MADPET-Malaysians Against Death Penalty & Torture: 22/6/2023(Anniversary of a migrant being whipped wrongly)

Thursday, June 22, 2023

22/6/2023(Anniversary of a migrant being whipped wrongly) - Media Statement of 28 Groups

# Statement carried by media, amongst others Free Malaysia Today, The Online Citizen

28 Group Media Statement – 22/6/2023(Anniversary of a migrant being whipped wrongly)

PM Anwar Ibrahim and Malaysia needs to ensure justice be done to documented migrant worker Sabri, who was wrongly convicted, imprisoned and WHIPPED for being illegally in Malaysia.

We, the 28 undersigned groups, the trade unions, organizations and we call on Prime Minister Anwar Ibrahim and the Malaysian government to ensure that justice is done in the Sabri Umar case, the documented Indonesian migrant worker who was wrongly charged and convicted for being in Malaysia illegally in Malaysia.

On 23/6/2022, one year ago, documented Indonesian migrant worker Sabri Umar, was wrongfully and illegally whipped 5 times at Malaysia’s Tawau Prison on 23/6/2022. Sabri Umar, who had been working legally in Malaysia for about 7 years, suffered a GROSS MISCARRIAGE OF JUSTICE when he was wrongly charged, convicted and sentenced to 11 months in prison and 5 strokes of whipping for being illegally in Malaysia on19/4/2022 by the Sessions Court.

When the police arrested Sabri at his workplace, the employer handed his valid passport to the police, which should have been clear evidence that he was a legal worker in Malaysia.

The Deputy Public Prosecutor who charged him in court had Sabri’s passport/s, which also had the Immigration Department’s endorsement of his still valid work permit. There was no reason why he he was even charged for being illegally in Malaysia.

The Immigration Department keeps record of entry, and also issues work permits – but then, it is a mystery why the Immigration Department submitted a document stating that there was no records on Sabri. This document, which was also tendered in court by the prosecution, would have confused the court.

It was the employer’s action of making a police report of an alleged sexual assault that cause Sabri to be arrested on 5/4/2022. It is disappointing that the Employer, one Fu Yee Corporation, who ought to be aware that Sabri was indeed a legal migrant worker in Malaysia failed to inform the courts and/or other authorities that Sabri was wrongfully convicted and sentenced for being illegally in Malaysia. An employer’s obligation to a migrant worker is until the worker is safely back in his country of origin.

The Injustice Was Highlighted by the Union and Civil Society

It was only because of Sabri’s Union, the Sabah Timber Industry Employees Union (STIEU), that finally moved Human Rights Defenders, Civil Society and Trade Unions to highlight this gross injustice through various actions including Joint Statements, amongst others, by 46 groups on 19/7/2022 entitled Sabri, Migrant Worker Wrongfully Whipped Before Appeal Heard. The statement was reported by media.

On 22/7/2022, the High Court called up the case for Revision, and Sabri was finally acquitted.

On release, Sabri had to get a Special Pass to remain in Malaysia to pursue justice, but alas the Immigration Department only gave him a 2-weeks Pass, not the usual 1-month Pass and for the reason for Sabri to make arrangement to leave Malaysia. This happened twice, and appeals were made to the Home Minister but to date Sabri is yet to get the decision on his appeals. Hopefully the current Home Minister will finally make a decision.

In fear of being repatriated forcefully back to Indonesia, Sabri filed a High Court case to get a court order that will allow him to stay legally in Malaysia until he will be able to complete his quest of justice. Unfortunately, the High Court denied his application, and he then had to appeal to the Court of Appeal.

Sabri, subjected to ongoing harassment and threats from various quarters have now returned to Indonesia, hopefully temporarily. He was also in fear of being arrested again, imprisoned and whipped again.

National Human Rights Commission (SUHAKAM)

On 10/8/2022, 47 parties including Sabri filed a Petition/Complaint to SUHAKAM urging also a Public Inquiry but sadly SUHAKAM came back and said that they will not not inquire into any complaint relating to any allegation of the infringement of human rights which- (a) is the subject matter of any proceedings pending in any court, including any appeals; or (b) has been finally determined by any court.’. This possibly was because he had a case for wrongful dismissal at the Industrial Court, but previously SUHAKAM despite there being a case in court had decided to hold a public inquiry in an enforced disappearance matter. We hope that SUHAKAM reconsider and inquire into this matter.

