A very good morning to
Datuk Yaacob bin Haji Mohd Sidek, Chairman of the Enforcement Agency Integrity Commission;
Datin Latifah Binti Haji Mohd Tahar, Chief Registrar of the Federal Court;
Dato’ Zainal Abidin, Registrar of the Subordinate Courts;
Members of the Judiciary;
Members of Parliament;
Members of the diplomatic corps;
Members of the Bar;
Distinguished guests;
Ladies and gentlemen,
In 2015, we commemorated the 10th anniversary of the Report by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (“Royal Commission”). The tremendous effort and scholarship that went into the Report, and its visionary recommendations, are commendable.
The Report by the Royal Commission addressed 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 was generally focused on improving the abilities of the PDRM as a crime–combating agency. It was not intended to be an attack on the PDRM.
In this regard, the massive challenges confronting the PDRM were acknowledged in the Report, including findings of:
Widespread corruption in PDRM; Widespread non–compliance with prescribed laws and human rights obligations among police personnel; and Inadequate awareness and respect for the rights of women and children.
The Royal Commission stressed that, owing to the nature of the job and existing PDRM culture, the code of conduct within the force had failed to ensure supervision and command accountability in protecting the rights and the interests of the public. The preoccupation of being a “force” as opposed to a “service” was at the heart of these concerns.
In addition, the Royal Commission also identified the mounting incidence of deaths in custody, as well as the failure of the PDRM to investigate these deaths, and the refusal of the authorities to hold inquests into them. Deaths in police custody under questionable circumstances are reprehensible, and are an indictment of the PDRM as an enforcement agency.
To address these challenges, the Royal Commission made 125 specific recommendations and emphasised that the internal oversight mechanism in the PDRM was “inadequate, unreliable and frequently ineffective.” These recommendations were timely, far–reaching and necessary to cure the systemic flaws in our policing system and to upgrade our police to a modern enforcement agency.
One of the chief recommendations of the Royal Commission was the setting up of the Independent Police Complaints and Misconduct Commission (“IPCMC”), an independent, external commission tasked solely to receive and investigate complaints of misconduct and abuse against the PDRM.
In recommending the setting up of the IPCMC, the Royal Commission stated in its Report that:
… When officers act in contravention of laws and regulations without fear of investigation or reprimand, the culture of impunity begins to develop. Each wrongdoing that is not investigated or punished or is supported by higher ranks within the police leadership leads to the perception that such misconduct is permissible. As each new generation of officers observes and learns from their superiors, the culture becomes embedded in all the ranks of the PDRM.[1]
The Malaysian Bar reiterates today our call on the Government to establish the IPCMC. This form of external oversight mechanism has been effective in meeting the challenges faced by the police force in other jurisdictions. It is seen as necessary to enhance the ability of the PDRM to discharge their functions and to weed out the rogue elements within the force. In Malaysia, the IPCMC is particularly required given the continued and seemingly unabated occurrences of deaths in police custody and other serious concerns over the conduct of the police.
Enforcement Agency Integrity Commission and Internal Affairs Division
Following the recommendation of the Royal Commission, the Government initially took steps towards setting up the IPCMC, with overwhelming support from civil society. Regrettably, its implementation came to a halt in 2006 after the PDRM strongly objected to it and, reportedly, threatened to let crime rise, to resign en masse and to vote for the opposition.
Instead of reprimanding the PDRM, the Government relented and downplayed the importance of establishing the IPCMC. The Government then proposed to establish the Enforcement Agency Integrity Commission (“EAIC”) as an alternative to the IPCMC, claiming that the EAIC would be able to provide the necessary oversight.
The EAIC’s mission is to strengthen the service delivery system with integrity amongst the Malaysian enforcement agencies through the management of complaints and investigations in a transparent, bold, dutiful and professional manner.
The Enforcement Agency Integrity Commission Act 2009, providing for its establishment, was passed by the Dewan Rakyat on 1 July 2009, four years after the IPCMC was first mooted. It took another 19 months for the EAIC to officially begin operating on 1 April 2011. Regrettably, the EAIC is a watered–down version of the IPCMC. It would appear that the EAIC was in fact designed to fail.
First, the EAIC is not wholly dedicated to receiving and investigating complaints of misconduct by the PDRM only. It has 21 different government agencies under its purview. The agencies include the PDRM, which has over 112,000 personnel (excluding the Special Branch); Ikatan Relawan Rakyat Malaysia (“RELA”), which has over three million members; and the Malaysian Road Transport Department, which has over 8,000 personnel. Thus, the EAIC’s workload and focus are diverse, heavy and not specialised.
