Wednesday, March 14, 2007

Comment: A court within a camp - Malaysia welcomes the world (Malaysian Bar website)

Contributed by Latheefa Koya
Wednesday, 14 March 2007, 07:54am
Latheefa Koya“Two months, two whips!” Another foreigner walks into Malaysia’s overcrowded prison with bloody marks on his back. Thanks to the efficiency of the Semenyih Special Immigration Court, even the prison system could not cope with the speed in which cases are solved mostly with the whip.

Being a lawyer working on cases involving migrants, most of whom end being undocumented and were forced to overstay and because of rogue agents, or because of some Rela members’ lucky day of getting an extra RM80.00, I have witnessed the other side of Visit Malaysia Year 2007.

Yes, it is RM80 reward for each migrant worker nabbed by Rela members. And it no longer falls under the definition of pocket money when you have more than two million migrants walking about freely on the streets, at least now, until the equally efficient police chief fulfils his dream of zero-migrant workers on the streets. Never mind whether he or she is documented or not– that’s not their job. The special courts such as at Semenyih have been set up to exactly decide on this.

Meanwhile, welcome to Semenyih, where the other side of Visit Malaysia Year 2007 resides. These foreigners don’t don a black expensive burqa and shop for perfumes, neither do they carry a hotel key-card while loitering in Bukit Bintang’s sleazy areas. Semenyih is Malaysia’s answer to Auswitch and Shatilla, minus the chambers and the Israeli guns.

The ‘criminals’ here did not snatch handbags or cheated a bank of millions; in contrast, they are dispossessed of all their belongings, left (sometimes for good) their families thousands of miles away, only to be nabbed on the street while on their way to the factories that employ them to work in places no Malaysian would ever want to even go, let alone work. Their arrestors are none other than youths, not dissimilar to countryside thugs, who themselves impoverished by unemployment, had joined the voluntary organisation once famed for fighting crimes in neighbourhoods and kampungs and therefore ridding the country of all the social ills we now hear of. This generation of Rela, on the other hands, religiously iron their uniforms every night bearing the Rela logo, to make some dirty money on a poor migrant’s plight the next day.

Nobody can point out Semenyih in a road map. Why is a court set up in such a remote area, when it ‘hears’ (if one may be polite enough to describe the court’s activity thus) cases from Seremban, Sungai Buloh and as far away as Langkap and Juru? Or has the familiar refrain that “justice should not only be seen” taken an all new meaning by the administrators of this court, a court whose judge basks in the glory of seeing victims of poverty and human trade, transforming into chunks of meat to be jailed and flogged in the most dishumanely manner?

But then again, why not? After all, detainees are rarely represented by lawyers, and there is no need to have a bank nearby to prepare payment for a bailout, especially when you have a judge who competes with award-winning comedians by asking such questions as “Why should I give bail to a foreigner?”

The scene at the court is like an auction of slaves, only that no slaves are actually traded. The end result is the same: marks of whipping are left on the poor migrant, not unlike the black slaves of old America who are hotstamped on their backs.

Mitigation takes an all new meaning in the court at Semenyih. A judge once retorted when told that a group of asylum seekers would like to prepare mitigation: “You can give me ten pages of mitigation, I will still whip them!” This court, is after all, designed for that and judges only care about answering their most important question of the day: “How many whips do I give today?”

If a detainee claims trial, he or she only invites further scorn from the judge -“Don’t waste my time... how do you propose to prove your case?...”.

I have seen how the judge, seeing that a detainee claims trial, would briefly stand down, during which the prosecution officer has a word or two with the detainee in the absence of his/her lawyer. Ten minutes later, the poor detainee would suddenly change his plea to ‘guilty’ and succumb to sentencing. The judge doesn’t care even to ask, even for procedural sake, whether the detainee–who comes from a place where even the word ‘coca-cola’ is unheard of, let alone the phrase ‘right to a trial’– knows the consequences of a guilty plea.

So what sort of miracles do happen if he indeed claims trial? Often has been the case when Rela members would throw away the valid documents when making an arrest. With RM80 per head, you can bet any country thug would! Once the Immigration Prosecution Officer himself complained to the Judge that the mistake was on the arresting Rela officer, produces records of valid entry and visa. The case is duly dismissed.... Not!

