Contempt Proceedings Against Ministers, Director General, etc >> YES, it is possible for even the Government must respect and abide by Court orders and directions
Well, several years ago, I was involved in a Labour Court case in Seremban, where Rajakannu Boopathy and about 39 migrant workers were in a trial claiming unpaid/wages from the employer.
The problem was the LEGALITY of the stay - as their work permit had expired, and they were at RISK of being arrested, detained, charged, imprisoned, whipped and deported.
YES, it is possible to apply for SPECIAL PASS - which was RM100 per worker per month. It was expensive for workers that could no longer earn monies, and every month, they had to go get their Special Passes. The Court ordered that they do not have to pay for these passes, but then, when they visit the Immigration, some times they get it for free, and other times they are asked to pay.
One option available was for an application to the DG of Immigration to vary their employment pass/work permit that will enable these workers to work and live legally in Malaysia. The workers also managed to find a NEW employer, who was willing to employ them provided the Immigration Department grants them a visa/pass - these documents were also sent to the DG of Immigration.
Numerous letters - but no answer from the Immigration Department. The Immigration Department did call in the workers and conduct interviews >>> but still NO ANSWER from the DG of Immigration.
If the DG of Immigration had said 'NO', then the workers will have the RIGHT to appeal to the Minister, which if again denied - there 'opens the possibility of a Judicial Review. The DG's not answering the letter put the workers in limbo - and their rights were denied.
Then, the workers filed a case at the HIGH COURT against the DG of Immigration, the Immigration Department and the Government of Malaysia asking just for one thing a COURT ORDER that the DG of Immigration/Immigration Department give the workers a reply to their letter asking for a variation of their work permit/visa/pass so that they can work and stay legally in Malaysia until the end of their labour court case.
Then, we had the the High Court hearing, which was a lengthy one with many days of submission, and additional submission of certain questions that the judge asked parties to submit. When the judge was near to making his decision, which I believe would be in favour of the workers, the Federal Counsel representing the DG and others, said that the DG of Immigration had agreed to give the workers a new work visa/pass, and asked that a CONSENT JUDGMENT be recorded.
On Dec 6 last year[2000], the High Court ordered the Immigration Department to issue temporary work permits to the workers to enable them to work legally for a construction company, Central Generative Sdn Bhd.
Then, even after paying the needed levy/fees, the Immigration Department delayed the issuance of the visa...and finally, the visas arrived in April but
"We appeal to Suhakam to help us get our permits, noting that we have already paid the necessary levy and that what we are asking for is something that has already been ordered by the Kuala Lumpur High Court," the workers' spokesman Rajakannu Boopathy said.
He added that the delay by the Immigration department had deprived the group of their right to work legally in the country and had also resulted in several of the workers being arrested by police and detained at illegal immigrant detention camps... The workers claim that the Director-General of Immigration issued permits on April 19, but 13 of the permits had lapsed in January and February this year while the rest lapsed on July 8.
After several attempts asking the Immigration Department to remedy the visa/passes to be in compliance with the court order, the workers decided to commence contempt proceedings against the DG of Immigration and others. For contempt proceedings, the 1st application was to get LEAVE(or permission of the Court) to commence Contempt Proceedings.
The workers are now seeking leave to commence contempt proceedings against the former Director-General of Immigration Aseh Che Mat and five other Immigration Department officers for failing to comply with the High Court order.
Their application was filed at the High Court last week and will be heard on July 25.
The High Court would have granted LEAVE to commence contempt proceedings, and again the Federal Counsel agreed that leave be granted, and contempt proceedings be commenced.
Contempt proceedings commenced, and, in my opinion, after the long submissions and counter submissions before the court handed down the decision, the Federal Counsel said that the DG 'apologizes' for the mistake and will now issue these workers new 2 year work visa/permits, which will be renewed once when the current one expires.
The judge struggled with the punishment. It is not right to jail the DG of Immigration, being a public officer. For a fine, it is useless as it would mean the government taking out monies from one pocket and putting it back into another. So, the penalty imposed was that DG and government to pay COST for all the cases, including the contempt action.