In the recent supply bill tabled by the Prime Minister in the Dewan Rakyat in October 2015, the EAIC’s budget has been slashed by almost 40% from RM7.7 million in 2015 to RM4.8 million in 2016. Based on the EAIC staff directory[2] accessed yesterday, the EAIC has only 74 staff (down six compared to November 2015) of which only 11 are Investigating Officers. These are insufficient funding and manpower given the depth and breadth of its responsibilities.
Lastly, 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.
Despite these shortcomings, the EAIC has recently inquired and reported into several cases. This is commendable and their efforts deserve credit.
Apart from the EAIC, there have been reports of a proposal to establish an Internal Affairs Division within the PDRM, after the Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi, visited the New York Police Department in 2014.[3] An Internal Affairs Division will lack the credibility and transparency of the external oversight by the IPCMC and will therefore be insufficient. In short, any internal oversight mechanism will not improve public perception of the PDRM nor invite public trust.
Ladies and gentlemen,
Deaths in Police Custody
Today, names such as Kugan Ananthan, P Karuna Nithi and N Dharmendran have become household names for all the wrong reasons. They have become part of the alarming statistics for deaths in police custody, and a national gallery of shame.
In this regard, it is worrying that detainees in police custody continue to die under suspicious circumstances despite this matter having been repeatedly highlighted to the PDRM and the Government. There has been an absence of full accountability on the part of PDRM, and the Government seems largely indifferent to the gravity of the problem.
Statistics provided by the PDRM to the Human Rights Commission of Malaysia (“SUHAKAM”) indicate that there were a total of 255 deaths in police custody between the year 2000 and 2014.[4] This translates to, on a broad basis, an average of 17 deaths in police custody per year, or an average of 1 death every 3 weeks. These appalling numbers of unexplained deaths are unacceptable.
SUHAKAM noted that there were an additional four deaths in custody cases that were not reflected in the PDRM statistics.[5]
They are:
1. Syed Mohd Azlan Syed Mohd Nur — who died in November 2014, less than 24 hours after being arrested by the police;2. 42–year–old P Karuna Nithi — found dead at the Tampin police station lock–up on 1 June 2013;3. 39–year–old C Sugumar — who died on 23 January 2013, while in the process of being arrested by the police in Kajang; and4. 47–year–old Chandran Perumal — who was found dead on 10 September 2012, after being detained for four days at the Dang Wangi police station lock–up.
According to SUHAKAM, these four cases — three considered by the Coroner’s Court and the other investigated by the EAIC — found that injuries caused by the police, and the injuries contributed to the deaths of the four individuals.
It follows that there should be clarification from PDRM as to why these four cases were not reflected in their count of the total number of deaths in police custody. It appears inexplicable for these cases to have been left out without any explanation.
Further, PDRM’s statistics also indicate that of the 255 cases (2000–2014), 207 or 81% recorded were attributed to health factors; 30 cases or 11% were from self–hanging; two slipped and died in the bathroom; and two died from fighting with another inmate. Only two deaths in custody were attributed to misconduct by the police.
The Inspector General of Police (“IGP”), Tan Sri Khalid Abu Bakar has attempted to explain away the severity of the problem of deaths in police custody, apparently reasoning that the detainees who died were ill even before they were locked up.[6] This is hardly a credible justification as the Lock–Up Rules 1953 provides that as far as possible, the Medical Officer shall conduct a medical inspection of the prisoner on admission.[7] Even when a medical inspection is not possible, police officers are always obliged to ensure the safety and well–being of their detainees.
In August 2015, Deputy Home Minister Datuk Nur Jazlan Mohamed down–played the problem as well, stating that the proportion of deaths in police custody cases in the past 14 years is “very small” compared to the size of the police force that is 120,000 strong.[8] The logic in that observation is difficult to comprehend and it can only be seen as apathy on the part of the Government to this damning state of affairs.
Ladies and gentlemen,
EAIC on the Death of N Dharmendran
Six days ago (on 28 April 2016), the EAIC released its investigation finding of its public inquiry into the custodial death of N Dharmendran to determine whether his death was the result of any misconduct; and if so, what caused or allowed the misconduct to occur; and who is responsible for the misconduct.
Dharmendran was detained on 11 May 2013 and died 10 days later while in police custody at the Kuala Lumpur Police Contingent Headquarters on 21 May 2013. Four police officers have been arrested and charged with causing Dharmendran’s death. Their case is proceeding in court.
