The imprisonment of non-citizens — Gurdial Singh Nijar


Source: The Sun Daily

(Deputy President, HAKAM)

MALAYSIA’S several immigration detention centres are full of non-citizens. They have been detained for a variety of reasons: some allegedly for entering the country without proper documents; others for remaining in the country using false documents.

Many of those detained have been rounded up in raids. When they were unable to produce the correct documentation they were arrested. Some were arrested in their homes, others at the airport while trying to leave. Still others were arrested at their workplace, on the street or when they were trying to report mistreatment by employers and agents to the authorities.

Yet others are detained if there is some report by unidentified informers that the person is suspected of seeking to overthrow some other government in some other land.

Those arrested may be completely innocent of the accusations against them. Our laws are replete with provisions that protect the rights of these non-citizens – under the Federal Constitution as well as our immigration laws.

Yet these persons are unable to avail themselves of these rights. They have no recourse to lawyers; and the immigration authorities seem to ride roughshod over the legal safeguards accorded by our laws.

They are imprisoned until the authorities can deport them or until detainees can fund their own travel from the country. Migrants can be detained indefinitely; there is no legal limit on the length of their detention.

Amnesty International reports that conditions in all the detention centres it visited were found to be extremely poor and dangerously overcrowded.

In a recent case, in which I had more than a passing interest, a non-citizen with a valid social visit pass was arrested as he was about to leave for a “benign” foreign country with his wife and infant son. He was bundled off to prison under the pernicious Sosma (Security Offences [Special Measures] Act 2012) – allegedly on suspicion of involvement in terrorist activities. The investigations showed these allegations to be untrue. Nonetheless, he was held in solitary confinement in an immigration depot (read “prison”) for months. And was about to be deported to a country – where he faced certain imprisonment or worse. His sibling and a relative were in prison in this other country for supporting a rival political group.

The immigration authorities detained him for a period longer than 14 days without producing him before a magistrate – clearly violating both the Federal Constitution, as well as a mirror provision in the Immigration Act. Second, he was arrested because an immigration officer had “reasonable belief” that he was liable to be removed from Malaysia. But at that time he had a valid social visit pass. In a similar situation, the High Court has ruled as illegal the act of the director-general of immigration in arresting the person and ordering his removal: Sajjad Hussein v Director-General of Immigration. Third, he was declared a “prohibited immigrant” on the basis that he had been convicted and imprisoned for a criminal offence. As it turned out this was patently false. He had never been charged, let alone convicted, of any crime. The higher officer blindly sanctioned the detention on this false premise – without as much as making a cursory investigation into its truthfulness.

The upshot was that the detainee was ordered to be released when his case was brought up before the court – for non-compliance with these protective provisions of our laws.

But it took an inordinately long time and forensic legal intervention for him to be freed. In the meantime this innocent guy was languishing in prison.

How many more such cases exist – for which the immigration authorities are not being held to account?

The non-citizen arrestees have no access to lawyers. The Bar Council’s legal aid service seeks to help these non-citizens. Commendable, indeed. But how effective are these efforts as they are undertaken by newly-minted law graduates in their “infant” chambering months?

According to a report in a national daily, some 68,000 people were placed in immigration detention in 2013 alone. The national human rights institution, Suhakam, reported that 1,406 children were detained in these immigration prisons from January to October 2013. Section 34(1) of the Immigration Act provides that persons may be detained for “such period as may be necessary” pending removal. Immigration detainees can easily end up spending up to two years in detention, according to a 2011 Report of a Working Group of the UN Human Rights Council.

Surely the time has come to monitor and track the acts of the immigration authorities to ensure that they do not subvert the safeguards so assiduously embedded in our legal architecture.

Gurdial Singh Nijar - file pic

Gurdial Singh Nijar – file pic

Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.