Thursday, March 08, 2007

Are migrants in prisons really criminals?(Malaysiakini)

Are migrants in prisons really criminals?
K Shan
Mar 7, 07 4:51pm

The Labour Resource Centre (LRC) expresses serious concern over the recent revelation made by Deputy Internal Security Minister Fu Ah Kiow that 34 percent of the 35,000 people in prisons are foreigners convicted of various offences or in remand awaiting court verdicts.

The simple statistics and the general assertion put forward by the minister are superficial, unfair and a suppression of important facts from the public in terms of crime and public security. The minister’s comment is also feared to enhance further the racial xenophobia and discrimination towards certain migrant communities and their rights.

Migrant workers in Malaysia stand a very high risk of being undocumented for various reasons. There are many instances of migrant workers being made undocumented upon seeking redress for unpaid wages or over other forms of labour disputes. In such cases, the employer often retaliates by unfairly dismissing and canceling their work permits.

Migrant workers who become undocumented are left without any form of meaningful re-dress or a chance to seek justice. Many migrant workers end up living as undocumented persons due to the limitation of their temporary visas and long wait for trials as well as not being able to work temporarily or even to return to their countries. In many cases, they end up being arrested and imprisoned for immigration offences.

Other instances or flouting the law unintentionally are attributed to our current labour supply practice of outsourcing and the subcontracting of migrant labour. This current practice of ‘flexible labour’ has resulted in many migrant workers unknowingly working in a workplace other then the one stipulated in their work permit, hence committing an offence for violation of their work permits’ terms. There are also various reports of migrant workers arrested for working under false work permits or on contract for a sham company or agencies where again, the worker is subjected to a charge and imprisonment.

The other groups of people that we believe to make up the 34 percent are refugees or asylum seekers. The failure on the part of the Malaysian government to recognise and protect these people has made these people being treated as merely ‘illegal’ and subject to a charges under the Immigration Act. The lack of protection and redress mechanisms have also made them victims of trafficking on top of being criminalised as offenders under the Penal Code as well as for immigration offences.

In all the instances mentioned above, futile investigations and failure to accord fair and proper justice have left these vulnerable people with the only choice of pleading guilty to seek a quick repatriation. The Immigration Act has also created a system where guilt is presumed, until the contrary is proven by the migrants. This ‘procedure’ often puts the accused in an impossible situation for seeking legal assistance to prove the contrary. This is due to the fact that the accused is in a vulnerable position and unfamiliar with Malaysia and her required procedures.

The LRC also believes that the newly established Immigration Court at various detention camps is another fact that has contributed to a high number of migrants in prisons. This new court set-up and fast track prosecutions has only transferred the numbers of detainees from detention camps to the prisons.

Feedback received by the LRC reveals that prosecution is done in a quick manner with detainees ‘processed’ quickly after a guilty plea without proper trial and legal representation after which they are sent to the prisons. The practice is said to be rampant and believed to have become a norm. The accused are often reported to been denied or prevented from seeking legal representation and there are instances of coercion and even intimidation and threats from authorities to secure a guilty plea.

The concerns on right to trial and this ‘fast track prosecution’ system are not only limited to immigration matters but also to general criminal investigations. The current xenophobic climate against migrants and racial profiling exercised by the authorities have made migrants to be subjected to arrested on mere suspicion.

The concerns raised by the Royal Commission to Enhance the Operation and Management of the Police on the current practice of arrest, denial of legal representation, abuse of remand procedures and forced confessions are very much applicable in the context of arrested migrants. In most cases, arrested migrants are denied bail and are remanded in prisons for a very long time pending a preliminary hearing. The said concerns are believed to have contributed to the high number of migrants in prisons.

The LRC is of the view that the statistics revealed by the minister are highly suspicious and leave many questions unanswered. The LRC has reason to believe that the 34 percent statistic as revealed by the minister comprises largely of migrants who are currently in prison for immigration offences and are victims of an unfair system and policy on migration affairs.

We ask that an independent and transparent investigation and inquiry to confirm our reasoning and arguments. The public needs to know the true picture of crime and public security based on fair and credible findings and to end the current racial xenophobia and discrimination suffered by the migrant communities.

The writer is secretariat member, Labour Resource Centre

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