We, the 45 undersigned groups and organisations, are shocked that Indonesian migrant worker Sabri Umar was whipped at the Tawau Prison on 23 June despite there being an appeal at the High Court regarding his conviction and sentence by the Session Court, which has yet to be heard.
The law in Malaysia clearly states that the sentence of whipping shall not be carried out until the appeal is heard and determined.
Convicted cannot be whipped until appeal heard and decided
Section 311 of the Malaysian Criminal Procedure Code states:
Except in the case of a sentence of whipping (the execution of which shall be stayed pending appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay execution on any judgment, order, conviction or sentence pending appeal, on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the Court below or to the Judge may seem reasonable.
For any other sentence, other than whipping, the convicted is required to file an application for stay of execution pending appeal.
Sabri ‘wrongly’ convicted, then wrongly whipped on 23 June before appeal heard
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On 19 April the Session Court convicted Sabri for committing the offence pursuant to Section 6(1)(c) of the Immigration Act 1959/63 and sentenced him to 11 months’ imprisonment and five strokes of the whip. He was unrepresented at that time.
Section 6(1)(c) of the Immigration Act (1) states:
No person other than a citizen shall enter Malaysia unless- (a)…(c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or..
As such, a documented migrant worker like Sabri Umar can never reasonably be found guilty of this Section 6(1)(c) of the Immigration Act offence, for he was a documented migrant worker and his entry and presence in Malaysia were in accordance with the law.
A perusal of court documents revealed that the immigration documents tendered to the court were false, as it stated that there were no records of entry and exit for Sabri. It failed to disclose the truth – that Sabri was indeed a documented migrant worker for the past about seven years, and that he was in the employ of one Fu Yee Corporation Sdn Bhd in Tawau, Sabah, Malaysia. His work permit also had been renewed by the Immigration Department in 2022 and should reasonably be valid for a year.
In fact, the prosecution had also failed in their duty to properly investigate before charging Sabri. An investigation would have revealed that Sabri was a documented worker who cannot be charged under Section 6(1)(c) of the Immigration Act. It must be pointed out that Sabri was arrested at his workplace on 5 April. There also seem to be no charges against the employer, Fu Yee Corporation, for harboring or employing an undocumented worker.
The appeal to the High Court was filed on or about 22 April, and this appeal has not yet been heard and decided upon. Sabri was wrongly whipped on 23 June.
Migrant workers and employers who violate worker rights
For a migrant worker, even after his employment agreement comes to an end, the employer has the duty or responsibility to ensure [the worker’s] safe return back to the migrant’s country of origin. Hence, even if the immigration work permit or pass that allows for legal presence ends, an employer has the duty to keep the migrant worker safe, including making the needed application for pass or permits to allow [the worker’s] legal presence in Malaysia until the employer can arrange the [worker’s] return to [his or her] home country.
Some ‘bad’ employers do sometimes wrongfully terminate and quickly, even forcibly, send migrant workers back to their countries of origin. This denies migrant workers access to avenues of justice to pursue claims of wrongful termination and reinstatement, claims for wages or money still owing by the employers to workers and other legal claims.
Unfortunately, in Malaysia many of the avenues of justice including labour departments, industrial relations departments and even the courts require the physical attendance of the complainant or claimant, failing which they assume that the migrant worker is no longer interested and the process to ensure justice ends.
Some other worse employers may just cause the cancellation of permits, and then may even cause or facilitate migrants to be arrested, charged and convicted for being undocumented, and then to be deported.
In the case of Sabri Umar, who is also a union member of the Sabah Timber Industry Employees Union (STIEU), who claims that he was wrongfully terminated by his employer on 4 April and then arrested by police on 5 April and detained until charged and convicted on 19 April.
However, Sabri Umar did manage to file a wrongful dismissal claim in the Industrial Relations Department on 19 April seeking reinstatement; this process is ongoing.
The employer, who knew that Sabri was not an undocumented worker, failed to bring to the attention of the police, prosecutors and the court this material fact, which reasonably would have meant Sabri would not be charged, let alone be convicted for being illegally in Malaysia under Section 6(1)(c) Immigration Act. Fu Yee Corporation should be doing the needed to end the current serious miscarriage of justice.
