JOINT STATEMENT ON RELA TAKING OVER IMMIGRATION DETENTION CENTRES

Joint Statement
Ikatan Relawan Rakyat Taking
Over Immigration Detention Centres
Ikatan Relawan Rakyat (RELA) Taking Over Immigration Detention Centres
7 December 2007

Presented to the

Human Rights Commission of Malaysia (SUHAKAM)

Prepared in collaboration with

Non Governmental Organisations within the Migration Working Group (MWG) Network

JOINT STATEMENT ON RELA TAKING OVER
IMMIGRATION DETENTION CENTRES

We, the undersigned civil society organisations, are greatly alarmed at the recent Cabinet decision to have RELA (Ikatan Relawan Rakyat) take over the management of Immigration Detention Centres/ Depots.

According to newspaper reports, the Cabinet has relieved the Prisons Department of its jurisdiction over Immigration Detention Centres, and will place them under the control of RELA by the end of the year. This is a temporary measure until the Immigration Department has the resources to take over, which may take up to two years.

This move suggests that RELA will have greater control over the entire process, starting from arrest and detention to the deportation of migrants and refugees.

We are concerned that:

• RELA volunteers do not have the specialized skills, experience, and training required to handle the detention of people according to international guidelines. They also do not have the organizational infrastructure (in terms of full-time staff, standard operational procedures and accountability mechanisms) required for the task of this magnitude.

The detention of human beings is a deprivation of liberty. In civilized countries, and in accordance with international laws, there are rules and regulations concerning detention. These include:

• the prohibition of arbitrary detention,
• limits to provisional or preventative detention,
• minimum material conditions of detention (which include the separation of different categories of detainees, accommodation conditions that are decent, living conditions that ensure the self-respect of detainees, basic standards for medical services, as well as regulated procedures for discipline and punishment),
• special conditions of detention for vulnerable groups (including children, mentally or physically ill persons and pregnant women)

Although there have been assertions that RELA will be trained on “policing” and “handling of riots”, we do not think that this is sufficient for the competent administration of large numbers of migrants in detention facilities.

The issue of the competent management of detention centres is not new. In 2003, SUHAKAM reported on seven detention centres, highlighting issues such as unhygienic living conditions, detainees languishing without assistance, prolonged and indefinite detention, severe overcrowding, deplorable conditions of buildings, skin diseases, an outbreak of meningitis, as well as the detention of trafficked persons, asylum seekers, and refugees. SUHAKAM’s recommendation then was for Prisons to take over the management of detention centres. Reports from detainees indicate that conditions of detention have improved markedly under the administration of the Prisons Department.

We strongly recommend that:

• Immigration Detention Centres remain under the jurisdiction of the Prisons Department, who are better trained and equipped to handle detention facilities
• The Prisons Department be allocated greater resources to address existing deficiencies in the detention system, such as the insufficient provision of basic facilities and services necessary for different categories of detainees
• SUHAKAM be vigilant in fulfilling its mandate to monitor detention conditions, safeguarding, in particular, the rights of women and children in detention in accordance with recommendations by the Committee on the Elimination of Discrimination Against Women and the Committee on the Rights of the Child in their concluding observations on Malaysia dated 31 May 2006 and 2 February 2007 respectively
• Immigration policies and practices concerning migrants and refugees be reviewed to eliminate unnecessary and unjust detention of migrants and refugees, which contributes to overcrowding and concomitant strain in resources. These include the detention of: documented migrant workers, migrant workers awaiting the outcome of court judgments, asylum seekers and refugees, infants, children, pregnant women, trafficked persons, the physically and mentally ill, and other vulnerable migrants.

• If RELA is to take over Immigration Detention Centres, there is potential for abuse that has not been given sufficient consideration by government authorities.

Civil society groups have, on numerous occasions, voiced concerns about mistreatment, violence and wrongful arrests committed by RELA volunteers during operations to arrest migrants. We have highlighted cases of valid documents being torn up, migrants being beaten, sexual violence against women, shelters being burnt down, monies and possessions being stolen, and documented migrant workers and refugees being arrested.

However, the response of government officials has ranged from denial to justification to excuses. Instead of taking firm action against RELA, there have, instead, been recommendations to increase their powers under a proposed RELA Bill. We are concerned that these abuses, already occurring outside, will continue to occur within places of detention.

Under the existing Essential (Ikatan Relawan Rakyat) (Amendment) Regulations 2005, RELA has very wide and discretionary powers. This includes powers to stop any person by the standard of reasonable belief that the person is a terrorist, undesirable person, illegal immigrant or an occupier in order to make inquiries and to arrest these persons without warrant. They also have powers to enter and search premises without a warrant and to carry arms. Recent incidents have shown that RELA officers have arrested and detained persons on their own, without an oversight mechanism involving a competent authority.

Law enforcement work that involves powers to arrest, search and detain must only be given to competent and specially trained full-time authorities coupled with clear provisions in terms of powers and accountability, as these powers affect fundamental liberties and freedoms. These powers should not be extended to a volunteer civilian body with partially trained part-time members; they should be limited to Police and Immigration officials with clear guidelines and accountability mechanisms.

The use of RELA is not a durable solution to the issue of undocumented migrants; neither is the repeated use of arrest, detention and deportation. These are short-term, crisis-handling approaches of dealing with long-term, structural issues. We hold that the solution lies in a realistic and comprehensive review of immigration policies.

