21 Groups - Stop making a mockery of worker and human rights, and guarantee migrant worker Sabri, whose rights violated by State and public officers, can stay in Malaysia to claim justice ## Access to Justice For All Migrant Workers by Non-Repatriation Until All Outstanding Claims are Speedily Settled

 

Media Statement –    13/9/2022

Stop making a mockery of worker and human rights, and guarantee migrant worker Sabri, whose rights violated by State and public officers, can stay in Malaysia to claim justice

Access to Justice For All Migrant Workers by Non-Repatriation Until All Outstanding Claims are Speedily Settled

We, the 21 undersigned groups and organizations note that on 24/8/2022, Sabri bin Umar, the wrongly charged, convicted, sentenced and whipped Indonesian migrant worker managed to finally get a one month Special Pass, which now expires on 21/9/2022, after previously obtaining 2 successive 2-week Special passed. This will give him, a victim of rights violation, the time and ability to pursue justice that only can be done in Malaysia in Malaysian courts and other avenues of justice in the country.

However, once again the Special Pass is issued to ‘make arrangements to leave Malaysia’. This puts Sabri in a most precarious position, and there is no absolute certainty whether this Special Pass will be reissued after it lapses. The Malaysian government must guarantee no repatriation, and continuous issuance of Special Passes until all his cases and claims

Legal Suit Commenced Against Minister and others

On about 22/8/2022 Sabri commenced a legal suit at the High Court Tawau (TWU-21NCvC-5/8-2022 (HC)) against the Minister of Home Affairs. The Sabah Chief Minister, the Immigration Department and others seeking, amongst others, a court order asking the Minister to make and communicate his decision on Sabri’s 2 appeals to the Minister against the decisions of the Immigration Department.

The  Minister, to date, has yet to give his decisions. If dissatisfied with the Minister’s decision, Sabri has the right to go to the courts for Judicial Review. The Minister’s procrastination is seriously affecting Sabri’s recognized rights in Malaysia.

Right from the very beginning, Sabri had always applied for Special Passes so that he can pursue his rights in Malaysia utilizing all available avenues of redress, including his claim of wrongful dismissal seeking reinstatement. Sadly, all Special Passes have been issued for the purpose of making arrangements to leave Malaysia, which is very wrong.

In the High Court case, Sabri did apply for an ex-parte interlocutory injunction on an urgent basis, for in essence for a Court Order now that will enable him to stay legally in Malaysia until his quest for justice is over. However, on 23/8/2022, the High Court in Tawau dismissed the said application, and have fixed dates for case management.

In court, the Judge allegedly said that Sabri could always leave Malaysia and then re-enter whenever required. This is absurd as Sabri is not a rich man, but a migrant worker who was earning minimum wage of about RM1,200 until March2022, and who have had no income since April 2022. As an example, the cost of the cheapest flight from Tawau to Jakarta (Indonesia) is RM1,255 taking 10 hours, and this makes it near impossible for any migrant worker or poor foreigner to be able to go and return when needed for their cases. In Sabri’s case, going back to his home town in Indonesia will take more than 2 days travel, involving travel by ferry then ship then road transport costing about RM800 or more. 

We have been informed that Sabri is contemplating appealing to the Court of Appeal with regard the High Court decision of 23/8/2022.

Rights in law is useless if victimized migrants are deported out of Malaysia speedily

Malaysia should not just have good laws to protect migrant workers, but must put in place a system that allows migrant workers to legally stay to be able pursue their rights/claims/complaints against employer or others, when it only can be done through departments, commissions and courts in Malaysia. No migrant worker should be repatriated or deported back to his country of origin before all his rightful claims and/or complaints are dealt with in Malaysia. Such matters ought to be dealt fast, and arrangements ought to be made that migrant workers’ stay is allowed – better still the ability to work and earn legally until all claims/complaints are dealt with.

No migrant worker must be denied the ability to pursue their claims, including monies still owing by employers, before they are repatriated or deported back to their country of origin. It is best that Immigration Department, before repatriation, gets a Certificate from the Ministry of Human Resources confirming that there is no outstanding or potential worker claims against the employer, a Certificate from the police confirming the migrant worker is not a victim of crime or needed as a witness against suspected criminals, and a Certificate from Court confirming that there are no outstanding cases.

Sabri Umar has now the High Court case(TWU-21NCvC-5/8-2022 (HC)), his claim for reinstatement that will be soon at the Industrial Court and SUHAKAM(Malaysian Human Rights Commission) will soon decide on the Public Inquiry, and as such a repatriation back to Indonesia is likely to seriously jeopardize his cases and complaints, if not end them, for Sabri is but a poor man.

Will Malaysia, a member of the UN Human Rights Council, allow Sabri to legally remain in Malaysia, and maybe even work, until all his current and future efforts to get justice and human rights ends?

A court order to stay better than monthly Special Pass at the discretion of Immigration Department

It would have been best if Sabri had obtained a court order allowing him to stay in Malaysia until all his cases, complaints, inquiries and public inquiries are finally decided, with all the perpetrators responsible for the rights violations being held accountable, and the victim adequately compensated.

It must be noted that in the past Courts have ordered that migrant workers pursuing claims at courts to remain in Malaysia until the case is determined. One example is the case of Rajakannu Boopathy and 39 Indian migrant workers, who was pursuing their claims at the Labour Court, and thereafter clams at the High Court. The Court not only ordered them to stay, but also ordered  that their monthly Special Pass be issued gratis or without any requirement of payment.

