The complaint/Petition to SUHAKAM was submitted on 10/8/2022, and to date SUHAKAM is yet to make and convey its decision as to whether they will hold a PUBLIC INQUIRY or not[See contents of petition to SUHAKAM below, without graphics/attachment, if interested, vi.ew full petition at BWI Website)
SUHAKAM should do a public inquiry as this case is well documented that HIGHLIGHTS the errors of the Police, the Prosecutors, the Immigration Department, the Tawau Prison authorities, the Tawau Session Court, the Indonesian Embassy/Consulate, the lawyer the Indonesian government appointed to act for Sabri, the EMPLOYER > It is a GREAT OPPORTUNITY for SUHAKAM to provide recommendations to the government and it's various departments/agencies/ministries as to how to better respect and practice human rights in the carrying out their public responsibilities?
Everyone would want to get SUHAKAM's findings and RECOMENDATIONS?
- Should the police be allowed to arrest migrant workers and not bring them before a Magistrate within 24 hours, if the arrest was for another crime not an immigration offence?
- Should the Tawau Session Court officer/judge who told the Prison Department that there was NO PENDING APPEALS, when there was, a fact that resulted in Sabri being illegally whipped?
- Should the Immigration officer's action
- Should not a lawyer, who never met and got instructions from his client(Sabri) be disciplined?
### The Petition to SUHAKAM raises many issues of concern, and one wonders how many migrant workers, foreign nationals and even Malaysians have fallen VICTIM to such failings of public officers >>> Were they even penalized or disciplined? Did these violators of Sabri's rights even had the decency to at least APOLOGIZE?
If such failings, intentional or otherwise, we JUSTIFY it and make it all OK... Post GE14, the safety net that protected politicians, Ministers,...finally got lifted, and marked that those who broke the law or did a wrong are penalized? If rights violators walk away free and unaccountable - Malaysia may end up simply propagating more rights violations and law-breaking. SUHAKAM Public Inquiry, and recommendations thereafter will certainly show that Malaysia(or at least SUHAKAM) does not condone rights violations, even by the government and/or its officers
SUHAKAM has a GOLDEN OPPORTUNITY to deal with rights violations faced by all the migrant workers in Malaysia..
But many wonder whether the new Chairman and HR Commissioners are still the SUHAKAM we knew...??? Comparatively, SUHAKAM has been rather 'quiet' ...maybe something that 'bad' governments and their leaders want...i.e. to show the world that Malaysia has a HR Commission, who really will not be critical of government and/or its Ministers/officers... It is up to the new SUHAKAM to prove that all is not lost again in 2022, after SUHAKAM did us all proud from 2010 to July 2022.
BUT THEN, unlike the immediate past batches and Chairperson of SUHAKAM, this new Chairman and newly appointed HR Commissioners seem wanting... They have not making many media statements on the many HR issues that emerge >>> Did they even make a statement on the recent World Day Against Death Penalty?
SUHAKAM, when it was first formed in 2000 was irrelevant to the Malaysian people as it simply lacked the perception of being independent, and as a champion of human rights...But things changed when Hasmy Agam and the Commissioners appointed in 2010-2016. SUHAKAM continued to be relevant and active under the Chairmanship of Tan Sri Razali bin Ismail(2016-2019). A key point to note was both Hasmy and Razali were senior foreign officers, who had held positions at international level. Razali was even the President of the UN General Assembly. The immediate past SUHAKAM Chairman was quiet, but SUHAKAM continued to shine.
Now Prof. Dato’ Dr. Rahmat Mohamad is the new Chairman of SUHAKAM, and the new HR Commissioners, save a few, seems happy to not be in the forefront of Human Rights. Remember, that even ONE HR Commissioner speaking up is good, and to date it may seems that it will be Ragunath Kesavan, a former Malaysian Bar President. Hope more HR Commissioners act for Human Rights - no need to listen to the PM, Ministers or politicians - just be commited to upholding the cause of Human Rights and Justice without fear or favour..
A PUBLIC INQUIRY needs a majority vote amongst the current SUHAKAM Commissioners, and a decision not a PUBLIC INQUIRY on this case, would be indicative of the kind of SUHAKAM we have today.
WE PRAY THAT MALAYSIA STILL HAS A NATIONAL HUMAN RIGHTS COMMISSION WHO IS NOT TOOTHLESS, AND BRAVE TO HIGHLIGHT AND SPEAK OUT AGAINST HUMAN RIGHTS VIOLATION COMMITTED BY STATE, ITS MINISTERS AND ITS OFFICERS..
COMPLAINT TO MALAYSIAN NATIONAL HUMAN RIGHTS
COMMISSION(SUHAKAM) ABOUT THE HUMAN RIGHTS VIOLATIONS
SUFFERED BY SABRI BIN UMAR, A DOCUMENTED INDONESIAN MIGRANT WORKER WHO WAS WRONGLY DETAINED, WRONGLY CHARGED,
WRONGLY CONVICTED, WRONGLY IMPRISONED AND WRONGLY WHIPPED
BY REASONS OF ACTIONS/OMISSIONS OF THE POLICE, IMMIGRATION
DEPARTMENT, PUBLIC PROSECUTOR, TAWAU SESSIONS COURT AND OTHERS
PETITION TO SUHAKAM SEEKING A PUBLIC INQUIRY
10th August 2022
By Sabri bin Umar and the following groups:
Sabah Timber Industry Employees Union (STIEU)
Malaysians Against Death Penalty and Torture (MADPET)
Building and Woodworkers International Asia Pacific (BWI AP)
Labour Law Reform Coalition (LLRC)
Persatuan Sahabat Wanita Selangor (PSWS)
North South Initiative (NSI)
ALIRAN
All India Construction Workers Central Union (AIKTMS)
Asosasyon ng mga makabayang Manggagawang Pilipino Overseas in Malaysia (AMMPO)
Black Women for Wages for Housework
Building and Wood Workers Trade Union Federation of Cambodia (BWTUC)
BWI – Nepal Affiliates Committee
Bhawan Nirman Karmkar Mazdoor Union (BNKMU), India
Centre for Orang Asli Concerns (COAC), Malaysia
Civil Society Action Committee on Migration
Federasi SERBUK Indonesia
Federasi HUKATAN, Indonesia
Federasi Kebangkitan Buruh Indonesia (FKUI)
Federation of Asian Domestic Workers Unions (FADWU), Hong Kong
Haiti Action Committee
International Domestic Workers Federation (IDWF)
Karnataka State Construction Workers’ Central Union (KSCWCU)
Koalisi Buruh Migran Berdaulat
Koalisi Buruh Migran Menggugat
Malay Forest Officers Union (MFOU)
Migration Forum Asia (MFA)
MP Theka Shramik Mazdoor Congress (MPTSMC)
Metal Industry Employees' Union (MIEU)
National Technical & Industrial Workers Federation (NTIWF), Bangladesh
National Union of Building and Construction Workers (NUBCW)
Network of Action for Migrants in Malaysia (NAMM)
Network of Domestic Workers in Thailand (NDWT)
Payday Men’s Network (UK/US)
Persatuan Pekerja Rumah Tangga Indonesia Migran (PERTIMIG), Malaysia.
PKNS Employees Union (KPPPKNS)
Sabah Plantation Industry Union (SPIEU)
Sedane Labour Resource Centre
Serikat Buruh Migran Indonesia (SBMI)
Timber Industry Employees Union Sarawak (TIEUS)
Timber Employees Union of Malaysia (TEUPM)
The United Domestic Workers of the Philippines
Uttar Pradesh Grameen Mazdoor Sangathan (UPGMS)
Union of Forestry Employees Sarawak (UFES)
WH4C (Workers Hub for Change)
William Gomes Podcast, UK
Women of Color/Global Women’s Strike US/UK
Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI)
COMPLAINT TO MALAYSIAN NATIONAL HUMAN RIGHTS
COMMISSION(SUHAKAM) ABOUT THE HUMAN RIGHTS VIOLATIONS
SUFFERED BY SABRI BIN UMAR, A DOCUMENTED INDONESIAN MIGRANT WORKER WHO WAS WRONGLY DETAINED, WRONGLY CHARGED,
WRONGLY CONVICTED, WRONGLY IMPRISONED AND WRONGLY WHIPPED
BY REASONS OF ACTIONS/OMISSIONS OF THE POLICE, IMMIGRATION
DEPARTMENT, PUBLIC PROSECUTOR, TAWAU SESSIONS COURT AND OTHERS
PETITION TO SUHAKAM SEEKING A PUBLIC INQUIRY
On submitting this complaint, we also specifically call on SUHAKAM to hold a public inquiry, on the human rights violation suffered by Sabri Bin Umar (Indonesian Passport C7342461), a member of Sabah Timber Industry Employees Union (STIEU)
Human rights violations suffered by Sabri included being: -
• Wrongfully arrested and detained (not brought before the Magistrate within 24 hours) from 5/4/2022 until 19/4/2022,
• Assaulted and tortured whilst in police custody,
• Wrongfully charged for being illegally in Malaysia,
• Wrongfully convicted and sentenced to 11 months in Prison and 5 strokes of the whip.
