SUHAKAM must Reconsider, just like in 2018, the decision to stop investigation and not hold Public Inquiry on the case of Sabri, the wrongfully detained, convicted, sentenced and whipped documented migrant worker

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 on Sabri Umar’s, the Indonesian migrant worker’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, 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 practice by the Malaysian authorities and personnel in dealing with cases involving migrant workers in Malaysia.

SUHAKAM Can Bravely Investigate As Cases Filed Are Not On Subject Matters Complained About

SUHAKAM’s justification for its decision is based on Section 12(2) of The Human Rights Commission of Malaysia Act 1999, which states that ‘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 said court case are DIFFERENT from the matters before SUHAKAM. SUHAKAM must proceed with investigation and hold the Public Inquiry.

In January 2018, the Human Rights Commission of Malaysia (SUHAKAM) had ceased the inquiry into the enforced disappearance of Pastor 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”. (Star, 26/8/2018).

Likewise, in Sabri’s case, the subject matter of the Complaint/Petition by 47 parties to SUHAKAM dated 10/8/2022, where the subject matter of the petition included, amongst others,

• Wrongful detention from 5/4/2022 to 19/4/2022, 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 (5 strokes), when the law prohibits whipping when an appeal is pending, and an appeal was pending in Sabri’s case
• Wrongful Imprisonment; and
• Torture whilst in police custody

The High Court case (No: 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 seems 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 issuance 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 2 weeks, not the usual one month. Sabri, according to law, had appealed to the Minister against the Immigration’s decisions, but to date, the Minister to date, after months, has yet to communicate his appeal decision.

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 2^nd case that SUHAKAM used as justification, is the case about a claim for reinstatement by reason of 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 – ‘‘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 be investigated and conduct a Public Inquiry on human rights violations.

Therefore, we call on SUHAKAM to reconsider their decision communicated vide letter dated 28/10/2022, and act as SUHAKAM did in 2018, to continue to investigate Sabri’s case, and even do 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.

No Apology – And Sabri Under Threats to Abandon Claims Against Government

To date, Malaysia and/or the various relevant officers or departments have yet to even apologize to Sabri, or even offer any compensation for the miscarriage of justice suffered by Sabri.

Sabri bin Umar, sadly have also been under much pressure from various quarters to not lodge complaints or pursue claims against the Malaysian government, its Ministries/Departments or its officers.

Indonesian Government for justice for Sabri or not?

Sadly, even certain officer/s in the Indonesian Consulate, according to Sabri, also did inadvertently exert such pressures, possibly in their personal capacity, and not as representatives of the Indonesian government.

On 22/9/2022, when Sabri went with the Consulate Officers to apply for a new Special Pass, the Immigration said that they 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 (STIEU) in time, and when the Indonesian Consulate was notified, she speedily instructed the said officer/s to return with Sabri to the Consulate.

However, without prior information from the Indonesian Consulate to the Union and/or the lawyer, Sabri left Malaysia on 23/9/2022 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 did send a letter seeking clarification as to why this had happened, but to date, there has yet to be a response from the Indonesian Ambassador in Kuala Lumpur, or the Indonesian Consulate in Tawau.

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

When the Indonesian government/lawyer failed, the Union stepped in for Sabri

After Sabri was arrested on 5/4/2022, wrongfully convicted and sentenced, Sabri’s Union, Sabah Timber Industry Employees’ Union (STIEU) verily believed that the Indonesian Consulate and their lawyer would do the needful fast to get Sabri acquitted and released from prison.

It was only after mid-June, when Sabri still continued to languish in prison and was illegally whipped, did STIEU, with the 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(HRDS) and lawyers was sought to assist. The first, of many Joint Statements, was issued by 46 Groups dated 19/7/2022 entitled Sabri, 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 what 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 the then Sabri’s lawyer to file the needed application/documents, and Sabri was set free on Revision on 22/7/2022.

After release, finding the then lawyer wanting, STIEU and others came in to assist Sabri in his quest for justice, including identifying new lawyers to file and argue his case/s in the Sabah Courts, the filing of complaint/petition to SUHAKAM, lodging needed complaints and seeking needed clarifications from relevant authorities. We are thankful for the lawyers that assisted including other lawyers of the Sabah Law Society and the Malaysian Bar.

Sabri left Malaysia but 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 with social visit pass expires, and thereafter re-enter the country. Each trip back to his hometown and return to Malaysia will cost him a lot of time and monies, 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-related cases from STIEU and the current legal team, The motives are unclear, but there ais the possibility that it may be 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, and we hope that Malaysia and the Indonesian governments 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 for Justice for Migrant Workers in Malaysia – Bad law/policy/practice

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

For example, in a claim of unpaid wages and violation of other worker rights, the law states that claim/complaint need to be filed in a Malaysian Human Resource Department, who will thereafter set a date for further inquiry/investigation which the migrant worker needs to physically attend, and a failure to attend will result in the case/complaint/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 are 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 on worker rights or human rights violation.

Sadly, for the migrant worker, once his employment comes to an end, the current law, policy and practice of the Immigration Department is to get the migrant worker to leave Malaysia, if not he/she will be forcibly repatriated/deported. The fact of 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 Migrant Worker Ends Quest For Justice

There have been proposals before from many quarters, that the Immigration does not repatriated migrant workers until after they have obtained a Certificate from the Human Resource 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 requires the presence of the migrant worker but to date, these suggestions have not been taken up by Malaysia.

Thus, this open the door to more human rights or worker 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/law/policy and practice sadly tend to encourage human rights violations against migrant workers.

Sabri’s case highlights this issue, as we saw the Malaysian Immigration Department try to ‘force’ Sabri to leave, despite the fact that the human rights violations have already been highlighted and publicized. All 3 Special passes issued for Sabri to date was to make arrangement to leave Malaysia, not for the purpose of pursuing justice even after cases have been filed/commenced and a petition/complaint had been filed at SUHAKAM.

Recent events also make us concerned about Indonesia, as it seems that the nation State from where the rights violated migrant hails from, seems not even concerned and supportive to ensure their citizen’s rights are protected, and if violated, the migrant can fight 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 getting justice against the human rights violators. Worse still, when the said perpetrators are the Malaysian government, its Ministries/Departments/Institutions and its public officers. Malaysia, if committed to human rights, must have acted the ability of migrants, whose rights are violated, to pursue justice in Malaysia.

Change laws and practices to demonstrate Malaysia truly respects 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 is truly for human rights. Malaysia must avoid the perception of being seen as a country promoting trafficking of human persons, by making actions against perpetrators of rights most difficult especially for the poor migrant worker.

Countries of Origin Must Not Tolerate Rights Violations of Its Nationals in Malaysia

Likewise, countries of origin like Indonesia where migrant workers come from must actively protect the rights of their migrant worker 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 give 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 rights violated Sabri, and other migrant workers, to be able to pursue justice in Malaysia.

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