Malaysia's 'Retrench foreign workers first' policy is discriminatory and is against the Federal Constitution.

When it comes to retrenchment, the general principle followed was 'Last In First Out' (LIFO) but today in Malaysia a new principle is emerging 'Foreign Workers First Out'(FWFO) - and the question is whether this is right.

Remember the highest law of the land is the Federal Constitution - and Article 8 (1) provides that 'All persons are equal before the law and entitled to the equal protection of the law...'. The word used is 'person' - and that clearly means it applies to both citizen and non-citizen.

Again Article 8(3), which uses the term 'person' states as follows: 'There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.' Does this refer to only the States in Malaysia - or does it refer to 'any State' as in any nation...any country? The word used is 'person', and not 'citizen' and as such it leans towards the interpretation that this applies also to foreigners.

There are stated exceptions in Article 8, where discrimination is permissible - but alas there is nothing that allows discrimination based on the fact that a worker is not a Malaysian national.

In the Employment Act 1955, Section 60N, it states:-

60N. Termination of employment by reason of redundancy.

Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee.

[Ins. Act A1026]

Thus, it seems that the FWFO principle seems to be coming from the Employment Act - but is not section 60N going against the Federal Constitution?

Section 60N is ultravires the Federal Constitution - and that FWFO principle goes against our Federal Constitution, and must be stopped.

Employers must retrench their foreign workers ahead of their Malaysian staff as they seek to weather the current economic slowdown, said Deputy Human Resource Minister Datuk Noraini Ahmad.

She reiterated that employers should adopt the Government’s foreign worker first out (FWFO) principle. - Star, 28/2/2009 - Retrench foreign workers first, employers told