The EAIC found that Dharmendran’s death in custody resulted from the use of physical force by the police, in violation of Para 33 of the Inspector General of Police’s Standing Order (“IGSO”) Part A ‘118’, which prohibits the use of physical force against a detainee during interrogations. It also made findings on fabrication and misrepresentation of evidence as well as the tampering of the lock–up diary and the police report regarding the death of Dharmendran by specified police officers. The EAIC stated that offences may have been committed under Sections 177, 182, 192, 201 and/or 203 of the Penal Code.
The EAIC’s chief recommendation was that disciplinary action be taken by the disciplinary authority of PDRM against the specified police officers for various acts of misconduct leading, and relating, to the death of Dharmendran. It further emphasised that the recurrence of deaths in custody and the use of force against a detainee is “a serious violation of law and integrity and (is) deeply regretted.”
It is most disappointing that the IGP’s response to the EAIC report has been to criticise the EAIC and its chairman, saying the matter “should not be discussed outside of the court as it can cause prejudice and is subjudice to the case.”[9] There are provisions in the Enforcement Agency Integrity Commission Act 2009 for the EAIC to have proceeded with the inquiry and make its findings public. The IGP’s criticism is therefore misplaced, and alarmingly misses the important aspects of the EAIC report.
The real issue is whether action will be taken against the other police personnel, including senior or superior officers, who have been implicated in the EAIC’s report and who have not yet been charged. The on–going criminal trial of the four accused persons is not an excuse for non–action, particularly in the face of the scathing findings of systemic failures made by the EAIC. Further, the recommendations by the EAIC to improve the processes and functions of the PDRM should not be ignored.
EAIC on the Death of Syed Azlan
Last year, on 30 October 2015, the EAIC released the findings of its investigation into the custodial death of Syed Mohd Azlan bin Syed Mohamed Nur (“Syed Azlan”). The EAIC found that:
1. The death involved the use of physical force by the police officers who conducted the arrest and interrogation;2. The cause of death was blunt force trauma to the chest. The post–mortem also found that the deceased had sustained 61 different injuries to his face, body and both legs. Some of the injuries were consistent with injuries sustained when defending himself from physical force inflicted upon him by police officers;3. Police officers had tampered with the evidence by taking the following action:
a. cleaning the scene of the incident before it was visited and inspected by the medical officer;b. destroying the rubber mat and carpet at the site of the deceased’s arrest that is believed to have been stained by his blood; andc. hiding the eye witness who had seen the arrest take place.
4. The police had used a hand cuff that was not issued by PDRM to cuff the deceased after his arrest, which contributed to the injuries on the wrists of the deceased;5. There had been a serious breach of the Standard Operating Procedure of PDRM in relation to the procedure of the arrest and handling of a detainee; and6. There was the element of a conspiracy or abetment by PDRM officers to inflict deliberate physical force upon the deceased, which resulted in injury and death. Such acts are offences under Section 203 and Section 325 of the Penal Code read together with Section 34 of the Penal Code or alternatively Section 107 of the same.
Five days later, on 4 November 2015, the IGP pledged that any police personnel involved in the death in police custody of Syed Azlan would be brought to justice. While that was laudable, there have been no further reports of any action taken against any of the police officers identified by the EAIC report. It will be reprehensible if, despite these damning findings, no action is taken against the police officers who are culpable in this matter.
Distinguished guests,
Inquest
The Criminal Procedure Code now mandates that an inquest must be conducted in every case of death in police custody. When a person dies while in police custody, the police officer who had custody of that person must immediately notify the nearest Magistrate of the death and the Magistrate shall hold an inquiry into the cause of death.
In this regard, the Coroner’s Court was established on 15 April 2014. However, the Coroner’s Court is not established under statute. It is set up under the Sessions Court and uses the Criminal Procedure Code. It does not have the important features of a typical Coroner’s Courts such as a coroner, who is specially trained and responsible for supervising investigations by the police, who ensures all relevant evidence is gathered, as well as presides over enquiries, and makes findings.
Coroner’s Court on the Death of P Karuna Nithi
A year ago, on 28 January 2015, the Coroner’s Court found that P Karuna Nithi, who was found dead at the Tampin police station lock–up on 1 June 2013, had died of a “combination of unlawful acts and omissions by person or persons unknown.”
“The deceased was a healthy adult male with no life threatening diseases when he entered the lock–up but ended up dead three days later with 49 external injuries,” the judge said, saying that it should have “rung alarm bells” from the beginning.
