Malaysian citizens. All the children were born in Malaysia, lived their lives in Malaysia and also was in Malaysian schools. On 23-3-2005, Abdul Mutalib went with his son, Maruly Azis, to the National Registration Department to apply for his son’s identity card (as he had reached the age of 12[xxiii]). Abdul Mutalib was then wrongly arrested, wrongly detained and thereafter wrongly deported back to Indonesia. The government claimed that he was a prohibited immigrant and he could not remain in Malaysia. Romita, the wife, being an Indonesian national also would not be able to stay on in Malaysia when her “spouse visa” expired. A campaign was initiated with the call to allow Romita and her family to be able to continue to live in Malaysia as one family.[xxiv]

As time of the expiry of the “spouse visa” drew near, a court action[xxv] had to be filed, and an application was made to enable Romita to continue to stay with her 4 children on 23/9/2006. On 26/9/2003, the applicants managed to get an ex-parte ad-interim order allowing Romita to stay until this application was heard and disposed off inter-parte. At the inter-parte hearing, the Federal Counsel proposed that a consent order be recorded to the effect that Romita could continue to stay with the children until the end of this case, and that the immigration Department would issue her a gratuitious special pass, whereby she would not have to make any payment until the whole suit is heard and disposed of. This order was recorded on 28/11/2005. Again, there will be no judgment recorded in this matter where there was reliance on the Child Rights Convention[xxvi]. This case is still pending, and the Immigration Department has issued the Special Pass to Romita.

For the sake of completion, Abdul Mutalib and Puan Romita also did file another suit against the Home Minister & 2 Ors, and this is also pending at the time of writing.

MIGRANT DOMESTIC WORKERS

There are today 320,000 registered foreign housemaids in Malaysia, and out of this 96 per cent or 308,000 are Indonesian migrant workers. There is very little of no protection for domestic workers in Malaysia’s employment laws at the moment.

“Domestic servant” is mentioned in the Employment Act 1955, and it means “ a person employed in connection with work of a private dwelling-house and not in connection with any trade, business, profession carried on by the employer in such dwelling house and includes a cook, house servant, butler, child’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use.” In Malaysia, save for driving, a migrant domestic worker normally ends up doing all of these different jobs.

With regard the domestic servant, it is clearly stated that the following sections and/or Parts of the Employment Act are not applicable to them, being:-

Sec. 12 (Notice of termination of Contract)

Sec.14 (Termination of Contract for Special Reasons)

16 (Employees on Estates to be provided with minimum number of days’ work in each month)

22 (Limitation on advances to employees)

61 (Employers Duty to Keep Register)

64 ((Employers Duty to display notice boards)

IX (Maternity Protection)

XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service)

XIIA (Termination, Lay-Off And Retirement Benefits

In short, there is no protection for domestic workers under the Malaysian employment laws. Jordan has legislations to provide some rights and protections to domestic workers. In Taiwan, an Household Services Act is before their Parliament. In Malaysia, with over 320,000 domestic workers, it is time for some legislation to protect the rights of these domestic workers.

Although, the Malaysian Immigration Department “policy” or “guidelines of employment” do stipulate that a domestic worker is entitled to one day off – but in practice save for the Filipino worker, none of the other domestic workers seem to be getting any day off, let alone any time off. They are treated more like “property” than human beings. More like slaves than workers. Many do not even have the liberty to make phone calls to their families back home. Some are even given just 2 basic meals a day.

There has also many cases of abuse of domestic workers that have come to light – but alas without the freedom to leave the home (or their employers watchful eye), many may be suffering abuses in silence. Employer also hold on to passports and other travel documents of migrants, all with the alleged reason that they are afraid that the maid may run away (oh yes – run away maybe with their property or children..) Hence, there is very little opportunity for victims of abuse to even escape the abuser – let alone complain to their embassies, the Human Resource Ministry and/or the police. It comes as no surprise when the Deputy Human Resources Minister recently disclosed that only about 110 such cases mistreatment of Indonesian housemaids[xxvii] and other workers by their Malaysian employers were reported annually to the ministry since 2002[xxviii]

It must also be noted that many Malaysian employers of migrant workers, other than domestic workers, also do hold on to travel documents, wages and do deprive their employees freedom of movement and access to communication. In one shop, a Nepali worker, I spoke to recently, who has been in Malaysia several months have not even been allowed to step out of the shop – all he has seen and knows about Malaysia is what he sees from the shop entrance.