Malaysian Parliament

The matter was also brought to Parliament and the Malaysian Parliamentary Special Select Committee On Fundamental Liberty And Constitutional Rights on 16/8/2022, whereby a Joint Statement was also issued on that day entitled ‘Call On Malaysian Parliamentary Special Select Committee To Ensure That Migrant Worker Sabri Umar’s Pursuit For Justice Is Not Impeded By Deportation And Other Means.’. Sadly, Parliament too failed to do anything till now, and we hope that this new Parliament will act.

Home Minister Yet To Decide on Sabri’s Appeal

The Home Minister has yet to respond to Sabri’s 2 appeals against the decisions of the Immigration Department to date.

What good is a right and a clear procedure in the law, if the Minister simply does not respond to appeals. Without the Minister’s decision on appeal, Sabri cannot use his right to take the matter up for Judicial Review in the High Court, if still dissatisfied with the Minister’s decision.

The failure of the State, the Parliament and even the National Human Rights Institution to do the needful to ensure justice in Sabri’s case is appalling. What use is laws that provides procedures for victims seeking justice if the Minister just ignores appeals in accordance to law.

Will PM Anwar do the needful to ensure justice be done?

Malaysia now has a new Prime Minister since November 2022, and we call on the Prime Minister and the government of Malaysia to do the needful to ensure justice is done in the Sabri Umar’s case.

The world is watching, to see if Malaysia is also against violation of rights of Sabri and other migrant workers, who reasonably have contributed much to the economy of Malaysia.

A government committed to human rights and justice, and would ensure that all migrant workers whose rights are violated will find redress in Malaysia. The avenues available to these victims, when rights are violated in Malaysia are in Malaysia – the cannot claim justice in their countries of origin, unless Malaysia creates the possibility by giving other countries jurisdiction, or creating mechanisms in Malaysian embassies in these countries from where migrant workers come from.

The failure of Malaysia to ensure justice be done in cases involving rights violations of migrant workers and foreign nationals in Malaysia, would inadvertently encourage exploitation and rights violations, or even trafficking in Malaysia. The perpetrator will be emboldened to violate other migrants in the future, knowing that they get off scot free.

Royal Commission to look into Sabri’s and other Migrant victims of rights violations

We call on Malaysia to set up a Royal Commission of Inquiry and look into the case of Sabri and other rights violations that may have befallen many other migrant workers.

Policy Change - No repatriation until confirmation of no outstanding claims/cases

The current position of Malaysia seems to be the speedy repatriation of migrant workers when their employment in Malaysia, irrespective of the fact that these migrant workers may have outstanding claims of worker or human rights violations against their immediate past employers and others.

This policy must change, and there must be NO repatriation of migrant workers or foreign nationals until the Minister of Human Resources determine that there are no outstanding or pending employment related claims against employers. The Home Minister must also determine that there is no outstanding claims against others, or that the migrant worker is not a needed witness in any other cases. The rights of migrant workers must also be protected by Malaysia – including the right to seek justice, including compensations.

Sabri victim of Malaysian Public Officers Actions or Negligence

Noting that in the Sabri’s case, that his claims arise also by reason of failings of public officers whose actions/omissions or negligence caused him to suffer loss of liberty from 5/4/2022 until 22/7/2022, and suffering by reason being whipped 5 times, it is only right that Prime Minister Anwar Ibrahim and Malaysia not only look into this matter, but also consider apologizing and compensating Sabri justly. Action must also be taken against the perpetrators.

Therefore, we call on Malaysia’s new Prime Minister, on behalf of Malaysia, to forthwith tender an apology to Sabri bin Umar, a migrant worker from Indonesia, Malaysia’s neighbor and fellow ASEAN Member State. A compensation would also be just.

We reiterate out call that Malaysia considers a Royal Commission of Inquiry to look into this matter, noting that Malaysia depends highly on migrant workers, and Malaysia needs to defend and protect the rights of these foreign workers.

Malaysia, being a member to the United Nations Human Rights Council (HRC) for the term 2022-2024, must set an example of a State that actively promotes and defends human rights of all, even migrant workers and foreign nationals in Malaysia.

Charles Hector

Apolinar Z. Tolentino, Jr

For and on behalf the following 28 groups

ALIRAN

MADPET (Malaysians Against Death Penalty and Torture)

Building and Wood Workers International (BWI) Asia Pacific

WH4C (Workers Hub For Change)

Banglar Manabadhikar Suraksha Mancha(MASUM), India

Black Women for Wages for Housework

Cambodian League for the Promotion and Defense of Human Rights (LICADHO)

Global Women’s Strike

Haiti Action Committee