• Wrongfully whipped before his appeal was heard and determined.
• Wrongfully imprisoned for about 94 days (19/4/2022 – 22/7/2022)
The alleged violators of Sabri’s human rights are: -
• Malaysian police – including SI Mohamad John Bin Sirat, Sjn/D Abdul Aziz, SJN/D Rahmad Hidayat, KPL Tan Tze Siong, Insp Azlinda Binti Buang,
• Immigration department, including TPPI Suhaipi Binti Rosmin from the Sabah Immigration Department
• Public Prosecutor, including TPR Rustam Bin Sanip and DPP Hurman Hussain
• The Tawau Prison,
• The Tawau Session Court,
• the lawyer,
• Officer/s of the Indonesian Consul in Tawau; and
• possibly the employer (Fu Yee Corporation Sdn Bhd)
1. Sabri Bin Umar(Passport Number:C7342461), an Indonesian documented migrant worker, who had a valid work permit/pass (Pas Lawatan Kerja Sementara(PLKS)/Social Visit Temporary Employment Pass), was WRONGFULLY CHARGED and WRONGFULLY CONVICTED by the Tawau
Session Court for being an undocumented migrant for the offence of violating Section 6(1)( c) of the Immigration Act on 19/4/2022. He was sentenced to 11 months in prison, and 5 strokes of the whip. The police at the point of arrest had Sabri’s Indonesian Passport, with his PLKS information. Pages of Sabri’s current and some past passports, together with the relevant PLKS, the most recent issued on employment pass was dated 24/1/2022 valid until 24/1/2023, are attached and marked as ‘A”
2. A Petition of Appeal to the High Court was filed on or about 22/4/2022 and had still not been heard until 22/7/2022. A copy of the Court Notice confirming this fact is attached and marked as “B”
3. On 23/6/2022, Sabri bin Umar was WHIPPED – and this was in violation of the law that states that the sentence of whipping cannot be carried out until the appeal is heard and determined. Sabri was whipped, according to the Prison Department, because the Session Court informed them that there were no appeals.
Section 311 of the Malaysian Criminal Procedure Code Except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable.
4. On 22/7/2022, the High Court called up the case for Revision, and Sabri was acquitted, and thereafter released from prison. He has applied for a Special
Pass. The Immigration Department wrongly did not issue the normal 1-month Special Pass, but only a Special Pass for 2 weeks. The Court Instruction to the Prison to release Sabri, after Acquittal, is attached and marked “C”
5. The Immigration Department failed to issue a month Special pass, only a 2week Special Pass, and one of the Immigration Officer told Sabri it was sufficient to make arrangements to leave Malaysia, Sabri does not want to leave Malaysia, as he intends to stay and work legally to pursue his rights, including his claim for reinstatement, which is now about to be referred to the Industrial Court. A copy of said Special Pass is attached and marked “D”
6. The reason for the wrongful charging and wrongful conviction was due to the actions and failure, done intentionally, negligently, or otherwise of the Police,
Public Prosecutor, Immigration Department, Prison Department, Session Court,
the employer and possibly others. Sabri was wrongfully caused to suffer rights violations, loss of liberty, pain and suffering.
Brief Background
7. Sabri bin Umar was an employee at one Fu Yee Corporation Sdn Bhd in Tawau, Sabah, Malaysia since 28 January 2016 until the date of his wrongful termination on 4/4/2022. There was no SHOW CAUSE LETTER or Domestic Inquiry before the wrongful termination. The alleged reason seems to be an allegation of a crime, but a person is presumed innocent until the person is tried and convicted after a fair trial in a court of law. A employer’s conclusion that a worker is guilty of a crime cannot be a ground for termination of employment. Sabri Umar denies committing any crime. Find enclosed a recent contract for employment, Sample Pay Slips of Fu Yee Corporation to Sabri – November 2020, January 2021, February 2022, March 2022 and the letter claiming to be letter of termination by Fu Yee dated 4/4/2022, now collectively marked as ‘E’
8. Sabri also was also never offered or given any termination benefits, noting that he has been an employee of Fu Yee since 28 January 2016, i.e. about 6 years, and as such there is no legal termination of employment.
9. Sabri is claiming for reinstatement under section 20 IRA, and the matter is ongoing. The letter to the Industrial Relations Department was submitted in time, and the first conciliation attempt failed, and the matter would most likely be referred to the Industrial Court. Letters confirming this matter at the
Industrial Relations Department is attached and marked collectively as ‘F’
10. Sabri bin Umar is an active union member of the Sabah Timber Industry Employees Union (STIEU), and STIEU is in the process of seeking recognition by the employer, Fu Yee Corporation (the employer) is opposing and trying to set up an in-house union. Past actions have been taken against STIEU union members, and the targeting of Sabri bin Umar could be related. This could be union busting.
11. On 4/4/2022, the employer suddenly wrongfully terminated Sabri. This was also contrary to an agreement made days before by the employer to simply suspend for a week, and that to work as usual if Sabri admits to an allegation of an alleged wrongdoing. In reliance of the promise/agreement, Sabri made a ‘false’ admission for he wanted to continue to work in Fu Yee. The termination on 4/4/2022 was also breach of the agreement by the employer.
12. The matter of wrongful termination, and the quest for reinstatement is before the Industrial Department, and soon will be before the Industrial Court.
13. As such, we want SUHAKAM to look specifically at the wrongful arrest, wrongful detention in police custody, the wrongful charging, wrongful conviction, wrongful imprisonment, and the wrongful whipping, all of which was caused by the action/omission, intentionally or otherwise, by the police, prosecutors, immigration department, prison department and the session court, possibly with the involvement of the employer.
14. We also want SUHAKAM to look at the failings of the lawyer, and the officers of the Indonesian Counsel that resulted in Sabri spending more time in detention and being whipped, as the lawyer and consul officers became aware of the case on or about 21/4/2022.
POLICE
15. The police appeared at the workplace, and arrested Sabri in connection with an alleged investigation of a sexual offence under Seksyen 14(a) Sexual Offences Against Children Act 2017. The maker of the 1st police report is the employer’s representative, and later the mother made a report but later quickly withdrew it.
Sabri’s denies the commission of any crime.
16. The arrest happens within 24 hours after the said wrongful termination.
17. There is a doubt as to whether the police went and arrested Sabri on the instructions of the Investigating Officer, or did they cause the arrest and detention on the request of the employer? This is a matter to be investigated by SUHAKAM. Police normally will do preliminary investigations before making any arrests.
18. The police officers who came and arrested Sabri was allegedly SI Mohamad John Bin Sirat, Sjn/D Abdul Aziz, SJN/D Rahmad Hidayat and KPL Tan Tze Siong . Information from Police Report KALABAKAN/0003888/22 DATED 5/4/2022 made by SI Mohamad John Bin Sirat. The report state that the arrest was made in connection with a sex offence under Seksyen 14(a) Sexual Offences Against Children Act 2017, not for being an undocumented migrant. [See the Police Report KALABAKAN/000388/22 DATED 5/4/2022 by Mohamad John Bin Sirat, now attached and marked ‘G”
19. When the police arrested Sabri, the employer also handed to the arresting officers Sabri’s passport/s. The police took the said passports. See Police Report made by employer’s representative.
Attached is a police report of the employer’s representative that confirms that the passport was handed over by the employer to the police when the arrest happened. Police Report Tawau/0005999/22 by Justine Yong
Yun Lim dated 19/4/2022 is marked as ‘H’
20. Police knew that Sabri was a documented migrant worker, whose legal employer was Fu Yee Corporation Sdn Bhd at the point of arrest.
