We, the 21 undersigned groups and organisations note that on 24 August, Sabri Umar, the wrongly charged, convicted, sentenced and whipped Indonesian migrant worker managed to finally get a one-month special pass, which expires on 21 September, after previously obtaining two successive two-week special passes.
This will give him, a victim of rights violations, 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 a continual issuance of special passes until all his cases and claims are settled.
Legal suit against minister and others
On about 22 August Sabri commenced a legal suit at the Tawau High Court Tawau [TWU-21NCvC-5/8-2022 (HC)] against the home affairs minister, the Sabah chief minister, the Immigration Department and others.
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The suit seeks, among others, a court order asking the minister to make and communicate his decision on Sabri’s two appeals to the minister against the decisions of the Immigration Department.
The minister, to date, has not yet given his decisions.
If dissatisfied with the minister’s decision, Sabri has the right to go to the courts for a judicial review.
The minister’s procrastination is seriously affecting Sabri’s recognised rights in Malaysia.
Right from the beginning, Sabri had always applied for special passes so that he could pursue his rights in Malaysia using all available avenues of redress, including his claim of wrongful dismissal, seeking reinstatement.
Sadly, all special passes have been issued for the purpose of [allowing Sabri to make] 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 August, the Tawau High Court dismissed the application and has 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 a minimum wage of about RM1,200 until March 2022 and who has 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. 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 hometown in Indonesia will take more than two days’ travel, involving travel by ferry, then by ship and then by road transport costing about RM800 or more.
We have been informed that Sabri is contemplating appealing to the Court of Appeal regarding the High Court decision of 23 August.
Rights in law useless if victimised migrants are deported
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 or complaints against employer or others, when it can only 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 or complaints are dealt with in Malaysia.
Such matters ought to be dealt with 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 and complaints are dealt with.
No migrant worker must be denied the ability to pursue his or her claims, including money still owed by employers, before he or she is repatriated or deported back to their country of origin.
It is best that the 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, his claim for reinstatement that will be soon at the Industrial Court, and Suhakam, the Malaysian human rights commission, will soon decide on a public inquiry.
As such, a repatriation back to Indonesia is likely to seriously jeopardise 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 end?
Court order better than monthly special passes
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 in courts remain in Malaysia until the case is determined.
One example is the case of Rajakannu Boopathy and 39 Indian migrant workers who were pursuing their claims at the Labour Court and then 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 August Sabri managed to get a one-month special pass that will expire on 21 September.
Sabri is still in a precarious position, as there is not 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 about whether he could legally remain in Malaysia to pursue his rights.
On the other hand, special passes issued by the Immigration Department are most precarious as one never knows whether it will continue issuing these monthly special passes or will at any time in the future suddenly deny him a new special pass – [in which case] he may be subjected to immediate arrest and deportation.
Strange development on reinstatement claim
In Malaysia, the first stage will be an attempt at ‘conciliation’, where the employer may agree to reinstate the worker or some settlement is reached between the worker and the employer. If conciliation fails, the matter is referred to the Industrial Court.
In Sabri’s case, conciliation happened on 29 April, 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. This was the state of affairs communicated to Sabri’s union until about almost four months.
Suddenly, the matter was referred back to the Industrial Relations Department for another attempt at conciliation. This happened on 6 September, and resulted in no conciliation. The matter again will now be referred to the Industrial Court.
Five months have elapsed since the alleged wrongful dismissal, and the fact the case has not yet reached the 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 of.
Unlike a local worker, who has the ability to work and earn an income, the migrant worker generally is not allowed to legally work and earn. As such, migrant worker claims for reinstatement ought to be speedily heard and decided, within two months or less, by the Industrial Court.
In Indonesia, 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 whether it is a wrongful dismissal or not.
In Malaysia, the probably wrongfully dismissed worker is expected to ‘suffer’ loss of employment and income while the court decides and while the employer carries on business as usual. Hence, cases are delayed, sometimes for years, to the detriment of the worker.
Sabri Umar’s claim for reinstatement should have rightly been [heard] at the Industrial Court at the beginning of May 2022, as conciliation failed on 29 April. The case could have already been heard and decided in two months. Now, the referral to the Industrial Court has been delayed suspiciously.
Attempt to deter Sabri’s pursuit of justice?
Is Malaysia attempting to deter Sabri’s pursuit of justice. Note that he was a documented migrant worker wrongly charged, convicted, imprisoned and whipped – all because of the actions or omissions by the Immigration Department, the police, the public prosecutors, and officers of the Tawau Sessions Court who allegedly green-lit the whipping by telling the prison that there were no pending appeals?
Malaysia should now officially guarantee that Sabri Umar would be allowed to stay legally in Sabah or Malaysia until all his claims for justice are settled. It should ensure that the Immigration Department continues to issue Sabri his special pass or some other permits or passes to allow for a legal stay.
- 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 over whether the Immigration Department will give him 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 facilitates the provision of board and lodging and speedy trials
- Call on Malaysia to follow the practice in Indonesia for cases of wrongful dismissals, ie the status quo is maintained and 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 or 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 workers’ rights. All avenues of redress are in Malaysia. Only Malaysian courts have the jurisdiction to determine claims of violations of rights and worker rights that happen in Malaysia. To repatriate a poor man back to his country of origin, someone who reasonably may not have the needed money or resources to frequently travel back and forth to pursue justice – [this practice] must end
- Reiterate our call for Suhakam, the Malaysian human rights commission, to hold a public inquiry on Sabri’s case, as this decision needs the support of the majority of Suhakam commissioners, and a decision will be made in early October about whether there will be a public inquiry or not.
Charles Hector and Apolinar Z Tolentino Jr issued the above statement on behalf of the 21 organisations listed below:
- Malaysians Against Death Penalty and Torture (Madpet)
- Building and Wood Workers International (BWI), Asia Pacific region
- Workers Hub For Change (WH4C)
- Sabah Timber Industry Employees Union
- All Arakan Students’ and Youths’ Congress, Myanmar
- 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 and KL
- Sarawak Dayak Iban Association, Sarawak, East Malaysia
- Saya Anak Bangsa Malaysia (SABM)
- Singapore Anti-Death Penalty Campaign
- Women of Color – Global Women Strike, UK/US