NO Right of Appeal to High Court for cases of RM10,000 or less is unjust, and discriminatory to the Poor. Repeal Section 28(1) of Court of Judicature Act 1964, and amend Court of Judicature (Amendment) Bill 2022 - MADPET

 

Media Statement – 1/8/2022

NO Right of Appeal to High Court for cases of RM10,000 or less is unjust, and discriminatory to the Poor.

Repeal Section 28(1) of Court of Judicature Act 1964, and amend Court of Judicature (Amendment) Bill 2022

When the Magistrate or Sessions Court wrongly decides and orders you to pay the other party RM9,500 after a civil case, the Malaysian law currently says the unsatisfied party cannot appeal to the High Court, because it is less RM10,000. This is very wrong, unjust and possibly also discriminatory.

Magistrates or Sessions Court judges can and do make mistakes, and on appeal the High Court can correct mistakes and overturn judgments to ensure justice is done. Likewise, an appeal to the Court of Appeal can overturn wrong decisions made by the High Court. To ensure no miscarriage of justice, in Malaysia there is the right to 2 appeals. So, why is the right of appeal denied to some cases simply on the basis of value of the claim or subject matter?

One must appreciate the fact that many lower court judgments are overturned or corrected on appeal, and as such, the denial of the right to appeal to the High Court may lead to miscarriage of justice.

Sadly, many may not noticed this unjust provision in our law. Section 28(1) Court of Judicature Act 1964, as it is now, states, ‘(1) Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject - matter is ten thousand ringgit or less except on a question of law.’

However, the opportunity for Parliament to correct this injustice opened up when the Court of Judicature (Amendment) Bill 2022 which replaces old 28(1) with a new 28(1) still retains this denial of the right of appeal to High Court in the proposed new section 28(1)(a)‘…decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except on a question of law…’. Parliamentarians could have objected to and deleted this proposed section 28(1)(a)

But sadly, our Members of Parliament, who get a monthly allowance of RM16,000 at least, failed to do the needful to end this injustice, and ensure that irrespective of the value of claims, including smaller claims by possibly ordinary people, all litigants are accorded the same rights as those litigants of bigger value claims, including the right to 2 appeals. The Bill came up for first reading on 19/7/2022 was passed at the Dewan Rakyat on 25/7/2022.

For many people, including the poor, where Malaysia’s minimum wages is RM1,500, sums of RM1,000, RM5,000 and RM9,000 is big money. Being ordered wrongly to pay such sums, or being wrongly denied the claim by court is a big deal. The deprivation of the right to appeal to the High Court, dangerously, can lead to furtherance of injustice or violation of rights.

The very reason for courts, is to prevent the use of self-help, which may include violence and other wrong acts, to get back monies owed and settle other disputes.

As the law stands now, it deters the use of courts to settle disputes where subject matter is less that RM10,000 – as there is no appeal even if the Magistrate or Session judge do makes a serious mistake or wrong decision in the view of one party to the action.

There is really no rationale for such discrimination simply by reason of monetary value of the claim or the value of subject matter. Big or small cases, irrespective of the value of the claim or subject matter ought to be treated the same, including the rights of appeal.

MADPET (Malaysians Against Death Penalty and Torture) calls for the repeal of Section 28(1) Court of Judicature Act 1964 to end discrimination on the basis of value of subject matter of the claims.

MADPET also call for amendment of Court of Judicature (Amendment) Bill 2022 to delete proposed new section 28(1)(a);

Access to courts must be encouraged, irrespective of the size or value of the subject matter. As such, even the high cost ordered by courts for applications and appeals must be minimized so as not to end up discouraging ordinary or poorer persons from using the courts to resolve disputes peacefully. Litigants when they do bring their disputes to courts already do incur a lot of cost, be it monies, time and effort, and let’s not make Judge ordered costs for unsuccessful applications or appeals deter the parties in their quest for justice.

 Courts are for ALL – the poor and the rich, for big and small claims.

 

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Kurangkan bilangan kesalahan bawah Sosma, kata aktivis (FMT)

 Kurangkan bilangan kesalahan bawah Sosma, kata aktivis

FMT Reporters

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July 30, 2022 9:00 AM

18 Shares

Pasukan keselamatan sempadan sedang melakukan rondaan. Undang-undang Sosma menentang keganasan membenarkan penahanan suspek sehingga 28 hari. (Gambar Bernama)

PETALING JAYA: Sebuah pertubuhan hak asasi manusia menggesa pengurangan kesalahan di bawah undang-undang keselamatan Sosma berikutan lanjutan klausa tahanan sebelum perbicaraan di bawah akta itu baru-baru ini.

Charles Hector dari Malaysia Menentang Hukuman Mati dan Penyeksaan (MADPET) berkata, senarai kesalahan di bawah Sosma harus dihadkan kepada kesalahan yang menyebabkan kemudaratan atau kematian sehingga undang-undang itu dimansuhkan.

