KUALA LUMPUR — March 25, 2019: A recent statement by national police chief Tan Sri Mohamad Fuzi Harun to defend a police decision to deport seven Egyptians accused of committing terrorism in their home country looked a bit odd considering that the law is crystal clear on the agency that has jurisdiction over this.
One only has to refer to Section 33 of the Immigration Act which explicitly states that it is the Immigration director-general who has the final say in deciding who is deported.
In fact, former Inspector-General of Police Tan Sri Musa Hassan confirmed that deportation is the power given to immigration, with police being involved only with the security aspects of deportation.
But news reports indicate that the case of the Egyptians was not the only one in which immigration was completely silent, as if it had not role whatsoever.
Two years ago the police were reported to be involved in the deportation of eight Indonesians and 29 Uighurs suspected to be militants. The news reports did not mention if the cases were indeed referred to immigration or due legal process had been adhered to.
And the absence of the immigration boss during a visit to Beijing to commemorate the deportation again strengthened the belief that immigration didn’t play a part. On the contrary it was Fuzi who went to Beijing.
While deportation is the prerogative of immigration, lawyer Megat Syazlee Mokhtarom points to Section 35 of the Immigration Act that allows senior police officers to arrest any person liable for deportation for not more than 30 days.
“But the process has to go through the courts to get the remand order and to ascertain a foreigner’s identity. The person is usually presented before a judge and once a remand order is given, the authorities will contact the relevant departments and foreign mission,” he said.
Once a deportation order is issued, said Megat, Section 34 (1) of the Act states that a person may be detained “for such period as may be necessary” — generally, up to two years — pending removal.
While they too found the recent police action unusual, other lawyers familiar with immigration issue who wished to remain anonymous said they were not surprised.
The perceived prerogative, said one, may have stemmed from the shared authority that the police and immigration have in arresting and detaining any foreigner liable for deportation as stated in Section 35.
But what the lawyers considered to be shocking and mind-boggling was Fuzi’s statement that the police had received instructions from the Attorney-General’s Chambers (AGC) to expedite the Egyptians’ deportation.
Mind-boggling because the role of the AGC is strictly prosecutorial.
“But the authorities can get away with it because who’s going to challenge? It would be academic for the deportees to do so as they would have likely been removed from the country before they can even challenge,” said another lawyer.
While that essentially describes the situation perfectly, a former Indonesian detainee in Malaysia had in 2004 managed to convince a Kuala Lumpur court that his deportation order on August 25, 2003, was unlawful.
Justice Abdul Kadir Musa ruled that the then immigration head had acted in bad faith and abused his statutory powers when invoking Section 35.