We, the 19 undersigned groups, are pleased that on 22 July, the Tawau High Court judge, Dr Lim Hock Leng, after revision, acquitted documented migrant worker Sabri Umar and ordered him released from prison immediately.
Sabri was released the same day.
On 19 April Sabri was wrongly convicted for being illegally in Malaysia – for an offence under Section 6(1)(c) of the Immigration Act 1959/63 – by the Tawau Sessions Court when in fact he was a documented migrant worker with a valid work permit or pass at the material time.
This was a fact evident from, among others, Sabri’s Indonesian passport, which was taken by the police when he was arrested on 5 April.
The court acknowledged the fact that Sabri was whipped, which was an act against Malaysian law, which prohibits the carrying out of the sentence of whipping of a convicted person until his or her appeal filed is heard and determined. This was also confirmed by the Prisons Department.
The highlighting of Sabri’s miscarriage of justice, through a joint media statement by 45 groups issued on 19 July entitled “Sabri – migrant worker wrongfully whipped before appeal heard” and various letters, including from Sabri’s union, the Sabah Timber Industry Employees Union, got the High Court’s attention, which led to the calling up of Sabri’s case for revision on 22 July.
Worry of deportation
We are worried that Sabri may be deported or sent out of Malaysia. This may be conceived as an attempt to ‘cover up’ the possible wrongful actions of the police, Immigration Department, Prisons Department, prosecution, the employer, the courts and the government that caused an innocent man to be wrongfully charged, convicted and sentenced to 11 months’ imprisonment and five strokes of the whip.
Sending Sabri out of Malaysia may impede his quest for justice, as all legal actions reasonably will have to be commenced in Malaysia and Sabri’s absence from the country may be detrimental to his ability to enforce his rights.
As it is, Sabri has already commenced a claim for reinstatement due to wrongful dismissal at the Industrial Relations Department, which is progressing and will be referred to the Industrial Court.
Sabri wants to work and live legally in Malaysia, and his wife is also a migrant worker in the country.
Sabri’s claims against Malaysia for wrongful conviction and whipping
Initial investigations have shown that the Malaysian government, the police, the Immigration Department, prosecutors, the Prisons Department and maybe even the employer may be liable for the grave injustice that has befallen Sabri.
Sabri had to spend almost 94 days in prison and 14 days in detention. He was wrongly whipped five times on 23 June, despite there being an appeal that was filed on 22 April and which had not yet been heard.
Sabri may also have a claim against the Indonesian government and his lawyer.
The Prisons Department, in their letter dated 18 July, stated that the whipping was only carried out after they received a letter from the Sessions Court saying that there were no appeals from any party. This was false, as there was an appeal yet to be heard.
The Immigration Department also furnished false records about Sabri, which also led to the court being misled into believing that Sabri was an undocumented migrant who had entered and remained illegally in Malaysia.
Besides the Malaysian government and its various departments, Sabri may also have cause of action against the Indonesian government and the lawyer.
Sending migrants out of Malaysia impedes ability to maintain claims of rights violation
The speedy sending of migrants out of Malaysia, even when they have valid claims against their employer and/or others, which requires the physical presence of the complainant or claimant at the law enforcement departments and/or courts, has denied many a migrant from even being able to claim their rights using the available legal avenues in Malaysia.
Calls for confirmation of whether migrant workers have existing rights or claims or ongoing cases before sending them out of Malaysia have yet to receive a positive response.
Therefore, we call on:
- on Malaysia and/or Indonesia not to cause Sabri to be sent out of Malaysia before he can exercise all his rights or claims in Malaysian avenues of justice, including his present claim for reinstatement due to wrongful dismissal at the Industrial Department or Industrial Court
- all parties to not threaten, deceive and/or pressure Sabri from exercising his right to claim for damages, compensation and justice from relevant parties that have unjustly deprived Sabri his freedoms and rights and caused him sufferings
- the government of Malaysia to ensure that Sabri can continue to work and stay legally in Malaysia until all his claims for justice are determined and satisfied.
Charles Hector, Apolinar Z Tolentino Jr and Adrian Pereira issued this statement on behalf of the 19 organisations listed below:
- Malaysians Against Death Penalty and Torture (Madpet)
- Building and Wood Workers International (BWI) Asia Pacific Region
- Workers Hub For Change (WH4C)
- North-South Initiative
- Black Women for Wages for Housework, US
- Center for Alliance of Labor and Human Rights (Central), Cambodia
- Centre for Orang Asli Concerns (COAC), Malaysia
- Club Employees Union Peninsular Malaysia
- Haiti Action Committee
- Labour Law Reform Coalition, Malaysia
- Network of Action For Migrants in Malaysia (NAMM)
- Sabah Plantation Industry Employees Union, Malaysia
- Sabah Timber Industry Employees Union (STIEU)
- Union of Forestry Employees Sarawak (UFES)
- Teoh Beng Hock Trust for Democracy
- The William Gomes Podcast, UK
- Timber Employees Union Peninsular Malaysia
- Women of Color/Global Women’s Strike, US and UK