Lawyer seeks to clear family of remaining charges in domestic worker death

The defence lawyer who secured the acquittal of Ambika MA Shanmugam, 69, in the 2019 murder trial of Indonesian domestic worker Adelina Lisao, will submit a representation to have her daughter, too, cleared of charges under the Immigration Act 1959/63.

Lawyer Anbananthan Yathiraju told Malaysiakini that Ambika’s daughter, Jayavartiny Ramalue, 37, was given a discharge not amounting to an acquittal (DNAA) for charges under Section 55B of the act which criminalised the employment of undocumented migrant workers.

However, Anbananthan who submitted a representation to the Attorney General’s Chambers (AGC) in 2019 said he would do so again soon, in order to clear the family of all wrongdoing.

“I will submit a representation to the AGC to consider dropping the charges against Jayavartiny,” he said.

Jayavartiny had been facing a fine of between RM10,000 and RM50,000 and, or imprisonment of up to 12 months, under Section 55B (1) for offences under Section 55B of the same act.

However, according to Anbananthan, two other defendants had pleaded guilty to the same offence in 2018, and his client, Jayavartiny, pleaded not guilty.

“She was given a DNAA,” he said.

“If two others charged with the same offence relating to the same worker pleaded guilty, were convicted, and have paid the fine of RM10,000 each, then they have indirectly taken on the liability for the offence.

“The charge against Jayavartiny cannot be the same as the two others who have been identified as employers of the deceased,” he explained.

On Feb 11, 2018, Adelina succumbed to septicaemia secondary to cellulitis from injuries related to infected skin lesions arising from untreated burns, at the Bukit Mertajam Hospital, where she was rushed in critical condition after being rescued.

When found at Jayavartiny’s home in Taman Kota Permai 1, Bukit Mertajam, there were burn marks on her body, bruises on her head and face, and infected wounds on her hands and legs, rights group Amnesty International said.

It was reported that Ambika, Jayavartiny and her brother, whose name was never published in the media, were the first to be arrested in relation to the case.

Insufficient evidence against Ambika

While Jayavartiny and her mother were charged, it was reported that her brother was released on police bond and was to appear as a witness.

On April 18, 2019, the Penang High Court acquitted Ambika of the murder charge although the prosecution sought for the accused to be granted a DNAA.

Malaysiakini reported that then attorney-general (AG) Tommy Thomas decided to appeal as he was not consulted over the proposal to seek a DNAAin Ambika's case.

In 2020, the Court of Appeal dismissed the prosecution’s appeal to substitute Ambika’s full acquittal with a DNAA and last June, the Federal Court upheld the lower courts’ rulings.

In an interview with Malaysiakini following Ambika’s acquittal by the highest court, solicitor-general III Mohamad Hanafiah Zakaria broke his silence on the case explaining to Malaysiakini that there was insufficient evidence to secure a murder conviction.

He said the evidence gathered would have been inadequate to even convict her for the lesser offence of causing death by negligence.

‘Adelina’s agents took the blame'

Anbananthan said the two women who pleaded guilty at the Bukit Mertajam Magistrate’s Court were the agents who brought Adelina into Malaysia but he was unsure if Adelina was brought through an employment agency.

He reasoned that there were no grounds for the same charges to be hanging over his client’s head, especially when the agents have admitted to the guilt.

In the charge sheet sighted by Malaysiakini, two women, aged 39 and 49, were charged with committing the immigration offence between Nov 3, 2016 and Feb 10, 2018 at a premises in Taman Kota Permai 2, Bukit Mertajam, in Penang.

Meanwhile, the lawyer clarified that his client and her family had not paid the deceased’s family any compensation for her death, contrary to media reports in February 2018.

“No, we didn’t pay anything. I think the agents paid some compensation to the family,” he said.

In February 2019, Astro Awani reported that Adelina’s family received RM63,900 which comprised unpaid wages and compensation.

The unpaid wages were reportedly for the period she worked at the residence from 2015 to 2018 amounting to RM35,900.

Other charges not applied

It is noted that no one was charged under Section 55E of the Immigration Act which imposes fines of between RM5,000 and RM30,000 and, or imprisonment of up to a year for harbouring an undocumented worker.

Meanwhile, if the agents had been carrying out migrant recruitment and placement activities without a Private Employment Agency (APS) registration, they could have also been liable under Section 7 of the Private Employment Agencies Act 1981.

If found guilty, they faced a fine not exceeding RM200,000 and, or imprisonment for a term not exceeding three years, if convicted.

The Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007/22 (Atipsom) was also never invoked against the agents who brought Adelina into Malaysia, despite her undocumented status and unpaid wages.

The act explicitly precludes the consent of the trafficked person as a defence.

People trafficking charges were also not brought against Ambika and her children.

Changes to human trafficking law

That Adelina may have been a victim of fraud and trafficking is not a far-fetched likelihood.

In 2015, a report by former United Nations Special Rapporteur on trafficking in persons, Maria Grazia Giammarinar, noted workers including domestic workers were recruited through fraud and deception about the type of conditions of employment by agents in Malaysia.

She noted that there are various factors limiting the effectiveness of law enforcement responses to trafficking in Malaysia, including corrupt officials.

Malaysia has consistently made amendments to anti-human trafficking laws, in response to rankings by the US State Department’s Trafficking in Persons (TIP) report.

Malaysia was downgraded to Tier 3 in 2007 and in that year, the Anti-Trafficking in Persons Act (Atip) was enacted.

After that, Malaysia was downgraded to Tier 3 in the years 2009, 2014, 2021 and 2022.

Following the 2009 downgrade to Tier 3, in 2010, the Atip Act was amended to include crimes associated with migrant smuggling and the act became known as Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (Atipsom).

Meanwhile, in the 2015 amendments, the act introduced the rights for migrants under a protection order to seek employment and it breathed life into a high-level committee which would decide on recommendations made by the Atipsom Council.

The council, whose members include the respective secretaries-general of six ministries and whose role was listed in the act, was chiefly to coordinate the implementation of the act.

Subsequently, nine more significant changes were seen in the 2021 amendments to the act which came into effect last year, with improvements that quashed the definition of coercion and widened the definition of human trafficking.

Limited interpretation of law leads to acquittals

The 2022 TIP report noted that prosecutors were interpreting the law to mean that trafficking can only happen with physical restraint.

“(This) meant prosecutors did not pursue many potential trafficking cases, especially where coercion was a primary element used by traffickers,” the report read.

One such example was the unexpected acquittal of a couple on Dec 9, 2022, of trafficking their domestic worker.

Radzuan Abu Hadzim and his wife Rosnajihah Ramli were acquitted of trafficking their domestic worker, whose contact with the outside world was highly restricted and who was rescued by the Selangor Labour Department after a complaint by her daughter.

The Indonesian Ambassador to Malaysia, Hermono, has written to the AGC requesting an appeal over the acquittal.

The US State Department’s recommendation to Malaysia in the 2022 TIP report included efforts for Malaysia to expand labour protection for domestic workers and investigate allegations of domestic worker abuse.

The report also recommended that Malaysia make public the results of investigations involving corrupt officials and hold them criminally accountable when they violate the law. - Mkini