Cases of human rights abuses
The universal basic human rights of life, liberty and security applies to not only just Malaysian citizens but also to all foreigners in Malaysia as well.
According to the UN Universal Declaration of Human Rights, Article 3 declares that “Everyone has the right to life, liberty and security of person”. Such right of life and liberty is also enshrines in the Federal Constitution of Malaysia in Article 5(4).
However, Parliament in Malaysia has amended Article 5(4) with the addition of the following proviso into their Immigration Act 1959/1963 as follows:
51(5)(a) where any person who is a citizen is arrested or detained under this Act otherwise than for an offence against this Act, and has not been earlier released, he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time for any necessary journey) be produced before a Magistrate and shall not be further detained in custody without the Magistrate’s authority; and
51(5)(b) where any person other than a citizen is arrested or detained under this Act, whether for an offence against this Act or otherwise than for such offence, and has not been earlier released, or charged in court for an offence against this Act or removed from Malaysia under this Act, he shall, within fourteen days of his arrest or detention, be produced before a Magistrate who shall make an order for his detention for such period as may be required by an immigration officer or a police officer for the purpose of investigations into an offence against this Act.
This proviso in their Immigration Act differentiates the magistrate remand order requirement between citizens and non-citizen. This is an anti-foreigner and anti-human rights Act.
The Singapore system
Contrast this with the Singapore law, there is no such unfair and discriminatory authorization given to immigration officers to hold foreigners at their whims and fancies.
Whether Singaporeans or foreigners committing offences;
“The police normally cannot hold you for more than 48 hours from the time of your arrest without either bringing you to court or releasing you.
At the end of the investigation or the 48-hour detention period (whichever is earlier), if the police have not established that you have committed an offence, you will be released unconditionally. But if the investigations reveal that you have or may have committed an offence, the police may either bring you to court or release you on bail pending further investigations.
If you are brought to court, the police may apply to keep you in custody for more than 48 hours, which is then known as remand. The police must give the court reasons why they need to remand you. You may object to this request and ask the court to explain why you need to be remanded. Ultimately, the court has the final say on whether you will be remanded.” Excerpt taken from https://singaporelegaladvice.com/law-articles/police-custody-singapore/
Immigration Act is anti-foreigner’s human rights.
With regards to this Immigration Act 155 1959/1963, section 51(5)(b) requirements, i.e. the production of foreigner before a magistrate within 14 days for a remand order, this is easily infringed for the following reasons.
There are no evidence of checks and controls that this requirement is complied with. Instead, on the contrary, there are evidence to prove and confirm that the Immigration Department of Malaysia officers are abusing such power.
#1. In this court case, Saman Pemula No. WA-24-5-01/2020, twelve foreigners are on the same list. One amongst the twelve foreigners has been declared by the KL high court that his detention by the Immigration Department of Malaysia officer is illegal, unlawful and unconstitutional. It means that the other eleven foreigners have also been detained illegally if they were to seek a court ruling on the question of the legality of their detention.
In the above court case, it has been determined by the KL high court that the Plaintiff had been detained from 28.2.2018 to 26.3.2018 without being produced before a magistrate on the 12.3.2018 for a remand order. As section 51(5)(b) requirements is that immigration officers must produce detainees within 14 days to order remand beyond 14 days, hence the days up to 26.3.2018 is illegal, unlawful and unconstitutional.
The exhibit, “W-2” which is a 3-pages document has the following content as shown on image below:
Page 001/003 is the official cover letter for the remand order. Page 002/003 is the “Attachment A” which is the list of detainees under this remand order. Page 003/003 is the magistrate remand order with the official court letterhead. As can be seen from page 002/003, the list of detainees contained 12 names of detainees. On the remand order, there is an option to tick a Yes or a No which signifies whether the detainee is produced before the magistrate or not. On the bottom of the document, the magistrate will sign and stamped his seal on this document. On this page 003/003, the “No” option was ticked, signifying that none of these twelve detainees were produced before magistrate, ABB.