The judge listed three factors as causing P Karuna Nithi’s death, including “multiple injuries” caused by blunt objects including through “physical assaults, abuses and unlawful acts” by both police officers and fellow inmates.
The police had also failed to provide the necessary medical care and attention that P Karuna Nithi needed, as well as failed to “stop other detainees from abusing the deceased in the police lock–up.”
This is yet another case that warrants the implementation of the IPCMC.
The Courts
The duty of the police is set out in very clear terms in the leading judgment of Lord Bingham of Cornhill in Amin, R (on the application of) v Secretary of State for the Home Department [2003] 4 All ER 1264, where Lord Bingham said:
… a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not end there. The state owes a particular duty to those involuntarily in its custody . . . Such persons must be protected against violence or abuse at the hands of state agents. They must be protected against self–harm… Reasonable care must be taken to safeguard their lives and persons against the risk of foreseeable harm.
Death in custody, especially under dubious conditions, is among the worst crimes one can imagine in a civilised society under the rule of law. The burden of proving that such a death did not occur by foul means must surely fall squarely on the law enforcement agency in question. The reasons are plain: the victim was being held in isolation and was wholly within the control of the detaining authority; rarely are there independent witnesses to such a crime, as the witnesses are generally interested parties or persons under enquiry; and the police adhere to a strict chain of command code.
The track record of one–death–in–custody–every–three–weeks is a serious indictment of the PDRM. It harms the very soul of Malaysian society that lives have been lost under the supervision of the very officers who have the duty to protect and serve the public.
It is commendable that there have been strong pronouncements from the Courts on custodial deaths. In the High Court case of Mohd Anuar bin Sharip, Justice Lee Swee Seng said:
Let the message go forth from this place that any more deaths in police custody would be one too many! Those with power to arrest and detain must ensure that the basic human rights of a detainee to seek medical treatment while in custody, is immediately attended to. There should be no more wanton and wasted loss of life in police custody for every life is precious.[10]
On 8 August 2014, when delivering the judgment of the Court of Appeal on the case of Kugan Ananthan who died in police custody in 2009, Justice David Wong Dak Wah said:
There should be zero tolerance to any custodial death in all remand centres in the country. And should custodial death happen, a public independent inquiry must be initiated to commensurate with the right of the family of the deceased to know when there is some doubt as to the cause of the death.
These strong pronouncements by the Court strengthen the argument for an independent oversight body that could ensure that there is “zero tolerance” of custodial deaths.
Ladies and gentlemen,
CCTV in Police Lock–ups
A recent news report that as of 19 April 2016, 58 out of the 704 lockups across the country have been equipped with the RM3.5 million Self–Monitoring Analytic Reporting Technology (“SMART”) network of closed circuit cameras (“CCTV”) to avoid any untoward incidents such as custodial deaths, suicide attempts, and also fights.[11] This development is to be welcomed.
It has also been reported that the system would be set up in stages at all lock–ups nationwide.
Bukit Aman management director, Datuk Zulkifli Abdullah stated that, “In developing the (CCTV) system, (PDRM) sought SUHAKAM’s view on issues such as privacy and other fundamental human rights aspects.”[12]
This recent development arises from the time Home Minister Datuk Seri Ahmad Zahid Hamidi’s announced almost two years ago, on 9 June 2014, that CCTV would be installed in all police lock–ups.[13] It would appear that CCTV are being installed at a pace of approximately one lock–up every two weeks.
Ladies and gentlemen,
The Shooting of Aminulrasyid
In April 2010, the nation was rocked by news that a 14–year old boy, Aminulrasyid Amzah (“Aminulrasyid”), had been shot in the head by the police during a police car chase when Aminulrasyid had driven his sister’s car on a joy ride. The police had fired 21 shots at the car when the car did not pose any threat to the public or the police officers in their patrol cars at the time, and without having any knowledge of who the driver or any other possible occupants were.
Last month, in the civil suit by the family members of Aminulrasyid, the Shah Alam High Court awarded family damages totalling RM414,800 after holding the Government, the PDRM and the IGP liable for the boy’s death resulting from the wrongful shooting and killing of the deceased by Corporal Jenain Subi. The court further allowed a claim for the tort of public misfeasance against the IGP (then the Selangor Police Chief) for making false and misleading information — claiming that a machete had been found in the car and claiming that the driver was a dangerous criminal — and awarded RM100,000 against him.
