FIRSTLY, let’s start off easy. Convicts are people who have been found guilty of a criminal offence in a court of law. The term “penal labour” refers to labour performed by convicts or prisoners, typically manual labour.
Though it can be defined as such, it does not necessarily mean that labour is a form of punishment towards convicts.
It could also act as an occupation for the convicts with a wage provided.
The former is known as punitive labour whereas the latter is known as non-punitive labour.
When convicts are used for labour, there is little to no controversy.
However, the position shifts when the labour is coerced, or when modern slavery is committed.
This article reviews the state of penal labour in Malaysia and compares it with other countries.
It specifically aims to discuss the wages received by prisoners during employment, the general treatment of convicts, and, perhaps most importantly, the initial purpose of why convicts are used in these countries.
According to the American Civil Liberties Union (ACLU), incarcerated workers, also known as employed convicts, are frequently deprived of their rights against labour exploitation and abuse and are frequently under the complete control of their employers.
A new report by the ACLU has found that with the wages offered by their employers, 70% of the convicts were still unable to afford even their own basic necessities.
Additionally, 64% of them are concerned about their workplace safety.
Both of these statistics show that more than half of these incarcerated workers are not receiving standard workplace protections or adequate wages, the most likely reason being that they are merely convicts in the eyes of their employers.
However, Article 13 of the US Constitution excludes those confined due to a criminal conviction from the protection against slavery and involuntary servitude.
Hence, a whopping 76% of respondents who took part in a survey by the Bureau of Justice Statistics have said if they refused to work, they risked facing additional punishments such as confinement in isolation, loss of visitation rights and lastly, reduced opportunities of having their sentences reduced.
This left the workers with virtually no choice but to accept the labour delegated to them no matter what.
Even in India, there have been cases of prison labour. In the case of Poola Bhaskara Vijayakumar vs State Of Andhra Pradesh And Anr, the court referred to section 53 of the Indian Penal Code which states that offenders are liable for imprisonment with either hard labour or imprisonment without hard labour.
However, none of the laws in India authorises a State to demand hard labour from a prisoner without any payment due.
Hence, the courts have taken to interpret this as meaning that if a State fails to pay for the hard labour done by the prisoner, then it is a violation of the prisoner’s right and thus, orders have been issued for the defendant to sufficiently remunerate the prisoners for the labour.
Malaysia’s Prison Act 1995 has a few provisions regarding penal labour.
As in Section 47(1), it is stated that a prisoner serving time shall be subjected to be imprisoned, and labour as directed by the Officer-in-Charge at either an association, outside the cell or outside the limits of the prison which has been approved by the director-general.
Here, there seems to be a shortage of labour which leads to prisons being a new source of it.
According to the Malaysian Muslim Restaurant Owners Association president Datuk Jawahar Ali Taib Khan, the employment of convicts would serve as a way to help rehabilitate them into society while preventing them from a criminal relapse.
In other words, it is a way to prove they are worthy of a second chance at life as a member of society.
Zarina Ismail, president of the National Association of Human Resources Malaysia, stated that the punishments of convicts cannot go on without end and help must be given out to them if they were to be integrated back into society.
A study led by Yusuff Jelili Amuda titled “Economic Benefit and Implication of Exploring Prisoners Employment: Scholars Perspective for Case of the Nigerian Inmates in Malaysia” has concluded that a majority of the respondents are supportive of the idea of prison labour due to the socioeconomic benefits it offers to society.
However, there are concerns surrounding the stigma of being an ex-prisoner.
SME Association of Malaysia president Ding Hong Sing stated that in general, there is a negative view of people with prison records which would affect their self-confidence in the workplace.
As a result, former human resources minister Datuk Seri M. Saravanan proposed that prison records be kept confidential and restricted to specific government departments and the police force.
This is where it brings us to the jurisprudence side of this matter. The topic of prison labour comprises the human rights discussion.
Rights are an entitlement, immunity, privilege, and power, according to scholar Jerome Shestack.
He defines human rights as a right one possesses just by a being human who is independent of social circumstances.
A right is deemed as an “important” human right based on its intrinsic value, instrumental value, value to a scheme of rights, the importance in not being outweighed by other considerations as well as its importance as a structural supposer for life.
He stated that modern human rights define rights as concepts of natural necessities.
It is a minimum requirement of what it means to be human in a moral society.
Wesley Hohfeld is another scholar on human rights. The Hohfeldian system named after him is one used for the analysis of rights in describing the form of rights which are widely accepted.
It explains that there are four elements of rights which are privilege, claim, power and immunity.
Prisoners are humans too and although confined to the prison walls, they are still - or at least should be - entitled to their basic human rights.
Quoting Jerome Shestack, where human rights are rights possessed simply by being human, it is a basic human right to be given the choice of whether to work.
When we move past that, it is a basic human right for a person to choose where to work.
This is why it is vital for prisoners to be given a choice on whether to be employed or not and for them to be assigned to workplaces with their consent.
If these are not fulfilled, then it would only be suitable to call prison labour modern slavery which already exists in the US based on the statistics given above.
Slavery is when an individual is owned by another. Modern slavery is when an individual is exploited by others for personal or commercial gain, as defined by Anti-Slavery International.
Hence, when a convict is used by employers or the prison department or any other body for commercial gain, it must be taken as modern slavery at face value.
To conclude, the integration of prisoners and ex-convicts into employment is a well-motivated idea which brings along multiple benefits from the social and economic aspects, not to mention that it serves the welfare of the prisoner himself.
However, it must have a carefully constructed plan from the government side to ensure all records are confidential and that the prisoners are placed in sectors well-suited to their expertise.
Most importantly, the government must obtain the consent of all prisoners involved freely without any coercion or duress to ensure healthy employment.
This is to ensure that even the most basic human rights of convicts and ex-convicts alike are protected at all costs.
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