Pada Selasa, Dewan Rakyat meluluskan klausa lanjutan itu yang membolehkan polis menahan seseorang yang disyaki terlibat dalam aktiviti keganasan untuk tempoh tidak melebihi 28 hari untuk siasatan.

Fasal itu ditetapkan untuk tamat pada 31 Julai. Ia diluluskan di Dewan Rakyat dengan 111 menyokong dan 88 bantah, 21 berkecuali, dan mendapat kelulusan Dewan Negara sehari kemudian.

Hector berkata lanjutan klausa itu berisiko kepada lebih banyak kemungkinan berlaku penyeksaan dan penderaan semasa tahanan, sambil memetik kes kematian dalam tahanan sebelum ini.

Beliau berkata undang-undang Sosma menjejaskan kuasa mahkamah untuk memberikan atau menolak perintah reman, yang menurutnya adalah semak dan imbang yang penting untuk mencegah atau mengurangkan kekejaman polis.- FMT, 30/7/2022

See Full Statement - 

MP's Commitment to Human Rights and Justice Questioned? Extending police right to detain suspects without Magistrate's authority - no monitoring? Torture, Abuse of Powers?

 

MP's Commitment to Human Rights and Justice Questioned? Extending police right to detain suspects without Magistrate's authority - no monitoring? Torture, Abuse of Powers?

 

Media Statement – 30/7/2022

111 MPs vote to extend SOSMA provision 28 day post-arrest detention without Magistrate’s supervision indicates a lack of commitment for Human Rights.

MADPET(Malaysians Against Death Penalty and Torture) is most disappointed in the 111 Members of Parliament of Malaysia in the Dewan Rakyat that voted in favour of extending the power of the police under Section 4(5) to hold suspects of the offences listed under the Security Offences (Special Measures) Act 2012(SOSMA) for not more than 28 days for the purpose of investigation, without the need to bring these detained suspects before the Magistrate to obtain remand orders. The Magistrate plays a most important role in preventing or reducing police abuse, and even possibly torture.

On 27/7/2020, the extension of the Sosma provision, as required by section 4(11) SOSMA was approved after 111 MPs voted in favour and 88 against, with the remaining 21 absent.

Section 4(5) SOSMA provides that ‘Notwithstanding subsection (4), a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.’

However, Section 4(11), however imposed an obligation on Parliament to review the continued applicability this Section 4(5), and it states, ‘Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of parliament to extend the period of operation of the provision.’

The last extension is set to expire on July 31, and that is why it came before Parliament.

It must be noted that if Section 4(5) is not extended, then police after arrest would have to bring arrested suspect before the Magistrate within 24 hours, and application for further remand by the police for the purposes of investigation. The maximum remand 14 days, which is really more than sufficient for investigations to be completed by competent officers, and these suspects could then be charged in court, and once charged they will be in detention as SOSMA still unjustly says no Bail for any of listed SOSMA offences.

It is disappointing that some MPs, even Ministers, seem to have forgotten about the presumption of innocence until proven guilty in court. Those arrested by the police are mere suspects and the purpose of the detention post arrest is only for one purpose, that is investigation. It is not to punish and not for any other purposes. Maybe the government should now disclose how many persons were arrested for SOSMA listed offences, and at the end of the day were not even charged but released.

Hence, it was shocking to read that our Home Minister Datuk Seri Hamzah Zainudin said, “It is unfair to say that those nabbed are oppressed when we know they are in the wrong,”(Star, 27/7/2022).

MADPET reiterates that it is not for the police or the Home Minister to say someone is in the wrong or a criminal, for that right of determining the guilt or innocence is only with the Courts who will decide after a fair trial.

Section 4(5) SOSMA legalize the violation of the right of a suspect of certain crimes in Malaysia, and it also goes against Article 5(4) of the Federal Constitution which states that ‘(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’.

The bringing before the Magistrate is to ensure that the police do not abuse their powers, and to also make sure that the detainee is not subjected to illegalities by the police including torture. When brought before the Magistrate, he/she can make sure that everything is done according the law, and the detainee suspect and/or his/her lawyer have the right and/or ability to disclose to the Magistrates the wrongdoings and abuses of power of the police, and the Magistrate can do the needful to end future wrongdoings, or even act of past abuses. The Magistrate’s role is a most necessary check and balance against abuses and wrongdoings of the police.

In the past, remand for the purposes of remand was 14 days, and some Magistrate did simply order 14 days remand on the first application by the police, which puts the detainee suspects at risk of abuses and wrongdoings of the police.

Parliament, in its wisdom, amended the Criminal Procedure Code vide Criminal Procedure Code (Amendment) Act 2006. A new version of section 117(2) was inserted, which today reads,

‘The Magistrate before whom an accused person is produced under this section may, whether he has or has no jurisdiction to try the case, authorize the detention of the accused in such custody as follows:

    (a) if the offence which is being investigated is punishable with imprisonment of less than fourteen years, the detention shall not be more than four days on the first application and shall not be more than three days on the second application; or

    (b) if the offence which is being investigated is punishable with death or imprisonment of fourteen years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application."

