Malaysia is one of Asia's biggest employers of foreign labour. But recently, cases of deaths, abuse and forced labour have come to light. What is going on? Who is protecting these migrant workers?
Court of Appeal judge Datuk Gopal Sri Ram said that using a liberal approach,
the Constitution guaranteed at least five rights for workers: the protection
of livelihood, the right to work in a reasonably safe environment, the right
to unionise, the right to a fair wage, and the right to reinstatement .
<p>"If you wear narrow and literal approach spectacles, then you will find
nothing there. You will suffer from constitutional blindness and deafness,"
he said when delivering a paper at the Lawasia Labour Law conference here yesterday.</p>
<p>Judges should not equate interpreting the Constitution to that of other legislation.</p>
<p>"I have told my learned brothers on many occasions not to interpret the
Constitution as if on the back of a chewing gum wrapper."</p>
<p>Referring to English and Indian case laws, he said the court was the guardian
of constitutional rights.</p>
<p>"The approach our courts should adopt when interpreting our Constitution
should be no different."</p>
<p>He added that judges should adhere to the words of former Lord President Raja
Azlan Shah in interpreting the supreme law. "To judges and aspiring judges,
I ask you to carve his words on your spleen," he said.</p>
<p>In his judgment in 1981, the former Lord President said that in interpreting
a Constitution, two points must be borne in mind.</p>
<p>First, judicial precedent plays a lesser part than is normal in matters of
ordinary statutory interpretation. Secondly, the provisions of the Constitution,
being a living piece of legislation, must be construed broadly and not in a
pedantic way.</p>
<p>He said Articles 5 and 8, the right to livelihood and equality under the law,
did not discriminate against foreign workers.</p>
<p>"These Articles used the phrase ‘all persons’ and not ‘all
citizens’.</p>
<p>"As such foreign workers enjoy the same rights as local employees."</p>
<p>Later, Chief Judge of Malaya Tan Sri Siti Norma Yaakob said due to the tight
labour market, employees dismissed without justification should be reinstated.</p>
<p>"The current economic climate would dictate that reinstatement into the
former position is far more valuable than it was not so long ago when other
employment was available."</p>
<p>However, she said reinstatement was seldom granted for various factors such
as a deterioration in the personal relationship between parties, and the disappearance
of mutual obligation of trust and confidence.</p>
<p>Siti Norma said the Industrial Court had the discretion to award compensation
in lieu of reinstatement.
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