Thursday, December 28, 2006

Are Rela personnel trained? (Star) - Letter to Editor

Are Rela personnel trained?

I REFER to your report “Rela seeks allowance for staff during ops” (The Star, Dec 27).

I hope with the increase in allowance Rela (People’s Volunteer Corps) authorities would also educate its members to conduct their job lawfully.

Recently, my maid was detained while on her normal outing to Chow Kit though she was holding a valid identity card issued by the Immigration Department.

Imagine the nightmare we went through as we were on holiday in the United States and had left the household in her care.

The maid has been with us for the past four years.

They refused to release her and told her she had to wait until her employers came to get her and that would be in the next two weeks.

I had no choice but to seek help from the higher authorities for her release, worried that my house was in pitch dark at night.

It leaves me wondering how much have Rela members been taught the way to exercise their authority.

Were they taught to recognise the identity card issued by the Immigration Department?


Kuala Lumpur.

Wednesday, December 27, 2006

Rela seeks allowance for staff during ops (Star)

Rela seeks allowance for staff during ops

PENANG: Rela hopes the Public Services Department (PSD) will approve the allowance for staff during raids and other activities.

Rela director-general Datuk Zaidon Asmuni said the request was submitted to PSD last month.

“JPA in its reply said they are now studying the request as well as those submitted by the police reserve unit, voluntary fire squad and JPA 3 (Civil Defence Force),” he said after closing the state Rela family day at the Penang Municipal Council park here on Monday.

Zaidon said Rela members had to fork out their own money for transportation and meals during such operations.

“We hope the allowance of RM24.20 for lower ranking members and RM34.20 for officers given to those participating in trainings and courses could be extended for operations,” he said.

On another matter, he said Rela was now devising new strategies to strengthen operation procedures.

Zaidon said all the state Rela directors had been asked to submit the name list of tailors who were engaged to provide Rela uniforms following the recent microchip heist at Second Air Cargo in Batu Maung involving robbers clad in Rela uniforms.

Monday, December 25, 2006

Chin asylum seekers detained in Rela raid (ALIRAN)

Chin asylum seekers detained in Rela raid

Wednesday, 24 January 2007 (Aliran Monthly 2006:9)
Persecuted and tortured at home in Burma, Chin refugees in Malaysia are at constant risk of harassment, arrest, detention and deportation, writes Amy Alexander.

Early in the morning of 5 October 2006, Rela personnel raided the urban neighborhood of Jalan Imbi in Malaysia’s capital city, Kuala Lumpur, taking into their custody over two hundred individuals, including over 50 asylum seekers from Burma. Forty-five men and seven women from Burma’s Chin State have been taken to the Lenggeng detention camp in Selangor State, located two hours outside of Kuala Lumpur. Hundreds of thousands of Chins have fled from Chin State to escape severe ethnic and religious persecution committed by the military regime.

The raid began around 3.00 am and lasted over an hour. Over 100 Rela volunteers, Malaysia’s controversial untrained reserve force charged with frequent misuse of powers, ordered some 2,000 residents living in the Jalan Imbi area out of their urban flats and into a parking lot. They then systematically checked for immigration documents. Those holding official UNHCR cards were released while those whose cases are pending before the UNHCR were put on lorries and taken to the local Rela office. Most of the residents in the Jalan Imbi area are Chin asylum seekers and refugees.

Altogether about 93 Chin asylum seekers were taken to the Rela office; 41 UNHCR-registered Chin asylum seekers were later released after verification of their documents by UNHCR. But 52 Chin asylum seekers, including seven women, who are not registered with UNHCR were sent to the Lenggeng detention camp where they will await deportation. The UNHCR registration process has been closed since July 2005, leaving thousands of genuine refugees unable to obtain official refugee status or obtain any documents from the UNHCR.

Facing persecution, torture, and even death in Burma, thousands of Chin have been forced from their homes and seek refuge in nearby countries. The people of Burma have been living under brutal military control since 1962. As a primarily Christian community in a predominantly Buddhist country, the Chin people are particularly targeted by the military rulers because of their minority status. Reports of violations of basic human rights are widespread throughout Chin State.

As of 4 October 2006, over 16,863 Chins are living in Malaysia. The Chin people in Malaysia live without any security. The Malaysian government refuses to recognise or provide any protection to the Chin population. As a result, the Chin people are at constant risk of harassment by the authorities and face arrest, detention, and deportation. In addition, they are unable to work, receive an education, obtain access to health care services or find acceptable accommodation.

Included in those facing potential deportation are five members of the Chin Refugee Centre (CRC), a community-based organisation dedicated to helping the Chin people living in Malaysia. The CRC staff includes two teachers who conduct courses for more than 120 Chin children that are barred from attending schools in Malaysia, two female office workers, and a member of the Chin Student Organisation who is also a Chin interpreter for Medecins Sans Frontieres (Doctors Without Borders or MSF).

The latest sweep has been preceded by warnings that the government intends to crackdown on undocumented immigrants living throughout Malaysia. Rela has come under attack for their frequent abuse of power and use of violence, particularly against refugees and asylum seekers who have been assaulted and humiliated during Rela operations. Numerous complaints have been lodged in 2006 against Rela for corruption and human rights violations. Rela’s tactics have also been heavily criticised in the past by many human rights organisations including Amnesty International, Human Rights Watch, and human rights group Suaram.

RELA Operation updates (as at 18 October 2006):

On 14 October 2006, hundreds of Rela personnel conducted mass arrests of suspected illegal immigrants in the vicinity of Cheras Alam Jaya, located outside of Kuala Lumpur where 500 Chin asylum seekers are staying in low-rental apartments. They detained 172 Chin refugees and took them directly to the Lenggeng and Semenyih immigration detention camps. Rela deliberately targeted the areas where Chin asylum seekers are staying. Within 14 days of 1 October 2006, Rela conducted raids at three different places where mostly Chin asylum seekers are staying. All the three raids were conducted at 3 or 4 a.m while most of them were asleep.

The first RELA operation against illegal immigrants was conducted on 5 October and targeted the Jalan Imbi area, where 52 Chin refugees including seven Chin refugee women were arrested and later detained at the Lenggeng detention camp.

The second RELA operation was conducted in the Limau Manis jungles, where about 200 Chin refugees are sheltering in makeshift huts. Seven Chin refugees were arrested and the rest luckily evaded arrest. The seven were sent to the Semenyih detention camp.

The third Rela operation was conducted in Cheras Alam Jaya, where over 500 Chin refugees are staying and some 172 asylum seekers were detained. About 40 women including their children were detained. Most of the women were carrying UNHCR documents as they are registered with the UNHCR and were awaiting their refugee status determination interview. They were all sent to two different immigration detention camps.