P.001/003: What is on this page: Ref: IM.101/E – J1/2 (165)/2018, Section 51(5)(b) from 13.3.2018 to 26.3.2018, List of names as attached.
P.002/003: What is on this page: Laporan Polis: GPATAH / 001427 /18 @01.03.2018, Ref: IM.101/E – J1/2 (165)/2018, ‘LAMPIRAN A’, SERAMAN DUA BELAS (12) ORANG SAHAJA (Total twelve (12) persons only)
Content on this P.003/003: Laporan Polis: GPATAH / 001427 /18 @ 01.03.2018, List of names: ‘LAMPIRAN A’ (‘Attachment A’), Penama-penama di kemukakan : Ya (Yes) / Tidak (No), yes/no option. PERINTAH (ORDER)
The other exhibit, “W-1” is the charge sheet for the Plaintiff and the names of six persons charged together with Plaintiff.
Document format for magistrate remand order is a Yes/No option, not an officer’s certification.
#2. From the exhibits, “W-2” as shown above, one can see that it is an OPTION for Immigration officers to produce a non-citizen before a Magistrate within 14 days.
The format of the magistrate remand order should instead be a compulsory declaration before signed off and stamped by the magistrate. With such document format, the check and control on this section 51(5)(b) requirement is missing, leading to the abuse by immigration officers.
All the above are clear proof showing Immigration Department of Malaysia officers abuses this discriminatory section 51(5)(b) requirement enacted in the Act.
#3. Most foreigners are without the financial means to litigate and seek redress for their grievances. It is known that many of these foreigners are poor folks and had to take such abuses to the grave.
#4. Even if one has the financial means, it may not have a positive outcome. The main reason being that there are many odds are stacked against them as a foreigner. We have seen one such case involving a Singaporean did not end with a positive outcome. This is reported in this 12.6.2019 news report.
In the absence of any proofs showing compliance of the Act’s legal requirements, Immigration Department of Malaysia officers are suspected serial violators of human rights of foreigners.
Section on Immigration power of detention in other sections of the Act
Note: This section is about an attempt by the Immigration Department of Malaysia to justify their illegal detention of me using the Immigration Act apart from the section 51(5)(b) requirement.
Immigration has power of detention through an Order of Removal and an Order of Detention as described below so as not to confuse with magistrate remand order for investigation under section 51(5)(b).
An Order of Removal can be issued by the Deputy Assistant Director of Immigration pursuant to Section 56(2) of the Immigration Act and could only be issued by reason of Section 9, 15 or 60 of the Immigration Act.
The said Section 56(2) of the Immigration Act provides as follows:
(2) Any person who is not a citizen unlawfully entering or re-entering or attempting unlawfully to enter or re-enter Malaysia or unlawfully remaining in Malaysia shall whether or not any proceedings are taken against him in respect of the offence be liable to be removed from Malaysia by order of the Director General.
An Order of Detention: It follows that the Defendant then purportedly issued the Order of Detention against me under Section 34(1) of the Immigration Act.
The said Section 34(1) of the Immigration Act provides as follows:
34 Detention of persons ordered to be removed
(1) Where any person is ordered to be removed from Malaysia under this Act, such person may be detained in custody for such period as may be necessary for the purpose of making arrangements for his removal:
Whereas Section 33 of the Immigration Act provides as follows:
33 Removal of persons unlawfully remaining in Malaysia
(1) Where the presence of any person in Malaysia is unlawful by reason of section 9, 15 or 60 the person shall, whether or not any proceedings are taken against him in respect of any offence against this Act, be removed from Malaysia by order of the Director General.
Anomaly of both Orders
The Order of Detention specifically states, “WHEREAS an order has been made for your removal from the federation under Section 5(2) of the Immigration Act 1959/63”.
