Unnecessary deaths in detention

By Alice Nah (The Malaysian Insider)

APRIL 24 — Last Sunday, a newspaper in Bangladesh reported on the case of 30-year-old Ikhtiar Uddin, a Bangladeshi migrant worker who died while being held in detention in Lenggeng detention centre after being punished, beaten, and tortured “severely” by Malaysian authorities.

On Wednesday, the New Straits Times reported that a 25-year old Liberian was found dead in detention, also in Leggeng detention centre. We don’t know his name, or the cause of his death.

Last month, Datuk Seri Syed Hamid Albar (then Home Minister) reported to Parliament that between 1999 and 2008, there were 2,571 deaths of detainees in prisons, rehabilitation centres and immigration detention centres. He attributes these deaths to illnesses, fights and suicides.

Almost 14 years ago, in August 1995, Tenaganita released a memorandum entitled “Abuse, Torture and Dehumanised Treatment of Migrant Workers at Detention Centres”. It was a straightforward memo, describing in plain terms problems in the recruitment and management of migrant workers that resulted in their abuse both in and out of detention.

True to its title, the memo also focused on conditions of detention, highlighting overcrowding, inadequate sanitation, insufficient food and water (leading to dehydration, malnutrition, diarrhoea and even cases of beri-beri), sex abuse of female detainees and corruption. Tenaganita expressed concern over deaths in detention, “as high as four deaths per week at the Semenyih camp alone”, citing illnesses, torture, and inadequate medical care as possible causes of death.

The memo made several recommendations, including the independent monitoring of detention centres by human rights groups, the establishment of an independent Commission of Inquiry to investigate allegations of abuse, the creation of a complaints mechanism for migrants, and the reform of the legislative framework and system of recruitment so that the rights of workers could be better protected.

Instead of considering these recommendations, the government proceeded to charge Irene Fernandez for maliciously publishing false news under section 8A(1) of the Printing Presses and Publications Act 1984. After a prolonged trial, she was sentenced to 12 months’ jail. It took 13 years before her conviction was set aside in November last year.

I wonder how many deaths in detention could have been prevented, how much suffering avoided, if the government had invested all the resources it used in prosecuting Fernandez to monitor and reform immigration detention?

Since the infamous Tenaganita memo, there have been a number of reports highlighting similar issues in immigration detention. A joint report by the International Federation for Human Rights and Suara Rakyat Malaysia (Suaram) in March 2008 shows that some of the issues reported in Tenaganita’s 1995 memo still exist, including ill treatment and excessive punishment of detainees.

More recently, Mizzima News, reporting on protests by Myanmar detainees on their prolonged detention on April 3, quote a Myanmar detainee: “…There have been deaths, detainees have been assaulted and bones broken. Myanmar detainees are usually released on the Thailand border. They never release us in the city to prevent trouble. They transfer us to human traffickers after secret deals…”

Several steps are necessary in order to prevent deaths and improve conditions of detention. Firstly, the government needs to review and to limit the use of detention. At the moment, law enforcement officers rely too heavily on detention — for the investigation of cases, for securing witnesses for trials, for keeping migrants until they figure out what to do with them — which is extremely expensive and which gives rise to human rights abuses.

There have been many instances where documented migrants (including tourists) were unable to produce valid passports immediately upon questioning. Instead of allowing them to retrieve these documents (from hotel rooms, employers, family members or friends) Rela and Immigration officers have sent them to detention centres where they have been held in remand for up to 14 days pending investigation. Some detainees have not been allowed to contact anyone during this time, much less seek legal counsel. There have been numerous cases of documented migrant workers stranded in detention for months and months, unable to “prove” their legal status. Desperate to get out of indefinite detention, they pleaded guilty for offences they did not commit.

It is also unnecessary to arrest and detain refugees holding documents issued by the United Nations High Commissioner for Refugees (UNHCR). Persons seeking asylum should be granted access to the UNHCR and released after their status as refugees is confirmed. This prevents immense suffering and is the real solution to stop the trafficking of migrants and refugees at the Thai-Malaysia border (which, incidentally, has become the centre of attention again this week with the submission of a report by US Senator Richard Lugar to the Malaysian government entitled “Trafficking and Extortion of Burmese Migrants in Malaysia and Southern Thailand” tabled by Committee on Foreign Relations of the US Senate on April 3).

Another group that should not be held for immigration detention are children. The Committee on the Rights of the Child has recommended that Malaysia: “Take urgent measures not to detain children in connection with immigration proceedings, unless it is necessary to protect their best interests and for the shortest time possible, and establish a screening process to ensure that groups with special needs, such as refugees and asylum-seekers, including their children, are rapidly identified…”

It is also unnecessary to detain victims of trafficking and migrants required as witnesses in court cases.

Secondly, it is incumbent on the government to spend more resources to ensure that it meets minimum standards for the treatment of detainees. In addition to improving conditions of buildings, ensuring the sufficient supply of sufficient food, toiletries and necessary provisions, detainees must also have access to medical services and to legal counsel so that their cases can be resolved. There are certain basic requirements that cannot be compromised in order to save on costs.

Thirdly, it is necessary to have stronger, regular independent monitoring of all places of detention. Suhakam has been given the power under the Suhakam Act to “visit places of detention in accordance with procedures as prescribed by the laws relating to the places of detention and to make necessary recommendations”. Over the past few years, Suhakam Commissioners have highlighted the need to improve conditions of detention. However, there has been little systematic change in response to their recommendations by law enforcement agencies.

Suhakam needs to ensure that detention conditions meet international guidelines such as the 1955 UN Standard Minimum Rules for the Treatment of Prisoners and the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Effective monitoring must also include a confidential complaints mechanism accessible by detainees for which there are safeguards against reprisals, as well as investigations into abuse committed by law enforcement officials leading to prosecution. Suhakam must conduct an inquiry into all deaths in detention, disclosing names, nationalities and causes of death.

Conditions of detention in Malaysia have affected hundreds of thousands of migrants and refugees since Malaysia embarked on its aggressive policy of arresting, detaining and deporting people suspected to be in an irregular situation. We can give little consolation, if any, to the families of the 2,571 who died in detention over the past decade. We can only wonder about how many of these could have been prevented if the Tenaganita memorandum was taken more seriously in 1995.

What we are sure of is that we can prevent the unnecessary death and suffering of detainees in the future if we take concrete steps to reform immigration detention today.