Thursday, May 26, 2022

Media Statement (8 Gps) - SUHAKAM ‘dead’ with no HR Commissioners for 1 Month is unacceptable

 

Media Statement – 27/5/2022

SUHAKAM ‘dead’ with no HR Commissioners for 1 Month is unacceptable

We, the 8 undersigned organizations and groups are perturbed that the Malaysian Human Rights Commission (SUHAKAM) has ceased to function when the term of office of the previous Chairman and SUHAKAM Commissioners came to an end on 27/4/2022, and to date no new Chairpersons and HR Commissioners have been appointed.

Without any HR Commissioners, SUHAKAM cannot play the vital role it has been playing in Malaysia. They can make no SUHAKAM statements, recommendations to the government or even hold public inquiries. Human Rights suffers.

A media report on 11/5/2022, stated that the ‘…Human Rights Commission of Malaysia (Suhakam) is conducting an investigation into alleged human rights violations against junior doctors at public hospitals in Malaysia…’ raises a fundamental question, as to how SUHAKAM, with NO Commissioners at present, can even make such a statement. SUHAKAM employees reasonably cannot act on their own if and when there are no Commissioners. (FMT, 11/5/2022).

SUHAKAM is a statutory body created by reason of the Human Rights Commission Of Malaysia Act 1999, and the Commission is made up of the appointed HR Commissioners, appointed for a 3-year term. When there are NO Commissioners, as had been the case for the past month, SUHAKAM ceases to function, and will not be able to do anything including issuing  statements, appointing and also providing directions to SUHAKAM’s staff/employees.

Noting the important role that SUHAKAM has been playing in Malaysia, in terms of the promotion and defense of human rights, it is an embarrassment for SUHAKAM to find itself in a comatose stage by reason of a failure of government to ensure that SUHAKAM always have Commissioners.

It must be pointed out that the process of identifying and selecting new SUHAKAM Commissioners began in October 2021, and so the failure of the appointment of Chairperson and new Commissioners on or before the end of the term of previous Commissioners on 27/4/2022.

The choice of the future Chairperson and SUHAKAM Commissioners is crucial, for that determines the future functioning and effectiveness of the National Human Rights Institution.

In the past, from the birth of SUHAKAM, its effectiveness was not so evident but it changed after Tan Sri Hasmy Agam (2010-2016), and later Tan Sri Dato' Razali bin Ismail(2016-2019)  were appointed as Chairpersons of SUHAKAM. The strong effective SUHAKAM continued on until April 2022.

The number of Commissioners who will act without fear or favour for human rights in SUHAKAM is crucial, for all decisions of SUHAKAM requires consensus failing which the decision by a two-thirds majority of the members present at meetings shall be required. If the wrong kinds of Commissioners are appointed, we may end up with a less vocal, possibly ‘pro-government’ SUHAKAM who may be disinclined to speak up when required, or even hold public inquiries, more so when the alleged perpetrators may be State or State officers.

If the wrong Chairperson and Commissioners are chosen, there may be no more public inquiries on matters of human rights, like the Public Inquiry Into The Disapperances Of Joshua Hilmy And Ruth Sitepu, Public Inquiry Into The Disappearance of Pastor Raymond Koh And Amri Che Mat, Public inquiry into the incidents during and after the public assembly of 28 april 2012, Public Inquiry into the Infringement of Human Rights Including the Use of Excessive Force Prior to and During the Assembly on 9 July 2011, Public Inquiry Into The Arrest And Detention Of Five Lawyers Of The Kuala Lumpur Legal Aid Centre on 7 May 2009, Public Inquiry Into The Allegation Of Excessive Use Of Force By Law Enforment Personnel During The Incident Of 27th May 2008 At Persiaran Bandar Mahkota Cheras 1, Bandar Mahkota Cherasil and inquiries into death in custody.  

The days when the Human Rights Commission of Malaysia (SUHAKAM) was effectively an independent organisation which investigates complaints for the violation of human rights may come to an end.

We hope that the members of the Commission appointed by the Yang di-Pertuan Agong on the recommendation of the Prime Minister are done without any more delay.