The said Section 5 of the Immigration Act provides as follows:
Entry into or departure from Malaysia (1) The Minister may, by notification in the Gazette, prescribe approved routes and declare such immigration control posts, landing places, airports or points of entry, as he may consider to be necessary for the purposes of this Act, to be immigration control posts, authorized landing places, authorized airports or authorized points of entry, as the case may be, and no person shall, unless compelled by accident or other reasonable cause, enter or leave Malaysia except at an authorized landing place, airport or point of entry.
(2) Any person who contravenes subsection (1) shall be guilty of an offence against this Act.
End of section on other immigration power of detention apart of Section 51(5)(b) of foreigners.
Abuse of immigration power of section 56(2) and section 34(1)
Earlier we have seen how 11 other foreigners who were listed together with me on magistrate remand order were deprived of their human rights. They have been deported and blacklisted, making impossible to have any recourses for these foreigners to redress their grievances of being illegally detained in Malaysia.
This is not the only case of human rights abuse as far as I am aware. Amongst these eleven foreigners, there are two Nepalese nationals who were not charged for any immigration offences. According to their testimony, they each paid RM6,000 to agent for a valid work permit to work as security guards in one big Multinational Company (MNC). I am connected and know this MNC company well. And I don’t believe that this MNC would risk their reputation to employ illegal migrant worker on their premise. It makes sense that both have valid work permits as they were not charged for any immigration offences.
Having come across and seeing the Order of Removal under section 56(2) and the Order of Detention under section 34(1), there is a question that both their detention up to their deportation, and their removal (deportation) could be under these two sections. If so, then there is the question whether it is another human rights abuse for corrupt motives that needs answers. This called for a police investigation to get to the truth of the matter as a matter of public interest and human rights of foreigners in Malaysia.
Abuse of my human rights, unlawful detention comes in twos in the matter of my detention.
The KL high court declared on 4.5.2021, that my detention beyond 14 days was illegal, unlawful and unconstitutional. It is because I was never produced before a magistrate for a remand order beyond 14 days of detention. This infringes the Malaysia FC Article 5(4) and was done with corrupt motives on the part of these immigration officers.
From the day I was arrested on 28.2.2018, I was being held incommunicado in oppressive, hostile and inhumane detention cell by Johor immigration officers. And I was detained right up to 26-03-2018 without a magistrate remand order. It is a blatant abuse of human rights of life, freedom and liberty by not complying with Malaysia constitutional and legal requirements. This is the 1st part illegal detention.
Following on the 26.3.2018, an order of discharge was given upon payment of fine. Despite having the discharge order, Immigration Department of Malaysia officers disregarded court’s order, and refused to release me for me to return to Singapore. Instead without any valid reason, Immigration Department of Malaysia officers detained me at their own whims and fancies and locked me in Kluang prison for a few days. Following after the few days, they sent me to Pekan Nenas Immigration Depot and further detained me illegally there. There was no valid reason or explanation till I sued the Immigration Department of Malaysia for a second time concerning the illegality of this 2nd part detention. It was during this legal challenge that Immigration Act section 56 (2) Order of Removal and section 34 (1) Order of Detention first surfaced.
My release from my 35 days of detention in oppressive, hostile, unhygienic and inhumane condition detention cell was only after my family requested help from the Singapore Consular Attaché to intervene. This is the 2nd part illegal detention.
Police treatments of Singaporean’s police reports is complicit of human rights abuses
For these two illegal detentions by Immigration Department of Malaysia officers, I have made police reports to the Royal Malaysia Police on the 8.12.2021. These illegal detentions are criminal offence under the Malaysia penal code, section 220 and section 344.
Section 220 states as follows: “Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”
Section 344 states as follows: “Whoever wrongfully confines any person for ten days or more, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”
Up till 28.12.2022, there was no action nor investigation from the Royal Malaysia police despite numerous reminders.
I sought a final status confirmation status on both illegal detentions from the Royal Malaysia Police with an email on 28.12.2022.
As per my email, I take it that unless the Royal Malaysia Police will confirm by return email before 30.12.2022, I will take it as the Malaysian police’s confirmation that it would not investigate into both 2 parts of illegal detentions.
