Yang Amat Berhormat Lim Guan Eng, Chief Minister of Penang;
Abdul Fareed Abdul Gafoor, Chairperson of the Penang Bar Committee;
Dato M Ramachelvam and Dato Kuthubul Zaman Bukhari, Co–Chairpersons of the Bar Council Task Force on IPCMC;
Exco members of Penang State government and State Assembly persons;
Panelists of the forum that will follow;
Ladies and gentleman;
A very good morning to all of you.
It was over nine years ago, namely, May 2005, that the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (“Royal Commission”) published its report to address the “widespread concerns regarding the high incidence of crime, perception of corruption in the Royal Malaysia Police (Polis Diraja Malaysia, “PDRM”), general dissatisfaction with the conduct and performance of police personnel and a desire to see improvements in the service provided by the police”.
The report by the Royal Commission acknowledged that there are indeed great challenges confronting the PDRM.
The challenges include:
(1) widespread corruption in PDRM;(2) widespread non–compliance with prescribed laws and human rights obligations among police personnel; and(3) inadequate awareness and respect for the rights of women and children.
In addition, the Royal Commission also identified that too many deaths in custody, the failure of the police to investigate and the authorities to hold inquests into these deaths were key concerns raised by members of the public, NGOs and international organisations.
The Royal Commission recommended the setting up of the Independent Police Complaints and Misconduct Commission (“IPCMC”), an independent, external commission tasked solely to receive and investigate complaints about the PDRM's misconduct and abuse as a means to address, counter and redress the aforementioned challenges.
In this year alone, there have been eleven deaths in police custody nationwide. Seven of them were in Penang. They seven are:
1) A Punniyathan, in Nibong Tebal on 10 Feb 2014;2) Ramasamy Nagu in Bayan Baru on 1 Mar 2014;3) Murugan Muniandy in Seberang Perai on 13 Mar 2014;4) Rahmat Noor in Bayan Baru on 27 Apr 2014;5) Agin Raj Naidu in Bukit Mertajam on 7 June 2014;6) Tee Ming Hua in Seberang Prai on 28 Sept 2014;
And the latest case, which I am informed, occurred several days ago. The identity and circumstances of this latest incident has not yet been disclosed publicly.
The other four who died in police custody in other States are J Kulanthangam, Arjunan Morgan, Koh Kheng Soon, and Syed Mohd Azlan.
Their deaths add to a long list of deaths in police custody going back years. According to information received from the Federal Government in Parliament on 26 June 2013, there were 231 deaths in police custody between the year 2000 and May 2013. That is approximately one death in custody every three weeks during that period.
It is alarming that detainees in police custody continue to die under questionable circumstances despite this matter having been repeatedly highlighted to the PDRM and to the government. The PDRM have yet to be held accountable.
One may be left with the impression that the modus operandi of the police is to arrest first, investigate later, as opposed to investigate and secure adequate evidence first before arresting. One wonders if in conducting these hurried and premature arrests, the police are then compelled to illicit a confession to the alleged crime through the use of force and intimidation resulting in abuse of detainees and sometimes deaths in custody.
Are the rights of the detainees respected? Section 28A(2)(a)of the Criminal Procedure Code dictates that after making an arrest, the police officer must inform the arrested person that he has the right to communicate with his family or friends and inform them of his whereabouts. The detainee can make this phone call free of charge at the place of detention. This should be done even before the commencement of recording of any statement or the questioning of the arrested person. However, the reality is that, this does not always happen.
It did not happen in the case of 32–year–old Dhamendran Narayanasamy, who was found dead at the Kuala Lumpur police contingent headquarters on 21 May 2013 on his eleventh day in police detention. His family was not informed of his arrest until his wife contacted the police to enquire of his whereabouts. The subsequent post–mortem report by the pathologist found that Dhamendran had 52 injuries on his body, including metal staples on his ears.
