Uphold right to life and liberty, end deaths in custody now

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At the Immigration Department
Photograph: amdtaufik.com

The Malaysian Bar is appalled and deeply disturbed by the death of Nigerian national and doctorate student Thomas Orhions Ewansiha, 33, on 9 July 2019, the fifth day of his detention by the Immigration Department.

One death in custody is one too many! It matters not whether the person is a citizen or non-citizen; however we view the matter, a human life has been lost.

In addition, every death in custody tarnishes the image of the enforcement agency involved and the entire country. We bear the collective shame that deaths of this nature continue as a result of detention or enforcement by enforcement agencies.

The Malaysian Bar urges the government to expeditiously conduct an inquest into Thomas’s death to determine “the manner in which the deceased came by his death and as to whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person” (Section 328 of the Criminal Procedure Code).

No enforcement agencies should seek to absolve itself of any wrongdoing merely on the basis that the person who died in custody was not subjected to physical abuse while in custody. The detaining authority owes a duty of care to each and every person that they arrest and detain.

This duty of care requires the detaining authority to ensure that the detained person is sufficiently monitored, and that nothing untoward happens to the detained person during the period of detention.

The onus of showing that such duty of care was sufficiently discharged is upon the law enforcement agency itself. The issue of exoneration will be for the courts to determine.

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No stone should be left unturned to uncover the circumstances that led to Thomas’s death, so as to prevent the occurrence of any further deaths in custody. Any and all wrongdoers must be brought to justice.

We call upon the government to adopt and comply with the United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules, with regard to the operation of all detention centres in Malaysia – immigration detention centres and prisons included – so as to ensure that detained persons are treated with due respect in recognition of their inherent dignity as human beings.

In light of this tragic incident, the time has come to do away with archaic provisions that entrench discrimination against foreigners in our Federal Constitution. Discrimination and xenophobia towards foreign citizens have no place in a modern, civilised society.

The Malaysian Bar calls on the government to immediately introduce a bill in Parliament to remove the second proviso in Article 5(4) of the Federal Constitution.

The provision, which allows non-citizens to be detained for up to 14 days for an immigration-related offence before being produced before a magistrate, is repugnant to natural justice and unacceptable in this modern day and age. All it does is to prevent the courts from having immediate oversight and supervision of immigration-related detained persons. A 14-day period to verify someone’s citizenship status may have made sense in 1957, but not in 2019.

Equal and non-discriminatory due process demands nothing less.

It may be that with court oversight, incidents of abuse of immigration-related detained persons will soon be a thing of the past. But we must act fast.

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Abdul Fareed Abdul Gafoor is president of the Malaysian Bar.

This piece dated 16 July 2019 is reproduced from here and has been edited for style only. 

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