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Indonesia and Malaysia must ensure justice is done, not sabotage quest for justice

Sabri Umar was released on 22 July 2022

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We, the 38 undersigned groups, are saddened by the decision of the Malaysian human rights commission Suhakam not to hold a public inquiry or continue with investigations into the Indonesian migrant worker Sabri Umar’s case of wrongful detention, wrongful charging, wrongful conviction and sentencing, and illegal whipping despite there being a pending appeal.

The rights violations sadly were brought about by, amongst others, the Malaysian police, the immigration authorities, deputy public prosecutors, the Tawau Sessions Court and the prison.

Sabri’s case, which was well documented, would have given the opportunity to Suhakam to also come out with recommendations for better human rights-based practices by the Malaysian authorities and personnel in dealing with cases involving migrant workers in Malaysia.

Cases filed in court?

Suhakam’s justification for its decision is based on Section 12(2) of The Human Rights Commission of Malaysia Act 1999, which states:

The Commission shall 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.

However, it must be noted that the previous Suhakam in 2018 did not allow the fact that there was a related case in court to stop it from investigation or doing a public inquiry. The question really should be to see that the matters in the court case are different from the matters before Suhakam. Suhakam must proceed with investigation and hold the public inquiry.

In January 2018, Suhakam had ceased the inquiry into the enforced disappearance of Pastor Raymond Koh as a suspect: one Lam Chang Nam had been charged in court in relation to the case.

However, in May 2018 Suhakam said that the inquiry into Koh’s disappearance would continue after concluding that the subject matter of Lam’s case and the public inquiry was “not the same”.

Likewise, in Sabri’s case: the subject matter of the complaint or petition by 47 parties to Suhakam dated 10 August included:

  • Wrongful detention from 5 April to 19 April without the legally required magistrate’s orders, noting that Sabri was arrested as a suspect of a crime not an immigration offence
  • Wrongful charging, conviction and sentencing of Sabri for being illegally present in Malaysia, when it is a fact that Sabri was a documented migrant worker, with a valid immigration-issued social visit temporary employment pass
  • Wrongful whipping (five strokes), when the law prohibits whipping when an appeal is pending, and an appeal was pending in Sabri’s case
  • Wrongful imprisonment
  • Torture while in police custody

The High Court case (reference TWU-21NCvC-5/8-2022) was primarily to get an interim court order to allow Sabri to remain in Malaysia until his quest for justice was completed, noting that all avenues of redress and courts that have the jurisdiction to deal with complaints and cases of Sabri’s rights violation are in Malaysia.

The application was a matter of urgency, as the Malaysian Immigration Department seemed determined to make Sabri, a poor migrant worker, to leave Malaysia, thus making it very difficult for Sabri to get justice.

There were delays in the issue of consecutive special passes, and when issued, the reason stated was to make arrangements to leave Malaysia, not the purpose for which Sabri applied for the monthly special pass. The first two passes were just for two weeks, not the usual one month.

Sabri, according to the law, had appealed to the minister against the Immigration Department’s decisions. But to date, the minister, after months, has not yet communicated his decision on the appeal.

This High Court suit also sought a court order for the minister to speedily give his appeal decision – for without the minister’s decision, Sabri is denied the right to file a judicial review in court.

As such, this is clearly not the ‘subject matter’ of the Suhakam complaint.

The second case Suhakam used as justification is the case about the claim for reinstatement due to wrongful dismissal. The law states that this claim needs to be filed within 60 days from termination. This case finally has been referred to the Industrial Court.

It was clear in the Suhakam petition that we did not want to look into the issue of wrongful termination, but on other issues:

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The matter of wrongful termination, and the quest for reinstatement is before the Industrial Department, and soon will be before the Industrial Court. As such, we want Suhakam to look specifically at the wrongful arrest, wrongful detention in police custody, the wrongful charging, wrongful conviction, wrongful imprisonment, and the wrongful whipping, all of which was caused by the action/omission, intentionally or otherwise, by the police, prosecutors, immigration department, prison department and the session court, possibly with the involvement of the employer….