There are already 144 Chin refugee detainees at the Lenggeng Immigration Camp as the previous arrestees are still in this camp. According information available to the Chin Refugee Centre, there are about 500 Chin refugees at various immigration detention camps nationwide. The sweeping raids, just days apart and targeting mostly Chin asylum seekers in Malaysia, are haunting the rest of the Chin refugees

These Chin refugees are facing a hopeless and unbearable situation as they cannot even submit their asylum applications at the UNHCR office, which is closed to new asylum seekers. After escaping from the prison-nation of Burma, the fear of arrest and deportation in Malaysia among the helpless Chin asylum seekers is growing by the day.

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Amy Alexander, a legal consultant with the Chin Human Rights Organisation, witnessed the entire raid. For more information on the Chin people and their situation in Malaysia, please visit the Chin Human Rights Organisation (CHRO) at

Saturday, December 23, 2006



Press Release

22 December 2006

The Special Rapporteur on the human rights of migrants, Jorge Bustamante, issued the following statement today:

The Special Rapporteur expresses his warm thanks to the Government of Indonesia for their assistance and cooperation during his ten day visit to Indonesia from 12 to 21 December 2006.
While in the country, the Special Rapporteur traveled to the border areas in Tanjung Pinang and Enitkong where he witnessed first hand the return and insertion programme for migrants, mainly deportees from abroad.
He also had the opportunity to visit departure centers where migrant workers are provided with initial training to adapt to the conditions in the countries of destination.
The Special Rapporteur welcomes the fact that the Indonesian Government has demonstrated significant political will and has taken important steps to address the needs of and problems faced by migrants in general.
Vulnerability of Female Migrants Workers

Increasingly Indonesian migrants are women, recruited abroad often for domestic work, do not enjoy adequate legal protection and have limited access to social services. When meeting with women domestic workers who had returned to Indonesia, the Special Rapporteur heard about a wide range of human rights abuses in the workplace in their countries of destination, including extremely long hours of work without overtime pay, no rest days, incomplete and irregular payment of wages, psychological, physical, and sexual abuse.
The Special Rapporteur encourages Indonesia:

- to follow up on the treatment of women migrant workers by labor agencies, requiring careful oversight of the work of such agencies, and enforcement mechanisms that include imposition of penalties on agents who abuse workers,
- to monitor recruitment agencies, labor suppliers and places of employment to deter an environment where domestic workers are exploited with impunity,
- to ensure that domestic law and its implementation comply with its international obligations to protect the rights of women as defined in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to which Indonesia is a party to.
Labor Agreements
The Special Rapporteur notes that competition and unethical practices among profit-seeking labor suppliers and recruiters create an environment that compromises migrant workers rights and place them in a situation of great vulnerability. It also undermines the effectiveness of the existing regulations. The Special Rapporteur calls on the Indonesian Government as well as NGOs and other social actors such as the media, employers, police and immigration officials to remain vigilant and spare no efforts in protecting the rights of migrants living in Indonesia and the rights of Indonesians migrant workers abroad.
Referring to the Memorandum of Understanding (MoU) between Governments of the Republic of Indonesia and Malaysia signed on May 13, 2006, the Special Rapporteur regrets that representatives of civil society, including NGOs were not involved in the process leading to its finalization. The Special Rapporteur also regrets that the provisions contained in the MoU addresses the interests of employers and recruitment agencies without equal consideration for the human rights of the migrants themselves. For instance, recruitment agencies fees are very high, often up to six months of workers salaries, spawning a usurious money-lending industry that remains ignored.
The Special Rapporteur calls upon Indonesian authorities to ensure an end to illegal recruitment processes and to bring those responsible to justice. He also stresses the urgent need for a more rigorous regulation of the activities of recruitment agencies, particularly as regards the treatment of female domestic workers abroad.
The Special Rapporteur recalls that the government of Indonesia bears some responsibility towards its nationals living and working abroad, particularly when their rights are abused.
Ratification of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
Finally the Special Rapporteur is encouraged by news that the National Legislature in Indonesia has agreed to discuss the signature of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in early 2008. While welcoming this positive development, the Special Rapporteur stresses the need for awareness raising measures among NGOs, the public at large for a thorough understanding of the content of the Convention and encourages the Government of Indonesia to ratify it.
The Special Rapporteur will provide the Government of Indonesia with recommendations on these issues in his report to the Human Rights Council.
Professor Jorge Bustamante was appointed Special Rapporteur in August 2005. The mandate on the human rights of migrants was established in 1999 to examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of migrants, including obstacles and difficulties for the return of migrants who are undocumented or in an irregular situation.

Thursday, December 14, 2006

RM11bil bill for rescuing failed privatised units

RM11bil bill for rescuing failed privatised units

Thursday, 14 December 2006, 07:58am

THE Government forked out RM11bil to take over seven privatised projects which had run up losses and debts.

The companies were Sistem Transit Aliran Ringan Sdn Bhd (Star LRT), Projek Ushasama Transit Automatik Sdn Bhd (Putra LRT), Malaysia Airlines Bhd (MAS), Sistem Pembentungan Negara Sdn Bhd (SPN), Muslim Goods and Food Analysis Unit (MGFA) and Seremban-Port Dickson Highway Sdn Bhd.

The money also went into the rehabilitation of the abandoned Kuching Prison.

Star and Putra were taken over by Syarikat Prasarana Negara Bhd for RM3.3bil and RM4.5bil, respectively, while it cost RM2.8bil to bail out MAS.

Work on the Kuching Prison by the Public Works Department cost RM135mil while the Seremban-Port Dickson Highway was taken over by Projek Lebuhraya Utara Selatan (PLUS) for RM142mil.

Deputy Minister in the Prime Minister’s Department Datuk Abdul Raman Suliman said since 1983, a total of 490 projects had been successfully privatised.

“Of the figure, only a small portion had faced difficulties, which required the Government to take over.”

He told Lau Yeng Peng (BN – Gerakan) that the seven projects were initially privatised under various modes, including the build, manage and transfer concept, change of asset and public listing.

He said under the 9th Malaysia Plan, the Government would ensure the viability of privatised projects before they were implemented.

The announced NSTP-Utusan merger also cropped up, with Datuk Raja Ahmad Zainudin Raja Omar (BN – Larut) questioning the rationale behind the merger.

Several Barisan Nasional backbenchers voiced their disagreement to the proposed merger and said there was no need to discuss it since it had not been agreed upon.

Wednesday, December 13, 2006

RM11b spent on takeovers

RM11b spent on takeovers

Wednesday, 13 December 2006, 20:15

RM11b spent on takeoversRM11bil bill for rescuing failed privatised units

©The Sun

B. Suresh Ram

KUALA LUMPUR (Dec 13, 2006):
The government spent more than RM11billion in taxpayers' money to take control of failed privatisation projects, the Dewan Rakyat was told today.