On 24/8/2022, Sabri managed to get a one month Special Pass that will expire on 21/9/2022. Sabri is still in a precarious position, as there is yet any assurance or guarantee from Malaysia or Sabah that he will be allowed to legally stay until his claims, complaints and cases are finally determined.

A court order would have relieved Sabri of uncertainties and worries as to whether he can legally remain in Malaysia to pursue his rights. On the other hand, Special Passes issued by Immigration is most precarious as one never knows whether Immigration will continue issuing these monthly Special Pass, or will at any time in the future suddenly deny him a new Special Pass, whereby he may be subjected to immediate arrest and deportation.

Strange development on his claim for reinstatement

In Malaysia, the first stage will be an attempt at ‘conciliation’, where the employer may agree to reinstate OR some settlement is reached between worker and employer. If conciliation fails, the matter is referred to the Industrial Court. In Sabri’s case, conciliation happened on 29/4/2022, and the employer did not want to reinstate or offer any settlement in lieu of reinstatement, and thus the matter was to be referred to the Industrial Court, and this was the state of affairs communicated to Sabri’s union until about almost 4 months.

Suddenly, the matter was referred back to the Industrial Relations Department for another attempt of conciliation, and this happened on 6/9/2022 and resulted in no conciliation. The matter again will now be referred to the Industrial Court. 5 months have elapsed since the alleged wrongful dismissal, and the fact the case has yet to reach Industrial Court is shocking.

A claim for reinstatement for a migrant worker should have been quickly referred to the Industrial Court, and the case should have been speedily heard and disposed off. Unlike a local worker, who have the ability to work and earn an income, the migrant worker generally are not allowed to legally work and earn. As such migrant worker claims for reinstatement ought to be speedily heard and decided, within 2 months or lesser by the Industrial Court.

In Indonesia, where in such wrongful dismissal cases, employers are required to continue paying salaries and workers are required to continue to work until the courts finally decides on whether it is a wrongful dismissal or not. in Malaysia the probably wrongfully dismissed worker is expected to ‘suffer’ the loss of employment and income whilst the court decides, while the employer carries on with business as usual. Hence, cases are delayed sometimes for years at the detriment of the worker.

Sabri Umar’s claim for reinstatement should have rightly be at the Industrial Court at the beginning of May 2022, as conciliation failed on 29/4/2022. The case could have already heard and decided in 2 months. Now, the reference to the Industrial Court been delayed suspiciously.

Is Malaysia attempting to deter Sabri’s pursuit for justice?

Is Malaysia attempting to deter Sabri’s pursuit for justice, noting that he was a documented migrant worker wrongly charged, convicted, imprisoned, whipped all by reason of the actions/omissions on the part of the Immigration Department, Police, Public Prosecutors, Officers of the Tawau Sessions Court who allegedly ‘green lighted’ the whipping by telling the Prison that there were no pending appeals? Malaysia should now officially guarantee that Sabri Umar be allowed to stay legally in Sabah or Malaysia until all his claims for justice is settled, and ensure that the Immigration Department continue to issue Sabri his Special Pass or some other permits/passes to allow legal stay.

Therefore, we

Call on Malaysia to step up in the interest of justice and GUARANTEE that Sabri Umar be allowed to remain legally in Malaysia, and better still work legally, until his cases and claims are finally determined. It is torturous and unjust to subject Sabri, a victim of rights violations, to the uncertainty every month as to whether the Immigration Department will give a new Special Pass or not;

Call on Malaysia to not cause the repatriation or deportation of migrant workers from Malaysia until convinced that there are no outstanding claims of worker rights and other rights, and that Malaysia facilitate the provision of board and lodging and speedy trials;

Call on Malaysia to follow the practice in Indonesia for cases of wrongful dismissals, whereby status quo is maintained where employers continue to provide work (or wages), and workers continue to work until the Court finally decides whether it is wrongful dismissal or not;

Call on Malaysia to stop actions/omissions that may deter Sabri Umar’s quest for justice, and ensure that there is real access to justice, not simply laws that provide good worker rights. All avenues of redress are in Malaysia. Only Malaysian Courts have the jurisdiction to determine claims of violation of rights and worker rights that happen in Malaysia. To repatriate a poor man back to the country of origin, who reasonably may not have the needed monies or resources to frequently travel back and forth to pursue justice must end.

Reiterate our call for SUHAKAM(Malaysian Human Rights Commission) to hold a Public Inquiry on Sabri’s case, as this decision needs a support of the majority of SUHAKAM Commissioners and a decision will be made in early October, whether there will be a Public Inquiry or not.

Charles Hector

Apolinar Z Tolentino, Jr.

 

For and on behalf of the 21 organizations listed below

ALIRAN

MADPET (Malaysians Against Death Penalty and Torture)

Building and Wood Workers International (BWI) Asia Pacific Region

WH4C (Workers Hub For Change)

Sabah Timber Industry Employees Union (STIEU)

All Arakan Students' and Youths' Congress (AASYC),Myanmar/Burma

Black Women for Wages for Housework

Center for Orang Asli Concerns (COAC)

Citizens Against Enforced Disappearances (CAGED)

Global Women’s Strike

Haiti Action Committee

Legal Action for Women, UK

Migrant Care, Indonesia

Network of Actions for Migrants in Malaysia (NAMM) 

North South Initiative(NSI)

Payday Men’s Network, UK/US

Persatuan Komuniti Prihatin Selangor & KL

Sarawak Dayak Iban Association, Sarawak, East Malaysia.

Saya Anak Bangsa Malaysia (SABM)

Singapore Anti Death Penalty Campaign (SADPC)

Women of Color-Global Women Strike,UK/US