21. The police failed to bring Sabri before a Magistrate within 24 hours, to apply for remand for the purpose of further investigation, and in breach of law held him in detention from 5/4/2022 until 19/4/2022. This is a violation of the Federal Constitution and the Criminal Procedure Code. Sabri was arrested in connection with an offence under Seksyen 14(a) SEXUAL OFFENCES AGAINST CHILDREN ACT 2017, not for being an undocumented migrant. The arrest was
not in connection of a law relating to immigration, and, as such, he must be brought before the Magistrate within 24 hours [See Police Report made after arrest - Police Report KALABAKAN/000388/22 DATED 5/4/2022 by Mohamad John Bin Sirat, earlier marked ‘G”]
Article 5(4) Federal Constitution
(4) Where a person is arrested and not released, he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority:
…Provided further that in its application to a person, other than a citizen, who is arrested or detained under the law relating to immigration, this Clause shall be read as if there were substituted for the words "without unreasonable delay, and in any case within twenty-four hours (excluding the time of any "necessary journey)" the words "within fourteen days”: …
117 Procedure where investigation cannot be completed within twenty-four hours {Criminal Procedure Code]
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.
22. There is DOUBT as to whether the police did the needful on arrest, i.e. Art. 5(3) ‘Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.’ This was not stated clearly in the Police Report following the arrest. A SUHAKAM inquiry will determine the truth.
23. The Investigation Officer of the sexual offence case was Insp Azlinda Binti Buang, who was not present at the time of arrest. The question arises whether the police arrested on the instructions of the Investigating Officer or not. The question arises whether the arrest was pre-mature, in that whether it was done after the needed preliminary investigation. After arrest, according to Sabri, there seem to be even no Identification Parade where the alleged victim identified the alleged perpetrator.
24. The police did not arrest Sabri and immediately take him back to the police station but caused him to be taken to office at Fu Yee for questioning. Sabri says the police tried to get him to admit. This certainly is ODD as the Investigating Officer was not present. Was it done on the instructions of the Investigating Officer or not? This is also most unusual.
25. On one occasion after arrest during detention, Sabri alleges that he was physically assaulted by the police. They were asking Sabri to admit to the sex offence. According to Sabri, he was punched and kicked on or about 13/4/2022. He was also hit with a book on the head and face.
26. There is also NO police report alleging that Sabri was an undocumented migrant. The said police report is the required First Information Report, before investigation is commenced in any criminal case. Hence, another breach of law. The police report exhibited at the Sessions Court was the police report concerning the arrest of a different offence, i.e. the Seksyen 14(a) Sexual Offences Against Children Act 2017.
27. The police allegedly did communicate to the Immigration Department to verify the legality of Sabri’s presence in Malaysia. However, there is doubt whether the police did attach Sabri’s Indonesian passport and material particulars they had, which had all the relevant Immigration endorsements with regard to visas and work permits. The Immigration Officer responsible was TPPI Suhaipi Binti Rosmin , and the police officer responsible was Insp Azlinda Binti Buang. The said report dated 12/4/2022 from Immigration Department, which was also exhibited at the Session Court on 19/4/2022 as Exhibit P3 is now attached and marked as “I’
28. There is doubt whether the police contacted the Indonesian Consulate in
Tawau to verify the authenticity of Sabri’s Indonesian passport, and/or whether Sabri was an Indonesian national. Is it not law and/or policy, that whenever a foreign national is arrested/detained, the Malaysian authorities will immediately inform the relevant embassy/consulate where the arrestee/detainee is a national of.
29. There is doubt also whether the Indonesian consul was notified of the fact that an Indonesian citizen was arrested by the police. If this was done, Sabri would most reasonably have access to a lawyer, and would not have ended up being charged, unrepresented. This would have ensured that Sabri may have immediately been represented by a lawyer. After conviction and sentence, the moment the Indonesian Consulate became aware, they did appoint a lawyer, who did file a Petition of Appeal on or about 22/4/2022.
30. The police/prosecutor, despite knowing that Sabri was an Indonesian Passport holder with a valid work permit/pas, charged Sabri as a person without identification documents. Sabri says that the Deputy Public Prosecutor, on the day he was charged and convicted, did have in his possession Sabri’s Indonesian Passports (current and past), but he did not disclose this to the judge or the court. He did not even amend the Charge Sheet to reflect this fact but continued to charge Sabri as a person without personal identification documents. On receipt of the said passports, the DPP should have at the very least adjourn the case to verify again the fact of whether Sabri was truly an undocumented migrant or otherwise. Why he did not do so is an abuse of power, and a failure of the duty of the prosecution.
Attached is the Charge sheet, which was obtained from the Court. Note the words ‘Tiada Dokumen Diri’, now attached and marked as “J’.
Attached also is the Notes of Proceedings at the Tawau Session Court on 19/4/2022, together with the Exhibits Tendered by Prosecution, being Exhibit PI, Exhibit P2, Exhibit P3 and Exhibit P4 are attacked and collectively marked as ‘K’
PUBLIC PROSECUTOR
31. For the purposes of charging under this offence, the consent of the Public
Prosecutor is needed. Attached now is the said ‘Sanksi Untuk Mendakwa issued by TPR Rustam Bin Sanip dated 13/4/2022. – Dokumen “and marked ‘L’
32. It is the duty of the Public Prosecutor to review and verify the investigation of the police, immigration department and/or relevant law enforcement authorities before consenting to the charging of the said person. The Public Prosecutor failed in its duty when a documented migrant was granted consent to be charged for being an undocumented migrant. Did the said TPR even enquire as to whether there was a passport, or was he lacking concern simply sign the said permission to prosecute without verification?
33. The Deputy Public Prosecutor in Court of 19/4/2022, DPP Hurman Hussain, also failed in his duty in failing to draw attention of the fact that Sabri could be a documented migrant worker even from the fact that the arrest happens at the workplace, and the fact that the Exhibit P4 was a letter of termination of employment.
34. According to Sabri, the said DPP Hurman Hussain had several of Sabri’s Indonesian Passport, including the current one. The said DPP failed to bring to the attention of the court the said Passport, which would be prima facie evidence that Sabri was indeed a documented migrant, with a still valid work permit on the day that he was charged (19/4/2022). The said DPP failed to amend the Charge Sheet and tender to court other relevant documents to include Sabri’s passports and employment details.
35. According to Sabri, the Deputy Public Prosecutor also threatened and/or misrepresented to Sabri into pleading guilty, saying, amongst others, that if he did not, he would end up in prison for about a long time. Such threats to get the accused to plead guilty and not claim trial is wrong.
IMMIGRATION DEPARTMENT
36. The Immigration Department provided FALSE information about Sabri –
“Tiada Rekod Pergerakkan” dated 12/4/2022. This document was provided by TPPI SUHAIPI BINTI ROSMIN from the Sabah Immigration Department addressed to INSP AZLINDA BINTI BUANG (Tawau Police Headquarters), and this was exhibited as a prosecution document Exhibit P3 in the Session Court proceedings on 19/4/2022. See earlier document marked as ‘I’.
37. Immigration reasonably has all records of entry/exit and work permits issued by Immigration Department. Was Sabri’s passport/s or copies of even provided by the police to the Immigration Department? Note the Immigration Department did actually look into Sabri’s passport and Social Visit Temporary Employment Pass on/or about 5/4/2022 – see the endorsement on the recent PLKS, which now has the words on Sabri’s PLKS, saying ‘Dependant Pass is hereby amended …04 May 2022…holder will be leaving Malaysia Ref…’.
38. The said ‘amendment’ is ODD as it talks about a ‘Dependant Pass’ not the PLKS – did such a statement cause the PLKS which was effective until 24/1/2023, cause the PLKS to be shortened? Now, Sabri was not aware of the fact that his Pasport was taken to the Immigration possibly by the employer, for the purposes of amending or changing his PLKS. Sabri certainly did not consent to this, and Sabri certainly never agreed to leave Malaysia. If it was the action of the employer on his own, noting there is an allegation by Sabri that the employer held his passport/s and those of other migrant workers wrongly, this may a violation of the law by the employer especially when it was done without the knowledge/consent of Sabri.
39. Any pass/permit issued by the Immigration Department belongs to the holder of the said Pass/Permit including PLKS, and as such no third party, including the employer, can do anything to vary or cancel such permits/passes, and if the Immigration Department acted on the ‘request’ of the employer only, it is wrong in law and a violation of Sabri’s rights. The Immigration Department is duty bound to meet and verify with the holder of the permit/pass, or at the very least accord the right to be heard before extinguishing or shortening the existing rights of the PLKS holder. Note that Sabri was not a migrant worker that had absconded, but was a migrant worker wrongly terminated, who was taking action at the relevant industrial relations department seeking reinstatement claiming wrongful dismissal. The
Immigration Department knows where Sabri is, i.e. at his workplace at Fu Yee Corporation Sdn Bhd.