Replying to a supplementary question from Ismail Sabri Yaakob (BN-Bera), Deputy Minister in the Prime Minister's Department Datuk Abdul Rahman Suliman gave this breakdown:

RM3.256 billion for Star LRT.
RM4.486 billion for Putra LRT

Both Klang Valley-based light rail transit systems now come under Syarikat Prasarana Negara Bhd.

RM2.802 billion for Malaysia Airlines System Bhd
RM142 million for Seremban-Port Dickson Highway by Projek Lebuhraya Utara Selatan Bhd.
RM135 million for Bandar Kuching Prison with the Public Works Department taking over from a private company.
RM192.54 million for the National Sewerage Scheme from its previous concessionaire, Indah Water Konsortium.
RM8.3 million for the Muslim Food and Consumer Goods Research Unit, which now comes under the Malaysian Islamic Development Department (Jakim).

Abdul Rahman said these entities were taken over when they faced either financial or management problems.

"The government took control in terms of the equity whereas issues involving management were determined by committees established by the government," he said.

Abdul Rahman added that the government fully took over management of some entities like the Kuching prison whereas other entities like the National Sewerage Scheme saw the previous management from IWK being maintained.

To the original question from Ismail Sabri, Abdul Rahman said since 1983 when the privatisation scheme was launched, 490 projects had been privatised.

He said that only a few faced problems which required government intervention.

Tuesday, December 12, 2006

For the release of 16 asylum-seeking Myanmar

The Star
Saturday December 9, 2006

Detainees can go if they have homes

PUTRAJAYA: Suara Rakyat Malaysia (Suaram) and other
NGOs seeking the release of 16 asylum-seeking Myanmar
women and children from detention centres should
ensure the have a place to stay before they can be

Immigration Department director-general Datuk Wahid Md
Don said the department was willing to release the
women and children if claims of their status were

But there must be an assurance that those released
have a place to go to, he said.

“If they have no place to go, they will end up on the
streets again and our enforcement officers will
re-arrest them,” he said.

Wahid said his enforcement officers had no alternative
but to arrest everyone in a group if they were
suspected of being illegal immigrants.

“We do not want to arrest asylum seekers, but if they
are in a group where an operation is conducted on
illegal workers, we cannot release only the women
until we are sure who they are,” he told reporters.

Denying that the asylum seekers were placed in
prisons, Wahid said it was true that some detention
centres were getting full and there was a need for at
least another two in the Klang Valley to accommodate
the hundreds of thousands of illegal immigrants.

He said some seeking refugee status were not genuine
cases, and that the status of the Myanmar women,
children and pregnant women was being investigated.


The Star,
Friday November 24, 2006

Home Ministry to investigate claims asylum-seekers not
treated properly


KUALA LUMPUR: The Home Affairs Ministry will
investigate allegations that asylum-seeking children,
mothers and pregnant women were living in poor
conditions at detention centres and prisons

Deputy Minister Datuk Tan Chai Ho said he also was not
aware of them being treated badly by authorities in
the centres, adding that the matter would have to be

He said foreign detainees who have no proper documents
to prove they were refugees would be considered
illegal immigrants and detained at the centres until
investigation of their case was completed.

Tan also said that they would have to be recognised by
the United Nations High Commissioner for Refugees
(UNHCR) as refugees before they could be accorded
rights as asylum seekers.

“Illegal immigrants are normally well taken care of
until their case has been investigated.

“If there are claims of otherwise, we need to
investigate first,” he told reporters after opening
the National Registration Department’s Quality Day on

Tan was commenting on five non-governmental
organisations’ allegations that the centres were
overcrowded, unhygienic and lacked medical facilities,
and inmates were subjected to abuse by the guards.

They presented a memorandum to the Immigration
Department on Thursday.

The NGOs, namely Suara Rakyat Malaysia (SUARAM),
Women’s Aid Organisation (WAO), Tenaganita, National
Human Rights Society (HAKAM), and Amnesty
International Malaysia (AIM) pressed for the release
of the children, mothers and pregnant women, the
majority of whom were from Myanmar.

(The 16 pregnant women and children refugees were released on or about the 12/12/06)

Saturday, December 09, 2006

Two Myanmars held in raid (Star)

Two Myanmars held in raid

BUTTERWORTH: Two Myanmars hid in a fish container at a wet market in Bagan Ajam here hoping that they could escape a raid to flush out illegal workers.

Rela members opened the container’s lid and found the two, who were working at the construction site next to the market, had no travel documents.

The Myanmars, aged 19 and 25, were among 50 construction workers screened during the raid conducted by five Immigration enforcement officers and a 50-man Rela team led by Lt-Kol Abdul Rahman Harun.

The two were sent to the Juru detention centre while the rest were released as they had valid documents.

445 illegals nabbed by Rela (Star)

445 illegals nabbed by Rela

SINCE January this year, the North East district Rela has helped the Immigra-tion Department nab 445 illegal foreign workers by conducting frequent operations.

The uniformed body has also been actively involved in preventing crime and ensuring the public’s safety, North East district Rela officer Ismail Saaid said during the appoint- ment ceremony of the district’s Rela members at the Jalan Patani community hall recent-ly.

“We hope to continue working closely with the police so that we can further assist them in carrying out their duties,” he said before congratulating the newly appointed members.

In his speech, Jelutong MP Datuk Lee Kah Choon said discussions with Home Affairs Minister Datuk Seri Mohd Radzi Sheikh Ahmad had been conducted to determine the ways in which Rela can further be empowered to play a bigger role in keeping the peace, controlling traffic and weeding our illegal foreign workers.

“There are about 70,000 Rela members nationwide but we would like to recruit more members. Community leaders should join the uniformed body for the benefit of society,” he said.

Lee also reminded Rela members to be responsible when carrying out their duties and not to abuse their powers.

“Negative publicity about errant members can be very detrimental to Rela’s reputation,” he said.

During the ceremony, 20 Rela platoon leaders and 25 of their assistants from the North East district received their appointment letters.

Present during the ceremony were Datuk Keramat assem-blyman Ong Thean Lye, Batu Lanchang assemblyman Ng Fook On and Sungai Pinang assemblyman Looi Swee Cheang.

Monday, December 04, 2006

Firms hit out at Rela raids

Firms hit out at Rela raids

KLANG: Police are investigating claims from five factories that Rela members had detained 64 foreign workers, assaulted others and stole their cash and valuables during raids.

Management staff of the five factories near here alleged that at 1.30am on Saturday, a team of 30 to 40 Rela members turned up to look for illegal foreign workers. Half of the Rela members were not in uniform.