Section 28A(2)(b) of the Criminal Procedure Code further states that the police officer has the obligation to inform the detainee of his right to consult with a lawyer of his choice, and that the lawyer is allowed to be present and to advice the arrested person at the place of detention before the police commences any form of questioning or recording of any statement from the person arrested.
If the detainee is unable to afford a lawyer, the police officer has the obligation to notify Yayasan Bantuan Guaman Kebangsaan (the National Legal Aid Foundation; “YBGK”) that an arrest has been made as per the standard operating procedure that has been agreed upon between the PDRM and YBGK. YBGK will then dispatch a lawyer to the location to represent the detainee at no cost to the detainee. This not only provides access to justice for arrested or detained persons, but also serves as a check on or disincentive for abuse or misconduct.
Although the PDRM has given effect to this procedure, unfortunately it has not been consistently or uniformly carried out in all of the states. The case of Dhamendran illustrates this. YBGK was not informed of his arrest and no lawyer was dispatched to see him or represent him.
Four police officers were charged for the murder of Dhamendran. However, we read in yesterday’s news that the said four police officers have been acquitted of those charges on the grounds that there was insufficient cogent or direct evidence against the said accused officers. This underscores and emphasises the urgent need for significant reforms of the PDRM, in particular but not confined to its procedures for dealing with and questioning of arrested or detained persons. Very often, it is difficult to identify the perpetrators of such heinous crimes alleged to be committed within our police force because of the lack of transparency and accountability. There must immediately be implemented strict safeguards and established an independent oversight body in the form of the IPCMC as recommended by the Royal Commission.
The medical report is clear in that Dhamendran died as a result of severe physical abuse, there were 52 external injuries to his body including metal staples on his ears, and blunt force trauma. He was at the material time in police custody. It is shameful that an institution such as the police force whose primary duty is to protect and safeguard the public is seen to be sullied by deaths of persons in its custody. There must be zero tolerance for this. The Enforcement Agency Integrity Commission (“EAIC”) has been shown to be ineffectual or ineffective in dealing with the problems alleged to be in PDRM. The IPCMC is long overdue. It was recommended by the Royal Commission in 2005. How many more deaths in custody should occur and how much longer must Malaysians wait? Where is the political will to give effect to the recommendation of the Royal Commission for police accountability in this regard?
In spite of the rights of an arrested person being clearly spelt out in the Criminal Procedure Code, these rights are not always respected, and deaths in custody continue unabated.
Furthermore, the Criminal Procedure Code mandates that an inquest must be conducted in every case of death in custody. When a person dies while in police custody, the police officer who had custody of that person shall immediately notify the nearest Magistrate of the death and the Magistrate shall hold an inquiry in to the cause of death. The Magistrate is given the power to subpoena potential witnesses, order the production of evidence and documents that may assist the Magistrate to arrive at a considered opinion.
However, according to the Royal Commission report, from 2000–2004 when there were 80 cases of deaths in police custody, only 39 of those cases had been referred to the Magistrate for inquiry. Of the 39 cases, only in six cases did the Magistrate conduct inquest.
Adding insult to injury, the Royal Commission found that in 21 cases that had been referred to the Magistrate, decisions had been made not to hold an inquest and that no further action was needed. The remaining cases were in various stages of processing.
An update to the aforesaid data on the number of inquests, in a Parliamentary answer on 23 Mar 2011, the government stated that between 2000 and February 2011 there was a total of 156 deaths in police custody recorded. Of the 156 cases, 85 cases — more than half — had been deemed no–further–action required by the Deputy Public Prosecutor. Two cases were mid–trial. Four cases were mid–inquest. Four had had inquests completed. 32 were still under the consideration of the magistrate. 29 cases were still under police investigation.