Whipping corporal punishment must be abolished
Sabri’s case has come to light, but there is concern about whether others have been whipped before their appeal is heard and disposed of. Whipping is corporal punishment that inflicts serious physical and psychological injury, where victims are known to pass out even before the full sentence is carried out.
The Immigration Act 1959/63 was amended as of August 2002, and the sentence of whipping was introduced for use against undocumented migrants. According to Prisons Department records, 47,914 foreigners were found to have violated the Immigration Act from 2002 to 2008. Of these, 34,923 were whipped.
The Malaysian Bar is unequivocally and unreservedly against all forms of corporal punishment, including caning or whipping, in accordance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international human rights norms.
The Malaysian national human rights commission Suhakam has also long recommended that the government of Malaysia prohibit the use of corporal punishment (caning and whipping).
Therefore, we:
- Call for Malaysia to immediately apologise and do what is needed to ensure justice is done for the wrongful or illegal whipping of Sabri Umar before his criminal appeal(s) is heard and determined, and that action be taken against those responsible
- Call for the immediate abolition of whipping, a form of corporal punishment in Malaysia
- Call on Malaysia to immediately ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Charles Hector and Apolinar Z Tolentino, Jr issued this statement on behalf of the 45 organisations listed below:
- Aliran
- Malaysians Against Death Penalty and Torture (Madpet)
- Building and Wood Workers International (BWI) Asia Pacific Region
- Workers Hub For Change (WH4C)
- Asosasyon ng mga Makabayang Manggagawang Pilipino Overseas (AMMPO) in Malaysia
- Black Women for Wages for Housework
- Citizens Against Enforced Disappearances, Caged
- Civil Society Action Committee
- Domestic Caretaker Union (DCU), Taoyuan City, Taiwan
- Federasi Serbuk, Indonesia
- Federasi Serikat Buruh Kehutanan Perkayuan dan Pertanian Serikat Buruh Sejahtera Indonesia (Hukatan)
- Federation of Indonesia Workers’ Awakening (FKUI)
- Haiti Action Committee
- Hong Kong Federation of Asian Domestic Workers Unions, Hong Kong
- International Domestic Workers Federation (IDWF)
- International Women’s Rights Action Watch Asia Pacific, Malaysia
- Japan Innocence and Death Penalty Information Center (jiadep.org)
- Koalisi Buruh Migran Berdaulat, Indonesia
- Labour Law Reform Coalition (LRRC), Malaysia
- Malay Forest Officers Union (MFOU), Malaysia
- Malaysian Trade Union Congress Sarawak (MTUC – Sarawak), Malaysia
- Migrant Care, Indonesia
- Migrant Forum in Asia (MFA)
- National Union of Transport Equipment & Allied Industries Workers, Malaysia
- Network of Action For Migrants in Malaysia (NAMM)
- North South Initiative(NSI)
- Persatuan Pekerja Rumah Tangga Indonesia Migran (Pertimig), Malaysia
- Persatuan Sahabat Wanita Selangor (PSWS), Malaysia
- Sabah Plantation Industry Employees Union (SPIEU)
- Sabah Timber Industry Employees Union (STIEU)
- Sarawak Bank Employees Union (SBEU), Malaysia
- Sarawak Dayak Iban Association
- Setem Catalunya, Spain
- Singapore Anti-Death Penalty Campaign
- Scalabrini International Migration Network (SIMN)
- Sedane Labour Resources Centre, Indonesia
- South Africa Domestic Service and Allied Workers Union (Sadsawu), South Africa
- Teoh Beng Hock Trust for Democracy
- The Cross-Regional Center for Refugees and Migrants, Lebanon
- The William Gomes Podcast, United Kingdom
- Timber Employees Union of Peninsular Malaysia (TEUPM)
- Timber Industry Employee Union Sarawak (TIEUS)
- United Domestic Workers of the Philippines, Philippines
- Union of Forestry Employees Sarawak (UFES), Malaysia
- Women of Color/Global Women’s Strike
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