For lesser offences, the Magistrate could now order remand for not more than 4 days on first application by the police, and not more than 3 days on 2^nd application. For serious offences, even murder, on 1^st application remand could be no more than 7 days. This was done by Parliament to end the possibility of abuses by the police, that can arise through long uncheck periods of detention for the purposes of investigation.

Home Minister was wrong when during the debate, he said that more time was required to turn suspects into witnesses to catch bosses. He said, “For cases of gangsterism, it is difficult for us to nab the bosses, if we don’t have those working for them as witnesses. Sometimes, it takes one to two weeks to convince them to be a witness,”(Star, 27/7/2022).

MADPET reminds the Minister that the purpose of detention of suspects is just for the purpose of investigation of the suspect’s alleged crime – it is certainly not for ulterior motives of ‘pressuring’ detained suspects to turn into prosecution witnesses. It is not to get evidence for crimes of another.

Post arrest detention is only for purpose of investigation, and is not for punishment or any other ulterior purposes.

Now, the extension of the application of Section 4(5) SOSMA will now need the approval of Senate, and MADPET hopes that Malaysian Senators will act justly and reject extending this provision for another 5 years.

MADPET calls for the abolition of Section 4(5) SOSMA, and for Malaysia to maintain the important monitoring and check and balance role Magistrates play in this aspect of the administration of justice. The bringing of arrested suspects before the Magistrate within 24 hours, and no further detention orders until the Magistrate after hearing both parties allows. The maximum period of each remand order even for the SOSMA listed offence must be limited to not more than 7, or using the same formula as provided for in our Criminal Procedure Code, being depending on the maximum sentence each offence.

MADPET reminds that there have been too many deaths in police custody, some of which the police have been directly responsible for. There is also possible a lot of torture and other abuses that happen during this detention for investigation, but many a victim is afraid to report or seek justice for fear of possible repercussions.

MADPET reiterate the call for the abolition of SOSMA, and let all criminal cases investigated and prosecuted in accordance to the Malaysian Criminal Procedure Code and Evidence Act. In the interim, a reduction of the list of SOSMA offences just limited to offences that caused harm and/or death to victims would be good.

 

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Nod for 28-day detention under Sosma

Wednesday, 27 Jul 2022

DESPITE strong opposition, the motion to extend the detention period of suspects under the Security Offences (Special Measures) Act 2012 (Sosma) was passed in the Dewan Rakyat in the second attempt.

The motion was put for a bloc vote with a total of 111 MPs voting in support. Another 88 voted against it while 21 were absent.

Datuk Seri Hamzah Zainudin in his winding up speech on the debate of the Bill said it takes time to investigate bigger cases.

“For cases of gangsterism, it is difficult for us to nab the bosses, if we don’t have those working for them as witnesses. Sometimes, it takes one to two weeks to convince them to be a witness,” he said.

Hamzah added the Bill was not “cruel” and was in the interest of the country.

“It is unfair to say that those nabbed are oppressed when we know they are in the wrong,” he added.

A fiery moment occurred in the House when Mohamed Hanipa Maidin (PH-Sepang) interjected and labelled Hamzah as “goblok” (imbecile) and “bodoh” (stupid).

Hamzah was visibly taken aback and Speaker Tan Sri Azhar Azizan Harun, who was chairing the session, said he will be issuing a final warning to MPs in the House against using such language.

Several MPs demanded Hanipa retract his words, but Hamzah said there wasn’t a need to do so, as such an uncouth behaviour displayed in Parliament will be witnessed by Malaysians who will be voting in the upcoming national polls.

“That is why we should reject him beginning today and God-willing, Malaysians will realise that this man cannot be given a place in this noble House,” added Hamzah.

The law under Sosma is enforceable for a five-year period and required a nod from Dewan Rakyat to extend it for a further five years.

Last Wednesday, the House passed a Bill to revoke its earlier decision not to extend Sosma.

This was done as a Bill, which was defeated, cannot be retabled again until a full year has passed unless revoked.

During the previous Dewan Rakyat meeting on March 23, the motion to extend the enforcement of subsection 4(5) of Sosma which allows for the detention of suspects for up to 28 days without trial, was voted down by MPs.

The five-year limit for the provision ends on July 31, 2022. - Star, 27/7/2022

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 -24/7/2022(19 Grps)

 

 

Media Statement – 24/7/2022

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 19 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 19 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

Haiti Action Committee

Labour Law Reform Coalition, Malaysia

Network of Action For Migrants in Malaysia(NAMM)

Sabah Plantation Industry Employees Union, Malaysia

Sabah Timber Industry Employees Union (STIEU)

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

 

See earlier Statement - 

Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard - Statement of 45 Groups- 19/7/2022

Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard - 45 Groups Media Statement - 19/7/2022

https://focusmalaysia.my/indonesian-migrant-worker-in-sabah-wrongfully-whipped-before-appeal-heard/

Media Statement (45 GROUPS) – 19/7/2022

Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard

We the 45 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 45 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