Friday, January 24, 2014
If you deport migrants hurriedly, how can there be investigation, prosecution and conviction of those that bring in undocumented migrants?
We hear about crackdown, arrest, detention, conviction, whipping and deportation of undocumented migrant workers all the time - but at the same time, we do not here about the prosecution and conviction of those who brought in these undocumented migrant workers or those that employ these workers. Is the Malaysian government even interested in taking action against these agents and employers?
If yes, then there really need to be time for a thorough investigation - but how can Malaysia investigate if they arrest so many and deport them so fast. How many investigation officers are doing this investigations now - and how many employers/agents/third parties are being persecuted.
Where is your witnesses when it comes to a trial against these agents/third parties that brought in undocumented workers - or employed these undocumented workers? Well, if Malaysia is SERIOUS about prosecution, Malaysia should have speedy trials and ensure that these 'undocumented migrants' remain in Malaysia and is able to attend court as witnesses for the prosecution. It would unjust to charge someone and rely on just statements made by migrant workers, who are not called as witnesses - just because they have been deported...or the prosecution lacks the real capacity to bring them back as witnesses. Of course, the accused must be accorded the right to cross-examine witnesses of the prosecution... Of course, the Judges must have the ability to view these witnesses as they gave their evidence - for the Judge to evaluate personally whether the said witness is a liar lacking credibility or really a honest credible witness.
So, don't arrest and deport them who would be witnesses ....The present practice of the Malaysian government shows that Malaysia really is not at all concerned about the 'undocumented migrant situation' - by the lack of prosecution of those that bring in these undocumented migrants...and so the problem remains and more and more undocumented migrants will come in because of the 'same persons' who are facilitating the entry of these undocumented migrant.
Maybe, there really is no interest in a trial or prosecution because in court the truth may come out that some people in government themselves may be involved... With the submarine and navy, how is it that many can so easily enter Malaysia across Selat Melaka? Is there corruption involved?
The other issue that Malaysia needs to consider is that there will be no undocumented migrants unless there is a demand for workers over here in Malaysia - noting that almost all these undocumented migrants are coming for work and income - Maybe time to save money on these 'massive crackdown' where the cost of housing a detainee per day is RM35 - maybe, we should allow for free movement of migrants to Malaysia to seek employment - and the onus be placed on the Employer to register immediately the migrant worker he/she employs. Migrants be allowed to enter using social visit passes, and if they find employment, and employers register them, then they can be accorded the relevant work pas/permit, etc - and if they cannot find employment before their social visit pass expired, they will have to leave.
Who really are the employers of these 'undocumented migrants' - it really is the small or micro businesses - not so much the big companies/businesses, and as such maybe scope of employers/businesses that can legally employ migrant workers should be reviewed. Thailand uses this method with migrant workers...whereby further, when a migrant worker loses his/her job, a certain time frame, say 60 days, are given for the migrant worker to get another legal job.
We are just expending too much resources and monies on these 'crackdowns' and as such a serious review needs to be done on the way Malaysia is doing this.
Further, it is a grave injustice when documented migrants are also arrested - and this happens because employers/agents hold on to the migrant worker passports/visa/employment pass, and the arresting persons will arrest and detain all those that are not able to show these original documents.
Note also that some migrant workers verily believe that they are 'legal' - these are victims of employers/agents/3rd parties that have cheated them. Some have with them copies of their documents - even with that official immigration stamp (which may be a forgery) - hence these migrants are but victims, deceived by unscrupulous persons who will never be caught or prosecuted if Malaysia is just interested in arresting, processing and deporting...
How many of these workers came into Malaysia as documented migrants - and now are undocumented in fact, although the worker themselves may believe that they are still 'legal' or documented. Have a look at the Reuters video on the crackdown - and see images of those handing over photocopies of their documents, looks like they do believe that they are 'legal'...
I must also say that crackdown during the Chinese New Year period is also not good - especially when it affects Malaysian employers of Chinese ethnicity - will they be able to rush to detention centers during CNY or will they wait until after the holidays - hence unnecessary and unjust detention of documented migrants...