The numbers in the Parliamentary answer do not reconcile with the numbers that were provided to the Royal Commission in that the number of inquests reported to have been held in the Royal Commission Report was six cases, whereas the Parliamentary answer in 2011 in respect a higher number of deaths in custody covering 2000 – 2011, a period which overlaps the 2000 to 2004 period referred to by the Royal Commission, a lesser number of inquests, namely four, is said to have been conducted. These are the official government figures nonetheless.
Thus, if inquests are conducted on less than 5% of the total deaths in police custody, how can the family of a person who died in police custody, or a person with a complaint against the PDRM for that matter, get their grievance addressed? What are their options?
a) Lodge a Police ReportPeople who have been abused or whose family member or friend has died in custody may lodge a police report against the alleged abuser or police officer. The problem is that the police would be investigating themselves. This does not provide transparency nor lend to public confidence.b) Lembaga Tatatertib Polis Diraja MalaysiaThe person can file a complaint to the Lembaga Tatatertib Polis Diraja Malaysia. However, the Lembaga Tatatertib Polis Diraja Malaysia’s complaints mechanism is wholly in–house and there is again a lack of transparency in how the police actually investigate allegations that are made against their personnel. As of today, there is zero information on this body and its complaints management process on the PDRM web site, making it extremely challenging for an ordinary citizen to inform himself of how the complaint mechanism works and how to exercise his rights.It has been reported that there is now in process internal integrity units set up in the police force. However, these still does not represent an external oversight mechanism.c) Enforcement Agency Integrity Commission (EAIC)The person can file a complaint to the Enforcement Agency Integrity Commission (“EAIC”), the service commission that was established as a substitute to the proposed IPCMC. However, the EAIC does not have any bite. It can investigate and document a complaint and then submit its recommendations to PDRM but it cannot compel the PDRM to accept or implement its recommendations. Furthermore, upon receiving the EAIC’s recommendations, the PDRM’s internal disciplinary mechanism can ignore them and conduct its own investigation. Thus, there is a duplication of work causing a waste of resources.Based on data published in the EAIC’s 2014 Annual Report, complaints against the PDRM comprised 215 out of the 306 complaints that they received in the year 2013. That’s a whopping 70% of total complaints received.Of these 215 complaints that the EAIC received against the PDRM, the EAIC rejected 192 of them for various reasons after conducting their preliminary investigation and referred only 23 of them to the PDRM for further action.Of the 23 complaints that the EAIC referred to the PDRM for further action, the PDRM’s found three of them to have been unsubstantiated or lacked evidence, one complaint resulted in disciplinary action being taken, two complaints resulted in warning letters issued and the remaining 17 had yet to have any findings conveyed.d) SUHAKAMIn the case of allegations of human rights abuses by the police, the aggrieved person can file a complaint with SUHAKAM, the national human rights commission. However, SUHAKAM, just like the EAIC, can only investigate and submit recommendations to the PDRM or the government. SUHAKAM does not have the power to compel PDRM or the government to act upon its findings or recommendations.e) Civil Suit for DamagesAn aggrieved person with the means to do so can file a civil suit. This is a means to establish civil liability and claim damages; it does not establish criminal culpability and no person would be ‘punished’.
A civil suit is a costly and time–consuming process, and not within the means of members of the lower–income community. In addition, a civil suit must be pursued within three years to avoid the matter being time–barred. In a civil action, the tortfeasors must also be specifically named. This is difficult for complainants who may not know the identities of police officers who had harmed or abused them while they were in detention.
According to the Human Rights Watch “No Answers, No Apology” report released earlier this year, 228 civil suits were filed against police officers between January 2002 and March 2012. These cases include wrongful arrest, unjustified discharge of firearms, causing injury or death to detainees, negligence in handling exhibits, wrongful seizure of goods, unlawful detention, violation of detainees’ rights, and trespassing and wrongful search.However, the PDRM does not maintain data specifying the outcome of the cases or provide the numerical breakdown of the types of cases among the 228 civil suits. This makes it very difficult to determine which types of abuses are common, how cases have progressed through the system, and how courts have handled these cases.
