Three times not the charm

  • Nation
  • Sunday, 05 Mar 2017

Death inquiry: Yaacob showing the findings of a probe into Dharmendran’s death while in police custody.

The recent deaths in police custody have renewed calls for an Independent Police Complaints and Misconduct Commission.

A HAT-TRICK of goals or championship victories is wildly celebrated, but not when it is of deaths in police custody.

Even before the third month this year, there have been three deaths – on Jan 18, Feb 8 and Feb 25.

The last time a hat-trick like this occurred was in 2013: on May 21, N. Dharmendran, 32, died while being detained at the KL police headquarters lockup; on May 27, Jamesh Ramesh, 40, was found dead in his cell at the Penang police headquarters; and on June 1, Karuna Nithi, 42, died in detention at the Tampin police station.

As part of then Prime Minister Tun Abdullah Ahmad Badawi’s promise to enhance accountability in government, a Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police (Police Commission) was established in February 2004.

Among the recommendations released in 2005 was for an Independent Police Complaints and Misconduct Commission (IPCMC) to be set up to ensure police observe and apply laws, rules and procedures.

The Police Commission also recommended that a code of practice be adopted with regard to the arrest and detention of persons. It called for an independent Custody Officer to be responsible for the welfare and custody of every detainee.

Steven: ‘This defiance smacks of brazen disrespect for the court and a blatant disregard for the welfare of a person in police custody.’
Steven: ‘This defiance smacks of brazen disrespect for the court and a blatant disregard for the welfare of a person in police custody.’

The police, however, objected to the IPCMC and an Enforcement Agencies Integrity Commission (EAIC) was established in lieu in 2011.

Some feel it’s perhaps time to revisit the decision to establish an IPCMC.

The EAIC is doing what the law mandates it to do in educating the police and conducting investigations but the police rank and file do not appear to heed its recommendations.

Take for example, the inquiry it convened into Dharmendran’s death after the ghastly details of his death came to light. At first, the police said Dharmendran died of a heart attack but the post-mortem revealed staple bullets in his ears, and that he sustained puncture wounds on his ankles and injuries to other parts of his body.

The inquiry report was released last April and its far-reaching recommendations covered not just the police but the need for medical officers to be properly equipped when examining bodies in lockups and training for coroners as well.

One would have thought that after the findings were publicised, the police and other detention authorities would be more careful.

However, one month later, on May 4, Mohamad Rozali Aris was found dead in his cell at the Sg Siput (North) police station and on Sept 14, Azri Mohamed, a prisoner at the Pengkalan Chepa Prison died at Hospital Raja Perempuan Zainab II in Kelantan.

Unsuitable punishment: Lim believes that the death penalty is disproportionate, cruel and inhumane.
Unsuitable punishment: Lim believes that the death penalty is disproportionate, cruel and inhumane.

According to EAIC chairman Datuk Yaacob Md Sam, the commission officers are in the midst of investigating five deaths in custody.

The three for this year are:

>Jan 18 – Soh Kai Chiok – at Triang police station in Bera District, Pahang;

>Feb 7 – Balamurugan Suppiah – at North Klang police headquarters; and

>Feb 25 – Thanaseelan Muniandy – at Bukit Sentosa police station in Hulu Selangor District.

The Lock-Up Rules 1953 are still the same but Bukit Aman revised its Standard Operating Procedures (SOP) on Lock-Up Management in 2014. But since police SOPs are never made public, it’s unclear whether Bukit Aman has included the Police Commission’s recommendation for a custody officer to be appointed.

Yaacob doubts whether officers manning lockups have even been informed and briefed on the new SOP.

“This is based on our initial findings on the Bera and North Klang deaths in custody,” he says, when asked whether police follow their own SOP, and if they had ignored the Dharmendran inquiry recommendations.

In a Sunday Star report on May 8 last year, Yaacob had lamented that even when the EAIC recommended stiff action between 2012 and April 27 last year – for example, a six-month suspension of the officer’s emolument (salary and allowances) – the individual disciplinary authority had come back to say it was only cautioning the officer.

This time, Suhakam is also investigating the case of Balamurugan who died in custody, after the magistrate had denied North Klang police their application for his remand and ordered for his release.