Clearly this is double standard by the Royal Malaysia Police, one standard for Malaysian and a different standard for foreigner / Singaporean.
It is construed as complicit of human rights abuses on the part of the police to the reported crimes committed against foreigners by these immigration officers.
Falsehoods in Judge MNBMG‘s written judgment does injustice to human rights
During this Permohonan Jenayah No WA-44-178-07/2019 high court trial, one lady immigration officer, HBB lied in her affidavit about producing me before a magistrate within 14 days for a remand order. She submitted court document exhibit/evidence, “HB-1” with a missing page in a set of 3-page court document.
As an auditor myself, when I am presented with just 2 pages and a missing page 3 of a set of 3 pages document, it is a red flag. It is a sign that the person is hiding crucial and important information that is on this missing page. As an auditor, I will surely want to view the missing page so I can do a complete verification of the facts.
However, during the court hearing, this missing page 3 hard copy was miraculously handed out to the court and to my lawyer. It was indeed the irrefutable evidence that can prove that I was never produced before a magistrate for remand order. The evidence in this lady immigration officer, HBB‘s affidavit had been “tampered” to deceive the high court judge, MNBMG.
Another immigration officer, MHBK had also falsely averred that I was produced on the 12.3.2018 before a magistrate for the remand order before this judge, MNBMG. And so based on the averment of these two immigration officers, HBB and MHBK which turned out to be lies, the judge, MNBMG ended up incorporating both their falsehoods into his written judgment as in paragraph 38 and paragraph 55 as below.
The truth came out that these were lies and falsehood when it was subsequently proven in the Saman Pemula No. WA-24-5-01/2020 case before Judge NBB. Judge NBB issued her court order that my detention was illegal, unlawful and unconstitutional, a copy as shown above.
By a stroke of coincidence, this judge himself is currently a subject of investigation by MACC as reported in the news. His own words about my affidavit, quote: “It is therefore not far-fetched for the Respondent (immigration’s representative) to contend that the allegations averred in the Applicant’s (me) affidavit were scandalous and not substantiated by any forms of evidence.” unquote.
Note the judge’s use of the word “scandalous” and applying it to my court Application.
Indeed, in the end his quote, “scandalous” becomes prophetic of himself arising from another different court case.
Different magistrate creates duplicity is anti-foreigners
In affidavit-in-support, I have exhibited a court document that was given by Malaysia Immigration Department. It must reiterate that this document does not originate from me but from the immigration department itself.
In order to counter this exhibit “W-2” in my affidavit which is the original pg 3 of 3, the legal adviser FSBMF from Immigration Department of Malaysia wrote to a different magistrate, MASBMA on the 4.5.2020. In this letter, he “pretended” to request from this magistrate for copy of the “Nota Prosiding”. It is unexplained why FSBMF did not write to request from the magistrate, ABB who could have provided a clear copy from his record or the archive.
So, a different magistrate, MASBMA replied and attached a re-typed “manufactured” unsigned copy of page 3 of 3 and re-defined as “Nota Prosiding” to FSBMF. More details about this magistrate’s action and duplicity described here.
The immigration officer, MHBK then submitted this re-typed “manufactured” unsigned copy that is re-defined as “Nota Prosiding” in his affidavit as exhibit “MHK-1”.
Unless people are ignorant or uneducated, most people would be able to tell that this document is a “manufactured” look-alike fake.
Original remand order vs “manufactured” remand order
This re-typed “manufactured” and unsigned remand order is now re-defined “Nota Prosiding” to sync with the legal adviser’s term and magistrate MASBMA‘s term.
But when compared to the original copy, it had more than 25 errors and differences sighted. My Malaysian lawyer, AK laid both documents side by side and listed all the discrepancies, errors and differences to the court / judge, NBB . You can read more details on the original vs one “manufactured” fake unsigned remand order here.