All the company spokesmen condemned the way Rela members conducted their search for illegal workers.

The five companies: Rhong Khen Industries Sdn Bhd, Golden Components Industries Sdn Bhd, Hsin Foong Manufacturer Sdn Bhd, Latitude Tree Furniture Sdn Bhd and Lam Yam Furniture Sdn Bhd have lodged reports at the Klang police headquarters over the incident.

Representatives for the factories held a press conference at one of the factories yesterday.

FENCING RIPPED: Bangladeshi workers standing in Klang on Sunday behind a zinc fencing that was allegedly torn down by Rela members who then entered their hostel.
They also claimed that hand phones and cash belonging to their workers had gone missing after the raid.

Rhong Khen Industries Sdn Bhd management staff Lim See Keong claimed that 18 of his foreign workers had been detained during the raid.

“All five factories are unhappy with the method used to search the premises as our workers have legal work permits,” said Lim.

“We also feel that such raids put fear in our workers and furthermore our workers claimed to have lost hand phones and cash after the raids.”

Golden Components Industries official Khoo Chong Kai said seven of his Nepalese workers were detained, while a Hsin Foong Manufacturer Sdn Bhd staff said 16 foreign workers from his company were detained.

Khoo said all workers had valid work permits but at 1.30am it was difficult to produce the documents as they were kept in the office.

“Detaining the workers is not a proper thing to do as it only disrupts operations of all our factories,” he added.

According to them, their workers had been detained at the Semenyih Detention Camp.

Earlier, workers of Latitude Tree Furniture Sdn Bhd claimed that Rela members had beaten them with canes and iron rods, leaving welts on their bodies when they refused to open the doors.

According to a factory supervisor, 23 of his workers were detained while two Bangladeshi workers sustained head injuries and were given outpatient treatment here.

Pressmen were shown plywood doors with gaping holes and knobs missing, which the Rela members had allegedly damaged in their effort to get into the workers’ rooms.

Klang acting OCPD Asst Comm Mohd Rodwan Mohd Yusof confirmed that five factories had lodged reports over the matter.

“We also received a report from Rela and investigations are being carried out,” he said.

Migrant Workers in Malaysia - by Syed Shahir, President MTUC

December 18, 2006
Migrant Workers in Malaysia

MTUC/ILO Follow up Workshop on Migrant Workers in Malaysia

4-6 December 2006

Opening speech: by Syed Shahir, President MTUC

Malaysia is a multi-ethnic, multi-cultural and multi-religious country, on the verge of achieving developed nation status. Malaysian people are a caring people concerned about justice and human rights.

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

According to government estimates, there is an equivalent number of unregistered (or undocumented) migrant workers in Malaysia, and today that means at least 1.8 million undocumented workers. The actual figure of unregistered (or undocumented) migrant workers in Malaysia could be about 5 million. This estimate is supported by the fact that official entry-exit records in 2004 showed that there were about 5,852,997 persons or 38% of the total arrivals overstaying. In fact, recently our Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad was reported saying that 800 to 900 foreign workers arrive at the KL International Airport daily(Star,14/10/06), and that did not include entry through land and sea. Undocumented migrants can enter Malaysia so much more easily by sea and land, avoiding immigration and customs authorities and that is, I believe, the manner of entry employed by the majority of undocumented migrants.

Malaysian labour force for the 3rd quarter of 2005 according to the Malaysian Department of Statistics was 10,498,600 and that means that number of migrant workers (both documented and undocumented) is about 30% to 50% of the total Malaysian labour force. This fact of the growing number of migrant workers in Malaysia also tally with the figures of persons in the Malaysian prisons, where it was disclosed that 25% of the prison community were foreigners in 2003, and in 2004 it was stated that the number of foreigners exceed the number of local Malaysian in prisons. A recent AFP report in October 2006 reiterated that Malaysia’s 10.5 million strong labour force is made up of 2.6 million foreign workers.

We cannot deny the fact that in the past 3 decades migrant workers, both documented and undocumented, have contributed significantly to the economy of this nation.


In Malaysia, we do not discriminate. We guarantee all persons equality and equal protection of the law. Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’ makes it most clear that this guarantee of rights extends also to all persons, including migrant workers, be they documented or undocumented, and also refugees. Under our Trade Union Act, migrant workers have the right to unionize and also be members of existing unions – and this is very important to enable all workers, including Malaysian workers, the ability to ensure greater protection and advancement of worker rights,

Migrant workers in law have access to the Labour Court and the Industrial Courts just like any local worker.

The problem is that when Migrants come to the country, their very presence and their ability to work legally is linked to a work permit, which stipulates a named employer. And when a migrant worker, who has been victimized, wants to seek justice through the Labour Court and/or the Industrial Relations Department, the usual thing that happens is that the errant employer immediately terminates the work permit leaving the migrant worker in a dilemma having no right to continue to be in the country, without work and capacity to earn a living. This makes a mockery of the protection afforded in law, and we need to do something to remedy this state of affairs. Maybe the migrant must be the person who is allowed to apply for a work permit (or even apply for variation of a permit) – not the employer.


To overcome this problem, we should allow workers who do resort to the Labour Court and/or the Industrial Court in pursuit of their rights as workers against unscrupulous employers, to stay on in Malaysia until the courts can mete out justice. In some countries, like Hong Kong, shelters are provided by the government for workers during this period as they claim this ‘constitutionally guaranteed equal protection’ and justice under the law.

Maybe we should also be thinking of special tribunals for migrant workers – which would provide a speedy procedure so that cases of non-payment or under-payment of wages and wrongful dismissal, could be dealt with speedily no later than 3 months from the date of the complaint.

Better still, workers whose rights have been violated, and who has filed a complaint should be allowed to work with another employer.

It is no use having good labour laws & courts with the object to ensure that no workers will be deprived of their rights AND then have a situation like what we have today that makes it almost impossible for the migrant worker to access and/or get justice.

Likewise, when a migrant worker makes a police report against his/her employer. The government encouraged migrant workers, like domestic workers, to complain about abuses by employers and/or other members of their household. When they do complain, they lose their job and it is sad that the government takes the position that the migrant worker that complains will not get his /her permit varied so that he/she can work with another employer until that criminal case is disposed off.

Now, when a migrant worker makes a complaint about abuse, his employer when charged ONLY has to just plead not guilty and most likely he/she will get away with it because the complainant migrant worker by reason of not being able to work is back in his home country not able to appear in court to testify against his ex-employer. We cannot allow this mockery of the criminal justice system to continue.


A worker who works for an employer is entitled to his just wage, and it should not matter whether he is documented or undocumented. It will be a gross injustice for an employer who benefits from the sweat and labour of a worker and then be allowed to escape his obligation of paying wages.