Charles Hector

For and on behalf of the 8 groups/organizations listed below

 

ALIRAN

MADPET(Malaysians Against Death Penalty and Torture)

Greenpeace Malaysia

International Women's Rights Action Watch Asia Pacific (IWRAW AP)

NAMM (Network of Action for Migrants in Malaysia)

Saya Anak Bangsa Malaysia (SABM)

Teoh Beng Hock Trust for Democracy

WH4C (Workers Hub For Change)

 

Suhakam left with no commissioners for third time

Mah Weng Kwai says having no commissioners will affect advocacy work and maintaining the good standing of Suhakam.

PETALING JAYA: The Human Rights Commission of Malaysia (Suhakam) does not have any commissioners after their term expired yesterday, similar to what happened twice previously.

Former commissioner Mah Weng Kwai said a selection committee met on Monday and the process would take some time.

“As of today, there are no commissioners and this will affect advocacy work and maintaining the good standing of Suhakam,” he told FMT.

Mah said only the Suhakam management functioned and no policy decisions could be made.

There are nine commissioners who have a three-year term from 2019.

Five, including Mah, a former Court of Appeal judge, served two terms, the maximum allowed under the Suhakam Act.

The other four – Osman Hashim, Noor Aziah Mohd Awal, Madeline Berma and Hishamudin Md Yunus – could be reappointed for another term.

FMT understands that Hishamudin, also a retired Court of Appeal judge, had expressed his wish not to be reappointed.

Mah said that three years ago, it took the government two months to appoint the commissioners.

“It is in the best interest of the public that the commission is up and running at all times as there are always serious challenges on human rights issues like the threat to the independence of the judiciary,” he said.

In 2016, under Najib Razak’s administration, Suhakam was also left without commissioners for almost two months. - FMT, 27/4/2022

 

Five Suhakam commissioners complete two service terms
Published:  Apr 27, 2022 10:22 AM
Updated: 10:25 AM

Five Suhakam members completed their second term at the human rights commission yesterday.

They are Mah Weng Kwai, Jerald Joseph, Nik Salida Suhaila Nik Saleh, Lok Yim Pheng and Godfrey Gregory Joitol.

All five started their tenure as Suhakam commissioners in 2016 during then prime minister Najib Abdul Razak's administration.

Each term lasts three years. Section 5(4) of the Human Rights Commission of Malaysia Act 1999 (Suhakam Act) does not allow a third term.

Four other commissioners completed their first term including Othman Hashim (outgoing chairperson), Madeline Berma, Mohd Hishamuddin Md Yunus and Noor Aziah Mohd Awal.

Putrajaya has yet to announce the list of replacement commissioners.

Suhakam members are appointed by the Yang di-Pertuan Agong on the recommendation of the prime minister in consultation with an appointment committee chaired by the chief secretary of the government.

According to Section 11 of the Suhakam Act, the committee must also consist of the chairperson of Suhakam and three members of civil society who have practical experience in human rights matters, appointed by the prime minister.

In previous cycles, there have been incidents where there will be a gap of several months before a new batch of commissioners is appointed. - Malaysiakini, 27/4/2022

Monday, May 2, 2022

Law says for OSH violation, both company and Directors(Managers, etc) but why are the humans not charged - Joint Statement of 15

 Media Statement – 3/5/2022

Is it the Minister or is it the Public Prosecutor that ‘protects’ Directors and/or humans in companies from being charged when OSH laws are breached and worker/s die?

174 workers killed and 249 disabled in 6,686 workplace accidents in 2021

We, the 15 undersigned groups, trade unions and organization are concerned as to why human persons responsible for worker safety and health are still not being charged in court even when workers are killed or injured despite the fact that the Occupational Safety and Health Act 1994 provides for this. Prosecution for offences under this Act requires the consent of the Public Prosecutor, and as such one wonders whether it is the Public Prosecutor or is it the Minister that is deciding to charge only the company, but not the director, manager, secretary or other like officer of the body corporate even when workers are killed.

It was recently reported that a state-linked company (SLDB Management Sdn Bhd) and a manufacturing firm was found guilty for the offence under Section 15(1) of the Occupational Safety and Health Act 1994, for neglecting safety aspects, which resulted in the deaths of their workers which provides for a fine of up to RM50,000 or a jail term of up to two years, or both, upon conviction. It appears from the media report that no ‘director, manager, secretary or other like officer of the body corporate…’ was charged(Star, 8/4/2022)

After state-linked SLDB Management Sdn Bhd pleaded guilty on Friday (April 8), the company was ordered by the Sessions Court to pay a fine of RM15,000 for the death of Indonesian worker Cahya Abdullah at Ladang Bombong 1, Kampung Bombong in Kota Marudu on May 25 2021. SLDB Management was also ordered to pay RM5,000 by April 14 to Cahya's next of kin.