## The entry of a CONSENT JUDGMENT means that the Judge will not have write out the Grounds of Judgment, and such Judgments will be recorded/published in law journals, and will be referred to in future cases as a precedent or otherwise. If the judgments of these cases, it would have helped so many other migrant workers and others. This case made very important decisions - like the a work permit/pass can be varied on application of the holder who is the migrant worker, that variation also includes a change of employer, that migrant workers fighting for their rights in labour court and/or other tribunal have a justifiable right to receive work visa/passes to enable them to stay and work legally until their quest for justice ends, ...and other matters. The strategy to push for the recording of a Consent Judgement, to avoid the issuance/publication of a full judgment is a 'dirty' strategy used by States, and sometimes Corporations and others.
A perusal of Commonwealth authorities disclosed that contempt action against Ministers and/or Director Generals were RARE - I found only about 5.
That said, the point that I am making here is that it is POSSIBLE TO INITIATE CONTEMPT OF COURT proceedings against the Home Minister, the IGP, the Coroner(Session Court Judge) and other that FAILED to obey/follow the Practice Direction of the Chief Judge of the Federal Court(the Head of the Judiciary) that still remains in force today. Remember 'ignorance of the law is no defence'...Contempt Proceedings Against Home Minister and Others for failure to complete inquest in death in custody cases as directed by the Judiciary?
A group of 36 Indian migrant workers who claim to have 'been deceived' by the Immigration Department today appealed to the Human Rights Commission (Suhakam) to assist them in getting valid work permits.
Fourteen of the workers representing the group handed over a memorandum to commissioner Harun Hashim at the Suhakam office this morning.
They were accompanied by their lawyers Charles Hector and Roland Engan as well as the director of Central Generative Sdn Bhd, Mohd Ali Abdul Wahid.
Their memorandum stated that their rights as workers had been violated by 'the delay and dishonesty of the Immigration Department' which they alleged issued them with expired work permits.
"We appeal to Suhakam to help us get our permits, noting that we have already paid the necessary levy and that what we are asking for is something that has already been ordered by the Kuala Lumpur High Court," the workers' spokesman Rajakannu Boopathy said.
He added that the delay by the Immigration department had deprived the group of their right to work legally in the country and had also resulted in several of the workers being arrested by police and detained at illegal immigrant detention camps.
Temporary work permit
Harun informed the workers that he will hand over the memorandum to the other Suhakam commissioners before deciding on a course of action.
"I can't decide on this issue on my own. This (memorandum) will go before the commission and we will conduct an initial enquiry to establish whether there should be a public enquiry," Harun said.
A copy of the memorandum was also handed over to the Bar Council this afternoon.
The workers' ordeal began 20 months ago when they initiated a lawsuit against their former employer, Gopis Construction Sdn Bhd, whom they alleged failed to pay them their wages.
They then applied to the Immigration Department for permission to work on their own or alternatively be transferred to another employer.
On Dec 6 last year, the High Court ordered the Immigration Department to issue temporary work permits to the workers to enable them to work legally for a construction company, Central Generative Sdn Bhd.
Contempt proceedings
The workers claim that the Director-General of Immigration issued permits on April 19, but 13 of the permits had lapsed in January and February this year while the rest lapsed on July 8.
The workers are now seeking leave to commence contempt proceedings against the former Director-General of Immigration Aseh Che Mat and five other Immigration Department officers for failing to comply with the High Court order.
Their application was filed at the High Court last week and will be heard on July 25.
According to Charles Hector, existing laws in the country only allow migrant workers to complain against their employers for violation of their rights but do no provide a mechanism for the worker to continue to work and earn legally in Malaysia.
"It is thus unfeasible for them to commence legal action," he said adding there was also no clear law and penalties against employers who violated migrant workers' rights.
"For example, an employer must provide the Immigration Department with a contract of employment as a condition for the issuance of the work permit (the expatriate identification pass), but when the employer fails to pay wages according to that contract, the department does not penalise the employer.
"There is no enforcement against employers. In fact, these workers' former employer, despite all his violations, is not blacklisted and continues to be given permits to recruit migrant workers," Hector said.
Required skills
Central Generative director Mohd Ali told malaysiakini that his company was incurring high costs due to the Immigration department's delay in issuing the worker's permits.
He said that the workers' levy fees amounting to more that RM40,000 was being borne by the company as the workers had entered a two-year contract with the company on Dec 6 last year, after the High Court order.
"We can't just leave these workers alone now after having invested so much in them. Furthermore, we have a lot of job opportunities and we need these workers who have the skills required.
"But we are suffering together with them because they can't work without the permits," Mohd Ali said.- Malaysiakini, 16/7/2001
see earlier post:-
Contempt proceeding against Malaysia's DG of Immigration by migrant workers
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