The recent false imprisonment and whipping of the Nepalese migrant worker Mangal Bahadur Gurung has raised some serious questions about our entire criminal justice system.
The highhanded and arrogant manner in which the enforcement unit of the immigration department handled the case and the refusal by the relevant authorities including the prosecution and court to accept responsibility for this serious miscarriage of justice is appalling to say the least.
Several issues need to be clarified by the immigration department about the manner in which they conduct their operations against illegal migrants. From my reading of the Immigration Act 1959/1963 ('the Act') in section 35, the power to arrest is given to any immigration officer generally or specially authorised by the director-general or by a senior police officer.
Section 41 of the Act states that all police officers shall, when so requested by a senior immigration officer, receive and execute any warrant of the immigration director-general for the arrest, detention or removal of any person made under the Act.
Nowhere in the Act does it say that the director-general is allowed to delegate these functions to persons other than those mentioned. Members of Rela (the auxiliary police unit) are not by definition 'any senior police officer' or 'any other police officer' as stated in the Act.
Furthermore, while the Police Act 1967 makes a reference to the auxiliary police unit, it does not empower it with the full powers of the regular police force.
It is my contention that the director-general of immigration can only delegate his functions to the appropriate persons under the Act and not to Rela. Furthermore, if the director-general had indeed delegated these functions to the police as provided for under the Act, the police are not permitted to delegate these powers to Rela instead. There can be no delegation of delegated powers.
Rela, therefore may lack the power and authority to exercise such powers that are reserved for the immigration, regular police and in certain circumstances customs officers.
The legality of Mangal's arrest itself is in question. To make matters worse he was in possession of only photocopies of his passport and work permit that proved he was not an illegal migrant. It is very clear from section 12(1) (f) of the Passports Act 1966 that it is an offence for Mangal's employer to hold his passport without lawful authority.
The immigration officers who conducted the questioning of Mangal should have been aware of this unless of course they themselves are not familiar with their governing laws. It is customary for most employers to hold their foreign workers' passports but that does not make it lawful.
To compound matters further the immigration department's prosecution officer overlooked these matters and did not bother to investigate the matter further before producing and charging Mangal in court.
The learned magistrate who passed the unlawful verdict and sentenced Mangal to 10 months in detention and one stroke of the cane was equally uninterested in doing justice given that the accused could not speak Bahasa Malaysia and had almost no knowledge of English. It begs the question whether Mangal even understood the nature of the charge against him.
The learned magistrate should have enquired further into the matter given that photocopies of the relevant documents were in Mangal's possession when he was arrested. Alternatively, the magistrate should have requested that the prosecuting officer verify the same unless there was a suppression of material evidence by the prosecution with regard to these documents.
It is wise if magistrates do not take their functions too lightly and take a cursory approach to the cases before them especially in the case of an unrepresented accused. This incident also begs the question whether some of our magistrates are experienced, competent and professional enough to sit at the seat of justice and dispense justice without fear or favour.
It is unfortunate that Mangal had to wait for 51 days in prison and suffer a stroke of the cane before the High Court set aside his conviction and sentence. It is right for the attorney-general to investigate the matter but it should be done expeditiously and in a thorough and transparent fashion.
It is also time for the sweeping powers given to the immigration authorities - which are without appropriate checks and balances - be reviewed and reformed in the interests of fairness, accountability and transparency.
The government should also look into the possibility of creating a statutory scheme for compensation for cases of miscarriage of justice as in Mangal's. The UK has provided for this in Section 133 of its Criminal Justice Act 1988 in addition to ex-gratia payments by the Home Secretary.
However, here in Malaysia, Mangal is left with no other option but to sue the immigration and government for false imprisonment, malicious prosecution or abuse of process in the civil courts and seek damages. This is not a viable option given his circumstances.
For a country that aspires to a first world status, we should also not forget the need to safeguard and augment our civil liberties as these are the most important hallmarks of a civilised society.