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MALAYSIA: Illegal Migrant Workers May Escape the Cane

Anil Netto

PENANG, Mar 20 2007 (IPS) - With the Malaysian Bar calling for the abolition of corporal punishment ‘illegal’ migrant workers, who are currently being rounded up in a nationwide sweep, may become the first beneficiaries of any change in policy.

At the weekend annual general meeting of the Bar, which comprises 12,000 lawyers in the country, a motion calling for the declaration of whipping as cruel, inhumane and degrading was unanimously adopted. The bar pushed for the abolition of the whipping sentence in various laws, including the Immigration Act.

The two lawyers, Latheefa Koya and Renuka T. Balasubramaniam, who moved the motion asked the Bar to lead public opinion in ‘‘rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation”.

They also pointed out that whipping had failed as a deterrent and asserted that it is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, which states that no one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

‘‘We are putting forward this motion now because of the increasing numbers of arrests and (cases of) whipping going on now,” Latheefa Koya told IPS, pointing to the mass raids currently going on to pick up ‘illegal’ migrants. ‘‘This motion is a step forward in getting rid of corporal punishment altogether.”

Corporal punishment – whipping with a thick rattan cane – is usually administered as a supplementary penalty for a range of crimes including armed robbery and drug trafficking. But in recent times, it has also been used on migrants deemed to be illegal under the Immigration Act. Those in breach of the Act face fines, jail terms and whipping.

In practice, migrants, including refugees, picked up during raids are either brought to court – within two weeks – or sent straight to immigration detention centres for eventual deportation.

Of those brought to court, those with valid documents but who have overstayed face prison terms and deportation. A caning sentence, usually two to three strokes, in addition to a stint in prison, is meted out to those without any documents, according to Latheefa, who works in Legal Aid. Women are not whipped.

Upon being brought to court, migrants often do not know what charges are brought against them, the two lawyers claim. ‘‘They are not informed of their right to legal representation, and in any event, are not provided with a reasonable opportunity to seek help. The lack of interpretation in appropriate languages renders the whole legal process a complete travesty of justice and human rights.”

Faced with indefinite detention, many of them turn in guilty pleas without realising the full implications.

In the past, rights groups have spoken out against whipping, which leaves large red welts and permanent scars on the buttocks. Rather than having any Islamic connotations, judicial corporal punishment here was first introduced in the late 19th century by British colonial administrators as an outgrowth of British judicial custom and practice at the time.

In their motion, Latheefa and Renuka pointed out that ‘‘whipping is clearly intended to be a humiliating experience.” They cited New Zealander Aaron Cohen’s description of the six strokes he received in 1982 for drug-trafficking:

‘‘It’s just incredible pain. More like a burning – like someone sticking an iron on your bum. That’s the sort of feeling. Pain – just ultimate pain,” he said. ‘‘The strokes come at a rate of one a minute – but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out – ‘baam’. Afterwards my bum looked like a side of beef.”

Upon serving their sentences, “illegal” migrants are sent to immigration holding centres for deportation.

In the past, Amnesty International has expressed grave concern over conditions for undocumented migrants held in immigration detention centres, ‘‘especially when mass arrests and deportations lead to severe overcrowding. Conditions in some immigration detention centres may be at times so poor as to amount to cruel, inhuman or degrading treatment”.

The two lawyers’ motion could face some resistance from other lawyers and ordinary Malaysians as migrant workers have often received negative coverage in the media. Many Malaysians are worried about the incidence of serious crime. Others link the rising crime rate with the high number of migrants, estimated to number close to 10 per cent of the population, even though statistics reveal that they are not more prone to crime.

The country’s top police officer was reported as saying last month that only 2 per cent of crimes in the country were committed by foreigners. However, he proposed that all foreign workers be confined to their quarters and have their movements monitored by management to prevent them from committing crimes.

Despite the inuman conditions, Malaysia’s relative prosperity has continued to attract thousands of illegal or undocumented workers from such neighbouring countries as Indonesia, Burma, India, the Philippines and Bangladesh where job opportunities are scarce.

For Irene Fernandez, director of the leading migrant rights groups Tenaganita, the lawyers’ motion calling for an end to whipping is extremely important. ‘‘For us, it is like a tool for torture. It is a very inhuman thing to do,” she told IPS.

The impact of whipping, she added, was tremendous and left migrant workers scarred for life. ‘‘Whipping should become history. As a nation now celebrating its 50th year of independence, whipping should be out, and not condoned anymore.”

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