True, the undocumented worker has broken the law concerning immigration and for that he must be penalized. However, he should not be deprived of the fruits of his labour – and these unscrupulous employer should never be allowed to escape his obligations to pay wages.

Let us not forget that it is because of these bad employers who employ undocumented workers that many come over to Malaysia to work without the necessary documentation.


We must also never forget that the migrant worker is a human being just like you and I. Migrants are father, mother, brother, sister, husband, wife, son, daughter and uncle to other human persons.

We must stop this “Catch a Migrant and Get Paid for it” policy which we have since 2005. In 2005, members of the People’s Volunteer Corps (Rela), an organisation of uniformed part-timers who have some policing powers, were offered and did receive cash rewards for each migrant arrested as an economic incentive and this was most disturbing and embarassing. It is sad that on the planned crackdown next year, Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad was reported to have said Rela members would be again roped in for the operation(Star, 14/10/2006). Since Rela was given authority last year to nab illegal immigrants, its members had arrested about 19,000 foreigners.

We have the police, immigration officers and other enforcement officers that are professionally trained and has the duty to enforce the law – and as such the using of part-time RELA for the arrest of a certain class of persons is certainly just not right and goes against the guaranteed equality and equal protection of the law. Further, there has been just too many complaints about the use of excessive force, causing serious injuries to foreigners from Indonesia, Bangladesh and Burma in recent months.

At least three incidents since July were recently highlighted in the media when suspected illegal immigrants from Indonesia, Bangladesh and Burma were beaten. Most were later discovered to have valid immigration documents. It was also said that these RELA volunteers also often force their way into homes without warrants, destroy private property and wrongfully detain suspects. These kind of law-breaking must end. Let us not forget that we are dealing with human beings here, not animals


If a worker is paid more because of his working experience, academic or technical qualifications and/or skills then it is perfectly acceptable and just. But if a worker is discriminated on the basis of his/her nationality, ethnicity and/or religious belief, this is not at all acceptable. Today, migrant workers are being discriminated based on their nationality despite the fact that they do the same work. Indonesians are the lowest paid whilst the Filipinos are the highest paid. This must end,

Another aspect of discrimination is when undocumented workers are arrested, Some are deported immediately whilst others are charged, tried,convicted and sentenced to imprisonment and sometimes whipping. Either all are charged in court or all are immediately deported. This is yet another discrimination that has to be stopped.

Foreign Domestic Workers and Protection of Migrants

Our employment laws generally do not provide for protection of domestic workers’ rights as it does for other workers, and given the fact that there are today more than 300,000 domestic workers, we must enact a law for the protection of domestic workers. Today Jordan has such a law. Hong Kong also has such laws, and in Taiwan, there is now a Bill before their parliament.

Given the unique differences when it comes to migrant workers, maybe we too, like Singapore and some other migrant receiving countries, should also enact a new law to cover migrant workers or just maybe include a section in our existing employment laws. In these laws, we must also deal with the question of recruiting agents both in the sending and receiving countries.

Recently, in October 2006, a media report informed us about Bangladeshi labour agents who are illegally bringing workers from the Indian subcontinent into the country. In the said report Enforcement Director of the Immigration Department, Ishak Mohamed said that

“…every worker brought into the country was forced to pay upto RM18,000 to these illegal agents, who go to the slums and villages and lure these poor people by promising them jobs in air-conditioned buildings, The poor villagers end up paying them a fortune, mortgage their property and everything they own to work here and then they end up slogging in construction sites to pay off their debts back home…”.

This happens in almost all countries. I ask whether it is right for us in Malaysia to further penalize these “cheated” workers.

When it comes to wages, many migrant workers do not receive any money for months as their wages are all deducted to pay off their debts to agents, etc – and this is not at all right. A limit must be set as to amount of their monthly wages that can be deducted, and this should not be more than 30% of their wages. A worker who works should receive some payment every month to use it as he/she pleases including sending back of some monies to sustain their spouse, children and families back home.

We need to have an education campaign, which should be initiated by the government to ensure that migrant workers are made aware of their rights in law, and also about where to go and what to do to complain about rights violations and to get justice. We need special offices, with persons who can do translations, all over the country which is easily accessible to migrant workers,

We will soon also be having an ASEAN Charter, and we must ensure that there are provisions therein that will deal with migrant and migrant worker rights.

Malaysians are a caring people – and we must remember that all migrants/refugees are human beings, and as human beings they have human rights and worker rights and we must do all that is necessary to ensure that these rights are not only acknowledged but also respected. We have been paying too much attention to violation of our country’s immigration laws and way too little to worker rights and human rights. It is time we remedy our failings.

Thank you.

Saturday, November 25, 2006





“When we talk about witness protection, we have to look at the competing concern, that is the right to a fair trial that has to be accorded to a victim of the criminal justice system – and one of the most important aspect of this right is the right to full pre-trial disclosure of all the documents, and information that is in the possession of the State (prosecution), i.e. “the police docket” – and this must include timely access to witnesses and also witness statements, and this must be done preferable even before the plea is entered.”

Fear & Witness “Protection”-Justification For Rights Denial

In Malaysia, an accused person only has the right to get a copy of the First Information Report, police reports, his/her own caution statements and copies of chemist/scientific reports. He did not have the right to have access to statements made by witnesses during the cause of police investigation – and most common rationale and reasons given for this denial of what should be a fundamental right, is what was also interestingly mentioned by Suffian, Lord President(as he then was) in the Federal Court case of Husdi –v- Public Prosecutor (1980) 2 M.L.J 80 when he said:-

“ We do not think that the prosecution should supply copies of the police statement direct to the defence without the intervention of the court – because of the peculiar circumstances prevailing in this country. Malaysia is a small country, with a small population, and Malaysians are easily scared: they are reluctant to be involved. If a crime is committed under their nose they look the other way, see, hear and say nothing, do little or nothing to help identify – let alone – arrest the offender, and yet complain that the police do not catch criminals and that courts are bedazzled by technicalities. If the prosecution is obliged to supply copies of police statements to the defence without the intervention of the courts, the defence may be tempted to ask for, and the prosecution will be obliged to supply, copies of every statement in the police investigation file, and Malaysians will be more reluctant to come forward with evidence to incriminate their fellows.”

The fact is the Malaysian Evidence Act has provisions[a] that allows for the impeaching of the credit of a witness, and one of the means to do this is by proving that a former statement made by him are inconsistent with the evidence that he gave in court but without access statements made to the police how can this be done. The defence would literally have to guess as to what is contained in the statement/s made by the said witness to the police.

