Hornbill Unleashed

July 11, 2017

Demanding accountability for illegal immigrants

Filed under: Politics — Hornbill Unleashed @ 8:02 AM

My last column developed a hypothesis about who should be responsible and accountable for public works, in particular, public service programme failures, of either the enforcement of rules or simply ensuring compliance with existing rules.

The alternative is our currently operative “close one eye” culture.

While I did compare Malaysian stories to ones from the United States and the United Kingdom, I focused only on two Malaysian agencies, namely the police and our system of local governance. In this column, I will address what I think is yet another hot issue.

In this column, I continue my demand for accountability with a focus on the so-called “illegal immigrant problem,” since that seems to be the current highlight of the Umno deputy president. I do have concerns with the current analysis of the problem and law enforcement, at least based on the two-page theory and explanations developed by the Sunday Mail and their investigative journalists.

What is the root problem?

Our public policy problem, at least as stated and articulated by the reported immigration officials, as highlighted was, “Heartless Bosses!” The Sunday Mail front-paged and headlined this thesis in dual colours.

Under the current policy of Home Affairs and the null hypothesis of these public officials, if the employee did not renew the work permit and secure an E-card, it is primarily because the employers did not take the deadline seriously in spite of the four months’ due notice. Therefore, the employers will be punished seriously for “their now-illegal employees.”

Alternatively, the employees are the real guilty parties if they claim ignorance because the same officials had already written to all relevant embassies and informed them of this absolute and unmovable deadline. That is an alternate hypothesis.

As a former public officer who undertook training at the National Institute of Public Administration (Intan), I find both these alternative hypotheses too simplistic. Let me elaborate with beginning definitions: who is really an “illegal immigrant” versus who is simply an “illegal alien” or foreigner?

Illegal immigrants

An “illegal immigrant” is one who entered this country legally and went on to secure a work permit, or at least have permission to be in the country vide some valid visa. They become illegal only because the deadline for “rationalisation of their illegal status” was over on June 30, 2017? Really?

Now, are there not also other forms of illegal migrants? All maids or house-help can also fit into this class of illegal migrants too, if and when their permits are not renewed. They are not technically classified as employees under the Employment Act 1955, but can and do they not enter this country by formal means and then may disappear into the cracks? In such a case their “employers” are the homeowners or the renters of such homes. Are they then guilty “employers?”

Illegal aliens

To me, there are many other categories of so-called “illegal aliens or foreigners,” whom I would not label as “immigrants but rather illegal aliens.” They may have at some point entered Malaysia legally or illegally and may now retain some legal rights but are not recorded as “gainful workers in this country”.

If the above is true, what then is our root problem? As a policy analyst, I would call all of those illegally overstaying foreigners as “illegal aliens.” They may have entered legally but are now categorically without any legal standing to continue being in Malaysia. They may be the result of “serious corruption and lack of integrity within the jurisprudence system of the Ministry of Home Affairs”. I am serious about what I say.

My hypothesis is that the Malaysian culture of governance today is abused by the “culture of closing one eye to wrongdoing,” which is colloquially labelled as “rule by law”.

What is Rule of Law?

SIRIS, a website on legal jurisprudence, reports the following:

“Rule of Law vs Rule by Law

An important distinction needs to be made between rule of law and rule by law:

  • Rule of law is an intrinsically moral notion. Indeed, I don’t see how one can have a consistent theory of rule of law without appealing either to natural law theory or to some higher rule by law (e.g., divine command theory).
  • Rule by law is very different, despite some superficial similarities. Rule by law is prudential: one rules by law (properly speaking) not because the law is higher than oneself but because it is convenient to do so and inconvenient not to do so. In rule of law, the law is something the government serves; in rule by law, the government uses law as the most convenient way to govern.
  • The two chief arguments for rule by law rather than rule of law are exactly the same ones that are always used against natural law theory:

(a) disagreement and uncertainty in moral judgments;
(b) the claim that rule of law is seminal anarchy.

  •  The chief arguments against rule by law and for rule of law are exactly the same   ones that are always used against the opponents of natural law theory:

(a) the question of how one can have authority without any moral basis;
(b) the claim that rule by law is seminal despotism.

  •  Rule by law can be either ad hoc (which is genuine despotism) or principled.     Principled rule by law theory shares with rule of law theory the arguments that a stable, generally recognized law is needed in order to maintain generality, impersonality, and effectiveness of government. Thus principled rule by law theory allows for what Fuller has called “the internal morality of law” to the extent that this is prudentially justifiable as conducive to the ends of government (Author’s note: there is an interesting paper by Kenneth Winston on this subject in the context of Chinese Legalism at SSRN; much of what I say in this post is influenced by Winston).
  • Much of what we call rule of law today is really rule by law; a very serious equivocation given that they tend in entirely different directions.”

Therefore, while I applaud the new director-general of the Immigration Department (I hear he is a man of integrity) about his adherence to this rule by law principle, my only policy question is: are we serious about all aspects of this implicit and explicit policy? Is there rule of law in Malaysia for all “foreigners who are overstaying in Malaysia”? Do not their numbers exceed more than two million?

Will such a rule by law see us prosecuting them, and not simply shipping them out either by boats or by airplanes at a cost to citizens? Are they not “workers” whom we invite into our nation to help us “develop and provide valid services”?

Are they not human beings and fall within the category of universal human rights qualifications, and cannot they also demand accountability? Are they really any different than our first generation of other migrants of all kinds and shapes or sizes?


Source : Malaysiakini by KJ John
KJ JOHN, PhD, was in public service for 32 years, having served as a researcher, trainer, and policy adviser to the International Trade and Industry Ministry and the National IT Council (NITC) of the government of Malaysia.


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