In the other case, Englen Manufacturing Sdn Bhd after its representative admitted to the charge, was sentenced with a fine of RM20,000 or three months' jail. The company was accused of failing to ensure the safety of its worker Bonnie Roger, who was involved in a fatal accident at its premises on May 15 last year at the Kota KInabalu Industrial Park here.

What is of concern is that no human decision maker or owner of these companies were charged for these offences despite the fact that Section 52 of the Occupational Safety And Health Act 1994 states ‘(1) Where a body corporate contravenes any provision of this Act or any regulation made thereunder, every person who at the time of the commission of the offence is a director, manager, secretary or other like officer of the body corporate shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the body corporate or severally, and every such director, manager, secretary or other like officer of the body corporate shall be deemed to be guilty of the offence.’ Subsection (2) states, (2) A person may be proceeded against and convicted under the provision of subsection (1) whether or not the corporation has been proceeded against or has been convicted under that provision.

It must be pointed out that in a company, all decisions are made by human persons, including ensuring the safety of workers. It is absurd that only the company is charged in court, and not the human decision makers or those responsible. With regards to a company, they can only be fined – it obviously cannot be imprisoned.

Concern arises about this practice of not charging Directors and officers of the company, more so when it is a government linked company (GLC), where Directors may be politically appointed persons is a worry. Directors of companies have a great responsibility not just to the shareholders but also to all workers, and actions or omissions be it intentionally or negligently done, to avoid making workplaces safe to protect workers and their health should no longer be tolerated.

Even in the recent 2 cases in Sabah, we find that the companies immediately admitted guilt, and as such there will also not be any grounds of judgment that can be educational to other employers to ensure that they do not ignore safety and health of workers.

The cases was dealt at the Sessions Court, even when death was a result of the fault of the employer, and this may also lead to non-dissemination and/or reporting of the grounds of judgment in law journals.

We take the view that when a worker dies, or is injured by reason of an employer’s failure to ensure the safety and health of a worker, this matter should be dealt by the High Court, and a higher penalty ought to be imposed on the guilty employer company, and its a director, manager, secretary or other like officer of the body corporate. Black listing of such convicted companies and its directors may also be needed to ensure employer’s place the highest regard to complying with the law concerning occupational health and safety.

Statistics from the Department of Occupational Safety and Health (DOSH) showed that there were 6,686 workplace accidents reported as of December 2021, of which 174 were fatal. Another 249 victims became disabled. This shows that this issue is a very serious issue for the protection of workers.

Prior Written Consent Of The Public Prosecutor – Who decided not to charge Directors,etc?

Section 61 of the Occupational Safety And Health Act 1994 states that ‘Prosecutions in respect of offences committed under this Act or any regulation made thereunder may, with the prior written consent of the Public Prosecutor, be instituted and conducted by an occupational safety and health officer or by an officer specially authorized in writing by the Director General subject to the provisions of the Criminal Procedure Code.

By reason of the written consent requirement, the Public Prosecutor may be the person refusing to give the required consent if and when the Ministry wants to charge certain directors, managers, secretary or other like officer of the body corporate, and so they cannot be charged.

Alternatively, it may the officers of the Ministry, being the ‘…occupational safety and health officer or by an officer specially authorized in writing by the Director General…’ who chooses not to charge any directors, managers, secretary or other like officer of the body corporate.

This matter needs to be clarified, and the reasons for not charging the human persons in these companies need to be investigated. We hope that there is no corruption or abuse of power involved.

The maximum fine from RM50,000 will be increased to RM500,000 by virtue of the Occupational Safety And Health (Amendment) Act 2022, which was gazetted on 16/3/2022, but is not yet put into force by the Minister, being the Human Resource Minister. Why the delay?

As such, the Session Courts imposition of fines of only RM15,000 and RM20,000 in the cases mentioned above where workers died by reason of the companies’ breach of the law, when Parliament had already decided to raise fines is also questionable. True, that the current maximum applicable in this cases was only RM50,000, and justly where the companies admitted guilt, maximum fines should have been imposed since workers died by reason of the companies breach of the law.