UNDOCUMENTED MIGRANT WORKERS

Some of these are really refugees from Aceh, Southern Thailand, Southern Philippines[xxix] and Burma, and of course they cannot come to Malaysia with the blessings of the sending country.

Some others come across the border because they just cannot afford the payments that they have to fork out to pay the agents and/or the various government authorities, and the fact that it is so easy and cheaper to just sail over or cross the border and find jobs here.

But alas being undocumented makes them vulnerable to abuse by the authorities, police and even “employers”.[xxx]

MIGRANTS ARE HUMAN NOT SAINTS

Migrants are human beings and not saints. Of course, there will migrant workers who abuse their employer, steal, commit murder, traffic in drugs and involve themselves in criminal activity. But what is sad is that for whatever reason, their crimes are highlighted more than others. There is no study to show conclusively that the percentage of migrants in the country involved in crime (or alleged to have committed crime) is higher than the percentage of local Malaysians involved in criminal activities. Some say the highlighting of crime committed by migrants is a strategy to get a better deal when the MOUs are signed between sending countries and receiving countries. Whatever the reason is, this perspective of migrants has resulted in prejudice against migrants.

DISCRIMINATION OF MIGRANTS BASED ON NATIONALITY

For the same work done, Indonesian migrants get the least remuneration compared with those from other countries.[xxxi] When it comes to Filipinos, they are the highest paid of all migrants.[xxxii] The cause could be that some government are more determined to protect their citizens than other government.

A BLEAK FUTURE UNLESS…

There are many other aspects of migrants and human rights that should be looked at but have not been done in this paper. Work Conditions, Exploitation by the Middle Man, Detention Conditions, Local Reaction to Migrants, Migrants and the Worker Unions and Crackdowns by the State are just some of the areas that could not be covered here.

What has been touched on is maybe just chapter one of a many chaptered book on migrant workers. Being human persons there is so many different aspects and facets of existence that need to be analyzed and discussed, and this paper only deals with a few.

There is definitely a need for legislation to protect labour rights and other rights of migrants. The 300,000 over domestic workers especially need legislation to protect their rights, There must also be a development of a mechanisms and procedures to ensure that there is real access to justice.

With the ratification/accession of the UN Convention on the Rights of the Child (CRC) and the CEDAW, there is great possibility that rights of migrants provided directly and indirectly in these conventions could be relied upon for greater recognition and protection of migrant rights.

Malaysia, with its 26 million population, has the largest disparity between the rich and the poor in Southeast Asia[xxxiii]. Malaysia’s top 10 percent of the population is 22.1 times richer than the poorest 10 percent. There is also growing unemployment within the local population. One of the reasons is the fact that Malaysian government, companies and institutions have been working towards becoming more efficient to be able to compete with the foreign companies, institutions and banks when the doors are open to free trade in compliance with the obligations of Malaysia under the World Trade Organisation (WTO) Agreements, the Asean Free Trade Agreement (AFTA) and the various other Free Trade Agreements it has entered into. In this drive to become more efficient, it is labour that is sacrificed and more persons are becoming unemployed. Jobs, especially permanent jobs, are getting more and more difficult to come by. With the recent 40 cent increase of petrol price, the cost of living will also further increase. Bleak times are ahead for Malaysians, and this would also affect migrants/refugees in Malaysia.

Charles Hector

7th April 2006



[i] Vietnam News Agency (VNA), 22/9/2005 Malaysia calls for regional cooperation against illegal migrant workers” stated the figure to be 1.7 million,

[ii] Bernama Report, 6/3/2006 “Malaysia Ready To Accept More Indonesian Housemaids” By Mohd Nasir Yusoff

[iii] According to a report by Amnesty International, government statistics indicate that through 1 June 2004, there were at least 1.3 million documented migrant workers working in Malaysia (an increase of about 500,000 since 2003) and between 700,000 to 1.2 million undocumented migrant workers.

[iv] (Star 27/9/2005), Records show that 15,452,112 foreign nationals entered Malaysia in 2004 but only 9,599,125 people left the country during the year – meaning that there were about 5,852,997 or 38% of the total arrivals overstaying.

[v] Statistics obtained from the Department of Statistics, Malaysia website , http://www.statistics.gov.my

[vi] In 2003, the Deputy Home Minister stated that over 25% of prisoners on Malaysian jails were foreigners, while by June 2004 there were now more foreign prisoners than Malaysians in jails. Now, it must be factored in that many a time foreigners either are not offered bail and/or cannot afford bail – and it is also not certain whether the figures include remand prisons, being where persons not yet convicted are held.