Surely Suhakam did not want workers to abandon claims of wrongful dismissal for Suhakam to investigate and conduct a public Inquiry on human rights violations.

Therefore, we call on Suhakam to reconsider its decision in a letter dated 28 October and to act as Suhakam did in 2018 by continuing to investigate Sabri’s case – and even to conduct a public inquiry, which will certainly benefit all migrant workers in Malaysia and, more importantly, ensure more human-rights based practices by the relevant officers and public authorities in Malaysia.

Under threat to abandon claim

To date, Malaysia and the various relevant officers or department have not yet even apologised to Sabri or even offered any compensation for the miscarriage of justice suffered by Sabri.

Sabri Umar, sadly, has also been under much pressure from various quarters to not lodge complaints or pursue claims against the Malaysian government, its ministries or departments or its officers.

Indonesian government’s stand?

Sadly, even certain officer(s) in the Indonesian consulate, according to Sabri, also did inadvertently exert such pressure – possibly in their personal capacity, and not as representatives of the Indonesian government.

On 22 September, when Sabri went with the consulate officers to apply for a new special pass, which the Immigration Department said it needed time to consider the application, one Indonesian consulate officer then took Sabri to the port to return to Indonesia.

Sabri informed the Sabah Timber Industry Employees’ Union in time, and when the Indonesian consulate was notified, she speedily instructed the officer(s) to return with Sabri to the consulate.

However, without prior information by the Indonesian consulate to the union or the lawyer, Sabri left Malaysia on 23 September with the assistance of consulate officers. The Immigration Department, reasonably at this point of time, was still considering the application to issue the special pass.

The union then sent a letter seeking clarification why this had happened, but there has not yet been a response from the Indonesian ambassador in Kuala Lumpur or the Indonesian consulate in Tawau.

This raises suspicions whether the Indonesian government may also have taken the position of discouraging victim Sabri’s quest for justice against Malaysian human rights violators.

Union stepped in

After Sabri was arrested on 5 April and was wrongfully convicted and sentenced, Sabri’s union, the Sabah Timber Industry Employees’ Union, believed that the Indonesian consulate and its lawyer would do what was needed fast to get Sabri acquitted and released from prison.

It was only after mid-June, when Sabri continued to languish in prison and was illegally whipped that the union, with assistance of BWI-AP, start playing a more active role in investigating the delay in dealing with Sabri’s miscarriage of justice.

Relevant documents were procured from the authorities, court and other sources. Support from groups, human rights defenders and lawyers were sought to assist.

The first of many joint statements was issued by 46 groups dated 19 July entitled “Migrant worker wrongfully whipped before appeal heard” and received media coverage.

Initially, the strategy employed was to advise the Indonesian consulate and its lawyer to correct mistakes made, and so that needed to be done fast, but there was procrastination and reluctance.

Fortunately, when the facts of the case were highlighted, it came to the attention of the High Court judge in Tawau, who then instructed Sabri’s then lawyer to file the necessary application or documents. And Sabri was set free on revision on 22 July.

After his release, finding the then lawyer wanting, the union and others came in to assist Sabri in his quest for justice. [This assistance included] identifying new lawyers to file and argue his cases in the Sabah courts, filing a complaint or petition to Suhakam, lodging the necessary complaints and seeking needed clarifications from the relevant authorities. We are thankful for the lawyers that assisted, including other lawyers of the Sabah Law Society and the Malaysian Bar.

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Sabri will return to fight

Sabri’s return to his hometown in Bone, Indonesia, allegedly to visit his sick mother, have now made it difficult for him to get the right to stay in Malaysia until his quest for justice is over.

He will now have to enter Malaysia, and leave when the social visit pass expires, and then re-enter the country. Each trip back to his hometown and return to Malaysia will cost him a lot of time and money – something that a poor migrant worker will not be able to do without assistance.

