Custodial deaths - a tale of indecision and indifference

Malaysiakini 
by Andrew Khoo

As published in Malaysiakini on 29 June 2013.

I take as my starting point May 2005, and the release of the Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police (Report). 

This Report noted that between January 2000 and December 2004 there had been 80 deaths in custody. Inquests were held into only six of these deaths. The most recent statistic, as disclosed to Parliament on June 26, 2013, is that from 2000 to mid-2013 there had been 231 cases of deaths in custody.

The Report contained a recommendation to establish an Independent Police Complaints and Misconduct Commission (IPCMC). A complete draft bill was included as an appendix to the Report. All that the government needed to do was to table this in Parliament. It did not.

Instead, the government disagreed with the proposal. It was debated and discussed, and the government dithered for some two-and-a-half years. 

According to the non-governmental organisation Suara Rakyat Malaysia or Suaram, 28 people died in police custody between May 2005 and December 2007. 

Eventually, in December 2007, the government introduced legislation in the Dewan Rakyat to establish a Special Complaints Commission in place of the IPCMC - on which there was an uproar of sorts. 

Complaints were levied that the proposed legislation was being rushed through without proper or sufficient consultation. The government relented and agreed to defer the matter to the next sitting of Parliament, in March 2008.

Of course Parliament did not sit in March 2008, given the 12th general election, with the Barisan Nasional government losing heavily. 

The then-prime minister Abdullah Ahmad Badawi made it known on March 27, 2008, that an IPCMC Bill had been ready to be presented to the cabinet before being tabled in Parliament, but this was deferred because of GE12. But Abdullah was on his way out, and thus a lame-duck prime minister. 

So, matters had to await a change in the leadership of the government, which occurred on April 3, 2009. 

The government under new Prime Minister Najib Abdul Razak finally introduced legislation in the form of the Enforcement Agencies Integrity Commission (EAIC) Bill, which was passed by the Dewan Rakyat on July 1, 2009, and by the Dewan Negara on July 30, 2009.

The EAIC Act 2009 received Royal Assent on Aug 19, 2009, and was gazetted on Sept 3, 2009.

According to Suaram, in the almost two years between December 2007 and September 2009, eight people died in police custody.

Notwithstanding its gazetting on Sept3, 2009, it would be some time before the EAIC took effect. Time was needed to set up the EAIC, to find staff, appoint commissioners. This took 19 months and the EAIC finally commenced operations on April 1, 2011.

According to Suaram, in the 19 months from September 2009 to March 2011, eight people died in police custody.

Again according to Suaram, a further 19 people died in police custody between April 1, 2011 and May 20, 2013.

Some of the major EAIC shortcomings

I chose May 20, 2013, because the EAIC Convention 2013 was held on that day. During the convention, the former chief justice of the Federal Court of Malaysia, Abdul Hamid Mohamad, delivered a detailed critique of the shortcomings of the EAIC. 

In particular, Abdul Hamid highlighted the following:

Between April 2011 and the end of 2012, the EAIC received 347 complaints;

110 (31.7 percent) were rejected;

Nine (2.5 percent) were referred to the Malaysian Anti-Corruption Commission ("MACC");

15 (4.3 percent) were referred to the various appropriate disciplinary authorities;

Four (1.1 percent) were referred to the appropriate disciplinary authority and the MACC;

60 (17.2 percent) were directed for full investigation; and

149 (42.9 percent) required further preliminary investigation.

Under Section 17 of the EAIC Act, full investigations are to be conducted by a Task Force. Abdul Hamid disclosed that no such Task Force had been formed. 

Instead, investigations were conducted by EAIC investigators. Only three out of those 60 cases had been fully investigated, resulting in one case being referred to the disciplinary authority of the Royal Malaysian Police and the other two closed because the disciplinary authorities in both those cases had already meted out punishments.

Abdul Hamid questioned how long it would take the EAIC to complete the 57 cases that were directed for full investigation and the 149 that were referred for further preliminary investigations. 

He also questioned the speed with which the various disciplinary authorities completed their own investigations into complaints referred to them by the EAIC and compliance with the time-frame to communicate their findings back to the EAIC. 

In none of the cases of referred complaints did any of the disciplinary authorities communicate back to the EAIC within the prescribed two-month period: the norm was six months. 

On June 5, 2013, EAIC chief executive officer Nor Afizah Hanum Mokhtar (left) provided updated statistics that appear not to show any improvement. Nor Afizah said between April 1, 2011 and May 31, 2013, the EAIC had received 469 complaints. Of these, 353 (75.27 percent) were against the police. 

Investigations were opened into 124 out of these 469 complaints, but only one resulted in a recommendation of disciplinary action against a member of the police force. This would appear to be that same one case cited by Abdul Hamid. 