[vii] Malaysiakini(an AFP Report), 30/3/2006 “June Signing of Pact for Indon Maids”

[viii] Statistics obtained by the Bar Council Legal Aid Centre (Kuala Lumpur) showed that migrant breakdown in 2004 at the Sungai Buloh prison was: Indonesia(174), India(75), Burma(67), Bangladeshi (47), Pakistani (24) and Others (41). Others include migrants from Iran, Cambodia, Namibia, South Africa, China, Singapore, Vietnam, Sri Lanka, Nepal, Thailand, Nigeria, Peru and France. Statistics obtained showed that migrant breakdown in the Kajang Women Prison prison was: Indonesia(167), China(70), Philippines(57), Thailand (45), Vietnam(27), Taiwan(18), Burma(17), Cambodia (17) and Others(50). Others were migrants from Bangladesh, Columbia, Congo, Argentina, Uzbekistan and Sri Lanka.

[ix] Bernama Report, 6/3/2006 “Malaysia Ready To Accept More Indonesian Housemaids” By Mohd Nasir Yusoff

[x] Malaysiakini, 22/3/2006 – “More foreign sex workers arrested last year”

[xi] Article 5 (Liberty of the Person), Article 6(Slavery and Forced Labour Prohibited), Art.7 (Prohibition against retrospective criminal laws and repeated trials), Art. 8(Equality), Art. 11(Freedom of Religion) and Article 13 (Right to Property) are amongst the 8 Articles under Part II (Fundamental Liberties) of the Federal Constitution that applies to all persons. Art. 9(prohibition from Banishmjent and Freedom of Movement), Art.10(Freedom of Speech, Assembly and Association), Art.12 (Rights in Respect of Education) uses the word “citizen” and not “persons”.

[xii] Malaysiakini, 7/2/2005 - In Malaysia "...from 1990 till September last year[2004], a total of 1,583 deaths among prisoners were recorded in 28 prisons nationwide, with the highest number in 2003 when 279 inmates died. During the same period, 150 detainees died in police lock-ups or custody" (statistics from a 49-page parliamentary written reply by Prime Minister Abdullah Ahmad Badawi)

[xiii] Kuala Lumpur Magistrate Court (2) Criminal Case No: NO: D83-1427-99, D83-1428-99, D83-1429 -99, D83-1430-99, D83-1431-99 and D83-1432-99, Charles Hector & Amin Hafiz acted for the 6 persons from Uzbekistan

[xiv] Employees who generally have a monetary claim against their employer can make a complaint and the Labour Department, and if there is no resolution, then the Labour Court will convened and this will be chaired by a Labour Officer. Complaints of non-payment of wages, wrongful holding back of part wages,etc can be referred to the Labour Court.

[xv] If an employee is wrongfully and/or constructively dismissed by her employee, she has to make a complaint at the Industrial Relations Department(IRD) within 60 days days from the date of dismissal. The IRD will then call for a conciliation meeting between the Employer and the employee. If conciliation fails, the matter is referred to the Minister, who then refers or does not refer the matter to the Industrial Court. If referred to the Industrial Court, then the case goes to trial. Now, if the Minister does not refer the matter, then the employee has a right to apply for a Judicial Review (but here legal charges and cost is involved), so generally the matter ends here for the employee. In the Industrial Court, the employee’s claim is for re-instatement but at the end of the trial, the Court is at liberty to also award damages in lieu of reinstatement.

[xvi] The 40 Indian workers came into Malaysia as migrant workers under an Employment Pass (Rule 9 Immigration Regulations 1963), and with regard to this employment pass, the law stipulated that the minimum wages should be RM1,200-00 per month. This is in fact the one and only provision in Malaysian Laws that stipulate a minimum wage. The majority of the migrant workers in Malaysia only have a Social Visit(Temporary Employment) Pass (Rule 11(1)(ii) Immigration Regulations 1963) and here there is no stipulation of any minimum wage.

[xvii] When this matter started there were 40 workers, but 4 just could not take the stress and chose to return home and in the Kuala Lumpur High Court case (Usul Pemula No: R2-25-76 Tahun 2000)

[xviii] It was sad that the High Court did not hand down a Judgment on this case, for if that was done it would have been a precedent that other migrant workers could rely on in the struggle for migrant rights. One significant point would have been the right for the migrant worker to apply for a variation of his work permit, including the change of employer. Before this and still today, it is believed that only the employer has the right to apply for work permits and/or variation of the said permits. To date, it seems that there has been no other similar cases in the Malaysian Courts.