Officers collude, in cahoot and disregard court rules is anti-foreigner, anti-human rights
Collude and in cahoot with one another – federal counsel, MSBMA and court deputy registrar, FSBSA allows an out-of-time submission.
In order to put the story into perspective, I have listed important key dates and related events
21.1.2020 – Based on the hard copy evidence of the magistrate remand order, we start an Originating Summon (OS) action against Immigration Department of Malaysia and file a Plaintiff’s affidavit-in-support (P-AIS).
20.2.2020 – This is the date of the deadline for submission of Defendant’s affidavit-in-reply (P-AIR). However, the Defendant failed to submit his D-AIR without justification.
1.3.2020 (Sunday) – This is the day that the Malaysia 8th Prime Minister took office.
18.3.2020 (Wednesday) – This is the day of the Malaysia national lockdown (MCO) due to Covid-19.
14.5.2020 (Thursday) – This is the day when the Defendant filed his affidavit-in-reply (D-AIR). This 14.5.2020 was after the deadline (20.2.2020), meaning the D-AIR was filed and served out of time.
Court officers perpetuating lies and falsehoods, anti-foreigner, anti-human rights?
From the above timeline showing the dates and when each event occurred, we can see clearly that the federal counsel, MSBMA and the court deputy registrar, FSBSA were perpetuating lies and falsehoods to pervert justice and anti-human rights. We had called out such lies and falsehoods in my Plaintiff’s affidavit-in-reply (P-AIR) to the Defendant’s affidavit-in-reply (D-AIR) as shown:
The Defendant had disregarded the deadline and failed to submit his D-AIR to the court before this deadline.
However, FSBSA and MSBMA had misused their official appointment and colluded to push forth lies and falsehoods that the MCO lockdown, that started on 18.3.2020, caused him to miss the deadline to submit the D-AIR. This is a hogwash.
When I sued the immigration department, I submitted my Plaintiff affidavit-in-support on 21.1.2020. The court then gave a 20.2.2020 deadline for the immigration officer to respond to my affidavit.
However, the immigration officer had failed to submit his affidavit-in-reply by 20.2.2020. There was no justification on his part for this failure.
Subsequently he managed to submit his affidavit-in-reply on 14.5.2020. This date, 14.5.2020, was 2 months three weeks past the 20.2.2020 deadline. It means that he had disregarded the deadline. And yet he was able to file and serve his affidavit-in-reply out of time. Why was that so?
It was because the court deputy registrar and the federal counsel had colluded with the immigration officer. They had lied that the MCO lockdown caused him to miss the deadline for his submission. With that lie, they were able to have the immigration officer’s affidavit accepted by the court without any penalties.
According to the news announcement, 18.3.2020 was the day of the national lockdown (MCO). It was about two weeks after Malaysia 8th prime minister took office on 1.3.2020.
Indeed, here we can see that collusion, disregarding court rules, lies and deceptions is seen throughout, and you can read more details here.
Tactic of delays is anti-human rights
Notification by court registrar on case management (CM) was given on 29.1.2020. CM is set on 12.2.2020. However, the immigration officer failed to attend this CM without any justification. The court registrar then re-scheduled the CM to 27.2.2020, causing two weeks delay.
The deadline for submission of the immigration officer’s affidavit was 20.2.2020. However, he failed to submit his affidavit without justification. His affidavit was submitted late, on 14.5.2020. It was two months three week out of time as well as causing 2-3/4 months delay.
Similarly for the re-scheduled CM on 27.2.2020, immigration officer failed to attend CM without justification. This caused another two weeks delay.
Last-minute vacate of court hearings.
The day scheduled for the court hearing was 12.11.2020. However, the court vacated hearing the case at the last minute. A new date, 25.1.2021 was given, causing a 2-1/2 months delay.
On the 25.1.2021 that was re-scheduled for the court hearing, the court vacated hearing the case again at the last minute. A new date on 10.3.2021 was given, causing a 1-1/2 months delay.