In the Husdi case, the court also did say :- “…when a prosecution witness is being cross-examined, and the defence proposes to impeach his credit, the court should, on the request of the defence, refer to his police statement and may then, if the court thinks is expedient in the interest of justice, direct the defence to be supplied with a copy….” Again, as was mentioned earlier I say that unless the defence lawyer or the accused is gifted with some super natural powers that enables them to know what is in the witness statement(which they do not have access to), what the court suggested about impeaching a witness based on a statement is, I believe, impossible.

In the earlier Husdi case (1979) 2 MLJ 304,[b] this deprival of the right of the accused to statement/s made by a person to the police was justified by reason of ‘public policy’. The judge delivering that judgment at the Federal Court had this to say: “…Further, as a matter of public policy, I am of the view that it is undesirable for the prosecution to supply the defence with police statements as there is a real danger of tampering with the witness..”. Should not public policy be to ensure that justice is done and to prevent miscarriages of justice?

Protecting witnesses was one of the reasons seemingly that was given to deny the right of pre-trial full disclosure, and hence the right for a fair trial. Was it really to protect witnesses, or was it really to protect the prosecution’s case? The use of the word “tampering” seems to suggest it was the later.

The risk of tampering witnesses was also a consideration in a bail applications, and hence when an accused is released on bail, reasonably one could argue that witness statements should be made available to the defence for after all the court had considered and concluded impliedly that there was ‘no real danger of tampering with witness’. But still no access to witness statements because the highest court of the land had also declared that witness statements are “absolutely privileged” and as such, the accused person did not have a right to such witness statements.

Rights of the accused after the Husdi cases

Can the accused get information about the name and address of the witness/person concerned and the fact that he had made a statement or not? The Bryant and Dickson, which was referred to in the Husdi cases said that the answer was yes. In the R-Ward (1993) 2 All ER 577 at page 613 para c fol, the court had this to say:

“...The names and addresses of these witnesses and the fact that they had made statements, if no more, were plainly disclosable under the R -v- Bryant and Dickson (1946) 31 Cr App R 146 rule..”

What about pre-trial access to prosecution witnesses? After all, the Federal Court in the first Husdi case had said:- “…So far as applicable to the present case, the principle that appears to be laid down in this case [referring to the case of R -v- Bryant and Dickson (1946) 31 Cr App R 146] is that it is the function of the prosecution and the defence to prepare their own case: but the defence is not entitled to the police statement, as they themselves may record a statement from a prosecution witness if they so desire. The last part is merely a reiteration of the principle that there is no property to a witness – not to a document generally…”

Therefore, even after the Husdi cases, the accused should have had the right to get the names and address of witnesses the police interviewed (or were looking for), information whether these witnesses had made statements to the police, the right to seek out these witnesses and to further record statements from them. But in reality, generally this did not happen. The police/prosecution generally never disclosed this information about witnesses, and lawyers for the accused also generally failed to pressed for these rights.

In Malaysia, many lawyers would come to court, listen to the evidence given by a prosecution witness during examination-in-chief, and then proceed to try to create reasonable doubt through cross examination. The fact that the defence had no access to these witnesses’ statements to the police and no prior access to the names of this witnesses (and hence no opportunity to interview them before hand) greatly prejudices the defence during cross-examination.

The accused’s fundamental right to a fair trial, the right to equality under the law and to equal protection of the law is denied by reasons of ‘ignorance of the full extend of the rights of an accused under the law” and also by decisions of the highest courts of the land. And somehow the protection of witness (or rather the risk that prosecution witnesses would be tampered with) was one of the justification for this state of affairs.

Corruption an enemy of justice and a threat to witnesses

The other emerging problem in Malaysia today is the increase of corruption within the police force and other actors in the criminal justice system, and this has not only affected public confidence in the system but would also, I believe, protection of complainant/s and/or witnesses to crime.

The indifference of the ordinary Malaysian to crimes committed by their fellows is now further enhance with the thinking “why waste time making reports or giving statements to the police for after all the police can be ‘bought’ and the guilty can get off scot-free more so if they have money, power and/or connections with the ‘right people’”. Even amongst the legal profession, there is today talk about a new breed of lawyers, which some call the “criminal settlement lawyers”, who when appointed collect a large sum of money and then go and see certain police officers (or other persons in the criminal justice system) and try to work out a deal or a ‘criminal settlement’ – i.e. how much do you want for my ‘client’ to be released without being charged or without being tried and/or without being convicted.

Sometimes, a person is acquitted because some police officer or prosecution witness failed to do something during the course of investigation, and one wonders whether this was by reason of inexperience, negligence, inadequate training, incompetence or an innocent oversight – or was it a simply a conscious omission/action brought about possibly by corruption or other pressures.

Corruption Must End To Restore Public Confidence

When Abdullah Ahmad Badawi came in as the prime minister of Malaysia after the 22-year premiership of Mahathir Mohammad, he promised the people of Malaysia that he will fight corruption. Malaysians were hopeful and this was further enhanced when the new premier set up 2 Royal Commissions to look into the state of affairs within the Malaysian police. Both Commissions came out with numerous recommendations, and the most significant recommendation was for the setting up of a Independent Police Complaints and Misconduct Commission (IPCMC). The Royal Commission also did prepare a draft Bill and proposed timelines for the setting up of the said IPCMC. Datuk Seri Abdullah Ahmad Badawi assured Malaysians that he would set up the IPCMC but to date it is yet to become a reality and the deadline proposed has come and gone. Recently, on 14/11/2006 some 302 civil society organizations led by the Malaysian Bar handed over a petition, which was also signed by thousands of individual persons, urging the Government to speed up the establishing of the IPCMC.

For the cause of justice, corruption not only within the police but also all the other actors within the criminal justice system should be completely extinguished and it can be done only if there is the necessary political will.

ESCAR – the kind of Witness Protection we do not need

The Essential (Security Cases) Regulations 1975 (ESCAR) introduced special procedures for security cases being cases where one is charged with security offences. Security offerences were described as being offences under certain sections[c] of the Internal Security Act 1960 (an act that also provides for Detention Without Trial) and also any offences against any other written law the commissioning of which is certified by the Attorney General to affect the security of the Federation.

The ESCAR allowed the court to take evidence of witnesses in the absence of the accused and his counsel. It allows the witness to give evidence without his person being seen and/or his voice being heard by the accused and/or his counsel. It permits the court to prevent questions being asked by the defence if it is in the opinion of the court will lead to the witness’s identification. It has provision for keeping secret the identity of an informant, and for allowing a report of the said informant to be admissible in evidence without the informant being required to give evidence (and of course without the defence having the opportunity of cross-examination). The normal rules of procedure and evidence developed over the years to ensure that justice be done were ignored by the ESCAR.

