Lawyer T Harpal Singh said that under the Section 51(B) of the Act, a detention becomes legal if done so at an immigration depot, and law enforcement agencies could always fall back on that.
“Further, Article 5 of the Federal Constitution, which states that arrest and detention procedures must be strictly complied with, appears to only protect locals,” he said.
“Yet, the constitution says no one shall be deprived of his life and liberty save in accordance with the law, and that all persons are entitled to equal protection,” he added.
Harpal was responding to the decision by a magistrate to give Klang Utara police a 14-day remand to hold Vietnamese housewife Tran Thi Thoai Trin under the Act to “verify” her documents.
The 25-year-old, who is married to a local property agent, was arrested for failing to register with the MySejahtera app before entering a restaurant on March 13.
Lawyer V Vemal Arasan said Tran is now being held at the immigration depot in Sepang, a centre designated for illegal migrants.
He said the husband, Yeoh Wei Chong, 29, whom she married in 2018, only came to see him five days after the incident.
“I filed a revision application before a High Court but it was rejected despite being supported with Tran’s passport, spousal visa and marriage certificate,” he said.
Vemal said Tran’s status could be verified instantly at any police station or immigration centre, and that there was no reason to keep her in the depot for 14 days.
Lawyer N Sivananthan said a magistrate was likely to allow the application for a remand order, especially if the foreigner was not legally represented.
“The magistrate in all likelihood will grant the application to allow police or immigration to hold the foreigner pending verification,” he said.
The senior lawyer said a High Court would allow a revision application if all documents were produced. “I am not sure what went wrong in Tran’s matter,” he added.
There was a similar case last year when FMT reported about a foreign student charged with not having a permit to stay in Malaysia.
Bangladesh national Md Asraful Gani Chy was also remanded when police arrested him on Nov 3 at a restaurant. Although Asraful produced his student card, he was held in police custody for 10 days.
He was produced at a magistrates’ court and charged with not having a valid pass or permit to stay in Malaysia. He claimed trial and was sent to Bentong prison.
Three days later, his predicament came to the knowledge of a friend, who engaged a lawyer for him.
Asraful was again produced before the magistrate on Nov 25 and granted bail of RM6,000 with two sureties as he was due to sit for an examination. A representative of the university later attended court to produce Asraful’s passport and renewed visa.
On Dec 28, the High Court dismissed an application by the prosecution against the magistrates’ decision to offer bail.