Lastly, on the day newly re-scheduled for the court hearing, i.e.10.3.2021, the court vacated hearing the case again at the last minute. A new date on 4.5.2021 (actual day of hearing) was given, causing another 1-3/4 months delay.
There is a deliberate pattern of causing delays and more delays, for as long as 8-1/2 months. It is more of a game plan to induced fatigue and loss of hope psychologically on the aggrieved party.
Time frame comparison between Permohonan Jenayah No WA-44-178-07/2019 and Saman Pemula No. WA-24-5-01/2020
Permohonan Jenayah No WA-44-178-07/2019. Start date: 16.7.2019 and end date: 19.12.2019, a period of five months duration!
Saman Pemula No. WA-24-5-01/2020. Start date: 21.1.2020 and end date: 4.5.2021, about one year four months duration! This is not complex as compared to the other case.
Appeal court trial
This falsehood from first high court trial perpetuates and is carried over to the appeal court. During the appeal court proceeding, the first high court trial written judgment that contains falsehoods became the only document that the DPP relied on, quote: “And I humbly submit that all these allegations is baseless, and I stand guided by the findings by the learned High Court Judge.”, unquote.
The DPP had specifically quoted paragraph 34, ”The high court judge had meticulously dealt with the allegations put up by the appellant, if I can read in verbatim, Ariff. At paragraph 34, and these are the things that have been dealt by the high court judge, saying that the allegations made by the appellant is purely groundless, baseless and all these allegations were answered by the affidavits, by namely the IO himself, affidavit MHBK, affidavit HBB of depot commandant and affidavit MZ which is the depot officer himself.” unquote.
The DPP had asserted to the appeal court the falsehood that I was produced for remand on 12-03-2018, quote: “In fact, Ariff, he had all the opportunity to voice out his disagreement even during the remand period. In fact during his remand proceeding, all these were never disclosed.”, unquote. This assertion referring to the falsehood of a remand proceeding before a magistrate on 12-03-2018 was ruled and confirmed in the second court trial as patently false. Is this fact known to the DPP but conveniently hides this truth to help him to win?
Judgment in appeal court also contained falsehoods perpetuated from high court
Lastly, during the appeal court proceeding, my lawyer’s submitted to the appeal court that “there was not a single piece of evidence” despite the DPP’s alleged investigations over the continuous period of 26-days lock up “to show that I committed an offence or was even in Malaysia at that immediate period of time except just before the arrest. So that means that he could not have been managing” in his final submission.
Despite all these facts and my lawyer’s final submission before the appeal court of three judges, the final nail was nailed into the coffin on the basis of a judgment that contained falsehoods. This falsehood was first contained in the first trial judge’s judgment. It then propagates to the appeal court and ended with another judgment that contained falsehoods.
In the appeal court the DPP could not present evidence. All the DPP could do was presenting a judgment containing falsehoods as the basis on which my case rested. My lawyer had also submitted “that I committed an offence or was even in Malaysia at that immediate period of time except just before the arrest. So that means that he could not have been managing“.
Vengeful ex-occupants’ fixings anti-foreigner
These are the facts relating to the Johor immigration department’s claim that I have committed an offence. However, this offence was never proven with any evidence. Instead, their courts judgments contained falsehoods that has been perpetuated from lies and deceptions.
I have fought back right from the beginning, this was a fix by one of their immigration officer, MZ. He was having an illicit relationship with a married woman and trespassing illegally on my property. I made a police report to evict both of them forcefully from my property. In revenge MZ colluded with his immigration colleagues playing the race, religion and nationality card to fix me. You can read about one of his colleagues that schemed and lied while trying to “extort” money implicitly from my family by using the threat of investigation and immense pressure from illegal detention in oppressive hostile, unhygienic and inhumane detention cell.
The human rights record of foreigners in Malaysia with an anti-foreigner, anti-human rights Immigration Acts that has and can be easily exploited is an area of safety and security concern.
A case study of all cases and the process through the judiciary has shown lots of weakness and much to desires in term of human rights and personal safety and security.
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