40. SUHAKAM needs to decide whether what the immigration did in Sabri’s case, without according the right to be heard to holder of pass/permits, is right or a violation of the human right of the holder of Malaysian Immigration Permits/Passes. Whether an employer who has done this without the knowledge and consent of the Sabri is a violation of human rights?
TAWAU PRISON OFFICERS
41. Sabri before he was charged in court, convicted and sentenced on 19/4/2022, he was wrongly detained in Tawau Prison from 14/4/2022. A suspect, unlike and accused or convicted should never be placed in Prison. Attached is a letter from the Prison Department to STIEU dated 18/7/2022 marked ‘M’
42. Prisoner Sabri (as he was then) was denied the right to make police reports. The intention of Sabri wanting to make police reports was communicated to the
Prison Officer also by Engrit Liaw and Sanati Binti Aris (his wife) on 23/06/2022. The demands were also thereafter repeated several times, but the Tawau Prison failed to allow Sabri to make his police reports until he was released on
22/7/2022. A police report by Engrit Liaw dated 12 July 2022, Police Report No TAWAU/009634/22, and letters about this is also attached and collectively marked as “N”
43. These police reports that wanted to make were crucial, in that they were report of denial of sexual crime, and about the fact that he was a documented worker. Failure to make these reports in time is prejudicial to Sabri. A document of this intention signed by Sabri on 30 June 2022 and witnessed by officer from the Indonesian Consul is attached and marked as “O”
44. The Prison Department caused Sabri to be whipped. With reference to their letter dated 18/7/2022, the Prison Department states that they did first send a letter to the Session Court inquiring when the whipping sentence could be carried out, and they allegedly received a reply from the Court stating that there were no pending appeals from either party. That mistake of the Sessions Court resulted in Sabri being whipped. Letter from the Prison Department dated 18/7/2022 is attached previously marked “M”
A picture of Sabri showing the marks of the Whipping is attached and marked as “P”
45. This was not true, as the Petition of Appeal had been filed on or about 22/4/2022, and the Appeal process was still ongoing with the last case management date fixed on 22/7/2022. A copy of the relevant court notice previously attached and marked as “B”.
TAWAU SESSION COURT
46. The Session Court officer that sent the letter saying no appeals pending, resulted in Sabri being wrongfully whipped 5 times on 23 June 2022, based on the Prison Department Letter dated 18/7/2022. The failure of the said officer or the Court is unacceptable, as they would definitely know that there was an appeal, more so case management was already ongoing i.e. on 22/4/2022, 23/5/2022, 27/5/2022 and the next final date, of many previous dates, was scheduled for 22/7/2022. A copy of the relevant court notice previously attached and marked as “B”.
47. The Session Court Judge on 19/4/2022 failed in his duty to verify the facts and whether the offence charged with was sustainable. Documents exhibited like the termination letter of the employer, for example, should have caused doubt whether Sabri was really and undocumented migrant or not. Even the police report marked as P2 does mention Sabri’s passport number, and the fact that he was arrested at the workplace, where the employer handed over Sabri’s passports to the police and even the letter of termination of employment would have reasonably raised doubts.
LAWYER AND INDONESIAN CONSUL OFFICERS
48. The Indonesian Consul and their appointed lawyer may only have become aware of the conviction and sentence of Sabri bin Umar after it happened.
49. Records show that the Petition of Appeal was filed by the said Kang Associates on or about 22/4/2022. However, the said lawyer never met or communicated with the client, Sabri. According to Sabri, the 1st time that he met and communicated with the lawyer, was several days after 23/6/2022(the day he was whipped) in the month of June.
50. Both the Indonesian consul officers and the lawyer/s from Kang & Associates ought to have been aware of the serious miscarriage of justice that had occurred – a documented and legal migrant worker had been wrongly convicted for an offence of being undocumented, an offence Sabri could never be guilty of. Steps should have been taken immediately so that the said Sabri could have been speedily released and could have avoided Sabri being whipped wrongly and shortened his time in prison.
51. A lawyer also is duty bound to uphold the cause of justice, and certainly bring immediately to the attention of the court, public prosecutor, and relevant authorities all these material facts to prove WRONFUL CONVICTION, which would have led to the freeing Sabri from the injustice caused.
52. The lawyer also was negligent in focusing to reduce the sentence, and not to immediately set aside the wrong conviction. Attached is the copy of Petition of Appeal that was provided by the lawyer to Engrit of STIEU, now marked
“Q”.
53. Not setting aside the conviction is highly prejudicial to Sabri bin Umar, as it will always be on his record, and may prevent him continuing to be or work in Malaysia or come again to Malaysia for work.
54. Engrit Liaw and STIEU, had the authority from Sabri to act on his behalf in dealing with the authorities, lawyer and the Indonesian Consulate officers. This was confirmed again with a written ‘Surat Kuasa’ (Letter of Authority) signed by Sabri in front of the Consulate officers. The ‘Surat Kuasa’ (Letter of Authority) sign by Sabri empowering Engrit Liaw and the Union to act for him in matters, including with the lawyer is attached and marked “R”
55. After obtaining legal advice, and investigating deeper into the case, Engrit and the Union communicated with the lawyer and/or the Indonesian Consul as what ought to be done immediately, which amongst others including an amendment of the Petition of Appeal to highlight the miscarriage of justice to overturn the conviction and the filing of a Stay of Execution fast so Sabri could be released
on bail pending appeal. Letter to the Lawyer dated 9/7/2022 and 13/7/2022 which is attached and marked as ‘S’
56. The advice was unheeded including the advice to bring to the notice of the court the serious miscarriage was unheeded. The lawyers continued to insist on adopting the position to still just try to reduce sentence and get Sabri sent back to Indonesia, They also were of the that if he challenges the conviction, he may end up being convicted for the sexual crime and find himself being in Malaysian prison for a long time maybe even 20 years. This was communicated to Engrit and another Union representative at meeting with the lawyers and the Indonesian Consulate officers. Verbal and written advice and/or instructions of what needed to be done was given to the lawyer by Engrit and the Union, based on the authorization by Sabri, was not taken or ignored. There was worry that the lawyers when they visited Sabri may try to confuse Sabri using a similar representation, previously advanced by the police, and the prosecutor.
57. On 30/6/2022, the lawyer and Indonesian Consul officer met Sabri in Prison and got him to sign several documents. One of the documents seem an attempt by lawyer and/or Consulate to escape liability, whilst placing the blame on Court. The said document entitled ‘Surat Pernyataan’ is attached and marked “T”
58. However, finally after the matter got highlighted also vide a Joint Statement by now 46 groups, the High Court in Tawau decided to call up the case for revision, and told parties including the lawyer to prepare, and the revision was done on 22/7/2022, and Sabri was acquitted and released from prison. Attached is the Joint Media Statement by now 46 Groups dated 19/7/2022, and some of media reports, now collectively marked as “U”
Attached also is a 20/7/2022 email from Court fixing the date of the Revision and giving instruction about filing the application, now marked as “V”
59. From the notes of proceedings, it is noted that the lawyer again allegedly ‘lies’, according to Sabri, in saying that the reason Sabri pleaded guilty was because he was misled that he will be send back to Indonesia if he pleads guilty. Sabri’s real reason for pleading guilty was because he was threatened or misled by the police and even possibly the Deputy Public Prosecutor that if he did not plead guilty, he will end up in prison for about 20 years. The lawyer never met and got instructions from Sabri on or before 22/7/2022, so what he said was the reason for Sabri pleading guilty was far from the truth. The Notes of Proceedings of the Revision of the High Court is attached and marked as “W”
60. On 23/7/2022, 23 groups now issued a Statement entitled ‘Do not send recently acquitted wrongly convicted migrant worker out of Malaysia until he exercises his rights in Malaysian Courts and other avenues of justice -
No attempts of ‘cover-up’ or preventing access of justice’, which is now attached and marked as “X”
61. The initial response of the Indonesian Counsel officers was to quickly get him out of Malaysia, despite the fact that Sabri’s intention was to remain and work legally in Malaysia, whilst he fights for reinstatement, and do the needful to claim justice for his rights violated. Indonesian Consul later may have changed their stance.
