Any person after leaving home finds out that they have forgotten to bring along their National Registration Identity Card(IC) will be in FEAR - because he/she is at risk of being arrested and detained... if he/she were stopped by the police or law enforcement officers. Likewise, the case with a foreign national(including migrant workers) who do not have their Passport with them.
If a Malaysian(or foreigner) is arrested without their IC or Passport, it is possible that they will be considered UNDOCUMENTED MIGRANTS. A Malay may be thought to be an Indoneisan, A Chinese Malaysian may be suspected to be a Chinese national, and likewise any other citizens in Malaysia - as people who look like us are so easily to be mistaken as a foreign national.
If arrested, we would most likely be considered an offender '...under the law relating to immigration..', and that means that we will not even be brought before a Magistrate within 24 hours of arrest... as in cases of persons arrested as suspects of offences'...under the law relating to immigration..', the police need to bring them before the Magistrate within 14 days...
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 that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day:
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"
Why do employers retain passports of migrant workers? Well, some employers will tell you that is to prevent the migrant workers from running away...But they are human beings, and they are here as workers with all the freedoms including freedom of movement.
One of the indicators of FORCED LABOUR is the retention of identity documents like passports....Restriction of movement is another indicator... Without having their passports, reasonably the freedom of movement of migrant workers is restricted.
Retention of identity documents
What is this? Employers are in control of workers’ identity documents – such as passports, ID cards and work visas – and hold them somewhere that workers cannot access freely and independently.
Example: Workers’ passports are kept in a locked safe at a worksite. Only two staff members have a key. Workers must ask one of these staff members to open the safe if they wish to access their passports, and these staff members are not always available
Retaining workers’ identity documents does not on its own constitute forced labour. Employers often rationalise that they are holding passports or other official documents for safekeeping, but workers may not feel comfortable requesting access to their documents, or the process to access their documents is difficult and intimidating.
Holding on to passports allows employers to 'wrongfully detain' workers in a prison without bars. They are not free to move freely after their working hours. They may also be afraid to go and lodge labour complaints at the Human Resource Department, or even the police > because they do not have in their possession their passports.
Holding passports of another is an offence under the Passports Act 1966 '...shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both....' Have you heard of any employer or Director/Partner of the employer being charged and convicted?
What happens if workers complain to the Human Resource Department? Well, sadly in some cases, before even the HR Department does a 'secret' enforcement raid, the employer already know and may quickly return all passports to their workers...Even if the HR Department finds cases of employer holding on passports of workers, what will they do? Would they simply instruct the employer to return passports...? Should there be an amendment of labour laws to criminalize holding of passports of workers with a DETERRENT sentence, plus compensation to affected victim migrant workers at a rate of RM125 per day the passport was held by employer? OR is Malaysia not so keen to ensure no FORCED LABOUR in the country?
There are LAWS in Malaysia, but sadly enforcement seems to be the problem....BUT the good news is that the workers (and/or their Unions) can commence a Legal Suit against the employer claiming damages, etc
In Abu Dhabi, for a case of another holding on to the passport of another - the court ordered damages of Dh50,000 (or RM63,000) for the withholding of the passport for 1 year 4 months... That comes to about RM125 per day. So, migrant workers(and/or their Union) can sue their employers who are wrongly withholding their passports...
But, will Malaysia allow the migrant worker to stay - or will they be speedily be repatriated. If Malaysia is for justice and human rights, Malaysia would enable these migrant workers to stay until the end of their case.
Malaysia will also prevent the employer from terminating or refusing to renew contracts of workers that have complaint against employers, or have commenced legal suits against their employers for wrongs like withholding of passports.
Will Malaysia be for worker rights?
Employer to pay Dh50,000 for withholding passport
For one year, four months and three days, one expatriate living in Abu Dhabi remained an undocumented person after his former employer (a company) withheld his passport, denying it was in its possession.
After over a year of fighting with the company, he was finally awarded Dh50,000 in indemnity for the damages he incurred because they unlawfully kept his passport.
In an age where an official document is required from the cradle to the grave to identify who a person really is, the man was uncertain of his future and was counting down the days when his passport would be rightfully returned to him.
Constitutions in countries around the world, including the UAE, forbid anybody to detain a passport of any person unless by a warrant from the Public Prosecution or a court.
Though this article of the law is clear, some private establishments and companies still detain the passports of their respective employees, upon their agreement, but whether they are satisfied with these terms or simply hand the document over in fear that they would lose their job is unknown.
In one such case, a man handed over his passport to his employer, which was then taken to the Naturalisation and Residency Department for a residence visa stamp.
After quitting less then six months after his start date, the man demanded his passport be given back, but the company refused to hand it over. They also failed to hand over his experience certificate, failed to pay him his delayed salaries and agreed air ticket costs.
Despite his repeated attempts with the executives, the passport was never handed back.
In a sad twist of fate, after his father became ill back in his home country, the man was unable to visit as he had no passport.
When all amicable attempts with the company were exhausted, the ex-employee filed a lawsuit at the urgent matters court in a bid to get back his passport and the court ordered the company to hand it over.
He also reported the matter to the police, who in turn contacted the company and summoned its representative to implement the court’s order.
The representative denied the passport was in the company’s possession, and asked the police whether the complainant had a document that proved he had surrendered his passport with the company. Since he had no such document, there was no legal action to execute the court’s order.
The damages he incurred did not end here, as he was unable to find alternative employment as he did not have a passport. The man was unable to earn a living for more than one year and the company was still adamant that it did not hold his passport in its possession.
Eventually he approached the Abu Dhabi Labour Court with the hope that they would rule in his favour and end his ordeal. After hearing the case, it ordered the company to pay him Dh6,000 as his end-of-service benefits, his agreed air fare, as well as to hand over his passport and experience certificate. In fear that it would have its licence suspended by the Ministry of Labour, the company handed over all that the man was owed, including his passport.
Though the labour court verdict had given him all his rights, the man filed a lawsuit against the company with the Abu Dhabi Civil Court to get compensation for the damages inflicted upon him during the ordeal including the loss of job opportunities as a result of keeping his passport illegally. The Civil Court ordered the company to pay him Dh50,000 in indemnity, arguing that the complainant had been forfeited his right morally as he was deprived of seeing his ill father, as the company detained his passport, barring him from his right to travel.
(This report is published in collaboration with the Abu Dhabi Judicial Department) - Khaleej Times,
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