The legal maxim that one is innocent until proven guilty does not seem to favour
foreign workers who have no relatives in Malaysia and who do not have the money
to make bail.
I REMEMBER being intrigued with the phrase “the new poor” used by a Jesuit
priest in one of his sharings with me. The new poor refer to those who are
destitute, those with needs, those who are suffering.
They are the new poor because only recently are we recognising and beginning to
be aware of their existence.
In reality, they have been poor for a long time. It is difficult for society to
see and recognise them as the new poor due to the clichéd definition of being
poor.
I am amused when friends want to contribute to charity for the poor and
immediately think of the financially destitute but are oblivious to the new poor
– the migrant workers that they meet every day, whether in the market or down
the street.
The plights of migrant workers are numerous but I wish to highlight what may
actually happen when a migrant worker is arrested and charged in court for a
criminal offence.
The following is an account based on my personal experience in court. (Some
particulars however have been changed to protect the migrant worker’s identity.)
Nguyen Thanh Dan (not his real name), a Vietnamese migrant worker, was arrested
just after Chinese New Year in February over a fight that occurred in the middle
of the night with some Indonesian migrant workers outside his employer’s
apartment, where the workers resided, allegedly over some derogatory statements
he made about them.
He was immediately charged under section 148 of the Penal Code for possessing
weapons or missiles at a riot.
He claimed he was the victim as he was outnumbered and that he merely grabbed a
stick to defend himself. He therefore pleaded not guilty and claimed trial. But
he had no legal representation. He could not afford one on his meagre salary of
RM450 a month.
His employer immediately terminated his employment contract despite him not
having been convicted yet, and refused to pay the bail amount of RM5,000.
He has a dilemma at hand now. Either he remains in prison waiting for his trial
to complete, which may take six months to a year before a decision is delivered,
or plead guilty and leave his mitigated sentence at the mercy of the magistrate.
Even if he waits for his trial to complete and is found innocent and set free,
he would have languished in prison and wasted months.
This scenario is all too familiar with lawyers assisting migrant workers charged
in court for a criminal offence. That he is a migrant worker necessitates the
magistrate imposing a high bail amount to ensure his appearance in court.
Yet the legal maxim that one is innocent until proven guilty does not seem to
favour foreign workers who have no relatives in Malaysia and who do not have the
money to make bail.
The further requirement of a Malaysian surety makes it even more difficult for
him. This forces the unwilling migrant worker to remain in prison.
Therefore, there is the high possibility that even after he is found innocent
after a full trial he would have already served six months to a year in prison
waiting, which would have been his full sentence if he were found guilty at the
end of the trial.
To add to his misery, time is not in his favour as there would be postponements
of his trial due to the absence of material witnesses, or unforeseen
circumstances.
Every time the trial is delayed, he waits agonisingly to be set free, not
knowing he has already been effectively “sentenced” and is serving time. The
difficulty of getting a foreign interpreter compounds the delay.
Hence, Malaysians should not so quickly forget the case of Nepalese worker
Mangal Bahadur Gurung, who was wrongfully imprisoned in 2006 for 51 days and
given one stroke of the rotan after having been mistakenly convicted of entering
the country illegally.
For that, he was offered a paltry compensation of RM8,340 by the Government. He
has since returned home to his old job as a trekking guide, but is reported to
still suffer nightmares whenever he looks back on his days as a migrant worker
here.
In fact, the migrant worker comes to work in Malaysia because he sees in this
country a greener pasture where he can earn a better living, and hopefully send
some money back home.
The unfortunate chance of being arrested and charged in court would effectively
lead to the scenario of serving time before being sentenced, and paint a gloomy
picture of our country.
I would agree that the migrant workers should go through the same legal system
as Malaysians.
However, due to the circumstances that they are in, it is my sincere hope that
Malaysians will be able to see and recognise migrant workers as the new poor and
assist in any way possible.
When we Malaysians travel abroad to work, are we not also migrant workers
susceptible to the laws of a foreign land, and pray for our disadvantages to be
recognised, and for justice to be meted out accordingly?
> The writer is a member of the Bar Council's National
Young Lawyers Committee. For more information about the young lawyers, please
visit www.malaysianbar.org.my/nylc
2012 Hotel Corporate Rates Attending seminars? Going for a holiday? Click on the link above to check out the list of hotel corporate rates for Members of the Bar, which is updated regularly.
Talk on Intellectual Property Law (10 Feb 2012) Organised by the Selangor Bar Committee, the talk on “Intellectual Property Law” will take place at 5:00 pm, at the Selangor Bar Committee Auditorium, on 10 Feb 2012 (Friday). The talk will feature Bahari Yeow Tien Hong. Click on the link above for more details.
The Case of the Missing Penang Lawyer: Charity Treasure Hunt 2012 (12 Feb 2012) Organised by the Penang Bar Committee Social Subcommittee in aid of the National Autism Society of Malaysia (NASOM), this event will take place at Straits Quay, Penang, on 12 Feb 2012 (Sunday). Deadline for registration is 6 Feb 2012 (Monday). Click on the link above for more details.
Seminar on the Fundamentals of Bankruptcy Proceedings (21 Feb 2012) Organised by the Kuala Lumpur Bar Professional Development Committee, the seminar on “The Fundamentals of Bankruptcy Proceedings”, featuring Sanjeev Kumar Rasiah, will take place at 3:00 pm, at the Kuala Lumpur Bar Auditorium, on 21 Feb 2012 (Tuesday). Click on the link above for more details.
Seminar on the Fundamentals of Conveyancing (24 Feb 2012) Organised by the Kuala Lumpur Bar Professional Development Committee, this seminar featuring Jeremiah R Gurusamy will take place at 3:00 pm, at the Kuala Lumpur Bar Auditorium, on 24 Feb 2012 (Friday). Click on the link above for more details.
Mediation Skills Training Course (29 Feb to 4 Mar 2012) Organised by Bar Council, the Mediation Skills Training Course will take place at 8:30 am to 5:30 pm, at Raja Aziz Addruse Auditorium, Bar Council, on 29 Feb to 4 Mar 2012 (Wednesday to Sunday). Deadline for registration and payment is 17 Feb 2012 (Friday). Click on the link above for more details.
Talk on “Land Fraud: An Australian Perspective” (13 Mar 2012) Organised by IGIL, GSGSG and UUM COLGIS, this free talk featuring Quintin George Rozario of Delta Law, Brisbane, Australia, will take place at 9:00 am, at Dewan Seminar A, Pusat Konvensyen, Universiti Utara Malaysia, Kedah, on 13 Mar 2012 (Tuesday). To RSVP, contact Mr Abutt (04-928 4397; abutt@uum.edu.my).
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Circular No 019/2012: Change of Address for Pejabat Pengarah Tanah dan Galian Wilayah Persekutuan