62. On the intervention of STIEU and others, the Indonesian consul finally conceded to apply for a Special Pass to enable Sabri to remain in Malaysia. The Immigration Department, after delaying the issue of Special Pass, which was applied for on 25/4/2022, finally gave a Sabri a Special Pass on 29/7/2022, but the Special Pass was just TWO (2) weeks, after payment of RM100 was made for a one-month Special Pass. The Immigration Officer, when handing over the Special Pass said that this was sufficient to make arrangements to leave Malaysia and return to Indonesia. During application, the reason given to immigration was that Sabri needed to remain in Malaysia until his claim for reinstatement is heard and decided at the Industrial Court, and for him to do the needful using various existing mechanisms to get justice for the human rights violations he suffered.
Attached is the Special Pass issued to Sabri, plus the proof of payment, and previously marked as “D”
Attached also is a Joint Statement of 30 Groups dated 4/8/2022, entitled ‘Special Pass for 2 weeks, instead of 1 month, for migrant Sabri Umar, released after wrongful conviction after wrongly whipped hints of
Malaysia’s desire to deter right to justice’, now marked “Y”
EMPLOYER’S ROLE IN THE VIOLATION OF RIGHTS OF SABRI
63. The fact that the arrest happens within 24 hours of termination raises concern, about the role played by the employer in causing the arrest. Did the employer purposely cause the arrest to happen immediately after terminating Sabri?
64. Did the employer, who was wrongly holding on to Sabri’s passport, wrongly cause the Immigration Department to ‘amend’ his existing Pas Lawatan Kerja Sementara (PLKS), and wrongfully represent that Sabri agrees to leave Malaysia and return to Indonesia? All of which were done without the knowledge and consent of Sabri.
65. It is alleged that Passports of migrant workers are wrongly held by the employer. This is a violation of human rights, and can amount to ‘Forced Labour’
66. The employer was fully aware that Sabri was legal documented migrant worker, and the employer who kept Sabri’s passports did hand over the passports to the police when they arrested.
67. The employer’s representative presence when the police, according to Sabri, did not just arrest and take him to the station but took him to a room and the workplace and started questioning. The employer’s involvement and role played in the police actions need to be investigated.
68. The employer, Fu Yee Corporation Sdn Bhd, has had past problems with the Union, STIEU, who is seeking recognition. Was this just another action of Union Busting? Was the also an action to scare other workers in the company – the consequence and risks of supporting STIEU? SUHAKAM need to investigate this.
69. What is the obligation of an employer to a migrant worker? Is it until day of termination or the day of the end of the contract of employment? Or is it until the employer do the needful and ensures the safe return of the migrant worker back to the country of origin? Does the employer owe a duty of care to their documented migrant workers, if arrested by the relevant authorities, and in this case being wrongly charged, convicted, and sentenced for being in Malaysia illegally? Does the employer not have the duty to highlight to the police, prosecutors and courts to not mistakenly convict a legally documented migrant as an undocumented migrant? We hope SUHAKAM will deal with this during their public inquiry.
SABRI’S POSITION
70. Sabri has no intention of leaving Malaysia to return to Indonesia now. He wants to live and work legally in Malaysia legally until his claim for reinstatement by reason of wrongful dismissal is heard and determined by the Industrial Relations Department or Industrial Court. Knowing that he is but a poor migrant, he certainly will not be able to afford to return to Malaysia every time there is a Court date, and when the need arises for him to consult or do the needful for his case.
71. Sabri also intends to urge Immigration Department to revoke the shortening of his existing PLKS to May 2022, as this was done on the request of the employer without the knowledge and/or consent of Sabri. The cancelation and/or shortening of the PLKS without according the holder of the permit the right to be heard is also a gross violation of rights. Sabri also intends to apply for a permit that allows him to stay and work legally in Malaysia until he is reinstated, and all
his quest for justice be it through the Malaysian Courts and/or other avenues of justice.
72. Sabri intends to remain in Malaysia to also investigate and claim justice against all those responsible for his wrongful detention, wrongful charging, wrongful conviction, wrongful imprisonment, and wrongful whipping. He also is claiming reinstatement by reason of wrongful dismissal. Many, including the officers and departments at fault, sadly would want Sabri gone from Malaysia, possibly with the intention of deterring him from his quest for justice. This complaint to SUHAKAM and call for the holding of a Public Inquiry is part of this quest for justice which Sabri bin Umar also supports.
73. Sabri bin Umar is a POOR migrant worker, and his return to Indonesia will make it near impossible to return repeatedly to Malaysia as and when his presence in court or other avenues of justice. His absence will be detrimental for his quest for justice in Malaysia.
74. We urge SUHAKAM to ensure that Sabri is not deported or forced to leave Malaysia by the Immigration Department and/or the Government of Malaysia.
75. All the information contained in this Complaint/Petition is based on information provided by Sabri bin Umar, enquiries made to persons present or the relevant authorities, and from letters/documents received. We urge SUHAKAM to verify, investigate and make a finding, especially on rights violated and the perpetrators responsible. A Public Inquiry is also needed as this will also help other migrant workers, who may or will suffer a similar fate as Sabri, and it will also help bringing about needed reforms to attitudes and practices of relevant government departments, the courts and prosecutors and employers of migrant workers.
WE CALL ON SUHAKAM TO SPEEDILY HOLD A PUBLIC INQUIRY, AS WHAT HAPPENED TO SABRI COULD HAVE HAPPENED TO MANY OTHER MIGRANT WORKERS IN MALAYSIA IN THE PAST AND MAYBE IN THE FUTURE. IN DETERMING THE TRUTH, SUHAKAM WILL ALSO BE ABLE TO MAKE RECOMMENDATIONS THAT WILL BENEFIT MALAYSIA, AND ALSO POOR MIGRANT WORKERS. THE ACTIONS OF PUBLIC OFFICERS AND GOVERNMENT DEPARTMENT MUST NEVER CAUSE RIGHTS VIOLATIONS.
WE URGE SUHAKAM TO DO THE NEEDFUL TO PREVENT SABRI FROM BEING SEND OUT OF MALAYSIA UNTIL HE HAS EXERCISED ALL HIS RIGHTS IN HIS
QUEST FOR JUSTICE
10 August 2022
|
GLOSSARY OF ATTACHMENTS |
|
|
A |
Pages of Sabri’s current and some past passports, together with the relevant PLKS, the most recent issued on employment pass was dated 24/1/2022 valid until 24/1/2023 |
|
B |
Court Notice of a Petition of Appeal to the High Court was filed on or about 22/4/2022 that still has not been heard to date |
|
C |
The Court Instruction to the Prison to release Sabri, after Acquittal |
|
D |
Copy of special pass |
|
E |
Contract for employment, Sample Pay Slips of Fu Yee Corporation to Sabri – November 2020, January 2021, February 2022, March 2022, and the letter claiming to be letter of termination by Fu Yee dated 4/4/2022 |
|
F |
Claim for reinstatement letter to Industrial Relations Department |
|
G |
Police Report KALABAKAN/000388/22 DATED 5/4/2022 |
|
H |
Police Report Tawau/0005999/22 DATED 19/4/2022 |
|
I |
Report dated 12/4/2022 from Immigration Department, which was also exhibited at the Session Court on 19/4/2022 as Exhibit P3 |
|
J |
Charge Sheet |
|
K |
Notes of Proceedings at the Tawau Session Court on 19/4/2022, together with the Exhibits Tendered by Prosecution, being Exhibit PI, Exhibit P2, Exhibit P3 and Exhibit P4 |
|
L |
‘Sanksi Untuk Mendakwa’ issued by TPR Rustam Bin Sanip dated 13/4/2022. |
|
M |
Letter from the Prison Department to STIEU dated 18/7/2022 |
|
N |
Police Report No. TAWAU/009634/22 DATED 12/7/22 |
|
O |
Document of Intention to File Police Reports signed 30/6/22 |
|
P |
A picture of Sabri showing marks of whipping |
|
Q |
Copy of Petition of Appeal that was provided by lawyer to Engrit of STIEU |
|
R |
Surat Kuasa (Letter of Authority) signed by Sabri empowering Engrit Liaw and STIEU to act for him in matters |
|
S |
Letter to the Lawyer dated 9/7/2022 and 13/7/2022 |
|
T |
Surat Pernyataan |
|
U |
Joint Media Statement by now 46 Groups dated 19/7/2022, and media reports |
|
V |
20/7/2022 email from Court fixing the date of the Revision and giving instruction about filing the application |
|
W |
Notes of Proceedings of the Revision of the High Court |
|
X |
Joint Media Statement by now 23 Groups dated 23/7/2022, and media reports |
|
Y |
Joint Statement of 30 Groups dated 4/8/2022, entitled ‘Special Pass for 2 weeks, instead of 1 month, for migrant Sabri Umar, released after wrongful conviction after wrongly whipped hints of Malaysia’s desire to deter right to justice’ |
|
Z |
Other attachments: Letter from Prison to Malaysian Trade Union Congress |
Media Statement (45 GROUPS) – 19/7/2022 – now 46
Sabri, Migrant Worker Wrongfully Whipped Before
Appeal Heard
We the 46 undersigned groups and organizations are shocked that Indonesian migrant worker Sabri bin Umar was whipped at the Tawau Prison on 23/6/2022 despite there being an appeal at the High Court regarding his conviction/sentence by the Session Court which have yet to be heard. The law in Malaysia clearly states that the sentence of whipping shall not be carried out until the appeal is heard and determined.
