LETTER | Malaysians Against Death Penalty and Torture (Madpet) notes with sadness the death of Nigerian student, Thomas Orhions Ewansiha, who died while under detention at the Bukit Jalil Immigration Depot on July 9.
He was arrested by the Immigration Department on five days earlier for maybe allegedly being an undocumented migrant.
Immigration director-general Khairul Dzaimee Daud was reported saying that "The student was suspected of committing offences under Section 56(1) of the Immigration Act 1959/1963 and was arrested under Section 51(5)b) for 14 days for further investigations."
This section contains many different offences, and there seems to be no indication of what exactly the suspected offence for which Ewansiha was arrested for.
If it was merely because he was a suspected undocumented migrant, this is a fact that could be speedily confirmed by reference to the department's own records, the school he was attending, and the Nigerian embassy.
He should have been released within hours, and not still be in detention for days.
Unfettered judicial discretion in remand applications
The Federal Constitution, in Article 5(4) states: "Where a person is arrested and not released he shall without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate"s authority..."
There is an exception when it comes to a non-citizen, where it states that "….other than a citizen, who is arrested or detained under the law relating to immigration, this clause shall be read as if there were substituted for the words 'without unreasonable delay, and in any case within 24 hours (excluding the time of any 'necessary journey').
This means the foreigner arrested for an ‘immigration offence’ need not be brought before a Magistrate within 24 hours, but "within 14 days."
The only justification is that time may be needed to verify whether the passport or the visa of the foreigner is real or forged, where 14 days may be needed.
The Immigration Act, in Section 51(5)(b) states, amongst others, that "Where any person other than a citizen is arrested or detained under this act, whether for an offence against this act or otherwise than for such offence, and has not been earlier released, or charged in court for an offence against this act, or removed from Malaysia under this act, he shall, within 14 days of his arrest or detention, be produced before a magistrate who shall make an order for his detention for such period as may be required by an immigration officer or a police officer for the purpose of investigations into an offence against this act, or by an immigration officer for the purpose of either making inquiries, or affecting his removal from Malaysia, under this act."
This provision seems to remove the judicial discretion of the magistrate, who in a remand application should listen to the police (in this case the Immigration officer), the suspect and make an appropriate remand order or set him free.
The act uses the words, "…magistrate who shall make an order for his detention for such period as may be required by an immigration officer or a police officer…" which implies the magistrate has no choice but just order remand for the number of days requested by the said Immigration officer – and this goes against the ordinary remand powers of a magistrate.
It is an injustice that a Malaysian citizen, suspected of committing the same immigration offences are treated differently from a non-citizen. The Malaysian is brought before the magistrate within 24 hours, and the foreigner within 14 days.
Equality for all persons
Madpet urges the government to ensure that all persons, citizens or non-citizens, should be brought before the magistrate within 24 hours if the police, Immigration officer and/or other enforcement officers, want to detain a person for further remand for the purposes of investigation.
The magistrate should have the power to grant or refuse the remand application, and to determine the number of days remand allowed, in any case, no remand order shall be more than seven days being the maximum remand provided for serious offences in Section 117 of the Criminal Procedure Code, which states, "if the offence which is being investigated is punishable with death or imprisonment of 14 years or more, the detention shall not be more than seven days on the first application and shall not be more than seven days on the second application."
The Federal Constitution should also be amended, to ensure that Article 8(1), which states "All persons are equal before the law and entitled to the equal protection of the law" is given full effect.
In this modern age, hours are sufficient to verify whether a person is in Malaysia legally or not, not 14 days as envisaged by constitution drafters in 1957.
Suspects of offences must be placed in lock-ups, not together with other confirmed undocumented migrants.
Allegations should not be ignored
Ewansiha died in custody, and even if it is later established that he died of natural causes, the real issue is really why he was still being detained when he should have long been released within hours, noting the fact that he was definitely not an illegal immigrant.
There have also been other recent allegations related to the Immigration Department, its officers and detention centre conditions.
We note that it was also reported in media that 68-year-old Singaporean Puis Gilbert Louis – a holder of a valid visa until Nov 11 last year and who was arrested on Oct 9 and ended up in detention for 37 days – had commenced a suit against the Immigration Department, seeking RM2.67 million compensation for his detention in an overcrowded cell.
There have also been allegations about children in Immigration detention centres, and other allegations about abuse of powers and detention conditions.
Madpet also calls on Suhakam to immediately visit and investigate the detention conditions at Immigration detention places, a power that is bestowed on Commissioners by Human Rights Commission of Malaysia Act 1999.
Madpet also calls for a parliamentary select committee, not the home minister or any other interested parties, to investigate the Immigration Department, its practices, its powers and detention conditions.
Madpet urges the government to act speedily to improve detention conditions, but also reform procedures and laws, and act speedily and openly against any or all Immigration officers who have abused their powers, been involved in torture or have facilitated offences by reason of indifference, solidarity with fellow officers or any other reason.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.