The Public Prosecutor and the Minister must explain why  directors, manager, secretary or other like officer of the body corporate are not being charged and jailed more so in cases when the breach of law resulted in injury or death of workers.

Every time that a company is charged for such offences, the persons who are responsible for the acts/omissions that resulted in the violation of the law reasonably must also be charged. It is odd if just the company is charged, and not the human persons responsible.

Charles Hector

Apolinar Z Tolentino Jr.

 

For and on behalf of the following 15 groups/organisations

WH4C (Workers Hub For Change)

Building and Wood Worker's International (BWI) Asia Pacific

Labour Law Reform Coalition(LLRC)

ALIRAN

Persatuan Sahabat Wanita Selangor

Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–Atrahdom, Guatemala

Black Women for Wages for Housework

Clean Clothes Campaign (CCC) SEA Coalition

Haiti Action Committee

MADPET (Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility (Dr R S McCoy)

NAMM (Network of Action for Migrants in Malaysia)

North South Initiative

The William Gomes Podcast, United Kingdom

Women of Color/Global Women’s Strike





Two Sabah firms fined for negligence over workers' death

By MUGUNTAN VANARSabah & Sarawak


Friday, 08 Apr 2022 7:56 PM MYT



KOTA KINABALU: A state-linked company and a manufacturing firm have been fined by the Sessions Court here for neglecting safety aspects, which resulted in the deaths of their workers.

A representative of state-linked SLDB Management Sdn Bhd pleaded guilty on Friday (April 8) and was ordered to pay RM15,000 for the death of Indonesian worker Cahya Abdullah at Ladang Bombong 1, Kampung Bombong in Kota Marudu on May 25 last year.

The offence under Section 15(1) of the Occupational Safety and Health Act 1994 provides for a fine of up to RM50,000 or a jail term of up to two years, or both, upon conviction.

Judge Elsie Primus also ordered SLDB Management to pay RM5,000 by April 14 to Cahya's next of kin.

Cahya died after falling off a trailer mounted on a tractor which was deemed unsuitable for carrying workers.

In another case, judge Noor Hafizah Mohd Salim imposed a fine of RM20,000 or three months' jail against Englen Manufacturing Sdn Bhd after its representative admitted to the charge.

The company was accused of failing to ensure the safety of its worker Bonnie Roger, who was involved in a fatal accident at its premises on May 15 last year at the Kota KInabalu Industrial Park here.
 
According to the charge sheet, Bonnie's death resulted from unsafe work procedure involving a welding machine. - Star, 8/4/2022


Work towards zero workplace accidents, urges NIOSH chairman

By RAGANANTHINI VETHASALAM Nation


Thursday, 28 Apr 2022 3:46 PM MYT



PETALING JAYA: There should be zero accidents at workplaces, if possible, says National Institute for Occupational Safety and Health (NIOSH) chairman Datuk Wilson Ugak Kumbong.

Wilson urged employers and employees to practise a safe and healthy working environment to prevent any mishaps.

Therefore, he urged stakeholders to work as a team and conduct activities related to safety and health to ensure a safe work environment.

“At least, we want zero accidents or casualties.

“Our goal is to reduce accidents at workplaces,” he said at the sidelines of the Occupational Safety and Health Day celebration.

Statistics from the Department of Occupational Safety and Health (DOSH) showed that there were 6,686 workplace accidents reported as of December 2021, of which 174 were fatal. Another 249 victims became disabled.

The sector which contributed to the highest number of deaths during the period was construction, where 65 casualties were reported.

As at the first quarter of this year, there were 1,703 such accidents reported which claimed the lives of 48 while 54 became disabled.

The manufacturing sector contributed to the highest number of fatalities coming from manufacturing and construction which reported 16 deaths each.

Meanwhile, Wilson also advised the public to continue to observe standard operating procedure (SOP) to curb Covid-19, despite the announcement on relaxations.

“Children as young as two to three years old have yet to be vaccinated and only those aged five and above have been vaccinated. So if possible please observe the SOP while you are with your family,” he said.

“If there is a big crowd, why not use the SOP to be safe,” he said.

