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Serving time, whether guilty or not
by Desmond Ho
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?
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