KUALA LUMPUR, Sept 15 — The Immigration Department is not empowered to freeze the assets of employers who hire illegal foreign workers without a court order, the Malaysian Employers Federation (MEF) has argued.
MEF executive director Datuk Shamsuddin Bardan said Section 56 of the Immigration Act 1963 only covers offences and punishments that should be imposed by the court upon conviction, and that freezing a firm’s assets before then was premature.
“This presupposes that the punishment is imposed by the court and not the Immigration Department,” he was quoted saying by local daily The Star.
He cited as example the same law’s Section 56(1) (d), where “anyone harbouring any person whom he knows or has reasonable grounds for believing to have acted in contravention of the Act such as not having a visa, passport or work permit, could be fined upon conviction in court not exceeding RM10,000 or jailed not more than five years”.
For the offence of harbouring more than five illegal individuals, the penalty is a fine of between RM10,000 to RM50,000 for each person harboured, a jail term of between six months to five years, and a maximum whipping of six strokes.
Immigration Department director-general Datuk Seri Mustafar Ali told The Star, however, that the legal provision allowing the freezing of assets and bank accounts is not merely under Section 56(1) but is also tied to the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA) 2001’s second schedule.
According to The Star, senior lawyer Datuk Seri Jahaberdeen Mohamed Yunoos said Section 56(1) was not related to asset seizures, while only Section 44 of the Immigration Act allows for detention of vessels or aircraft believed to have been used to carry illegal immigrants.
He said that it was possible for the Immigration Department to use the anti-money laundering law to freeze accounts if the suspects who hired trafficked foreign workers, as the proceeds of such businesses would be illegal and the use of such money is tantamount to money laundering.
The Star reported Bar Council Human Rights Committee co-chairman Andrew Khoo as saying the asset freeze could be carried out under the AMLA’s Section 44, but noted that this can only be done if someone is under investigation for having hired human trafficking victims or smuggled migrants.
He noted that the asset freeze was permitted for those investigated for possibly committing a “serious offence” as defined in the AMLA’s second schedule, which he said does not mention any provision from the Immigration Act and only includes crimes such as human trafficking.
He also said the order for the freezing of assets will expire if the suspect is not charged within 90 days of the order, but added that the order can be extended.
On Tuesday, Mustafar said that his department will freeze the assets of employers of illegal foreign workers from next month onwards based on existing law.