We strongly recommend that:

• The existing enforcement powers of RELA over migrants and refugees be revoked
• The proposed RELA Bill be open for public discussion and scrutiny in consultation with civil society groups

• If RELA is to take over Immigration Detention Centres, they lack the capacity to deal with the health concerns of detainees that are linked inextricably to the right to life.

In addition, to general health problems, there have been a diverse range of emergency health problems amongst detainees in Immigration Detention Centres such as stroke, epilepsy, complicated hernia, obstetric complications, and ante-natal problems and abdominal problems requiring emergency care. These depend on competent response by authorities to detect and ensure that urgent medical assistance is provided, including timely access to ancillary services and to patient care beyond emergency care.

In relation to mental health, studies indicate that conditions of detention cause and/or perpetuate severe mental health problems, including depression, severe and chronic post-traumatic stress disorder, anxiety disorder and suicidal ideation. This is especially serious in the light of the life experiences of refugees and asylum seekers who have survived torture, persecution, human rights abuses, and witnessed various forms of violence perpetrated on their family and others.

During raids, RELA has already demonstrated insensitivity to the needs of women and children. RELA volunteers do not allow them time to pack necessary supplies such as milk, diapers, and sanitary napkins. The lack of these provisions seriously compromise the health of children and infants, as well as creates vulnerabilities for women detainees, who have been subject to sexual abuse, violence and exposure to sexually-transmitted diseases in exchange for necessary hygiene supplies.

We are also concerned about the possible termination of the contract of the private company that was brought in by the Prisons Department to provide health services to Immigration Detention Centres as this will further jeopardize health service provision to detainees.

We strongly recommend that:

• SUHAKAM strengthen the monitoring of Immigration Detention Centres, in particular in relation to the right to health, in line with internationally agreed ethical principles and human rights standards, and with its reports and recommendations tabled and debated by Parliament
• SUHAKAM verify information regarding the termination of services of the private company that provides medical care to detainees, assessing the potential impact this will have on health service provision to detainees
• SUHAKAM seeks clarification from the Malaysian Government regarding how it plans to meet the health needs of detainees, as well as the process and mechanisms for medical and health referrals from Immigration Detention Centres
• The Malaysian Government ensures the continuation of the existing constructive cooperation between the Prisons Department and civil society groups and United Nations agencies, especially in the area of provision of health services in Immigration Detention Centres

• There is a strong emphasis on the speedy arrest, detention, imprisonment, sentencing and deportation of migrants and refugees, which may further contribute to the miscarriage of justice and the refoulement of refugees

One of the main reasons cited by newspaper reports for the handover is the facilitation of admission into detention centres as well as faster deportation.

Some civil society groups have already highlighted the miscarriage of justice that occurs as a result of the fast processing of cases through the Special Immigration Courts set up in Immigration Detention Centres. These include the inability of some detainees to understand court proceedings, the lack of translators, the difficulty of obtaining legal assistance while detained, and the pressure to plead guilty, as detainees are not allowed to post bail and wish to avoid prolonged detention required when claiming trial.

We are also concerned that existing checks and balances afforded by the Prisons Department in the processing of detainees will be removed. We are concerned that existing cooperation afforded to the United Nations High Commissioner for Refugees (UNHCR) in their interventions for asylum seekers and refugees will be jeopardized, leading to the continued detention of vulnerable refugees and a higher incidence of refoulement (the return of a refugee against his/her will to a territory where his/her life or freedom can the threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion). Similarly, we are concerned that the basic services given to detainees by civil society groups in order to address existing gaps in the system will also be jeopardized.

We strongly recommend that:

• The Malaysian Government ensures that cooperation between UNHCR and law enforcement agencies with regard to detained asylum seekers and refugees remains
• The Malaysian Government ensures that cooperation between civil society groups and law enforcement agencies in the provision of basic services to detainees remains
• The Malaysian Government releases all documented asylum seekers and refugees and ensures that none are refouled, in order to meet their international obligations under international customary law

We draw the attention of the Malaysian Government to the following international guidelines:

• 1955 UN Standard Minimum Rules for the Treatment of Prisoners (UN Economic and Social Council Resolution 2076)
• 1985 UN Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’, UN General Assembly Resolution 40/33, of 29 November 1985)
• 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UN General Assembly Resolution 43/173, of December 9, 1988)
• 1990 Basic Principles for the Treatment of Prisoners (UN General Assembly Resolution 45/111, of 14 December 1990)
• 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty (‘The Havana Rules’, UN General Assembly Resolution 45/113, of 14 December 1990)

We, the undersigned civil society organisations:

1. Malaysian Trade Union Congress (MTUC)
2. Kumpulan ACTS Bhd.
3. Coordination of Action Research on AIDS and Mobility, Asia (CARAM Asia)
4. Aliran Kesedaran Negara (ALIRAN)
5. Amnesty International Malaysia (AI)
6. Suara Rakyat Malaysia (SUARAM)
7. All Women’s Action Society (AWAM)
8. Building & Wood Workers International (BWINT)
9. Women’s Aid Organisation (WAO)
10. Health Equity Initiatives
11. National Human Rights Society (HAKAM)
12. Labour Resource Centre (LRC)
13. Migrant Desk, Melaka-Johor Diocese
14. Penang Office for Human Development (POHD)
15. Civil Rights Committee of the Kuala Lumpur Selangor Chinese Assembly Hall
16. Writers Alliance for Media Independence (WAMI)
17. Education and Research Association for Consumers, Malaysia (ERA Consumer)