We, the 28 undersigned groups, the trade unions and other organisations, call on Prime Minister Anwar Ibrahim and the Malaysian government to ensure that justice is done in the case of Sabri Umar, the documented Indonesian migrant worker who was wrongly charged and convicted for being in Malaysia illegally.
On 23 June 2022, a year ago, documented Indonesian migrant worker Sabri was wrongfully and illegally whipped five times at Malaysia’s Tawau Prison.
Sabri, who had been working legally in Malaysia for about seven years, suffered a gross miscarriage of justice when he was wrongly charged, convicted and sentenced to 11 months in prison and five strokes of the cane for being illegally in Malaysia on 19 April 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 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 was even charged for being illegally in Malaysia.
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The Immigration Department keeps records of entry and issues work permits – but then, it is a mystery why the Immigration Department submitted a document stating that there were 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 caused Sabri to be arrested on 5 April 2022. It is disappointing that the employer, who ought to be aware that Sabri was indeed a legal migrant worker in Malaysia, failed to inform the courts and the 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.
Union, civil society highlighted injustice
It was 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 a joint statement, amongst others, by 46 groups on 19 July 2022 entitled “Sabri, migrant worker wrongfully whipped before appeal heard”. The statement was reported by the media.
On 22 July 2022, the High Court called up the case for revision, and Sabri was finally acquitted.
Upon release, Sabri had to get a special pass to remain in Malaysia to pursue justice. Alas, the Immigration Department only gave him a two-week pass, not the usual one-month pass, and for the reason – to allow Sabri to make arrangements 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 is 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, has now returned to Indonesia, hopefully temporarily. He was also in fear of being arrested again, imprisoned and whipped again.
Petition to Suhakam
On 10 August 2022, 47 parties including Sabri filed a petition or complaint to Suhakam urging for a public inquiry. But sadly, Suhakam came back and said that they would not inquire into any complaint relating to any allegation of infringement of human rights which:
- is the subject matter of any proceedings pending in any court, including any appeals; or
- 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 into an enforced disappearance matter.
We hope Suhakam reconsiders and inquires into this matter.
The matter was also brought to Parliament and the Malaysian parliamentary Special Select Committee on Fundamental Liberties and Constitutional Rights on 16 August 2022. 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 of justice is not impeded by deportation and other means”.
Sadly, Parliament too failed to do anything till now, and we hope this new Parliament will act.
Home minister yet to decide
The home minister has not yet responded to Sabri’s two appeals against the decisions of the Immigration Department.
What good is a right and a clear procedure in law, if the minister simply does not respond to appeals. Without the minister’s decision on the appeals, Sabri cannot use his right to take the matter up for a judicial review in the High Court, if he is still dissatisfied with the minister’s decision.
The failure of the state, Parliament and even the national human rights institution to do what is needed to ensure justice in Sabri’s case is appalling. What use are laws that provide procedures for victims seeking justice if the minister just ignores appeals made in accordance with the law.
Will Anwar do what is needed?
Malaysia has a new prime minister since November 2022, and we call on the prime minister and the government of Malaysia to do what is needed to ensure that justice is done in Sabri’s case.
The world is watching to see if Malaysia is also against the violation of rights of Sabri and other migrant workers, who have contributed much to the economy of Malaysia.
A government committed to human rights and justice would ensure that all migrant workers whose rights are violated will find redress in Malaysia. The avenues available to these victims when their rights are violated in Malaysia are in Malaysia – they 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 the countries where the migrant workers come from.
Malaysia’s failure to ensure justice is done in cases involving rights violations of migrant workers and foreign nationals in Malaysia will inadvertently encourage exploitation and rights violations or even trafficking in Malaysia. The perpetrators will be emboldened to violate other migrants in the future, knowing that they will get off scot-free.
Royal commission needed
We call on Malaysia to set up a royal commission of inquiry to look into the case of Sabri and other rights violations that may have befallen many other migrant workers.
Policy change needed
The current position of Malaysia seems to be the speedy repatriation of migrant workers when their employment in Malaysia [is terminated], irrespective of the fact that these migrant workers may have outstanding claims of workers’ 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 human resources minister determines that there are no outstanding or pending employment-related claims against the employers. The home minister must also determine that there are no outstanding claims against others, or that the migrant worker is not a needed witness in any other case. The rights of migrant workers must also be protected by Malaysia – including the right to seek justice, including compensation.
Sabri a victim
Noting that in Sabri’s case, his claims arise also because of the failings of public officers whose actions or omissions or negligence caused him to suffer a loss of liberty from 5 April 2022 until 22 July 2022 and being whipped five times, it is only right that Prime Minister Anwar Ibrahim and Malaysia not only look into this matter, but also consider apologising and compensating Sabri.
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, a migrant worker from Indonesia, Malaysia’s neighbour 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 of the UN Human Rights Council for the 2022-24 term, must set an example of a member state that actively promotes and defends the human rights of all, even migrant workers and foreign nationals in Malaysia.
Charles Hector, and Apolinar Z Tolentino Jr issued this statement on behalf of the following 28 groups:
- Malaysians Against Death Penalty and Torture (Madpet)
- Building and Wood Workers International Asia Pacific
- Workers Hub For Change (WH4C)
- Banglar Manabadhikar Suraksha Mancha (Masum), India
- Black Women for Wages for Housework
- Cambodian League for the Promotion and Defense of Human Rights
- Global Women’s Strike
- Haiti Action Committee
- International Women’s Rights Action Watch Asia Pacific (IWRAW AP)
- Japan Innocence and Death Penalty Information Center
- Labour Law Reform Coalition, MalaysiaLegal Action for Women, UK
- Legal Action for Women, UK
- Migrant Care, Indonesia
- Network of Action For Migrants in Malaysia (NAMM)
- North South Initiative, Malaysia
- Payday Men’s Network (UK-US)
- Persatuan Komuniti Prihatin Selangor dan Kuala Lumpur
- Persatuan Sahabat Wanita Selangor (PSWS), Malaysia
- Programme Against Custodial Torture & Impunity (Pacti), India
- Sabah Plantation Industry Employees Union (SPIEU)
- Sabah Timber Industry Employees Union to Union (STIEU)
- Safety and Rights Society (SRS), Bangladesh
- Saya Anak Bangsa Malaysia (SABM)
- Tenaganita, Malaysia
- Teoh Beng Hock Trust for Democracy
- Union of Forestry Employees Sarawak (UFES)
- Women of Color – Global Women’s Strike, US/UK