A Singaporean man has filed a lawsuit against Malaysia’s Immigration Department, seeking RM2.67 million in compensation for his 37-day detention in an over-crowded cell.
Puis Gilbert Louis, who will be 68 this July, said his ordeal started with his arrest by immigration officers during a 10.10pm raid of his house in Johor Baru on October 9, 2018.
In his statement of claim filed by his lawyer Arun Kasi, Louis was said to have a valid visa then to be in Malaysia until November 7, 2018, and that the four others in the house were a female friend from the Philippines with a proper visa and three individuals invited by the friend.
Claiming to not know which country the three individuals belonged to or their immigration status, Louis suggested his arrest could be over the alleged illegal harbouring of the three who were allegedly illegal immigrants but noted he was not told that this was the reason and was not charged for it.
Louis was said to have managed to use his mobile phone to notify his family and friends through Facebook of his arrest while he was taken from the house to the Setia Tropika immigration office, where immigration officials allegedly took away all his belongings including his mobile phone, wallet, cash, house keys, car keys and shoes.
At the Setia Tropika immigration centre, Louis alleged he was kept in a cramped cell with 100 other detainees where he could only sleep on a “bare dirty floor” before his transfer the next morning to the Pekan Nanas immigration camp.
Louis, who is said to be a claustrophobe and suffers from asthma, was alleged to have been transported handcuffed to another detention centre in an eight-seater truck compartment with about 30 other detainees.
Louis allegedly had breathing difficulties during his trip to the Pekan Nanas immigration camp due to the cramped conditions, and had to be pushed to an open window in the truck compartment to get air; he ended up getting wet due to the heavy rain then.
Louis was allegedly detained for the next 36 days until November 14, 2018 in an overcrowded cell that was meant to be for 50 people only, but housed about 130 during his time at the Pekan Nanas immigration camp.
“The condition was so horrifying and terrifying that ordinarily it would not be expected that any human being would be kept under that condition.
“The toilet was within the cell and was dirty and open. No clean water was available for drinking. Food was provided in an unhygienic condition,” his statement of claim sighted by Malay Mail said.
Louis claimed the generally warm cell had no fan and limited ventilation, with most detainees “sweating and smelling bad”, noting that detainees also slept in cramped conditions.
He listed items that were not provided to him and the detainees, including mat, pillow, blanket, footwear, toiletries including soap and towel, change of clothing; saying that he had to walk barefoot and sleep on a dirty bare floor.
He said he wore the same clothes for the first 14 days, and only changed his clothes once when he was brought to his house after 14 days for the immigration officers to view a CCTV recording there.
“Many of the detainees did not take a bath for long… Many of them were scratching their bodies badly and diseases including herpes were spreading,” he said.
Louis said he only managed to shower after the first 10 days after he managed to buy soap at an “excessive price” from an alleged privately-operated store.
“A small bottle of drinking water cost RM10. Purchase was limited by amount and time,” Louis’ statement of claim said, alleging that the payments were taken from his wallet held by immigration officers and from money given by visitors.
Louis said other detainees viewed him as a relatively well-to-do person and that he had to purchase items for them to avoid being “disturbed or harmed”, claiming that he and the rest had to buy things for a self-proclaimed leader among those detained.
He claimed to have paid for the ferry tickets costing RM350 each for three Indonesians who were detained for about two years, as the trio lacked the money to buy the tickets or were unable to communicate with their families to arrange for the tickets.
Louis allegedly contracted diseases due to the detention conditions and lost substantial weight, but could only seek medical treatment after release, the statement of claim said.
Louis claimed to have informed immigration officials upon arrival at the Pekan Nanas immigration camp that he was under medication for his heart condition and that his life would be at threat without medication, but said he was mostly without proper medication other than when a government doctor outside the camp provided medicine for a few days.
Arun said no lawyer was allowed to visit his client during detention, with family and friends allowed limited access and that Arun himself who came as a friend was able to speak with Louis for only 20 minutes.
Alleging that seeking access to justice was hampered by restrictions such as a commissioner of oaths being denied a meeting with Louis to have him affirm an affidavit for court purposes, the statement of claim said many detainees in the camp did not have communication with the outside world for many months.
“The conditions of detention transgressed all basic standards of detaining humans and was without regard to any minimum standards of humanity and inflicted cruelty against humanity,” the statement of claim said.
In the statement of claim, Louis alleged the treatment received throughout his detention amounted to “torture” and “cruel, inhuman and degrading treatment and punishment” (CIDTP) as defined under international conventions, and that it breaches Articles 5 and 7(1) of the Federal Constitution.
Article 7(1) states that no one shall be punished for actions that were not punishable by law when it was taken, and no one shall suffer greater punishment for an offence than prescribed by the laws existing then.
The statement of claim noted that Louis had through his lawyers written to the Immigration director-general on November 1, 2018 but received no response, and had on November 9 filed a habeas corpus application at the High Court.
But just a day before the scheduled hearing for Louis’ habeas corpus application or challenge against his detention, he was released on November 14 with a seven-day special pass and he left Malaysia within that period, while his legal challenge was withdrawn from court as he had been released from detention.
Louis claimed his arrest was unlawful as there was allegedly no valid reason for the arrest with no investigation carried out for any offence or no charges pressed against him, and as he was not presented before a magistrate.
Louis claims that his arrest violated the Federal Constitution’s Article 5, which provides that no one is to be deprived of their personal liberty unless in accordance to law, and that a person arrested shall be informed of the reasons for the arrest and be allowed to consult lawyers.
Article 5(4) also comes with a provision that a non-Malaysian who is arrested cannot be further detained beyond 14 days without being brought before a magistrate and with the magistrate’s authority, in contrast to a Malaysian who has to be produced before a magistrate without unreasonable delay and within 24 hours, which Louis said infringes on the Constitution’s Article 8(1) guarantee of non-discrimination and equality for all before the law.
Arguing the amendment that led to the different timeframe for non-Malaysians was unconstitutional and unlawful, Louis’ lawyer argued that this made his continued detention beyond 24 hours without being brought to court also unlawful and unconstitutional.
The lawsuit was filed in the High Court in Kuala Lumpur on May 28 against the Immigration Department of Malaysia’s director-general and the Malaysian government.
In the lawsuit, Louis is seeking RM840,000 in aggravated damages over his distress suffered during his arrest and throughout his detention as well as the alleged continued stress after release.
Louis is also seeking RM1.83 million in exemplary damages, including RM700,000 over his detention without heart medication that allegedly put his life at risk, RM370,000 for infringement of the Constitution by not presenting him before a magistrate, RM360,000 for the conditions he was detained under, and RM100,000 each for four items including for failing to provide basic toiletries and necessities, and violation of constitutional safeguards linked to arrest and for unlawful arrest.
He is also seeking a declaration that he was subjected to torture and treatment considered CIDTP, and declarations that such treatment is prohibited under the Federal Constitution due to Articles 5 and 7, as well as a declaration that the amended constitutional clause that gives rise to different treatment for non-citizens is unlawful, unconstitutional and invalid.
Arun said the court papers for the lawsuit have been served on the Attorney General’s Chambers.