June 19, 2024

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Nepal courts cleared Malaysian firms; declared shut down as unlawful

Nepal workers

KATHMANDU, February 19 – The Malaysia-Nepal foreign worker crisis had taken another turn at the end of 2018 with Nepali courts clearing Kailash Khadka, the President of Nepal Health Professional federation and Chairman of Welcare Hospital who was accused of cheating foreign workers going to Malaysia under the pretense of biomedical checkups. Also cleared by the courts are 37 biomedical health centers that have approvals by Malaysian government to conduct health checks on the workers.

Kailash Khadka, the President of Nepal Health Professional Federation

The Ministry of Labour, Employment and Social Security, Nepal had earlier filed a case against Khadka and the 37 biomedical health centers accusing them of establishing Biometric Institution and cheating Nepali workers seeking to work in Malaysia. Judge Matrika Acharya of Kathmandu District Court cleared Khadka and declared the Biometric Institutions as lawful, on Monday, December 31.

“Respected court has rendered justice though it is late, I have nothing to say more on this.” Khadka was quoted by Capital News, a Nepali online news portal.

Malaysian-linked agencies cleared by court

The Ministry of Labour, Nepal also filed cases against the owners / directors of Biomedical, VLN/OSC and ISC in May, accusing them of charging additional fees with the workers. Nepali news portal Nagariknews reported that courts have cleared Biomedical, VLN/OSC from the charges.

The director of VLN/OSC, Mr Ram Shrestha had previously been cleared of wrongdoing by the District Court of Lalitpur, Nepal.

Biomedical is a pre-departure health screening for workers intending to come to Malaysia. This service is conducted by Bestinet Sdn Bhd as approved by the Home Ministry of Malaysia.

VLN is Visa Luar Negara operated to by Malaysia VLN Nepal a company linked to Ultra Kirana Sdn Bhd and OSC is One Stop Centre, all of which are conducted by other companies approved by Malaysian government.

Nepalese Government appealed and lost

The Nepalese government appealed the case to the High Court of Patan and a joint bench of honorable judges Ramesh Pokharel and Narendra Kumar Shiwakoti had ruled against the government.

The High Court of Patan made its judgment on Monday January 29, upholding the judgment made by the Kathmandu and Lalitpur district Court.

In its judgment, the court said that the Embassy of Malaysia in its letter dated January 21, has stated that the 37 medical centers operating health checkups for workers before going to Malaysia are all authorized, thus they are not illegal. (according to news report by Nepal Online on January 29).

Furthermore according to the online news portal, the High Court of Patan’s decision to declare Biomedical and VLN/OSC as legal has paved the way for the Nepalese workers to resume seeking employment in Malaysia.

Nepal court declared the shut down is unlawful

Nepal had a change in government in early 2018 and sources have suggested that the new administration had been on a witch-hunt to expose possible corruption from the previous regime.

According to news published by Nepali portal E-Hulaki, The Ministry of Labour in Nepal is now under fire after Judge Matrika Acharya previously declared that the shutting down of the organizations involved in the foreign worker processes as unlawful.

Nepali Minister of Labour, Gokarna Bista is said to have acted with impractical behaviour by suspending the supply of workers to Malaysia without preparing any alternative.

According to Nagariknews, Rastra Bank reported that Malaysia contribute about 200 billion rupees every year in remittance as a foreign employment destination for Nepali youths and since the shutdown, it was estimated that the country have lost 150 billion rupees in foreign remittance from Malaysia.

Nepal workers

The daily also reported that since the shutdown, more than 50,000 Nepali youths had been restrained from going to seek employment in Malaysia.

Bestinet was then under-fire may now have the upper-hand
Lawyer Datuk N Sivananthan clarifying allegations against Bestinet at a press conference in July 2018
Datuk N Sivananthan clarifying allegations against Bestinet at a press conference in July 2018

The Malaysian company that conduct the Biomedical processes had previously been scrutinized for various allegations of wrongdoings by multiple news portals.

The company had previously issued statements and held a press conference to deny any wrongdoings.

With the Nepali court decisions, Bestinet may now have an upper-hand should they decide to sue all parties involved in what could be a witch-hunt against the company.

Will this court decision impact Malaysia-Nepal G2G arrangement?

The Malaysian Ministry of Human Resource had previously announced the a new G2G arrangements to be introduced for the hiring of workers from Nepal to Malaysia. An MOU between the 2 countries were signed in 2018 however the mechanism had not been announced.

In an interview between Annapurna Post and Mr. Ahmad Phadil Ismail, Chargé d’Affaires a.i., Embassy of Malaysia, Kathmandu shed some light on this latest development.

He explained that it was a standard procedure for labour-receiving countries to set the standards required as they are the one who are taking in the workers.

He also said that Malaysia, in the past had received many workers who had counterfeit medical reports and were forced to repatriate after reaching Malaysia.

“As we are the ones granting the visa, health screenings fall under our jurisdiction and it has to be done at medical centers and institution that meet and follow our standards and guidelines.”

Phadil emphasized that the procedure is not only exclusive to Malaysia, European nations and the US also required their migrants to undergo health screening in their selected medical centers.

With Nepal courts clearing the biomedical centers involved from illegal charges, it is fair to expect that the foreign worker arrangements between Nepal and Malaysia will soon be operational again.

When contacted by NMT, the Nepal Embassy in Kuala Lumpur stated that the two governments are working towards implementation of the recently signed MOU and resume the issuance of employment permits for Nepali workers to be employed in Malaysia. The embassy also stated that there are some legal, administrative and procedural/technical issues that still need attention from relevant authorities.

The embassy refused to make any comment on the legal issues surrounding the matter for the time being but stated that any development on the matter will be made public by the embassy as and when necessary.

With the Nepal courts ruling that the suspended arrangements are not illegal as initially alleged, we still do not know how it will impact the G2G MOU.

More on this on NMT…