It is much regretted that the Inspector General’s Standing Orders on use of force and firearms by the police is not public and remains a secret. PDRM have repeatedly rejected requests to view the standing order by domestic and international human rights organisations, lawyers, and the Bar Council, and even by the national human rights commission, SUHAKAM.
In October 2013, Minister of Home Affairs Ahmad Zahid Hamidi stated in a written reply to Parliament that “…the standing orders are the procedures and trade–craft of conducting PDRM's duties. It is only for the use of members of PDRM… PDRM will only reveal certain standing orders that have a direct relation to the public.”
As the standing order is not made available, there is no way in which the public may compare and assess the actions of police officers in an incident vis a vis PDRM’s official regulations. It would appear that the police answer to no one and are refusing to be objectively accountable.
Another major challenge that was identified by the Royal Commission in its report is corruption.
The Royal Commission report in 2005 found that there is a perception of widespread incidence of corruption among police personnel.
The recent Malaysian Corruption Barometer 2014 survey conducted by Transparency International – Malaysia appears to confirm that the problem persists. Their survey found that among the top six public institutions perceived to be the most affected by corruption, the police was number two, a close second to political parties.
Of the survey respondents who come into contact with the police in the past 12 months, 11% had paid a bribe. 28% per cent of respondents viewed the police as “corrupt” and 14% as “extremely corrupt”.
Corruption within the PDRM is part of a wider problem of corruption plaguing Malaysian society at many different levels, in many different institutions.
In this year’s Transparency International Corruption Perception Index 2014, Malaysia was ranked 52 out of 175 countries. The year before that, 2013, Malaysia was ranked 53 out of 177 countries. The year before that, 2012, Malaysia was ranked 54 out of 176 countries. Thus, Malaysia is not seeing any appreciable improvement.
Corruption or perception of it within PDRM is a matter of grave concern because it leads to omissions and failure to enforce the law that in turn undermines public confidence in an essential and strategic institution of society. The elimination of corruption must therefore rank high on the reform agenda.
Widening preventive laws
Given the unabated deaths in police custody and the high level of perceived corruption among the PDRM that persist unchecked, it is alarming that the government is pushing for more authoritarian and draconian powers for the police.
On 26 Nov 2014, the government tabled a white paper titled “Ke Arah Menangani Ancaman Kumpulan Islamic State” (Toward Combating the Threat of Islamic State) stating the need for a specific anti–terrorism law to be legislated, and for the Security Offences (Special Measures) Act 2012, the Prevention of Crime Act and the Penal Code to be fortified.
While the bill for the proposed anti–terrorism law and the amendments to the existing laws have yet to be revealed, it is of concern that the contemplated new law and the amendments may expand the discretionary power of the authorities and permit detention without trial. What we could have in effect is the re–introduction of the repealed Internal Security Act (“ISA”).
Malaysia’s experience with the ISA is a blight on our nation’s history and it is a painful memory for the many individuals who were detained as well as their families. PDRM officers are alleged to have inflicted torture and inhumane treatment upon persons detained under the ISA without justification.
The Malaysian government barred international and Malaysian human rights groups from visiting the ISA detention in Kamunting. Thus, descriptions about conditions in Kamunting come from detainees, their families, detainees’ lawyers, who have limited physical access to the facility and SUHAKAM.
The following statement was made by ISA detainee Mohamad Faiq b Hafidh describing events on 9 Dec 2004, in Kamunting Detention Center:
“On the way from [a cell block] to [another block] I was handcuffed with my hands at the back and my head was pushed down to waist level. My head was struck with a baton and my eye was hit, injuring it. When I reached room seven of [the cell block], I was continuously beaten and then forced to strip naked, ordered to crawl while entering the room and then my buttocks were kicked and that was how I stumbled inside, naked. My t–shirt and pants were outside the room, which were returned to me later by [the] warden… My left eye continuously bled. I only received eye wash treatment on Sunday, December 12, 2004.”