Health Minister Khairy Jamaluddin announced a slew of relaxed measures on Wednesday (April 27). Among the measures were making MySejahtera check-ins and wearing face masks outdoors no longer compulsory. - Star, 28/4/2022
 
 
OCCUPATIONAL SAFETY AND HEALTH ACT 1994
 
52  Offences committed by body corporate

(1) Where a body corporate contravenes any provision of this Act or any regulation made thereunder, every person who at the time of the commission of the offence is a director, manager, secretary or other like officer of the body corporate shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the body corporate or severally, and every such director, manager, secretary or other like officer of the body corporate shall be deemed to be guilty of the offence.

(2) A person may be proceeded against and convicted under the provision of subsection (1) whether or not the corporation has been proceeded against or has been convicted under that provision.

 61  Prosecutions

Prosecutions in respect of offences committed under this Act or any regulation made thereunder may, with the prior written consent of the Public Prosecutor, be instituted and conducted by an occupational safety and health officer or by an officer specially authorized in writing by the Director General subject to the provisions of the Criminal Procedure Code.


Sunday, November 7, 2021

19 Groups - 3 workers dead, charge the Directors and officers responsible, not just the Company, and if convicted, sentence them to jail - Stop protecting human decision makers/actors when workers lives are involved

 

Joint Media Statement(19 Groups) - 8/11/2021

3 workers dead, charge the Directors and officers responsible, not  just the Company, and if convicted, sentence them to jail

Stop protecting human decision makers/actors when workers lives are involved

We, the undersigned 19 groups and organization are appalled that NO director or officer of Zhongshi International Sdn Bhd, a construction company,  were charged for causing the death of 3 migrant workers, and seriously injuring another.

It is absurd to simply charge a company, which is but a mere empty vessel that operates and act in accordance to decisions and directions of directors, officers and human owners of the company. Companies simply pay fines (a tiny sum compared to profits or maybe millions or billions of ringgit), and cannot be imprisoned, and the real human wrongdoers get off scot free.

On 22/3/2021, 3 Chinese-national workers by the name of Wu Tongzheng, Ding Kunfu and Jiang Jinbao died, and another was seriously injured when one of the components of a launching gantry fell at the SUKE Elevated Highway construction site near Puncak Banyan, Persiaran Alam Damai, Cheras here on 22/3/2021.

The said company was charged under section 15(1) Occupational Safety and Health Act 1994, which states ‘(1) It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare to work of all his employees.’, whereby the penalty is provided in section 19, which reads, ‘A person who contravenes the provisions of section 15, 16, 17 or 18 shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.’

Failure to charge human decision makers and actors wrong

Human Directors, officers and owners can no longer hide behind the ‘corporate veil’, as even the Occupational Safety and Health Act 1994(OSHA 1994) provides that where the offence is committed by a body corporate and/or company, then  ‘…every person who at the time of the commission of the offence is a director, manager, secretary or other like officer of the body corporate shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the body corporate or severally, and every such director, manager, secretary or other like officer of the body corporate shall be deemed to be guilty of the offence…’(Section 52).

On 3/11/2021, the company pleaded guilty to the charge, and was fined RM45,000 by the Sessions Court paid the fine of RM45,000 only. The decision maker of any company is all the Directors, if not the human owners, and now justice is not served if these human persons responsible for the death of workers are also not made liable, and punished for their crimes.

 Since the company has already pleaded guilty, we now demand that the directors, manager and other officers be charged, tried and sentenced in court. If found guilty, they will be liable ‘….to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both…’ (Section 19). Justice demands an imprisonment sentence for those who failed in their duty to ensure the safety, health and welfare of their workers, noting that 3 died, and one was seriously injured.

Charge Directors for Culpable Homicide Not Amounting To Murder

Assuming that there were no intention to murder, then the perpetrator should at the least be charged for culpable homicide not amounting to murder under the Penal Code, where ‘…if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death …’, section 304(b).

With regard the Construction Industry, law and the relevant department like the Construction Industry Development Board provide various regulations, directions and guidelines that need to be complied with to prevent death and injury to workers.

As such, if a construction company chose not to do the needful, maybe by a selfish reason of saving monies or effort, then when a worker is killed as a consequence of this failure, then this may no more be simply an accidental death or even death by negligence, but should be culpable homicide not amounting to murder. Not doing what is needed to ensure workers safety despite knowing that failures can possibly cause deaths and injury is a serious offence that ought to be punished.

The Penal Code provides, where there is no intention to kill or injure, then the punishment for culpable homicide not amounting to murder shall be imprisonment for a term which may extend to ten years or with fine or with both.