So, like in past years again a massive crackdown on migrant workers...and noting that all this is really ineffective, Malaysia really need to re-evaluate the manner of employment of migrant workers. It must be direct employment of migrant workers by the owners/operators of workplaces that require workers - end the involvement of third parties especially the 'contractors for labour'. Employers may use 'agents' - but these would be the employer's agents and any liability is ultimately on the employer(the principal).
Below, a news report from The Ant Daily, but I would say that their headline should have said "Prosecute the agents/persons that bring in undocumented or who supply them to employers". Why blacklisting a company or a business means little for the same people just would form a new company or business and continue to do wrong... If you are going to blacklist, blacklist the persons(agents/employers) and all businesses that they are involved in. Ah...but do not forget the presumption that all is innocent until proven guilty in a court of law. No one deserves even to be 'blacklisted' just because the authorities believe they are guilty...
PETALING JAYA: Home Minister Datuk Seri Ahmad Zahid Hamidi's announcement that more than 2,400 undocumented migrants were arrested in the first 24 hours of the nationwide 6P Integrated Operation has raised questions over follow-up actions against parties found guilty of bringing them into Malaysia.
The figure is expected to grow as the crackdown continues under Phase 2 of the operation which was first launched in 2011.
Labour activist Charles Hector Fernandez said arrests and detention of the undocumented migrants at 15 immigration depots must be followed up by a thorough investigation on the journey from their country of origin to Malaysia.
This, he said, involves identifying the responsible parties from the time of the migrants' arrival to the processes leading to their employment in Malaysia, or resulting in them being "undocumented".
Zahid had reportedly said the illegal immigrants would be deported to their home countries within seven days but Fernandez questioned whether that was enough time to conduct the necessary investigations.
"This is something which the authorities must answer. Once you have arrested thousands of people, how long will it take to conduct and conclude an investigation?"
"The investigations must also be able to push for a criminal charge against third-party agencies who brought the migrants into Malaysia (if any), put them on trial and resulting in a conviction for the offence," Fernandez told theantdaily on Jan 21.
Fernandez said, in most instances, a conviction can only be achieved if there are enough credible witnesses to testify against the agencies and he claimed that this will not happen if the detained immigrants are deported within seven days.
"If the government is serious to resolve the problem of undocumented migrants, witnesses (among migrants under detention) must be protected so they can testify on how they became undocumented," he stressed.
While Zahid had said that employers found guilty of harbouring undocumented migrants will be charged under the Immigration Act 1959/63, he did not state any possible actions against errant third-party agencies.
As such, Fernandez urged the government to disclose the latest number of convictions for relevant charges, including under the Anti-Trafficking in Persons Act 2007.
According to statistics from the Home Ministry's Anti-trafficking in Persons and Anti-smuggling of Migrants Council (MAPO), 591 cases were investigated between 2008 and 2012, with 797 arrests made.
On Zahid's statement that the deported migrants will be "blacklisted" and barred from returning, Fernandez said the government should create a similar list of blacklisted agencies to avoid more employers and workers from falling victim to their unscrupulous actions.
When contacted, labour lawyer A Sivanesan told theantdaily he previously handled cases of workers from India who claimed that they had paid up to 100,000 rupees to Indian agents after being promised of what turned out to be non-existent jobs in Malaysia.'
"There are no agencies here (in Malaysia) that can bring in illegal workers.
"These people (undocumented migrants) were brought in using social visit passes through local (Malaysian) agents who collaborated with their counterparts in India or Bangladesh," said Sivanesan, who is also the DAP state assemblyman for Sungkai.
There were also reported incidents of foreign workers being hired in a different sector from their approved permits, believed to be due to a significant difference in levy charges for the various sectors.
"If these workers are arrested, most of the time they cannot tell (the authorities) who their Malaysian agents are," Sivanesan added.
The Perak DAP vice-chairman, however, said that he welcomes the government's crackdown on illegal workers as their large numbers have adversely affected opportunities for local workers.
As of Jan 20 this year, one day before the launch of the nationwide multi-agencies operations involving some 10,000 officers, it was estimated that there were more than 2.3 million undocumented migrants in Malaysia. - The Ant Daily, 23/1/2014, Blacklist illegals! Blacklist errant agencies too, Home Ministry told