By the government’s own acknowledgement, detention under the ISA was preventive and that it detained them because it either could not or chose not to prosecute certain individuals.
In October 2001, former Prime Minister Mahathir Mohamed said, “To bring these terrorists through normal court procedures would have entailed adducing proper evidence, which would have been difficult to obtain.”
This sentiment continued in the government of Prime Minister Abdullah Ahmad Badawi. In July 2005, cabinet minister Datuk Mohamed Nazri told Human Rights Watch, “They [ISA detainees] have not committed any crime because ISA is preventive. You cannot, therefore, go to court.”
It remains to be seen if Prime Minister Najib Razak aims to continue this tradition of detention without trial in the form of the new and tougher laws that he proposes to legislate to counter terrorism, despite having repealed the ISA earlier.
I hope not because preventive detention is counter–productive from a security standpoint in at least four ways.
Firstly, preventive detention fuels the resentment that leads to more radicalisation. It alienates families and communities that are affected, making them vulnerable for recruitment by extremist groups.
Secondly, the lack of transparency in preventive detention undermines public trust in law enforcement and reduces cooperation with authorities. Those who have information to share with the authorities may hesitate to do so for fear of implicating themselves and having themselves detained without trial.
Thirdly, preventive detention fails to provide a long–term solution for neutralising hard–core terrorists that may eventually be released under a preventive model. It merely isolates them in the short term, which can further radicalise them; and
Fourthly, preventive detention frustrates criminal investigations by encouraging police to make an arrest before they have sufficient evidence to prosecute. This gives accomplices the opportunity to flee and destroy evidence.
We must remember that the war against terrorism and extremism is not a physical conflict but a war on values and principles. It is a war that cannot be won with preventive detention. It is a war that cannot be won without the need for oversight over and accountability from the PDRM and other enforcement agencies for their actions. The PDRM cannot be a law unto itself.
Ladies and gentlemen,
The government is pandering to the demands of the conservative and PDRM in the re–introduction or introduction of harsh authoritarian police powers that are against the rule of law, human rights and principles of natural justice.
As Malaysia takes her seat as a non–permanent member of the United Nations Security Council from January 2015, it is my hope that we will abide by the United Nations Security Council Resolution 2178 that was passed unanimously on 24 Sept 2014, which says,
“Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law, underscoring that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter–terrorism measures, and are an essential part of a successful counter–terrorism effort and notes the importance of respect for the rule of law so as to effectively prevent and combat terrorism, and noting that failure to comply with these and other international obligations, including under the Charter of the United Nations, is one of the factors contributing to increased radicalization and fosters a sense of impunity,”
Ladies and gentlemen,
The importance of establishing an independent oversight body in the form of the IPCMC has never been greater. Deaths in custody continue unabated, allegations of police corruption persist and PDRM is viewed as the most corrupt institution in Malaysia (political parties are not institutions). At the same time, we are informed of proposals to increase draconian police powers. Where are the provisions for police accountability?
Article 140(1) of the Federal Constitution states:
“There shall be a Police Force Commission whose jurisdiction shall extend to all persons who are members of the police force and which, subject to the provisions of any existing law, shall be responsible for the appointment, confirmation, emplacement on the permanent or pensionable establishment, promotion, transfer and exercise of disciplinary control over members of the police force:
Provided the Parliament may by law provide for the exercise of such disciplinary control over all or any of the members of the police force in such manner and by such authority as my be provided in that law, and in that event, if the authority is other than the Commission, the disciplinary control exercisable by such authority shall not be exercised by the Commission; and no provision of such law shall be invalid on the ground of inconsistency with any provision of this Part.”
Therefore the Federal Constitution clearly envisages and provides for an independent oversight body like the IPCMC.
Thank you.
Christopher Leong
President
Malaysian Bar
13 Dec 2014