Death of justice in police custody

Cases of people dying while under detention keep cropping up, leaving an indelible mark on Malaysia's human rights record.

COMMENT

Suresh Kunasekaran, Samiyati Indrayani Zulkarnain Putra, A Kugan, M Krishnan and K Sivam – these five shared a common death: they all ended up dead while in police custody.

They also shared something else in common – failed justice and blatant abuse of their rights as humans.
When Prime Minister Najib Tun Razak assumed the country’s leadership from Abdullah Ahmad Badawi on April 3, 2009, he promised the rakyat that he would “uphold civil liberties” and exhibit “regard for the fundamental rights of the people”.

Sadly or typical in politics, neither happened. Six years ago a royal commission report proposed the setting up of an Independent Police Complaints and Misconduct Commission (IPCMC) but in 2009 the government shot down the proposal, saying the IPCMC’s powers were “too broad” and unconstitutional.

Meanwhile, cases of people dying after being detained by police keep happening. Statistics showed that between 2000 and February 2010, those who died while in detention were Malays (64), Chinese (30), Indians (28) other races (eight) and foreigners (14).

In Kugan’s case, the cop suspected of causing the former grievous hurt has been declared a free man by the Petaling Jaya Sessions Court. Judge Aslam Zainuddin on Jan 28, 2010, set constable V Navindran free because the prosecution failed to establish a prima facie case.

Kugan, 23, was arrested in January 2009 in Puchong for allegedly stealing luxury cars. Barely days after, he was found dead inside the lock-up of the Taipan police station in USJ-Subang Jaya. A post-mortem declared his death as “fluid accumulation inside the lungs”. But eyewitnessess told a different story. They said the cop Navindran whacked Kugan with a rubber hose. A second post-mortem commissioned by Kugan’s family revealed that apart from being beaten, he had also been burnt and starved, all of which led to Kugan’s death.
On Jan 3 this year, police arrested electrician Krishnan, 37, on a drug-related offence. Four days later, Krishnan was found dead inside the Bukit Jalil police cell, with a Hospital Universiti Kebangsaan Malaysia post-mortem concluding he died from stomach ulcer. A preliminary report on the second autopsy conducted by Universiti Malaya Medical Centre concurred with the earlier finding.

What made police so powerful?

Krishnan’s wife rejected the preliminary report, insisting that her husband was beaten to death. She said there were photographs of bruises on Krishnan’s body as well as two eyewitness who saw everything. The lawyer for the family said they were awaiting official documents on the first and second post-mortems before deciding on the next course of action. The report is due for release on Feb 7.

A week before Krishnan’s death, another death was recorded, this time at the Sentul police lock-up where Sivam, 43, was found dead. Samiyati, meanwhile, was found dead at the Wangsa Maju police station on Sept 12, 2006. Despite there being bruises on her body, Samiyati’s death was attributed to asthma.

The question being asked by the rakyat is: what has made the police so “powerful” in determining who they want to kill or set free?

In July last year, DAP MP Gobind Singh Deo demanded the Home Ministry clarify the cause of death behind the estimated 1,500 custodial deaths between 2003 and 2007.

“From 2003 to 2007, why was there no action taken? Why is it that until now (the) minister is unable to give a report and details?

“I call upon (Home Minister) Hishammuddin Hussein to respond and tell us how did these 1,500 people die? What has been done about their death?” asked Gobind.

On June 23, Gobind had forwarded to Deputy Home Minister Wira Abu Seman Yusop a copy of a BBC report titled “Malaysia pressed by UN over detentions without trial”. The report, published on June 18, stated that the United Nations Working Group on Arbitrary Detention’s visit to Malaysian prisons and detention centres found that between 2003 and 2007 “over 1,500 people died while being held by authorities”.

Gobind had said the deputy minister replied that there was no police report made and the ministry would only take action once a report is lodged.

Truly, such indifference shown by the deputy home minister towards the lives of people only further eroded the rakyat’s confidence in the police.

Basic rights denied
Criminal lawyer Amer Hamzah Arshad had once pointed out that laws such as the Criminal Procedure Code (CPC) and subsidiary legislation such as the Lock-up Rules were designed to “uphold and ensure the basic rights of persons under arrest” as well as to regulate lock-up conditions. However, these have been enforced in such a way that the basic rights are denied.

