Suhakam must probe Nigerian’s death in custody, immigration procedure, detention conditions

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At the Immigration Department
Photograph: amdtaufik.com

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 9 July 2019.

He was arrested by the Immigration Department on 4 July for maybe allegedly being an undocumented migrant.

Immigration Department director general Khairul Dzaimee Daud was reported as saying: “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”(Malaysiakini, 12 July 2019).

This section contains many different offences, and there seems to be no indication of the exact suspected offence for which Thomas was arrested.

If it was merely because he was a suspected undocumented migrant, this is a fact that could have been speedily confirmed by reference to the Immigration Department’s own records, the school he was attending and/or the Nigerian High Commission.

He should have been released within hours instead of being in detention for days until 9 July.

Immigration Act and Constitution need to be amended – 24 hours, 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 twenty-four 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:

…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 twenty-four hours (excluding the time of any “necessary journey)” the words “within fourteen days”.

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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 a ‘forgery’ – 14 days may have been needed in

The Immigration Act, in Section 51(5)(b) states, amongst others:

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 fourteen 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 effecting his removal from Malaysia, under this Act.

This Immigration Act 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/or his or her lawyer) 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 immigration officer. This goes against the ordinary remand powers of a magistrate.

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It is an injustice that Malaysian citizens, 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 “fourteen days”.

Equality for all – citizens or non-citizens

Madpet urges the government to ensure that all individuals, 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.

And the magistrate shall 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: “…(b) if the offence which is being investigated is punishable with death or imprisonment of fourteen 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: “(1) All persons are equal before the law and entitled to the equal protection of the law” – is given full effect.

In this modern computer age, hours are sufficient to verify whether an individual is in Malaysia legally or not – not “fourteen days” as envisaged by the drafters of the Constitution in 1957.

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Suspects of offences must be placed in lock-ups, not together with other confirmed undocumented migrants.

Many allegations concerning immigration should not be ignored

Thomas Orhions 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 center 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 7 November 2018 who was arrested on 9 October 2018 and ended up in detention for 37 days, had commenced a suit against Malaysia’s Immigration Department, seeking RM2.7m in compensation for his 37-day detention in an overcrowded cell (Malay Mail, 12 June 2019).

There has also been allegations about children in immigration detention centres and other allegations about abuse of powers and detention conditions

Madpet also calls on the Human Rights Commission of Malaysia (Suhakam) to immediately visit and investigate the detention conditions at immigration detention places – a power that is bestowed on commissioners by the Human Rights Commission of Malaysia Act 1999.

Madept 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 not only detention conditions but also reform procedures and laws and to act speedily and openly against any or all immigration officers who have abused their powers, been involved in torture or have facilitated offences through indifference, solidarity with fellow officers or any other reason.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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