OSHA amendments must increase prison terms, and have a higher fine

Zhongshi International Sdn Bhd was fined RM45,000, as the penalty provided by law at this time for this offence is ‘…a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both…’ Not just the fine, but also the prison term need to be increased.

The amendment of the OSHA have not happened since 1994. Finally, Occupational Safety and Health (Amendment) Bill 2020 tabled in November 2020, was just passed on 27/10/2021 by the House of Representative (Dewan Rakyat). It has yet to be tabled and passed at the Senate. The amendment will increase the maximum fine from RM50,000 to RM500,000. We urge the government to expedite this amendment to the OSHA Act, and speedily put it in force.

Noting that caught not wearing a face mask during the Covid-19 pandemic provides for a maximum fine of RM50,000. The maximum fine for occupational safety and health offences need to be much higher, at least RM1 million, with even much higher fines and prison sentences if injury or death is caused by the workplace incident.

We call for the provision for higher penalties in the event that a worker is injured, and worse killed by reason of non-compliance of an occupational safety and health law. In some jurisdiction, the offence of ‘corporate manslaughter’ has been introduced.

We also call for the abolition of the availability of compounds if the offence caused injury or death to worker or others.

We call for the directors and officers responsible in Zhongshi International Sdn Bhd to be immediately charged and tried under occupational safety and health laws, and even for culpable homicide not amounting to murder under the Penal Code.

We also urge that the Court, after conviction, orders the convicted to pay adequate compensation to the families/dependents of the deceased workers, and also injured workers. This should be over and above what they may receive from existing social security or insurance schemes.

Charles Hector

Apolinar Z. Tolentino, Jr.

 

For and on behalf of the following 19 groups

 

ALIRAN

WH4C (Workers Hub For Change)

Building and Wood Workers International (BWI) Asia Pacific Region

Banglar Manabadhikar Suraksha Mancha (MASUM)

China Labour Bulletin(CLB), Hong Kong

Haiti Action Committee

International Black Women For Wages For Housework

MADPET(Malaysians Against Death Penalty and Torture)

Malay Forest Officers Union (MFOU)

National Union of Transport Equipment and Allied Industries Workers (NUTEAIW)

Network of Action for Migrants in Malaysia(NAMM)

North South Initiative

Odhikar, Bangladesh

Parti Rakyat Malaysia(PRM)

Persatuan Sahabat Wanita Selangor

Sabah Timber Industry Employees Union (STIEU)

Safety and Rights Society, Bangladesh

Union of Forest Employees Sarawak (UFES)

Women Of Color/Global Women’s Strike

 

 

Monday, June 29, 2020

End discrimination against foreigners and migrants in Covid-19 responses

Media Statement – 30/6/2020
Updated

End discrimination against foreigners and migrants in Covid-19 responses


Respect for Human Rights includes ending racism and xenophobia



We, the 41 undersigned groups and organizations urge Malaysia to end discrimination and ethnophobia against migrant workers and foreigners including in responses to the Covid-19 pandemic. 


In the beginning of May, it was reported that all migrant/foreign workers will be required to be screened for Covid-19, before they be allowed to return to work in all sectors. 


Recently, there was a report that foreigners will not be allowed to use mosque/suraus.(Malay Mail, 11/6/2020)


These are practices against Human Rights, and also that the Federal Constitution. Article 8 of the Federal Constitution, which states, ‘(1) All persons are equal before the law and entitled to the equal protection of the law.’ is clear that this guarantee of equality applies to all persons, citizens or otherwise in Malaysia.


Employment Act 1955 is also against discrimination amongst workers based on nationality, whereby section 60L(1) also states  ‘(1) The Director General may inquire into any complaint from a local employee that he is being discriminated against in relation to a foreign employee, or from a foreign employee that he is being discriminated against in relation to a local employee, by his employer in respect of the terms and conditions of his employment…’. This provision clearly captures our principle against discrimination based on nationalities of workers, and as such the Malaysian government’s current requirement that ONLY migrant workers, and not local workers have to be screened and tested before being allowed to return to work is discriminatory.


There is no rational or reasonableness for such requirements that discriminate a certain class of workers, as Covid-19 does not discriminate. 


It is also goes against the often mentioned Malaysian policy for testing and screening in response to the Covid-19, which has been reiterated many times by the Director General of Health in his daily televised reports.  


