MALAYSIA: Jail and Cane for Legal Nepali Worker Raises Serious Questions

By Baradan Kuppusamy Reprint | | Print |

Baradan Kuppusamy

KUALA LUMPUR, May 17 2005 (IPS) - Nepali Mangal Bahadur Gurung, 30, came to the Malaysian capital two years ago, hoping that he would land himself a well paying job and make enough money to send home every month to keep his wife, children and grandparents alive.

Finding the job was easy but getting paid was a challenge.

Month after month his employer did not pay him giving one excuse after another. Nevertheless, Gurung laboured on as a kitchen helper in a restaurant in Subang Jaya, an upscale suburb outside the capital, for 18 months without being paid a single cent.

But that was mild compared to what was coming.

At midnight on Mar. 6 his world crashed around him when he was swept up in a raid on undocumented foreign workers. Gurung was arrested along with dozens of other foreign workers in Subang Jaya and carted away, packed tight in lorries to a detention center where all his protestations that he had a valid work permit and a passport fell on deaf ears.

His employer, who retained his work permit and passport to ensure Gurung did not suddenly abscond, could have easily protested to the authorities that he had all the right documents and got him released. But he did not.

It was just one worker less for him and there was a ready pool to fill in the slot vacated by Gurung at the restaurant. Besides, the employer owed the Nepali 6, 400 Malaysian ringgit (1,684 U.S. dollars) in back wages and with him now arrested and ”disappearing into the bureaucratic labyrinth” he could just pocket the money without worry.

Employers know that a foreign worker, once arrested, simply disappears into a bottomless pit. The path, after arrest, is well travelled – detention, charged in court, jailed, whipped and finally deported never to return.

Everything was made worse for Gurung because he spoke little Malay, the local lingua franca, and even less English.

”I tried to explain as much as I could with all kind of words and gestures that I had a valid permit and passport but no officials wanted to even listen to me,” Gurung told IPS through an interpreter.

Gurung spent 18 days in the detention camp, forgotten and lumped together with some over 9,000 other undocumented workers who were awaiting "processing", conveyor-belt style, by the immigration department officials before they were brought before the Magistrates Court for sentencing.

”I was sentenced to 10 months jail,” said Gurung. "I was also caned."

In 2002, Malaysia amended its Immigration Act to include sentences of up to five years imprisonment and six strokes of the cane for any undocumented worker found working illegally in the country.

About 100,000 Nepalese are working in the Malaysian capital and surrounding suburbs, with the majority in the manufacturing sector while the rest employed as security guards and labourers in the services, construction and plantation sectors.

Gurung is shy to relate his ordeal in prison, especially the canning. It still hurts when he sits but the hurt to his psyche is even more painful, said his friends.

The Bar Council, the Attorney General’s Office and the judiciary are now probing to determine how the charge was read to Gurung and his guilty plea recorded when he did not understand the language and neither was an interpreter present.

Gurung served 51 days of his sentence before he was released last week after a friend intervened and Tenaganita, a human rights group, actively took up his case. A higher court set aside his conviction and ordered his immediate release.

Malaysian government officials acknowledge the contribution made by foreign labour in increasing the country’s economy and productive capacity. As a rapidly developing nation with a population of 25 million, Malaysian business continues to benefit from competitive labour supplies from poorer neighbouring countries, including the Philippines, Indonesia, Bangladesh and India, especially to work in the low-skilled sectors of construction, agriculture and services.

Following the Mar. 1 mass deportations, after a four-month amnesty, serious labour shortages were experienced in the country. Malaysian construction companies and oil palm plantations have been among the first to feel the effects of the decision to deport illegal workers. Factories and restaurants have also been left under-staffed.

Meanwhile, despite the ordeal Gurung went through, no Malaysian official thought it proper to offer the Nepali an apology.

Worst the Immigration Department blames him for his misfortune. It appears that Gurung did not ”tell” them he had valid documents.

”I tried but they never listened,” said Gurung. ”I don’t speak the language.”

The Nepali kitchen helper’s case has even prompted a column in the normally staid government-controlled ‘New Straits Times’.

”Justice was eventually done but nonetheless…Mangal (Gurung) will carry the trauma of his days in prison and a lash of the cane for the rest of his life,” wrote the daily’s chief editor Kalimullah Hassan. ”There is an obvious need to examine whether systemic practices contributed to the indifferent investigation.”

Kalimullah urged the government to provide migrant workers with access to legal aid and other support services as well as protection under the law, in order to prevent them from being exploited by abusive employers.

”The government should also work with local support groups. The vindication of Mangal’s innocence shows that civil society can play a vital role in giving migrants the legal protection they sorely need,” he added.

The Malaysian Bar Council was even more vehement in condemning the Immigration Department and said it was incompetent.

”This should never have happened and it should not happen again,” said Bar Council president Yeo Yang Poh.

But how many more victims like Gurung are out there in the country’s poorly regulated judiciary and prison system is anybody’s guess.

”We have to be eternally vigilant to prevent such severe human rights abuses,” said Agile Fernandez, Tenaganita’s coordinator.

”The anti-foreign worker crackdown has led to untold sufferings and injustices,” she told IPS. "Gurung’s story is just one such tragedy."

”All the institutionalised checks and balances did not exist for him.”

For Gurung, his priority now is to recover his back wages head home to the family in Nepal he has not seen since March 2003.

To the many questions on whether he will take legal action for wrongful arrest, incarceration and whipping, Gurung’s answer is always the same. He just gives a sad smile.