Sadly, officers of the Indonesian consulate and other lawyers have also been attempting to ‘steal away’ Sabri’s related cases from the union and the current legal team. The motives are unclear, but there is a possibility that it may be to get Sabri to abandon the claims against the government and its officers, or for some other unknown motive.

Sabri, in a recent communication with his union, indicated that he still wants the union and his current legal team to continue fighting for him. We hope that the Malaysia and Indonesian government will allow this and help facilitate Sabri’s struggle against the miscarriage of justice, and not allow the violators of Sabri’s rights to escape justice.

Poor access to justice

Migrant workers in Malaysia currently face laws, policies and practices of the Malaysian government that deny them access to justice and redress, given that the avenues that must be used are in Malaysia only.

For example, in a claim of unpaid wages and violation of other workers’ rights, the law states that a claim or complaint needs to be filed in a Malaysian human resource department, who will thereafter set a date for a further inquiry or investigation, which the migrant worker needs to physically attend. Failure to attend will result in the case or complaint or claim being dropped.

Likewise, for wrongful dismissal cases, which have to be filed at the Malaysian Industrial Relations Department. In terms of court cases, they all need to be filed and proceeded in Malaysia – as only the Malaysian courts have jurisdiction to hear and determine the cases of rights violations that happened in Malaysia.

Courts and avenues for redress in the country of origin simply do not have the jurisdiction to hear and decide on such cases of workers’ rights or human rights violations.

Sadly, for the migrant worker, once his or her employment ends, the current law, policy and practice of the Immigration Department is to get the migrant worker to leave Malaysia, if not he or she will be forcibly repatriated or deported.

Whether the migrant worker has an outstanding claim or case against employer, police or others is not taken into consideration by the immigration authorities or the Malaysian government.

No repatriation until quest for justice over

There have been proposals before from many quarters, that the Immigration Department should not repatriate migrant workers until after they have obtained a certificate from the human resources department confirming that there are no pending claims of worker rights violations, and a certificate from the police confirming that there are no cases pending that require the presence of the migrant worker – but to date, these suggestions have not been taken up by Malaysia.

Thus, this opens the door for more human rights or workers’ rights violations against migrant workers by employers and others, who know that it is almost impossible for migrant workers to claim or enforce their rights after they leave Malaysia.

The current law or policy and practice sadly tends to encourage human rights violations against migrant workers.

Sabri’s case highlights this issue, as we saw, the Malaysian Immigration Department tried to ‘force’ Sabri to leave, despite the human rights violations having already been highlighted and publicised.

All three special passes issued to Sabri to date were to make arrangement to leave Malaysia, not for the purpose of pursuing justice even after cases have been filed or commenced and a petition or complaint filed with Suhakam.

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Recent events also make us concerned about Indonesia, as it seems that nation, from where the migrant whose rights were violated hails, seems not even concerned and supportive to ensure its citizen’s rights are protected (and if violated, the migrant could have fought for his rights against perpetrators to get justice).

When a migrant worker loses even support from his country of origin, it is a sad state of affairs. Indonesia may have ‘blacklisted’ Sabri’s past employer, but they must do more and not shy away when the alleged violators are Malaysian government officers.

A poor migrant worker alone, without even his own country’s support, facing all kinds of threats and external pressure simply may remain a victim with no real option for redress or for getting justice against the human rights violators.

[The situation is] worse when the perpetrators are the Malaysian government, its ministries or departments or institutions and its public officers. Malaysia, if committed to human rights, must have acted [to protect] the ability of migrants, whose rights are violated, to pursue justice in Malaysia.

Uphold human rights

Malaysia must change its laws, policies and practices to ensure that migrant workers that help the Malaysian economy must also have the means and capacity to pursue justice through the Malaysian courts and other avenues of justice in Malaysia.

Special or other passes that allow migrant workers to stay and work legally until their quest is over must be created and made available if Malaysia truly [upholds] human rights.