On 10th June, Malaysia reportedly had a daily testing capacity of 34,951 samples (NST, 10/6/2020), and there are over 2 million just documented migrant workers in Malaysia, and for just all the 2 million plus to be tested, it will take about two months plus. The reality is that so many others, not just foreigners, that have to be screened everyday. 


The Malaysian approach, as far as screening and testing was concerned was before a rationale ‘targeted approach’. Persons who could have come in contact with the infected, and those showing positive symptoms and other high risk groups like returnees from infected countries were the focus. 


Health director-general Datuk Dr Noor Hisham Abdullah also did say that ‘…if you test everyone and then you isolate them, that’s fine…’, but the fact of the matter, is that migrants and everyone tested, is thereafter never isolated from the rest of the un-tested community and there is always a risk of contact with persons who may not be Covid-19 free, which in the case of workers, will also include the other untested local workers who work with them,‘…So that’s the next question, how often do you want to test them?...’(Malay Mail, 14/5/2020)


Malaysia’s xenophobic response to foreigners in Malaysia, also may negatively impact Malaysia’s moral standing to condemn similar discriminatory practices against Malaysians now in foreign countries – hence the ability to keep Malaysians overseas safe from Covid-19 is affected. 


Malaysia needs to act in accordance to values, principles and human rights, especially in its response to Covid-19 and its consequences.


Whilst today, the Federal Constitution guarantees equality, Article 8(2), that imposes only on government and public authorities specified anti-discrimination obligations seem to not impose the same obligations on the private sector and other employers. In short, others including private sector employers, may still discriminate workers and/or people simply ‘…on the ground only of religion, race, descent, place of birth or gender…’.


Calls for laws to impose these anti-discrimination obligations on all, including private sector employers have gone unheeded for far too long.


Therefore, we call on
 
- Malaysia to end all xenophobic and/or discriminatory policies and practices against migrant workers and foreigners in its responses to Covid-19 pandemic;

- Malaysia to amend laws and/or the Federal Constitution to extend the obligation to specifically not discriminate ‘…on the ground only of religion, race, descent, place of birth or gender…’ to all, including private sector employers;

- Malaysia to provide needed basic assistance to cope with the loss of income or employment to all persons affected by the Covid-19, including migrant workers, foreigners and the self-employed.
Charles Hector

Adrian Pereira



For and on behalf the 41 listed below



ALIRAN

WH4C (Workers Hub For Change)

North South Initiative (NSI)

Tenaganita

SUARAM

Center for Orang Asli Concerns (COAC)

People's Service Organization (PSO), Malaysia

Saya Anak Bangsa Malaysia (SABM)

MADPET (Malaysians Against Death Penalty and Torture)

NAMM (Network of Action for Migrants in Malaysia)

National Union of Flight Attendants Malaysia (NUFAM)

Parti Sosialis Malaysia(PSM)

Penang Stop Human Trafficking Campaign

Gagasan Insan Progresif

Timber Industry Employees Union of Sarawak

Sabah Timber Industry Employees Union(STIEU)

Labour Behind the Label

International Black Women for Wages for Housework

International Domestic Workers Federation (IDWF)

Building and Wood Workers International (BWI) Asia Pacific Region

Clean Clothes Campaign (CCC) South East Asian Coalition

Odhikar, Bangladesh

Migrant Care, Indonesia

Persatuan Pekerja Rumah Tangga Indonesia (PERTIMIG) di Malaysia

All Arakan Students' and Youths' Congress (AASYC), Burma/Myanmar

Rights Defenders and Promoters-HRDP in Myanmar

Radanar Ayar Association from Myanmar

Banglar Manabadhikar Suraksha Mancha(MASUM), India

Programme Against Custodial Torture & Impunity(PACTI), India

AMMPO-SENTRO- Association of Filipino Nationalist Workers in Malaysia

Workers Assistance Center, Inc, Philippines

China Labour Bulletin

Women of Color - Global Women’s Strike, United Kingdom

Payday Men’s Network UK

Collectif Ehique sur l’étiquette (France)

Campagna Abiti Puliti – Italy

Women Against Rape

Payday Men’s Network US

Clean Clothes Campaign International Office

Jaringan Solidariti Pekerja

Datuk Dr Ronald McCoy


See related post - that contains relevant news reports:-

DISCRIMINATION against foreigners in Mosque and Workplace - Covid-19? All PERSONS are equal before the law