The amended immigration law adds new weapons to the government's arsenal to act against illegal entrants from Thursday. Pointedly lacking, though, are assurances that available resources can cope with implementation, as malaysiakini finds out in the second of a three-part series.

Thousands of illegal immigrants are scrambling to leave Malaysia with just two days left in the amnesty period. Thousands more are queuing to exit the country over the next few weeks, flight and ferry tickets in hand.

Transportation services to Indonesia and the Philippines in particular are fully booked, having been operating at full capacity for weeks. Extra ferry services have had to be deployed to facilitate the departure of the immigrants who had entered Malaysia without valid documents.

The exodus has been sparked by fear of harsh penalties under the amended Immigration Act 2002. From Thursday, anyone found without a valid visa is liable to a maximum fine of RM10,000 or a five-year jail term, or both, and up to six strokes of the rotan .

However, even the threat of arrest and punishment may not deter the full complement of illegals from leaving the country.

And this raises the question of the ability and readiness of law enforcers to manage a massive problem what to do with large numbers of illegals if and when they are caught.

Government viewpoint

The government insists that this is not a major issue.

Deputy Home Minister Chor Chee Heung is confident that the deterrent aspect of the laws will be sufficient to ensure that most illegal immigrants leave within the next few weeks.

"Many are leaving the country every day and more are expected to leave once the law takes effect," says Chor.

"We have increased manpower in enforcement units to implement our new strategy. We are setting up a special coast guard unit to look after the shores along Malaysian waters."

Statistics released by the Immigration Department reveal that, between March 22 and July 28, only about 250,000 of the estimated half a million undocumented immigrants have left.

This means that the authorities will still have to contend with those who have chosen to remain in the country despite dire consequences if arrested.

At present, illegal immigrants who are arrested by police and immigration officials are sent to detention camps where they await deportation.

The judicial process

Aegile Fernandez, the migrant desk coordinator at labour rights organisation Tenaganita, says application of the new law would mean that illegal immigrants would have to serve an additional period of incarceration.

"Under the new laws, (the illegal immigrants) are to be charged in court and have their sentences passed. It will be a prison sentence and prisons will not be able to cope," explains Fernandez.

The task of arresting, holding and charging illegal immigrants in a court of law is also likely to be a daunting task for the police and public prosecutors.

According to lawyer Karpal Singh, illegal immigrants would have to be charged in court because sentences can only take effect with a court order.

"An investigation would have to be done on the charges and the public prosecutor's office would have to submit papers to the court," says Karpal.

The lawyer states that each individual would also have to be charged separately although public prosecutors may apply for the trial to be heard jointly if several people are involved in the same offence.

The courts would also have to consider (the defendant's) age and medical condition if they are to be whipped, as Section 289 of the Criminal Procedure Code provides for such exemption.

Men over the age of 50, women and those who have been sentenced to death cannot be whipped. Other provisions of the law protect juveniles from being whipped.

Over-crowded prisons

Other considerations will arise if the courts mete out jail sentences against illegal immigrants.

Prisons Department spokesperson Kausaliah Devi concedes that the capacity of existing facilities in the country is already taxed.

Malaysian prisons, built to cater for an optimal capacity of 24,000 prisoners, now accommodate 27,000 inmates.

"We will first wait for the courts to decide if prison sentences will be given out. We shall see then [if we can cope]. We were asked to implement the policy so we have to carry out the policy," says Kausaliah.

Optional measures

However, there are several ways to avoid potential complications in implementation of the law.

Immigration Department director-general Mohd Jamal Kamdi says that, although the law provides for illegal immigrants to be prosecuted, this need not be done in every case.

"Immigration (authorities) can take action to charge them under Section 6 of the Immigration Act for entering Malaysia without a valid permit. We can also deported them without (pressing) charges. It is up to us. We have the option," he explains.

Jamal says detention camps for illegal immigrants will remain as they are for the time being.

"There is a difference between detainees, those on remand and prisoners. The centres are detention camps. We will continue to deport people [who] have breached the laws," Jamal says.

The amended Immigration Act also provides discretionary power to judges in determining an appropriate punishment. If judges are sparing in handing out long sentences, prisons will not feel the pinch of accommodating and feeding illegal immigrants.

Sign of weakness

One possible long-term response could be to convert some of the existing detention centres into prisons for illegal immigrants.

Based on the recent directive for the Prisons Department to take over security services from the police at detention camps, the government may indeed be studying this possibility.

According to Jamal, such transfer of power has already taken place at the detention centre in Ajil, Terengganu, and more centres are expected to follow suit.

From all that is being said, it seems clear that resources will continue to be diverted to efforts to keep down the numbers of illegal immigrants. The law itself may not prove to be the sole deterrent.

And however much the authorities seem bent on stern application of the law, reality dictates that they may have to pursue this with some flexibility. Whether or not this is interpreted as a sign of official weakness remains to be seen.

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