Cases of legitimate foreign workers arrested and charged for illegal entry into the country and whipped by authorities have been happening in Malaysia long before the recent case of Nepali Mangal Bahadur Gurung, charged labour rights movement Tenaganita today.

The movement has been told of, and documented, numerous instances where legal migrants - with valid travel documents and work permits - were subjected to unnecessary and unlawful abuse.

This has occurred because of gaps in processes involving the detention of foreigners by the immigration department and the lackadaisical and biased approach taken by the judiciary, its executive director Irene Fernandez told malaysiakini today.

"There is so much unnecessary punishing of (foreign) workers by the authorities. What the immigration department needs to do is have a diary recording its actions with regard to migrants held during the 14-day remand period," she said.

The authorities, she pointed out, must show proof that proper investigative procedures had been used and produce evidence to show that there has been adequate questioning of a person's status.

"There must be records showing how many times a detainee is questioned and if proper steps have been taken to ascertain the status and which laws were violated, if any," she added.

The plight of Mangal, 30, was highlighted after the Nepali was sentenced to 10 months' jail and a stroke of the rotan by the Petaling Jaya magistrate's court on March 23, over two weeks after he was arrested in a crackdown on illegal migrants.

He was released from prison - after 51 days in prison and caning- on May 12 when High Court Judicial Commissioner Zaharah Ibrahim set aside his conviction and ordered his immediate freedom following an appeal.

Previous cases

Tenaganita revealed that last August, Sri Harjo, an Indonesian was convicted by the Bentong (Pahang) magistrate's court for entering the country illegally and sentenced to four months jail and two strokes of the rotan.

Sri Harjo, who had a valid passport, left the country after completing his sentence.

In June 2003, Tenaganita documented the case of Mohamed Hossain, a Bangladeshi, who was also subjected to jail and whipping after he was convicted of illegal entry.

He also possessed a valid passport but it was confiscated by the immigration department. All efforts to highlight the error to the court and the authorities were not heeded, said Fernandez. Mohamed Hossain was deported on Oct 18, 2003.

Fernandez asked whether there is a directive to sentence all migrants under section 6(3) of the Immigration Act (1959/63) regardless of the facts. Some who overstay and should be charged under section 1(5) - which does not include whipping - are sentenced for illegal entry which allows for imposition of whipping.

"There seems to be a pattern which shows a lack of investigation by the authorities. Look at all the (Burmese) Rohingyas who have valid UNHCR (United Nations High Commissioner for Refugees) papers but are detained," she said.

Fernandez claimed that there seems to be a bias against foreigners who are deemed 'troublemakers' in Malaysia.

Judiciary 'must act'

The Tenaganita chief also urged the courts to ensure that competent interpreters are present during hearings involving foreigners to ensure that their rights are protected.

"Mangal claimed to have informed the court that he was not an illegal but was told to be silent. He was also asked if he could speak Bahasa Malaysia, to which he replied 'only very little'," said Fernandez.

"This is the problem in most cases. There is no proper interpreter in court and the migrants - most of whom only speak very little Bahasa - often do not understand the charges against them."

She also urged the magistrates to ensure that they are more amenable to the case of the accused, if there is no supporting evidence.

Meanwhile, Mangal will be present at the Labour Office in Subang Jaya at 9.30am tomorrow for a case - which he filed before his detention - against his former employer, a restaurant owner in USJ, Subang Jaya. He is seeking over RM6,000 in unpaid wages for over 10 months of work.