Remember, the court is set up to expedite sentencing, not solving cases, definitely not seeking justice. Decisions, decisions. What do they do now? The very raison d’etre of the court is being threatened by a genuine case. And decision.... The case is not thrown out. The DPP is to be referred. Meanwhile, he who misses the Whip shall be sent back to rot at the prison.

And you still ask, what if the detainees had been forced to overstay because their agents cheated them, and unable to find jobs, surrendered themselves to the authorities? I have personally heard her remark (and here’s the part when one covers a child’s eyes and ears during a horror movie): “Saya tak boleh bagi you pergi free jer... ok... dua bulan dan dua sebatan...” (I can’t let you go just like that, ok... two whips and two months).

To be an asylum seeker defined as undocumented, eventhough with the backing of UNHCR, is like buying a ticket to seeing a tiger performing in a cage. The tiger in this case has its claws firmly on the gavel. Once, almost fifty asylum seekers were brought to court unrepresented (as usual) by any lawyers. A pupil-lawyer working on migrants and refugees advised them to claim trial until a lawyer is found (before court was in session), for fear that they might be punished and whipped. When all of them claimed trial, the judge, standing down, threw a tantrum and even threatened the UNHCR officer with a police report.

Sometimes, the judge confuses her role with that of a JAKIM officer. Consider this: a girl from China, pregnant by the way, had pleaded guilty. Her lawyer asked for a more lenient sentence to avoid her giving birth in a prison. The judge responded by asking whether she was married and who had fathered her child.

Whether the detainee is a victim of circumstances, cheated by agents, first-time offender, or part of that strange and alien notion called “asylum seekers”, is not relevant. In this court, there is no time for such civilised immigration jargons. A-whip-delayed-is-a-whip-denied seems to be the driving philosophy behind this court. It is set up solely to expedite backlog cases and a legally cruel solution to overcrowding at camps, thanks to the hundreds of eighty-ringgit envelopes finding their way into the nicely ironed Rela pockets.

The Semenyih detention camp itself has seen some of the worst cases of prisoner mistreatment by guards and which were documented not long ago. In it, witnesses have told of abuses most vile. These are documented reports, and yet no actions were taken.

At the court, I have personally seen how a P.O. slapped a detainee in full public view. They are shouted at, treated like a convicted criminal. Their crime does not involve any victims. The only casualty here is the detainee’s self respect, and the authorities’ human semblance.

Thinking back, there is no greater symbolism than to have within the camp a court devoid of any justice.

Comments (1) >>
This is shocking...
Written by Charles Hector on 14 March, 2007 at 13:58 PM

This is shocking, and this matter should have been brought out immediately when the incident occurred, especially when it was witnessed by an advocate and solicitor of the High Court. There should have been a complaint lodged against the said P.O., and possibly even a police report. To witness a wrong and not do anything about it can only propagate similar wrongful conduct by others in the future.

In any event, Lat Koya must now lodge a police report, bring it to the attention of the AG and maybe even lodge a complaint to SUHAKAM. The Bar Council must also follow-up immediately, and that incident must be highlighted and the Bar Council must condemn strongly such behaviour be it by a P.O., a police officer or any other person.

A couple of months ago an advocate and solicitor saw a detainee in the police custody at the Banting Police Station being "tortured" - and it was immediately highlighted. We, lawyers, have a duty to shout out when wrongs happen, especially when it happens in front of us. By the way, maybe the Bar Council could also tell us what has become to the Banting police station torture case - was anyone charged? What has happened to that investigation? Too many wrongdoings are swept under the carpet even after it has been highlighted and/or brought to the notice of the relevant authorities, and we lawyers and the Malaysian Bar must NEVER allow this "sweeping under the carpet" behaviour.

Uphold the cause of justice without fear or favour - that is our calling. Lawyers and the Malaysian Bar have a duty to ensure that this is done. Do not deal with these kind of incidents through "secret" meetings - they have to be highlighted for all to know - and highlighting would definitely help ensure that such "torture" or incidents of "slapping detainees" never ever happen again.

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