THIS is the first time the government has invited a UN working group to visit its detention centres. On what basis was the invitation made and how was the invitation worded?

Our mandate is arbitrary detention. We deal with the procedure from the moment of arrest and detention through the pre-trial detention, remand and if there is a process up to the time they are sentenced.

We look into the whole process to see that it is done in respect of human rights norms. Even if things are done properly – but there are problems within the system – that can be considered an arbitrary detention.

Every detention must be done through the judicial system, if not, it is considered an arbitrary detention. And any detention which is exclusively an administrative detention is considered an arbitrary detention.

Which group is prone to arbitrary detention?

All – locals and foreigners. All the detentions under the preventive laws in Malaysia are arbitrary – because the judiciary is not involved. There is no sentencing, no respect for the judiciary – you cannot defend your detention.

You have no right to a trial because you go for a trial before you are detained. In some cases, you do not even know why you are being detained. You cannot explain it to your parents or children why you are being held in detention.

Did you accompany the police or authorities when arrests were made?

No.

Why not?

We have information on the whole procedure and we can obtain information at each level and it was not necessary for us to be present at the moment of arrest. We spoke to lawyers and former detainees and we have an idea how the whole procedure takes place.

You were here from June 7 to 18 – and minus your rest period – you had fewer than 10 days. Would that time be enough to study arbitrary detention in a country that has preventive laws?

We can present a comprehensive report because we are trained to do this – this is what we do. We did a lot of background research, we had a lot of information from the other special procedures in the human rights council. We had information from the treaty bodies that monitor the UN human rights conventions. We had information from the universal periodic reviews – and even with regards to ISA, there were adopted opinions on it in 2008, so they already knew about it.

Was there anything that you encountered here that you were not prepared for?

I was happily surprised to see the good conditions in the prison and the fact that it was so developed.

Every detention must be done through the judicial system, if not, it is considered an arbitrary detention. And any detention which is exclusively an administrative detention is considered an arbitrary detention.

Why did you not expect this?

Prison conditions are generally not good anywhere.

What about overcrowding?

It was not an issue other than at the immigration detention centres where it is catastrophic.

Were the detainees open towards your questioning?

Generally we had very good cooperation.

Do you think "preparations were made" before you visited the detainees and what you encountered might not have been the real situation?

We have our own investigative skills, fact finding skills – even if they were "prepared", we can find out what we need.

How long is a detainee interviewed?

I had 10 questions (the same) for each detainee – because it is the same mandate.

Many of them were happier in prisons rather than in police lock-ups. Did they openly say this or did you have to ask them?

Some of them tell us. When we ask, they sometimes provide us answers. There are Senegalese in detention – they tell me.

Sometimes children are placed in orphanages when their mothers are detained in immigration centres. Did you visit orphanages as you had also visited psychiatric centres?

No.

Do you know where children are taken to?

Yes, they tell us but we did not visit the orphanages.

Do you think this invitation from Malaysia to the UN working group is a public relations exercise?

We do not care if it is a public relations exercise. The important thing is for us to see the detention centres and their conditions rather than the reasons for our invitation.

In your summary, you had stated that you suggested that the preventive laws be revised in accordance with the UN human rights conventions. How can a preventive law be in line with any human rights convention?

Article 10 of the Universal Declaration of Human Rights states that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".

If you respect this position, then you cannot have preventive laws to keep someone. If you keep someone, there must be real reasons and these reasons have to be challenged in a court before justice is given.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." – Article 10 of the Universal Declaration of Human Rights

What happens after this study and the presentation of the report?

The final report will be presented to the Human Rights Council in March, 2011, it will be public and two years after that, 2013, we will ask the government where it is in terms of our recommendations. We will also ask civil society – maybe Suhakam. At that moment, we will do an evaluation to see what has been done to engage the government to really analyse and if we are not satisfied with the information we get, we will continue with the dialogue.

Have countries been receptive to your recommendations?

Yes.

Can you give us the names of some countries which have improved?

No, I cannot give you their names.

Was there a reluctance among authorities in your course of the study?

No.

You made a surprise visit to a police station. What other places did you visit unannounced?

Only that one. We wanted to test the situation and it went very well. It is in our rules to have access to all detention areas.

You went to Sabah?

Kuching not Sabah.

But Sabah is a gateway for illegals?

We cannot go everywhere.

Who told you where to go?

We pick and choose. Our secretariat in Geneva prepares our programme.

How do you call on the government to react while you prepare the report?

That you have to ask the government. We have put forward the preliminary report and we will prepare the final report.

Suhakam has visited detention centres and made recommendations but the government has yet to listen. What makes you think the government will listen to a UN working group?

The system is made in such a way that we will hold Malaysia accountable and we want things to move in advance. That is our job and that is what we will do. We are optimistic.