Legal minds: Zaki (left) and Chief Justice Tun Ariffin Zakaria attending ‘The Malaysian Judiciary’ book launch.
Legal minds: Zaki (left) and Chief Justice Tun Ariffin Zakaria attending ‘The Malaysian Judiciary’ book launch.

But like EAIC, which can determine how a detainee died, Suhakam has no power to haul up any apples which spoil the barrel or punish any sheep that blacken the reputation of their respective enforcement bodies.

Since 2014, the police have their own mechanism – Integrity and Standards Compliance Department (JIPS) – to “contain misconduct”. But JIPS doesn’t seem to be effective in eradicating death in police custody, as detainees are still being found dead in their cells after 2014.

It is no surprise that the Malaysian Bar and human rights organisations like Suaram, Proham are reiterating calls for an IPCMC. Among civil society members echoing that call is former Chief Justice Tun Zaki Azmi who was a member of the Police Commission.

“Death in custody goes beyond misconduct. It is a criminal act. But they should set up an IPCMC to make the police force a professional organisation,” says Zaki.

“Look at how Hong Kong dealt with the high level of corruption in its police force by setting up the ICAC (Independent Commission Against Corruption) in 1974 with the power to mete stiff penalties.

“It is now one of the cleanest police forces in the world.

“It’s the same in dealing with death in custody. There must be political will to set up an IPCMC.

“I don’t agree that detainees should be mollycoddled but police can do their job without stapling their ears or whipping them with a hose. They can question suspects without crossing the line,” he adds.

Touching on Balamurugan’s death, Bar president Steven Thiru notes that the investigating officer appears to have knowingly disobeyed a court order for his release.

“This defiance smacks of brazen disrespect for the court and a blatant disregard for the welfare of a person in police custody, who was apparently in obvious need of medical treatment,” says Steven, adding that such misconduct warrants stern action by the court.

Does the successful prosecution of the immigration officers for murder in the Kangar High Court on Friday indicate that the police are better at investigating their fellow law enforcement bodies than themselves?

Proham chairman Datuk Kuthubul Zaman Bukhari says all deaths in custody whether under police, immigration or other enforcement agencies must be thoroughly investigated by an independent body and not by their own officers.

“There have been very few cases of police officers being charged in respect of death in their custody even though we see more cases of death in police custody than other enforcement agencies.

“The guilty finding should be a lesson to all enforcement agencies,” he says, adding that Proham does not support the death penalty that was imposed on the immigration officers.

While welcoming the conviction as a warning and lesson to always respect and promote the rule of law in the treatment of detainees, former Bar president Datuk Lim Chee Wee agrees that the death penalty is disproportionate, cruel and inhumane.

All law enforcement authorities with powers to detain should remember what High Court judge Justice S. Nantha Balan said on Jan 9 in finding the police liable for the death of lorry driver P. Chandran at the Dang Wangi police lockup on Sept 10, 2012: “In a modern, mature and evolved constitutional democracy such as Malaysia, it is axiomatic and imperative there should be zero deaths of detainees in police custody.”

Suhakam chairman Tan Sri Razali Ismail stresses the duty of care the state has towards people in detention must be adequately understood.

“The authorities must implement reforms to build a more rights-respecting department,” note Razali and Lim.

If the Government believes that death in police lockups is not acceptable, it should exercise political will and convince the police that an IPCMC will actually protect its interests.

After all, if a death occurs in police custody, suspicion will fall on the police, even if the detainee died of natural causes or committed suicide.

If the police force is adamant that it is not interested in an independent body that can vindicate and clear it of wrongdoing, the authorities should seriously consider EAIC’s proposal to amend the law to include a presumption provision, says Yaacob.

“This means that when a death occurs in the custody of police, immigration or Malaysian Anti-Corruption Commission, and the post-mortem shows it was from use of excessive force – the one in charge of the custody or having access to the detainee should be held responsible for any injuries or death,” he says.

“The presumption shifts onus to the officer-in-charge of the detainee.”

In light of the continuing deaths in custody, Parliament needs to set up a Select Committee to examine this proposal when it re-convenes for its new session this week.

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