Convicted Cannot Be Whipped Until Appeal Heard And Decided
Section 311 of the Malaysian Criminal Procedure Code states, ‘Except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable.
For any other sentence, other than whipping, the convicted is required to file an application for stay of execution pending appeal.
Sabri ‘Wrongly’ Convicted Then Wrongly Whipped On 23/6/2022 Before Appeal Heard
On 19/4/2022, the Session Court convicted Sabri for committing the offence pursuant to Section 6(1)( c) Immigration Act 1959/63, and sentenced him to 11 months imprisonment and 5 whippings. He was unrepresented at that time.
Section 6(1)( c) Immigration Act (1) states that. ‘No person other than a citizen shall enter Malaysia unless- (a)…(c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or..’
As such, a documented migrant worker like Sabri bin Umar can never reasonably be found guilty of this Section 6(1)( c) Immigration Act offence, for he was a documented migrant worker and his entry and presence in Malaysia were in accordance to law.
A perusal of court documents revealed that the Immigration documents tendered to the court was FALSE, as it stated that there was no records of entry and exit for Sabri. It failed to disclose the truth, that Sabri was indeed a documented migrant worker for the past about 7 years, and that he was in the employ of one Fu Yee Corporation Sdn Bhd in Tawau, Sabah, Malaysia. His work permit also had been renewed by the Immigration Department in 2022, and should reasonably be valid for a year.
In fact, prosecution had also failed in their duty to properly investigate before charging Sabri. An investigation would have revealed that Sabri was documented worker who cannot be charged for a Section 6(1)( c) Immigration Act. It must be pointed out that Sabri was arrested at his workplace on 5/4/2022. There also seem to be no charges against the employer, Fu Yee Corporation, for harboring or employing an undocumented worker.
The appeal to the High Court was filed on or about 22/4/2022, and this appeal has not yet been heard and decided upon. Sabri was wrongly whipped on 23/6/2022.
Migrant Workers and employers that violate worker rights
For a migrant worker, even after his employment agreement comes to an end, the employer has the duty or responsibility to ensure safe return back to the migrant’s country of origin. Hence, even if the immigration work permit/pass that allows for legal presence ends, an employer has the duty to keep the migrant worker safe, including making needed application for pass/permits to allow legal presence in Malaysia until employer can arrange the return to home country.
Some ‘bad’ employers do sometimes wrongfully terminate, and quickly, even forcibly, send migrant workers back to countries of origin. This denies migrant workers access to avenues of justice to pursue claims of wrongful termination and reinstatement, claims for wages/monies still owing by employers to workers and other legal claims. Unfortunately, in Malaysia many of the avenues of justice including labour departments, industrial relation departments and even courts require physical attendance of the complainant/claimant, failing which it assumes that the migrant worker is no longer interested and the process to ensure justice ends.
Some other worse employers may just cause the cancelation of permits, and then may even cause or facilitate migrants to be arrested, charged and convicted for being undocumented, and then deported.
In the case of Sabri Bin Umar, who is also a union member of the Sabah Timber Industry Employees Union (STIEU), who claims that he was wrongfully terminated by his employer on 4/4/2022, and then was arrested by police on 5/4/2022 and was detained until charged and convicted on 19/4/2022. However, Sabri bin Umar did manage to file a wrongful dismissal claim in the Industrial Relations Department on 19/4/2022 seeking reinstatement, whereby this process is ongoing.
The employer, who knew that Sabri was not an undocumented worker failed to bring to the attention of the police, prosecutors and court this material fact, which reasonably would have meant Sabri would not be charged, let alone be convicted for being illegally in Malaysia under Section 6(1)( c) Immigration Act. Fu Yee Corporation should be doing the needed to end the current serious miscarriage of justice.
Whipping, a Corporal Punishment must be abolished
Sabri’s case has come to light, but there is concern about whether others have been whipped before their appeal is heard and disposed of. Whipping is a corporal punishment that inflicts serious physical and psychological injury, where victims are known to pass out even before the full sentence is carried out.
The Immigration Act 1959/63 was amended and as of August 2002, and the sentence of whipping was introduced for use against undocumented migrants. According to Prisons Department records, 47,914 foreigners were found to have violated the Immigration Act from 2002 to 2008. Of these, 34,923 were whipped.
The Malaysian Bar is unequivocally and unreservedly is against all forms of corporal punishment, including caning or whipping, in accordance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), and international human rights norms. SUHAKAM (Malaysian National Human Rights Commission) has also long recommended that the Government of Malaysia prohibit the use of corporal punishment of caning and whipping.
Therefore, we
a) Call for Malaysia to immediately apologize and do the needful to ensure justice be done for the wrongful or illegal whipping of Sabri Bin Umar before his criminal appeal/s is heard and determined, and that actions be taken against those responsible;
b) Call for the immediate abolition of whipping, a form of corporal punishment in Malaysia.
c) Call on Malaysia to immediately ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Charles Hector
Apolinar Z Tolentino, Jr.
For and on behalf of the 46 organisations listed below
ALIRAN
MADPET (Malaysians Against Death Penalty and Torture)
Building and Wood Workers International (BWI) Asia Pacific Region
WH4C (Workers Hub For Change)
Asosasyon ng mga Makabayang Manggagawang Pilipino Overseas (AMMPO) in Malaysia
Black Women for Wages for Housework
Citizens Against Enforced Disappearances, CAGED
Civil Society Action Committee
Domestic Caretaker Union (DCU), Taoyuan City. Taiwan
Federasi SERBUK, Indonesia
Federasi Serikat Buruh Kehutanan Perkayuan dan Pertanian Serikat Buruh Sejahtera
Indonesia (HUKATAN)
Federation of Indonesia Workers’ Awakening (FKUI)
Haiti Action Committee
Hong Kong Federation of Asian Domestic Workers Unions, Hong Kong
International Domestic Workers Federation (IDWF)
International Women's Rights Action Watch Asia Pacific, Malaysia
Japan Innocence and Death Penalty Information Center (jiadep.org)
Koalisi Buruh Migran Berdaulat, Indonesia
Labour Law Reform Coalition(LRRC), Malaysia
Malay Forest Officers Union (MFOU), Malaysia
Malaysian Trade Union Congress Sarawak (MTUC – Sarawak), Malaysia
Migrant Care, Indonesia
Migrant Forum in Asia (MFA)
National Union of Transport Equipment & Allied Industries Workers, Malaysia
Network of Action For Migrants in Malaysia(NAMM) North South Initiative(NSI)
Persatuan Pekerja Rumah Tangga Indonesia Migran (PERTIMIG), Malaysia.