The High Court’s finding against the IGP is of great concern for this is not the first time the IGP has been found liable for the tort of misfeasance in public office. It also happened in the death in custody case of Kugan Ananthan in 2009. As the head of the police force of the entire country, the IGP must set standards of the highest professionalism and integrity, and must not be a bad example to the rest of the police force.
The Nilai Arms & Ammunitions Sdn Bhd
On 22 April 2016, it was reported that the IGP’s daughter and brother–in–law were involved in Nilai Arms & Ammunitions Sdn Bhd, a company that sells arms and ammunition in Malaysia. The IGP has acknowledged the familial connection, and has said that the company was set up before he became IGP and that there is no conflict of interest.
The concern is really as regards arms licences granted after the IGP took office and the proximity of the business of the company (selling arms) to the licensing (for arms) powers of the police. Under the Arms Act 1960, licences for arms are granted by the Chief Police Officer of the state in which the applicant resides. The Chief Police Officer is a subordinate of the IGP. The question arises whether in deciding to grant the licence, the Chief Police Officer would be privy to information on the identity of the seller of the arms (e.g. the company and its owners) and whether the decision to grant the licence could be influenced, or seen to be influenced, by the relationship of the seller of the arms to the IGP.
While there is insufficient information at the moment to draw any concrete conclusions on any conflict of interest on the part of the IGP, it is clear that the IPCMC would be an appropriate mechanism to investigate the allegations of conflict of interest in a manner that is expeditious and fair to both the police officer accused of such misconduct as well as the person/s making the accusation.
Distinguished guests,
Misuse of the Prevention of Terrorism Act 2015 (“POTA”) and Prevention of Crime (Amendment and Extension) Act 2013 (“POCA”)
The need for the IPCMC grows with each passing day.
The serious allegations that the police misuse their investigative powers by detaining overnight persons who have agreed to assist in police investigations, and the seeking of oppressive remand orders to punish suspects prior to charge or conviction, continue to be made.
There are also new laws, such as POCA and POTA. Both provide for extremely wide powers of arrest, where a police officer may, without a warrant, arrest and keep in remand any person if there is reason to believe that grounds exist which would justify the holding of an inquiry under the respective Acts.
With such enhanced powers of arrest there needs to be more accountability to prevent abuse. It is here that an IPCMC would be required to provide the transparency and credibility of external oversight, which would otherwise be lacking.
Conclusion
If the PDRM is serious in aspiring to be a world–class professional and disciplined police force that embraces the values of integrity, efficiency, accountability and service, there is no reason for the PDRM to be resistant to the proposed IPCMC.
This lack of accountability by the police must end. It must be courageous enough to submit itself to the IPCMC, an independent external oversight commission that is dedicated to the police force.
Only then can the PDRM develop itself into an institution that lives up to its motto of “Tegas, Adil dan Berhemah” (Firm, Fair and Prudent) and engender consistent respect from all Malaysians.
Thank you.
Steven Thiru
President
Malaysian Bar
4 May 2016
[1] Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (2005), 122.
[2] “Direktori”, web site of Enforcement Agency Integrity Commission, accessed on 3 May 2016
[3] “NYPD to share best practices with us”, The Sun Daily, 29 September 2014
[4] SUHAKAM 2015 Annual Report, published by SUHAKAM p73
[5] “Suhakam raises concerns over death in police custody”, MalaysiaKini, 20 April 2016
[6] “IGP: Cops not to blame for death of sickly detainees”, Malay Mail Online, 21 April 2016
[7] Section 10 of the Lock–Up Rules 1953 states, “The Medical Officer shall so far as possible examine every prisoner as soon as possible after admission to a lockup and shall certify whether the prisoner is fit for imprisonment and, if convicted, the class of labour which he can perform.”
[8] “Death in custody cases ‘very small’ compared to number of cops, new deputy home minister says”, Malay Mail Online, 24 August 2015
[9] “IGP: Sub judice to discuss Dharmendran, EAIC should've rejected complaint”, MalaysiaKini, 28 April 2016
[10] Suzana bt Md Aris (claiming as administrator of the estate and a dependent of Mohd Anuar bin Sharip, deceased) v DSP Ishak bin Hussain & Ors [2011] 1 MLJ 107 per Lee Swee Seng JC at [40].
[11] “SMART way to heighten security in lockups”, The Star Online, 19 April 2016
[12] “CCTV system for police lock–ups to be implemented nationwide” The Sun Daily, 3 February 2016
[13] “CCTV in all lock–ups”, The Sun Daily, 9 June 2014