When the ESCAR came into being the Malaysian Bar protested and lawyers boycotted trials conducted that used the ESCAR. The government reacted and amended the Legal Profession Act introducing various shackling provisions, including preventing lawyers below 7 years standing, Members of Parliaments and State Legislative Assemblies, office bearers of Political Parties and other classes of persons that could be added on later from being able to become members of the Bar Council, State Bar Committee and/or its committees. [d]

The rights of the accused and witness protection must be considered together

Now, when we talk about witness protection, we have to consider first the fundamental right to a fair trial that must be accorded to an accused person in a criminal justice system. This right to a fair trial must necessarily includes the real ability for one to be able to prepare one’s defence, and that means also having all the information and evidence in the hands of the prosecution (the State) way before the trial, preferably soon after one is charged with an offence. This means that there must be the right to full disclosure, and this would include list of witnesses (and other persons interviewed or persons the police were looking for during the course of their investigations, who the prosecution may not even consider calling as prosecution witnesses) and their statements.

The Development of the Right to Full Pre-Trial Disclosure

Full pre-trial disclosure became an important prerequisite to ensure fair trial and prevent miscarriages of justice after cases like Guildford Four and Birmingham Six exposed that serious miscarriages of justice that caused innocent persons to languish in prison for many years brought about by non-disclosure by the prosecution. R-Ward (1993) 2 All ER 577 and the case of R -v- Maguire, CA, (1992) 2 All ER 433 are other examples of cases of miscarriage of justice resulting from “non-disclosure”.

The right to fair trial requires that “in criminal prosecution the accused should ordinarily be entitled to the information contained in the police docket relating to the case against him or her, including copies of statements of witnesses whether or not the prosecution intends calling such witnesses at the trial.” (State –v- Scholtz(1997) 1 LRC 47).

The Canadian Supreme Court in the case of R –v- Stinchcombe(1992) LRC(Crim) 68 also affirmed the accused’s right full disclosure adding that – “the right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted…”.

In R -v- Mills, quoting the words of judgment of the Supreme Court of Canada in R -v- Stinchcombe (1991) 68 CCC (3d) had this to say :-“...the fruits of investigation which are in the possession of the counsel for the Crown are not the property of the crown for use in securing a conviction but the property of the public to be used to ensure that justice is done... The principle has been accepted that the search of the truth is advanced rather than retarded by disclosure of all relevant material.” [e]

Today, India also recognizes the right to full disclosure, and the Indian position can be summarised from the following Indian Supreme Court case, an example of many similar judgments :-

The right which the accused has got of obtaining copies of the statements made by witnesses during investigation is a very valuable right and the wholesale refusal to grant the same will be a serious irregularity, which would vitiate the entire trial.”

Purushottam -v- State of Kutch (1954) AIR 700(Supreme Court)

The Lesotho case of Malopo –v- Director of Public Prosecutions (1998) 2 LRC 146 had this to say about the right to a fair trial and the concept of “All persons shall be equal before the law” : “…a trial cannot be fair, just and balanced if the prosecution is allowed to keep relevant material such as witness statements close to its chest and thereby hope to spring a surprise on the defence for the purpose of securing a conviction…certainly cannot have been the intention of the framers of the Constitution [referring to the constitution that had the equality before the law provision] to place the accused at a disadvantaged in relation to the prosecution. Such a disadvantage in my view does not accord with the tenor or the spirit of the right of equality before the law..”

When it comes to disclosure, the duty is placed on the prosecution and their duty is to disclose everything, including also material that will tend to weaken the prosecution’s own case, and even material that may even open up a new defence or that which will strengthen the defence’s case.

“The prosecution’s duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution’s case or to strengthen the defence case, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there was good reasons for not doing so. R-Ward (1993) 2 All ER 577,

“...Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence

R-Ward (1993) 2 All ER 577 at page 599, para b

It is sad, but the reality is that many a time a criminal trial is perceived as a competition by the prosecution, and as such prosecutors are driven by this desire to win – and victory means successfully securing a conviction. Hence, what they would adduce as evidence to the court would be just the required evidence to secure a conviction. Evidence unfavorable to the prosecution may end up being ignored or consciously suppressed by the State, who forgets that the most important thing especially in a criminal trial is to ensure that justice is done and not securing a victory by getting an innocent man convicted.

Sometimes high-profile cases that receive media attention also puts additional and unnecessary pressure on the police to quickly find the “culprit”, charge him and get him convicted and history has shown that it is in these kind of cases where there is a higher chance that an innocent man convicted, sentenced to prison and even death.

Disclosure Must Be Done At The Earliest Possible Time

The courts in various jurisdictions have also looked considered the question as when this full disclosure should occur, and the answer generally seems to be as soon as possible.

In the Namibian case of State –v- Scholtz (1997) 1 LRC 67, Dumbutshena Ab JA had this to say: “For disclosure to be effective it must be done at the earliest possible time”. As to when exactly, the court said that the “…overriding factor should be the sufficiency of time in which the accused should prepare his or her case. In my view it won’t be sufficient time to hand witness statements and other materials to the accused a few minutes before plea. There should be reasonable time to allow the accused to prepare thoroughly his reply to the charge and his defence.”

Considering the various authorities from different jurisdictions[f] that now recognize this important right of full disclosure, it seems that this disclosure by the prosecution should happen even before the suspect is brought to court and charged.

Non-Disclosure By Reason Of Protection of Witnesses, etc..

Generally all statements to the police should be provided by the prosecution to the defence, but in exceptional cases when the prosecution do not want to disclose a particular statement claiming “public interest immunity” or “public policy” or “national security” or whatever other reason, this should be specifically claimed - and the matter will then have to be decided by the courts ,and not the police or the prosecution, after balancing interest of justice for the accused with whatever reasons forwarded by the prosecution.

In the case of R -v- Davis (1993) 2 All ER 643, at page 647 para a-b - citing R-v-Hennessey (1978) 68 Cr App R 419 with approval, the court had this to say:-

“...the judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand, the interest of justice. Where the interest of justice in a criminal case touching and concerning the liberty or conceivably on occasion life, the weight to be attached is plainly very great indeed..”(See R-Ward (1993) 2 All ER 577 at page 602 para j foll.) but the ultimate decision is not with the prosecution but with the court.”

“...when the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of proceedings......If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by the court, the result must inevitably be that the prosecution will have to be abandoned”

In Malopo –v- DPP (1998) 2 LRC 146, the courts did consider protection of any informer (or witness) as one of the grounds that may be forwarded by the prosecution for non-disclosure, when it said:-

“…the state is entitled to withhold any information contained in the police docket if it satisfies the court on a balance of probabilities that it has reasonable grounds for believing that the disclosure of any such information might reasonably impede the ends of justice or otherwise be contrary to public interest such as for instance where the information sought would disclose the identity of an informer or where it would disclose police techniques of investigation which it is necessary to protect or where such disclosure might endanger the safety of a witness…

At the end of the day, in the event that the prosecution wants not to disclose certain material, they will have to make an application to the courts and the courts will have the final say and it is clear that in the interest of justice the right of the accused to full disclosure which would be a higher priority. Of course, the defence must be accorded the right to be heard in any such applications.

