The Malaysian Bar - Arrest and Detention of Migrants

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Arrest and Detention of Migrants

Saturday, 06 December 2008 12:10pm

On 5 December 2008, the Bar Council organised a ½ day roundtable conference on the Arrest and Detention of Migrants. Below is the press statement issued by Dato’ Ramachelvam the Chairperson of the Law Reform and Special Areas Committee after the Roundtable

Press Statement

1. Raids conduced by Rela

Rela conducts a lot of raids and there are allegations that these raids are poorly handled.

•	Bar Council feels that raids and arrests should only be carried out by persons who are properly trained. The training provided to Rela is very minimal and allowing them to carry on conducting raids and making arrests will only perpetuate more human rights abuse;

•	Rela is not equipped to determine the authenticity of the documents carried by migrants. Their role is only to make arrests and hand over the arrested persons to Immigration. Only the Immigration Department has the ability to determine the legal status of the person detained. Allowing Rela to continue to conduct raids on their own will mean that many persons who are documented and who have not committed any offence will also end up being detained.

•	Our position is that Rela should be disbanded. In the interim Rela should not be allowed to conduct any raids without the presence of members of the Immigration Department.

2. Refugees

•	We are concerned about the plight of refugees who are categorized as “undocumented persons” because Malaysia has not ratified the 1951 UN Convention on Refugees

•	Malaysia should recognize the existence of refugees in our midst and ratify the 1951 UN Convention on Refugees

•	The authorities should recognize the card issued by the UNHCR to refugees and not arrest persons who are holding such cards

•	Refugees should be granted the right to work pending repatriation.

•	There is a need to establish an Immigration Tribunal to determine refugee status.

3. Detentions Centers

•	Detention Centers are presently under the Immigration Department. We believe that it would be better if these centers were run by the Jabatan Penjara because they are trained in this area and have the experience of managing such centers

•	Detention centers must be made more accessible to lawyers and family members

•	Each detention Center should have a Board of Visitors. The Board will have the power to inspect detention centers without needing to get permission from the Immigration Department

4. Remand Period

Under the CPC the maximum period of remand is either 7 days or 14 days. The Immigration Act however allows a foreign worker to be detained for a continuous period of 14 days.

•	Immigration Act must be amended to bring it in line with the provisions of the CPC

•	The right of a detainee to (i) inform his family/friends about his detention and to (ii) have access to legal counsel must be extended to migrants

•	The Immigration Department should use the remand period to verify all particulars pertaining to the legality of the migrant worker stay in Malaysia

5. Availability of duty counsel

Access to justice is a fundamental right. And it is the responsibility of the state to ensure that every detained person (including foreigners) be given equal access to legal counsel regardless of financial means

•	The State should provide duty counsel in each police district

•	The services of the Biro Bantuan Guaman should be extended to provide legal assistance to migrants in detention.

6. Special Sessions Courts

We are concerned about the number of persons unrepresented and also the number of detainees who plead guilty without understanding the consequences of their plea. Our records based on observations in 4-detention centers show that 94.8% of foreigners are unrepresented and 89.8% of those who appear in court plead guilty.

We are also concerned that in 74.4% of cases the accused were not told of the consequences of their guilty plea (See Attachment)

•	The State should provide duty legal counsel in court

•	Legal counsel should have better access to accused persons

•	The State should ensure the availability of interpreters

•	To ensure better access to justice the Special Sessions Courts should not be situated within the detention center

•	We should make use of existing lower courts to hear immigration cases; To expedite cases involving migrants there should be dedicated courts to hear such cases

7. Role of foreign missions

•	We note that the assistance provided by the sending countries of the migrants are not adequate

•	Foreign missions must play a more proactive role whenever any of their citizens are arrested or charged eg. Have a migrant desk, availability of an interpreter and provision of consular services.

•	Foreign missions should also provide legal counsel for their nationals who are detained or charged.