In other words, none of the new cases of complaints against the police, from January to May 2013, has resulted in any recommendation of disciplinary action against a member of the police force. 

Yet, according to Suaram, eight people died in police custody from January to May 2013, six if we exclude N Dhamendran and Jamesh Ramesh, for which a decision to create a Task Force to investigate was announced in May 2013. 

Nor Afizah Hanum was quoted by The Malaysian Insider as saying, "We are looking at how we can investigate deaths in police custody... even though nobody has filed complaints." She went on to say, "We want to investigate cases of public interest, even when we do not receive complaints."

Section 28 of the EAIC Act 2009 states:

"Without prejudice to Section 27, the Commission may commence an investigation in respect of a misconduct it becomes aware of on its own initiative, only if the Commission is satisfied that the matter is of significant interest to the public or that it is in the public interest to do so."

This is not a new provision of the EAIC Act 2009. It has been there right from the very beginning. Given this power to commence an investigation even in the absence of any complaint, it begs the question, why only in June 2013 was she saying this? 

Was it only because of the publicity that arose from the three deaths in custody that occurred between May 21, 2013 and June 5, 2013? What about the 20 deaths in custody from April 1, 2011 to May 20, 2013? Were none of these deaths of significant interest to the public? 

So, how many more have to die in custody?

One of these cases was that of C Sugumaran, the circumstances of whose death on Jan 23, 2013 widely reported in the local media. Did the EAIC not feel that this was a suitable case to exercise its powers under Section 28 of the EAIC Act 2009, or that it was in the public interest to do so? 

How many people have to die in police custody before the EAIC becomes satisfied that the matter of deaths in custody is of significant interest to the public? How many people have to die in police custody before the EAIC thinks it is in the public interest to do so? 

We enter the realm of speculation, but how many lives might possibly have been saved had the EAIC got its act together much earlier, and launched an investigation into this matter much earlier? One can only guess.

The establishment of a task force to investigate two of the latest deaths in custody comes as too little, and certainly too late, for those who have died. Because of the dithering, indecision and indifference of the government and, to a certain extent, the EAIC commissioners, people die. 

In the 27 months that the EAIC has been in operation, from April 2011 to June 2013, 23 people have died in police custody. All the EAIC commissioners must bear the moral responsibility for not having stepped in much earlier to address this issue. 

Death in custody is not a recent phenomenon. Remember what the Report had already noted more than eight years ago, when it was 80 deaths in custody. Now it is 231 custodial deaths. When will this stop?

A new test has now arisen for the EAIC: what to do with the new inspector-general of police (IGP), Khalid Abu Bakar? High Court judge VT Singham (left) in his judgment delivered on June 26, 2013 in respect of the civil suit brought by the family of the late A. Kugan, who died in police custody on Jan 16, 2009, concluded that the police had attempted to cover up the real reason for Kugan's death. 

Justice Singham dismissed claims by Khalid, who was then chief police officer of Selangor, that there was no cover-up. He raised doubts about the veracity of statements made at that time by on the cause of Kugan's death, and questioned why Khalid had not initiated a detailed investigation into the matter. 

The learned judge found Khalid liable for misfeasance of public office.

Indeed, this practice of announcing a misleading cause of death is not limited to the IGP. In the case of the death in custody of N Dhamendran recently, Kuala Lumpur Criminal Investigations Department head SAC Ku Chin Wah gave a press conference declaring that Dhamendran had complained of chest pains and had died of breathing difficulties. 

This was in spite of clear evidence that Dhamendran had been brutally killed. Even his ears had been stapled, and there were puncture wounds on his ankles.

Will the EAIC now launch another task force to look into the possible misconduct of Khalid? Or the patently erroneous reason given by Ku? Or are these matters not of significant interest to the public? 

Is launching an investigation into the conduct of the IGP not in the public interest to do? The words of the judgment of Justice Singham, said in respect of the Royal Malaysian Police Force, apply in equal measure to the EAIC:

"As soon as the crime is reported or comes to the public knowledge, the highest authority of police must act promptly and must ensure investigation is conducted with promptitude by an independent investigation agency or at least an inquest is held or recommended."

If the government is adamant that the EAIC is a good or better alternative than the IPCMC, then the time really has come for all the EAIC commissioners to show that they have the independence and integrity to investigate the IGP. 

If they do not do so, then all that the government has said in defence of the EAIC will count for naught, all the EAIC commissioners should resign, and the IPCMC should be immediately established. 

The ball is now squarely in the court of the EAIC to act decisively. The inescapable conclusion must be that it is of significant interest to the public that the EAIC does so.

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ANDREW KHOO is co-chairperson of the Human Rights Committee of the Bar Council Malaysia. He writes here in his personal capacity.