Suhakam must probe custodial death of Nigerian student
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. - Malaysiakini, 15/7/2019
See full statement at
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