Persatuan Sahabat Wanita Selangor (PSWS), Malaysia
Sabah Plantation Industry Employees Union (SPIEU)
Sabah Timber Industry Employees Union (STIEU)
Sarawak Bank Employees Union (SBEU), Malaysia
Sarawak Dayak Iban Association
SETEM Catalunya,Spain
Singapore Anti Death Penalty Campaign
Scalabrini International Migration Network (SIMN)
Sedane Labour Resources Centre, Indonesia
South Africa Domestic Service and Allied Workers Union (SADSAWU), South Africa
Teoh Beng Hock Trust for Democracy
The Cross-Regional Center for Refugees and Migrants, Lebanon
The William Gomes Podcast, United Kingdom
Timber Employees Union of Peninsular Malaysia (TEUPM)
TIEUS (Timber Industry Employee Union Sarawak)
United Domestic Workers of the Philippines , Philippines
Union of Forestry Employees Sarawak (UFES), Malaysia
Women of Color/ Global Women’s Strike
Club Employeees Union Peninsular Malaysia
Media Coverage:
• https://focusmalaysia.my/indonesian-migrant-worker-in-sabah-wrongfully-whippedbefore-appeal-heard/
• https://www.google.com/url?q=https://beamstart.com/news/indonesian-migrantworker-in-sabah-
16581998993122&sa=U&ved=2ahUKEwil7vbksof5AhUL7TgGHTR9C9IQFnoECAcQAg&usg= AOvVaw3wDoxvsZcQjR0adkRV1A0P
• https://focusmalaysia.my/already-whipped-indonesian-migrant-worker-wins-appeal-forwrongful-conviction/
• https://focusmalaysia.my/already-whipped-indonesian-migrant-worker-acquittted-onrevision-by-high-courtwrongful-conviction/
• https://www.themalaysianinsight.com/s/392621
• https://www.thestar.com.my/news/nation/2022/07/23/high-court-frees-indonesianman-who-was-caned-while-waiting-for-appeal
• https://m.aliran.com/civil-society-voices/sabri-migrant-worker-wrongfully-whippedbefore-appeal-heard
Man wrongfully jailed, whipped seeks public inquiry
KUALA LUMPUR: An Indonesian worker is seeking a public inquiry after being wrongfully imprisoned and whipped for allegedly not having a valid work pass.
In April, Sabri Umar was arrested and then sentenced to 11 months in prison and five strokes of the cane by a sessions court under Section 6(1)(c) of the Immigration Act.
While waiting for his appeal to be heard, he was whipped in the Tawau prison on June 23.
The Tawau High Court acquitted him in July after his lawyer managed to prove that Sabri had a valid Indonesian passport and a work pass from his employer, Fu Yee Corp.
Sabah Timber Industries Employees’ Union (STIEU) general secretary Engrit Liaw said she submitted a petition to the Human Rights Commission of Malaysia (Suhakam) here today calling for a public inquiry to be held.
“We want a public inquiry to be held as soon as possible for Sabri as we believe it’s not an isolated case,” she said.
Sabri was not present for the submission of the petition as he had to attend to other urgent matters in Sabah.
The petition, signed by over 40 NGOs, claimed that Sabri was not brought before a magistrate within 24 hours of his wrongful detention, and that he was wrongly charged and sentenced for illegally staying in Malaysia.
The petition also alleged that the Indonesian was assaulted and tortured while in police custody and wrongfully imprisoned for 94 days, from April 19 to July 22.
It also claimed Sabri was initially questioned by police after his employer filed a police report against him over a sexual offence.
While Sabri had denied the allegation, the petition claimed police forced him to admit to the offence during investigations. However, he was never charged with the offence.
Also present to submit the petition were Serikat Buruh Kerakyatan Indonesia’s (Serbuk) Khamid Istakhori, Building and Wood Workers’ International regional representative Apolinar Tolentino, and Labour Law Reform coalition co-chairman Irene Xavier. - fmt, 10/8/2022
Human rights groups are reiterating their call for Suhakam to hold a public inquiry into the case of Sabri Umar, an Indonesian worker who was unlawfully whipped despite his case still pending in the courts.
They also called on Putrajaya to ensure he is allowed to remain and work in Malaysia legally, while he pursues his labour case against his former employer and seeks compensation for injustices suffered.
"It is torturous and unjust to subject Sabri, a victim of rights violations, to the uncertainty every month as to whether the Immigration Department will give a new special pass or not," groups spokespersons Charles Hector and Apolinar Z Tolentino Jr said in a statement.
They added that repatriating him while his case is pending is obstructing justice as he may not have the resources to return for the trial.
They also called on Putrajaya to facilitate the provision of board and lodging and ensure speedy trials in the case of workers with outstanding claims in court.
Malaysia should follow the policy of Indonesia, where employers must continue to provide work or wages to workers when the legality of dismissal is challenged, said Hector and Tolentino.
The duo represent 21 organisations including Malaysians Against Death Penalty and Torture, Building and Wood Workers International Asia Pacific Region and the Sabah Timber Industry Employees Union.
Malaysiakini earlier reported how Sabri, a documented migrant worker, was wrongfully sacked from his job and detained by Tawau police in April.
Sabri was investigated under Section 14(a) of the Sexual Offences Against Children Act 2017 but eventually charged and sentenced under Section 6(1) (c) of the Immigration Act 1959/63.
He claimed to be innocent of both charges, but the Sessions Court sentenced him to 11 months in jail and five strokes of the cane, even though his case was pending appeal.
Four months after his arrest, Sabri was acquitted by the High Court in Tawau.
He sustained prolonged health complications from the whipping.
Indonesia's envoy to Malaysia, Hermono, earlier sent a diplomatic note to the Home Ministry, appealing that Sabri be allowed to extend his immigration special pass which expired on Aug 24.
“I have requested the ministry for a temporary solution addressing Sabri’s immigration status, allowing him to remain in Malaysia to make his claim for justice.
“He may have run out of special passes, so I have asked if an exception could be made for a man seeking justice while he remained under the protection of the consulate in Tawau." - Malaysiakini, 13/9/2022
Media Statement – 24/7/2022(23 Groups)
Do not send recently acquitted wrongly convicted migrant worker out of
Malaysia until he exercises his rights in Malaysian Courts and other avenues of justice
No attempts of ‘cover-up’ or preventing access of justice
We the 23 undersigned groups are pleased that on 22/7/2022, the Tawau High Court Judge Dr Lim Hock Leng after revision acquitted documented migrant worker, Sabri bin Umar and ordered him released from prison immediately. Sabri was released on 22/7/2022.
On 19/4/2022, Sabri was wrongly convicted for being illegally in Malaysia for the offence under Section 6(1)( c) Immigration Act 1959/63 by the Tawau Session Court, when in fact he was a documented migrant worker with a valid work permit/pass at the material time. This was a fact evident from, amongst others, Sabri’s Indonesian Passport, which was taken by the police when he was arrested on 5/4/2022.
The court acknowledged the fact that Sabri was whipped, which was an act against Malaysian law which prohibits the carrying out the sentence of whipping of the convicted until appeal filed is heard and determined. This was also confirmed by the Prison Department.
The highlighting of Sabri’s miscarriage of justice, vide Joint Media Statement by 45 groups issued on 19/7/2022 entitled, Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard’ and various letters, including from Sabri’s union, Sabah Timber Industry Employees Union (STIEU) got the High Court’s attention that led to the calling up Sabri’s case for revision on 22/7/2022.
Worry of deportation or sending of Sabri out of Malaysia
We are worried that Sabri may be deported or send out of Malaysia. This may be conceived as an attempt to ‘cover up’ the possible wrongful actions of the police, immigration department, prison department, prosecution, the employer, the courts and the government that caused an innocent man to be wrongfully charged, convicted and sentenced to 11 months imprisonment and 5 strokes of the whip. Sending out of Malaysia, may impede Sabri’s quest for justice, whereby all legal actions reasonably will have to be commenced in Malaysia and Sabri’s absence from the country may be detrimental to his enforcing his rights.
As it is, Sabri has already commenced a claim for reinstatement by reason of wrongful dismissal at the Industrial Relations Department, which is progressing and will be referred to the Industrial Court. Sabri wants to work and live legally in Malaysia, and his wife is also a migrant worker in the country.
Sabri’s Claims Against Malaysia For Wrongful Conviction And Whipping
Initial investigations have shown that Malaysian government, the police, the Immigration Department, Prosecutors, Prison Department and maybe even the employer may be liable for the grave injustice that has befallen Sabri. Sabri had to spend almost 94 days in prison, and 14 days in detention. He was wrongly whipped 5 times on 23/6/2022, despite there being an appeal that was filed on 22/4/2022 and yet to be heard. Sabri may also have a claim against the Indonesian government, and his lawyer.
The Prison Department, in their letter dated 18/7/2022, stated that the whipping was only carried out after they received a letter from the Session Court saying that there were no appeals from any party. This was false as there was an appeal yet to be heard.
The Immigration Department also furnished false records about Sabri, that also led to the Court being misled into believing that Sabri was an undocumented migrant, who had entered and remained illegally in Malaysia.