Section 28A (3) of the CPC stipulates that when an arrested person wishes to communicate with a “relative or friend to inform of his or her whereabouts” or “consult with a legal practitioner of his or her choice, the police officer should allow this “as soon as may be”.

In reality, this provision under the law has been conveniently dismissed by the police. Why?
The Royal Commission on Police report, released in May 2005, stated that between 2000 and 2004 only six out of the 80 deaths in custody were subject to inquests.

The failure of the judicial system in delivering justice to Kugan’s family follows on the heels of Teoh Beng Hock, a former DAP political aide who was found dead on the fifth floor corridor of Plaza Masalam in Shah Alam on July 16, 2009, hours after he was interrogated by the Malaysian Anti-Corruption Commission in the same premises.

Teoh’s family rejected the possibility of suicide, suspecting foul play instead. Following a public outcry, Najib ordered an inquest into the death. But after 18 months of proceedings and with Teoh’s remains exhumed for a second post-mortem, the coroner delivered an open verdict, ruling out both suicide and homicide.

Teoh’s sister, disappointed with the unjust verdict, demanded that a Royal Commission of Inquiry be set up to relook the cause of Teoh’s death. Najib has given the royal commission a three-month deadline.

Najib, however, refused to select any one of the five nominees suggested by Teoh’s family as the commission panel. Names given included former Bar Council president Ambiga Sreenevasan, former inspector-general of police Hanif Omar and workers rights group Tenaganita founder Irene Fernandez.

It is perplexing that Najib was not keen in all five names when all five are well known advocates in their respective fields. Would Najib care to answer why he refused to appoint even one of the names referred by Teoh’s family? Is it because the government wants to hide the truth one way or another? What happened to Najib’s cry of “people first, performance now”?

Even DAP leader Lim Kit Siang was left wondering why Najib rejected the names suggested by Teoh’s family. Lim regretted that the prime minister failed to consult Teoh’s family although he had promised to meet them and the public on who best be appointed as commissioners.

“It is no exaggeration to say that as a whole, the composition of the six members of the commission does not inspire full public confidence,” Lim had said.

In Kugan’s case, his family might not be as “enlightened” as Teoh’s in terms of demanding that an inquiry be set up. But all the bruises on Kugan’s body confirmed their fears that he was severely abused while in detention. A Sivarasa, one of the lawyers representing Kugan’s family, has demanded that Attorney-General Gani Patail resign for failing to ensure that justice prevailed.

Integrity of judicial system compromised
The Session Court’s decision to allow constable Navindran to go free has once again proven the public right that the judicial system is no longer trustworthy. To them it is unbelievable that in spite of eyewitnessess confirming that the cop had whacked Kugan with a rubber hose, the court set the constable free.

“The court’s excuse is the prosecution failed to establish a prima facie case. It is unbelievable to what extent our judicial system can stoop so low. Setting the cop free has made a mockery of our country’s ability to mete out justice.

“The other truth is that the Session Court’s decision has also tainted the integrity of Malaysia’s judicial system. In this country, justice is all about power and influence, not about punishing the wrong-doer. It is as if justice is dead in Malaysia,” an activist Manohara Subramaniam lamented to FMT.

In October 2006, Amnesty International Malaysia (AI), disturbed over the custody death of Suresh, said its documented cases in the past revealed that relatives of those who died in police custody alleged that the police had obstructed the complaint process, suppressed evidence and even colluded with hospital officials and medical officers.

AI had then called for amendments to the CPC to include best practices on preliminary investigations in cases of custodial deaths. This also included sealing a police station as a crime scene for an independent investigation, including temporary suspension of officers in charge of the lock-up. These procedures were deemed important in avoiding tampering of evidence and any possibility of conspiracy between people involved in the case.

Another issue that AI believed needed urgent implementation was the installation and proper maintenance of closed-circuit televisions in all police stations, especially lock-ups and interrogation rooms with clear guidelines on how these recordings are kept safe.

Incidences of deaths at the hands of the police have left an indelible mark as far as the manipulation of justice and abuse of human rights are concerned. Failed justice in such cases is seen as a humiliation in the face of Najib’s promises of putting the rakyat’s welfare first.

In February 2009, the United Nations Human Rights Council examined Malaysia under its Universal Periodic Review mechanism. Malaysia, however, rejected various recommendations by member states, including ratifications of core human rights treaties.