Malaysia must avoid being seen as a country promoting the trafficking of human persons, by making actions against perpetrators of rights violations most difficult, especially for poor migrant workers.

Don’t tolerate rights violations

Likewise, countries of origin like Indonesia where migrant workers come from, must actively protect the rights of their migrant workers who contribute much to their country.

This must include strengthening the capacity and ability of their citizens, as migrant workers, to fight for justice in Malaysia when migrant’s rights are violated. To not do so means giving the impression that these countries of origin are simply not bothered if the rights of their citizen migrant workers are violated in Malaysia.

We call on Malaysia and Indonesia to allow and assist Sabri, whose rights were violated, and other migrant workers so that they will be able to pursue justice in Malaysia.

We call on Sabri Umar to remain strong and committed in his pursuit of justice against all human rights violators in Malaysia, despite the numerous threats he has been facing. His case and eventual victories will certainly benefit all migrant workers in Malaysia.

This statement was issued by Charles Hector, Apolinar Z Tolentino Jr and Khamid Istakhori

Endorsed by:

  1. Aliran
  2. Building and Wood Workers International (BWI) Asia Pacific Region
  3. Malaysians Against Death Penalty and Torture (Madpet)
  4. Sabah Timber Industry Employees Union
  5. Workers Hub For Change (WH4C)
  6. Serikat Buruh Kerakyatan (Serbuk) Indonesia
  7. Badan Eksekutif Mahasiswa Sekolah Tinggi Hukum Indonesia Jentera (BEM STHI Jentera)
  8. Black Women for Wages for Housework
  9. Federasi Kebangkitan Buruh Indonesia
  10. Federasi Kehutanan, Industri Umum, Perkayuan, Pertanian dan Perkebunan, Indonesia
  11. Federasi Gabungan Solidaritas Perjuangan Buruh, Indonesia
  12. Federasi Serikat Buruh Merdeka, Indonesia
  13. Federasi Serikat Pekerja Bandara Indonesia (Indonesian Airport Workers Federation)
  14. Federasi Serikat Buruh Persatuan Indonesia
  15. Haiti Action Committee
  16. International Women’s Rights Action Watch Asia Pacific
  17. Kanal Muda (students movement from Yogyakarta), Indonesia
  18. Koalisi Buruh Migran Berdaulat
  19. Labour Law Reform Coalition, Malaysia
  20. Lembaga Bantuan Hukum Semarang, Indonesia
  21. North-South Initiative
  22. Pacific Womens Indigenous Network (Pacific Win), New Zealand
  23. Payday Men’s Network, UK)
  24. Persatuan Sahabat Wanita Selangor
  25. Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur
  26. Sabah Plantation Industry Employees Union
  27. Serikat Pekerja PT PLN (Persero) Indonesia
  28. Teoh Beng Hock Trust for Democracy, Malaysia
  29. Union of Forestry Department’s Employees Sarawak, Malaysia
  30. William Gomes podcast, UK
  31. Women of Color/Global Women’s Strike, US/UK
  32. Yayasan Lembaga Bantuan Hukum Indonesia
  33. International Domestic Workers Federation
  34. Persatuan Pekerja Rumah Tangga Indonesia Migran (Pertimig)
  35. Association of Nationalist Overseas Filipino Workers in Malaysia (Ammpo)
  36. Domestic Caretaker Union, Taiwan
  37. Forum Komunikasi Buruh Bersatu D I Yogyakarta-Jawa Tengah
  38. Federasi Serikat Pekerja Mandiri regional DI Yogyakarta-Jawa Tengah
AGENDA RAKYAT - Lima perkara utama
  1. Tegakkan maruah serta kualiti kehidupan rakyat
  2. Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
  3. Raikan kerencaman dan keterangkuman
  4. Selamatkan demokrasi dan angkatkan keluhuran undang-undang
  5. Lawan rasuah dan kronisme
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The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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