[xix] At that time, it was no possible to include a claim for damages in the 1st court action but today the Rules of the High Court has been amended and a claim of damages could be included in the 1st action.

[xx] One of the objections was that the Government of Malaysia was not named as a party. It is still believed that there is no need to specifically name the Government of Malaysia as a party , more so since the DG of Immigration and the Immigration Department of Malaysia were already named as parties.

[xxi] The lawyer was threatened with arrest under the Internal Security Act if we went further after the High Court dismissed the suit. In fact these threats, and other threats, were directly and indirectly made at the earlier stage in the first suit. One senior Minister also tried to get the workers to withdraw their suit. This is only what the lawyer understood by the words and actions. There was nothing in writing – only verbal communications to the lawyer alone.

[xxii] Allegedly – because to date the author has not seen any such condition in the written form. This could be one of those many unwritten policies that the Malaysian government is famous for. The policy is relied on when the Government wants to use it, and many other policies are denied when others want to rely on it. This is the problem with unwritten policies. For certainty, Malaysia must start having written policies that can be accessed by the public, and better still if these policies are gazetted.

[xxiii] In Malaysia, when a child attains the age of 12, he needs to apply for his National Registration Identity Card (NRIC).

[xxiv] The matter was taken to the Human Rights Commission, the Bar Council and even to Parliament. A signature campaign was initiated, which collected over 6,000 signatures, An urgent appeal was also initiated by the Migrant Forum in Asia. MFA and many other organizations also wrote in support for the re-unification of the family of Abdul Mutalib, Romita, Maruly Azis Bin Abd Mutalib (12 +), Sarah Nor Varah Hanim Binti Abd Mutalib(11+), Yonatan Adam Fauzi Bin Abd Mutalib(9+) and Ismael Syah Putra Bin Abd Mutalib(6+)

[xxv] Kuala Lumpur High Court Suit No: S4-21-239- 2005

[xxvi] In the case of Mohamad Ezam -v- Ketua Polis Negara (2002) 4 CLJ 309, a Federal Court case, it was stated in the judgment“In the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which member states can ratify or accede to and those principles will then have the force of law”. Now in 1995, Malaysia ratified/acceded the UN Convention on the Rights of the Child, and there is NO reservation with regard to Article 3(1), which states “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideratoion”. Further, unlike the United Kingdom, Malaysia did not have any reservation as to the application of the CRC to “...matters of immigration and citizenship law”

[xxvii] Malaysiakini 22/5/2004; “Housewife Charged for Horrific Maid Abuse” “…three charges of voluntarily causing grievous hurt to Nirmala Bonat (from West Timor), 19, with dangerous weapon - an iron and hot water - at her house at 33B-25-6, Villa Putera, Jalan Tun Ismail here in January, March and April this year.She is also charged with voluntarily causing grievous hurt to Nirmala with a metal cup at the same place at 3pm on May 17 this year…”

[xxviii] Bernama, 6/3/2006 “Malaysia Ready To Accept More Indonesian Housemaids”

[xxix] Malaysiakini 2/3/2005 “At least 100 Filipinos arrested in Immigration crackdown: official” “…Up to half a million Filipinos live in Malaysia, many of them families of refugees who fled a separatist rebellion on the Mindanao region of the southern Philippines in the 1970s…”

[xxx] Malaysiakini,28/2/2005 ‘100.000 Indon illegal workers ‘not paid wages’ “…About 100,000 Indonesian illegal migrant workers who have not been paid wages are refusing to return home even in the face of an imminent crackdown, claimed Indonesia’s Labour and Transmigration Minister Fahmi Idris today…”

[xxxi] Malaysiakini(an AFP Report), 30/3/2006 “June Signing of Pact for Indon Maids”

[xxxii] Malaysiakini, 13/2/2006 “Minister: No perks for Indonesian Maids” – “…The live-in maids often receive a salary averaging RM380 a month, far less than counterparts from the Philippines…” “..Home Affairs Minister Azmi Khalid said that allowing Indonesian maids to be hired under the country's labour law - which would provide for annual and sick leave, days off and overtime payment - would complicate matters for employers, said the New Straits Times” “..foreign maids in Malaysia are prey to physical, psychological and sexual abuse because of flawed government policies and typically work 16 to 18 hour days...”

[xxxiii] Malaysiakini, 2/2/2006 ‘M’sia has worst income disparity in SEA, gov’t flayed”