Besides the Malaysian government and its various departments, Sabri may also have cause of action against the Indonesian government and the lawyer.
Sending Migrants out of Malaysia impedes ability to maintains claims of rights violation
The speedy sending of migrants out of Malaysia, even when they have valid claims against their employer and/or others, which requires the physical presence of complainant/claimant at the law enforcement departments and/or courts, has denied many a migrant from even being able to claim their rights using the available legal avenues in Malaysia. Calls for confirmation of whether migrant workers have existing rights/claims or ongoing cases before sending them out of Malaysia has yet receive positive response.
Therefore, we
- Call on Malaysia and/or Indonesia not to cause Sabri bin Umar to be send out of Malaysia before he can exercise all his rights/claims in Malaysian avenues of justice, including his present claim for reinstatement by reason of wrongful dismissal at the Industrial Department/Court;
- Call on all parties to not threaten, deceive and/or pressure Sabri from exercising his right to claim for damages, compensation and justice from relevant parties that have unjustly deprived Sabri his freedoms and rights, and caused him sufferings; and
- Call on the government of Malaysia to ensure that Sabri can continue to work and stay legally in Malaysia until all his claims for justice are determined and satisfied.
Charles Hector
Apolinar Z Tolentino, Jr.
Adrian Pereira
For and on behalf of the 23 organisations listed below
ALIRAN
MADPET(Malaysians Against Death Penalty and Torture)
Building and Wood Workers International (BWI) Asia Pacific Region
WH4C (Workers Hub For Change)
North South Initiative
Black Women for Wages for Housework, US
Center for Alliance of Labor and Human Rights (CENTRAL), Cambodia
Centre for Orang Asli Concerns (COAC), Malaysia
Club Employees Union Peninsular Malaysia
Federasi SERBUK Indonesia
Haiti Action Committee
Labour Law Reform Coalition, Malaysia
Network of Action For Migrants in Malaysia(NAMM)
Pacific Focal Point Migration
Payday Men’s Network (UK/US)
Sabah Plantation Industry Employees Union, Malaysia
Sabah Timber Industry Employees Union (STIEU)
Singapore Anti Death Penalty Campaign
Union of Forestry Employee Sarawak (UFES)
Teoh Beng Hock Trust for Democracy
The William Gomes Podcast, UK
Timber Employee Union Peninsular Malaysia
Women of Color/Global Women’s Strike, US and UK
Media Coverage:
• https://www.thestar.com.my/opinion/letters/2022/07/25/justice-for-sabri-umar-do-notdeport-wrongly-convicted-migrant-worker
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Media Statement – 4/8/2022
Special Pass for 2 weeks, instead of 1 month, for migrant Sabri Umar, released after wrongful conviction after wrongly whipped hints of Malaysia’s desire to deter right to justice
We, the 29 undersigned groups are shocked that the Immigration Department only gave human rights victim migrant Sabri bin Umar, a Indonesian Passport holder, a 2-weeks Special pass on 28/7/2022, instead of the usual one month Special Pass, that will allow him to legally remain in Malaysia. Sabri paid RM100 for a 1 month Special Pass. It is also disconcerting that when giving Sabri the pass, the Immigration allegedly said that 2 weeks was sufficient for Sabri to make arrangements to leave Malaysia.
Sabri, an Indonesian migrant worker, wants to and need to remain in Malaysia to enable him to do the needful to ensure that justice is served. Sabri was wrongly terminated on 4/4/2022, and there is already a Section 20 Industrial Relations Act claim for reinstatement by reason of wrongful dismissal. Attempt at conciliation failed, and this case will be referred to the Industrial Court.
Sabri also was wrongfully arrested on 5/4/2022 and was not produced before the Magistrate within 24 hours, and his detention until about 19/4/2022 was without the required remand order/s by the Magistrate. Sabri, a documented migrant worker with a valid work permit (Pas Lawatan Kerja Sementara/ Social Visit Temporary Employment Pas) was wrongly charged on 19/4/2022 for being illegally in Malaysia. He was wrongly convicted, and wrongly sentenced to 11 months imprisonment and 5 whipping for an offence that he definitely could never be guilty of. He was wrongfully and illegally whipped on 23/6/2022, despite the fact that his appeal to the High Court was filed and yet to be heard and determined. There are other rights violations as well, and the alleged perpetrators include the police, the Immigration Department, the public prosecutors, the Tawau Prison, the Tawau Session Court, and possibly the employer. On 22/7/2022, the High Court called up Sabri’s case for revision, and he was acquitted.
As the Immigration Department had wrongly, without even according Sabri the right to be heard, amended his Pas Lawatan Kerja Sementara/Social Visit Temporary Pass(PLKS), that was supposed to end on 28/1/2023, to now allegedly end on 4/5/2022, Sabri now needs to get a Special Pass and/or other permits/passes to ensure his legal presence in Malaysia. If he does legalize his presence, he is at risk of being arrested, convicted, sentenced and even deported back to Indonesia. After release on 22/7/2022, he had to seek refuge in the Indonesian Consulate, and only free to move around after he received the Special Pass on 28/7/2022.
Worry about the fact that Malaysia may try to speedily deport or send Sabri out of Malaysia, led to now 23 Groups issuing a Joint Statement on 23/7/2022 entitled ‘Do not send recently acquitted wrongly convicted migrant worker out of Malaysia until he exercises his rights in Malaysian Courts and other avenues of justice - No attempts of ‘cover-up’ or preventing access of justice’. Sadly, the concern seems to be justified that Malaysia may attempt to send Sabri out of Malaysia given what happened at the Immigration Department when Sabri was given the 2-week ONLY special Pass.
Sabri do have a valid cause of action and claim against Malaysia and the various officers and government departments, and a sending Sabri out of Malaysia may be perceived as an attempt to deter or make impossible Sabri’s quest for justice. A poor migrant worker cannot easily return to Malaysia as and when required for investigation by relevant authorities and bodies, or for preparation and participation in his court action including his claim for reinstatement at the Industrial Court. The presence of the victim and claimant in investigation and court proceedings is crucial to ensure justice is done. Sabri, at present, is verifying facts and may soon lodge complaints to the various public service disciplinary bodies, law enforcement bodies, Enforcement Agency Integrity Commission (EAIC), the relevant Parliamentary Select Committees and even the Malaysian Human Rights Commission (SUHAKAM), in addition to court actions.
We call on the Malaysian Government again to immediately extend the current 2-week Special Pass to rightfully be valid for a month, and thereafter continue to issue the needed Special Pass or other Permits/Passes to enable Sabri to remain legally in Malaysia until the end of his quest for justice.
We also call on the Indonesian Government to ensure Sabri is not sent back and assist Sabri to remain in Malaysia for his quest for justice, to ensure all responsible for his human rights violations are duly held responsible. Indonesia must not be seen as complicit with human rights violators.
Charles Hector
Apolinar Z Tolentino, Jr.
For and on behalf of the 29 organizations listed below
ALIRAN
MADPET (Malaysians Against Death Penalty and Torture)
Building and Wood Workers International (BWI) Asia Pacific Region
WH4C (Workers Hub For Change)
Asosasyon Ng Mga Makabayang Manggagawang Pilipino Overseas in Malaysia (AMMPO)
Black Women for Wages for Housework
Citizens Against Enforced Disappearances (CAGED)
Haiti Action Committee
Hong Kong Federation of Asian Domestic Workers Unions (FADWU)
Independent Democracy of Informal Economy Association (IDEA), Cambodia
International Domestic Workers Federation (IDWF)
International Women's Rights Action Watch Asia Pacific, Malaysia
Koalisi Buruh Migran Berdaulat (KBMB) Indonesia
Labour Law Reform Coalition, Malaysia
Legal Action for Women, UK
National Union of Transport Equipment & Allied Industries Workers, West Malaysia
Network of Actions for Migrants in Malaysia(NAMM)
Network of Domestic Workers (NDW), Thailand
PacificwinPacific, Pacific
Payday Men’s Network (UK/US)
Persatuan Pekerja Rumah Tangga Indonesia Migran (PERTIMIG), Malaysia
Persatuan Sahabat Wanita Selangor Malaysia
Sabah Plantation Industry Employees Union (SPIEU)
Sabah Timber Industry Employees Union (STIEU)
SERBUK Indonesia
The William Gomes Podcast, UK
Union of Forestry Department’s Employees Sarawak ( UFES ) Malaysia
Women of Color/Global Women’s Strike, US and UK
Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI – Indonesia)
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