The Right to Full Pre-Trial Disclosure in Malaysia

Even though this right of full pre-trial disclosure has been gaining recognition throughout the world, especially in the commonwealth countries, especially since the early 90s, sadly in Malaysia this right is yet to receive the necessary recognition in law. But to be fair, there were some amongst the Malaysian judiciary even as early as 1979 that felt the need for pre-trial disclosure, and such a sentiment was expressed by Wan Yahya J (as he then was) in the case of Haji Abdul Ghani Bin Ishak -v- Public Prosecutor (1979) 1 LNS 23 when he said:-

“…An attitude of undue caution in the production of documents necessary for the defence of an accused person may unfairly give rise to the insinuation that the prosecution is resorting to a hide and seek method or reducing the defence to a game of blind man’s buff...”

Even though the right to full pre-trial disclosure is not recognized in Malaysia, there have been challenges[g] for the recognition of this right in the courts. The right to 2 appeals makes it very difficult for an application for full disclosure originating from a criminal matter in the magistrate and sessions court to reach the Federal Court[h]. Likewise the doctrine of stare decisis[i] has been an impediment.

It is sad that it is the Malaysian Judiciary that have deprived the accused person of the right of pre-trial full disclosure and even the right to immediate access a lawyer for an arrested suspect upon arrest despite the fact that it was possible under the Malaysian Constitution and existing laws. If only we had a more progressive Malaysian judiciary, we would have had the necessary rights to ensure a fair trial for the accused person long ago.

The good news is that the right to full pre-trial disclosure may finally be entering the statute books of Malaysia[j], but as to when this would actually be enacted and come in force is still a question. From what I have heard (for which I could not get any positive confirmation to date), another Act for Witness Protection is being drafted and only after that ‘Witness Protection Act” is passed and come into force would the right of full disclosure also become part of our law.

Witness Protection – Meaning, Scope and Extend

The term “witness protection” is a new term today for Malaysia whereby the old term commonly used was “witness tampering”. “Witness tampering” seem to indicate concern about not destroying the evidence of the prosecution until it is adduced before the court. It was not directly concerned with the protection of the witness per se. It definitely was not about the protection of the witnesses after they had given their evidence in court.

Today, the new term “witness protection” looks at protecting witnesses not only until the day they adduced their evidence in court but also beyond that. In the United States of America, it talks about providing of a new identity and a re-location of the witness so that the accused/convicted and/or their friends/agents could not find these witness and visit harm/death on them by reason of revenge or as a deterrent to future witnesses.

Witness protection may be justifiable for crimes committed by persons linked to or in criminal gangs, organized crime families, mafias and such like groups of persons – but for the crimes committed by ordinary criminals, witness protection may not be justifiable especially if it goes against the right of the accused to a fair trial, which must include the right to full pre-trial disclosure.

Witness protection legislations itself may not be sufficient without the creation of a independent corruption-free body that would be able to deal and ensure an effective witness protection programme. Malaysia, unlike the United States of America and some of the other jurisdictions that have similar legislations and programmes, is a small country and provisions of a new identity and re-location within the country may not be effective and/or practical.

Further, unless and until we are able to eliminate corruption and other influences in the police force and other government agencies, witness protection will never be really effective.

In Malaysia, today there seem to be classes of persons who are above the law – and this include leaders in government and local government, certain political parties and persons connected to such persons[k]. This perception does no good in re-building confidence in the police and/or other government agencies and/or bodies involved in the criminal justice system.

Until we, in Malaysia have a corrupt-free and independent police force and other similar enforcement agencies, Public Prosecutor’s office and Judiciary that is also committed only to the upholding of the cause of justice without fear or favor, any Witness Protection Act or programme will not work.

I must state very clearly that for me the rights of the arrested and the accused persons to a free and fair trial, which should include that right to full pre-trial disclosure to enable the defence to effectively prepare and present a defence, is of a greater importance compared to any form of witness protection. Witness protection, even if it is to be, must be limited to crimes committed by certain classes of persons only and even in those cases it must never lead to a deprivation of the right of disclosure and definitely not the right of the defence to meet and take statements from such witnesses wy before the trial.

Charles Hector

16th November 2006

[a] Section 145 and section 155(c ) of the Evidence Act.

[b] This was also the case where the Federal Court made the pronouncement that witness statements were absolutely privileged – and the basis of this pronouncement were 2 defamation cases, where it was decided that statements made to the police were absolutely privileged. The Federal court said this : “…These two cases involve actions for defamation. But I am of the view that once police statement is held to be absolutely privileged for one judicial purpose, it is privileged for other purposes…”. I believe that the learned judge erred in law on this point.

[c] Section 57, 58, 59, 60, 61 or 62

[d] Some of these shackling provisions like the limitations placed on lawyers below 7 years standing, the onerous quorum requirements for a General Meeting of the Malaysian Bar and the State Bars were removed recently by the coming into force of the Legal Profession (Amendment) Act 2006. The new amendment Act however has in it an ouster of judicial review provision, and other provisions that go against the principles of natural justice and fairness.

[e] Page 796, para h fol.

[f] I must state that what I have considered to date are authorities from Commonwealth countries.

[g] One such case that is before the Court of Appeal now is Criminal Appeal No: W - 05 - 66 – 2003, MUZAMMIL IZAT BIN HASHIM –v- Public Prosecutor

[h] In Malaysia, appeals from the lower courts (Magistrate/Sessions Courts) goes to the High Court and thereafter to the Court of Appeal. A matter from the High Court is appealable to the Court of Appeal and thereafter to the Federal Court. Most criminal cases, save for capital punishment cases, generally is heard by the lower courts.

[i] "to stand by things decided") is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie") – Wikipedia. Lower courts are bound to follow decisions of higher courts.

[j] Criminal Procedure Code (Amendment) Act 2006, which received Roayal Assent on 27/9/2006 and was gazetted on 5/10/2006 is at present not yet in force. New section 51A – deals with pre-trial disclosure – but the real scope of what must be disclosed is still vague.

[k] Recently a Member of Parliament apparently admitted to possibly committing acts of corruption and possibly even involved in importing logs contrary to law but to date he is yet to be charged. We had a senior politician who contravened the law by taking cash monies above the permissible limit out of Malaysia to another country where he was charged in that country – but to date no charges seem to have been preferred against him in Malaysia. There are other such cases but no actions of arresting and charging them have happened. All these kinds of instances do not help the public perception of the criminal justice system is concerned.