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KUALA LUMPUR (29 MARCH 2017) – The Human Rights Commission of Malaysia (SUHAKAM) concluded its independent investigation into the death of Balamurugan M Suppiah (S.Balamurugan) who died at the North Klang District Police Headquarters on 7 February 2017. According to the police, he was found unconscious in a temporary holding area for detainees at about 11.30pm. SUHAKAM begun its investigation in accordance with sections 4(1) and 12 of the Human Rights Commission of Malaysia Act 1999 on 10 February 2017, and in the interest of public truth. Through interviews and statements recorded from 43 witnesses, SUHAKAM identified several areas of concern that continue to arise in relation to deaths in police custody.
At the outset, SUHAKAM reiterates that the right to life is the most fundamental human right, within which no derogation is permissible. As guaranteed in Article 5(1) of the Federal Constitution and recognised in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights, the right to life is a prerequisite to the realisation of all other human rights.
The deceased was arrested with two other suspects at around 6.30pm on 6 February 2017 and taken to the Bandar Baru Klang Police Station. During its investigation, SUHAKAM was informed of alleged ill–treatment and beatings of all suspects by the police between 7.30pm to 9.30pm at the police station. Before he were taken to the North Klang District Police Headquarters, the deceased was allegedly hit on the ears, beaten on his feet and legs and punched and kicked in his chest. SUHAKAM was informed that the deceased was shivering and not able to walk when he was sent to the Shah Alam Centralised Lock Up at approximately 4.10am the next morning. The suspects were produced before the Klang Magistrate’s Court at around 10.00am on 7 February 2017 for an application for further remand. The remand for the deceased was refused and the Magistrate directed the police to take him for immediate medical treatment.
SUHAKAM interviewed the Magistrate on 23 February 2017 and was informed that the deceased had a swollen face and eyes and was unable to sit up, stand or even hold his head up when his name was called in her Court. Although the police had the opportunity to take the deceased to the hospital, they failed to do so and took him back to the North Klang District Police Headquarters at about 1.15pm. SUHAKAM was informed that the deceased was shivering again at this point but he was not given any medical attention. By approximately 6.30pm by which time his detention became unlawful, S.Balamurugan’s condition had deteriorated severely to the extent that he had no control from urinating. At approximately 11.30pm, the deceased was found unconscious or presumably dead by the Investigating Officer. SUHAKAM notes with concern that from approximately 7.00pm to 11.30pm, the deceased was not monitored or checked on by the policemen on duty. SUHAKAM considers it to be the duty of the Investigating Officer to be responsible for the acceptance, safety, security, health condition and welfare of any person arrested and detained by the police.
SUHAKAM wishes to point out that although the police had 24 hours to detain the deceased, they may have deliberately flouted the Court Order or wilfully abused their powers when the deceased was taken back to the North Klang Disctrict Police Headquarters, purportedly for his statement to be recorded. Evidence show that this was not done and the deceased was instead held without a reasonable and credible justification.
The post mortems conducted by Hospital Tuanku Ampuan Rahimah Klang (HTAR) and Hospital Kuala Lumpur (HKL) both revealed that the cause of death of S.Balamurugan was coronary artery disease. Of note, the second pathologist from HKL concluded that the cause of death was coronary artery disease with blunt force trauma, and the time of death could have been as early as 9.00pm or 10.00pm.
It is SUHAKAM’s view that the allegations of ill treatment and torture corroborate the statements by both pathologists, in that the deceased had, among others, bruises and swelling on his eyes, a large bruise on his chest below his right nipple, swelling on his right ear, lacerations on his ears, injuries on his right chest muscle, blood clots on his right temple, back injuries and severe muscular injuries to his feet and ankles. The second pathologist indicated that he also found that the deceased had obvious bruises on his knees, fingers, back of his left lower leg, lower back and the back of his thighs.
Both post mortems revealed that the deceased was suffering from chronic liver failure and liver cirrhosis. While this is unlikely to be the cause of death, in the second pathologist’s medical opinion, this was a possible explanation for the bleeding from the mouth and nose of the deceased. Both pathologists also concluded that the deceased had a blocked left artery and was suffering from a severe heart condition, but it is their medical opinion that the injuries could have triggered a heart attack or worsened his heart condition leading to his death, given the severity of the injuries. The HKL pathologist noted that while the deceased had serious underlying medical concerns, the injuries on his body could not be ignored as they appeared to be abusive injuries, and not self–inflicted or accidental in nature.
The circumstances under which the deceased was detained after the application for remand by the police was refused were unacceptable. He had endured approximately a further 9 hours of detention prior to his death, after he was released by the Court. This in our view demonstrates a blatant disregard for respect for human life and dignity and the conditions in which he was held may be inconsistent with the Federal Constitution (Article 5(1)).
SUHAKAM is satisfied that the police knew or ought to have known, even more so when the Magistrate had made her observations and order, of the existence of a real and immediate risk to the life of the deceased, and that the police failed to take adequate measures within the scope of their powers which, judged reasonably, might have been expected to avoid such a risk. SUHAKAM is of the view that there appears to be serious breach or wilful disregard of the duty to protect life by the police due to cumulative failures on their part to provide medical attention to the deceased. SUHAKAM underlines that where there is an alleged breach of this duty of care, there is an obligation on the police to investigate and to carry out an efficient, independent and reasonable investigation, which must lead to the perpetrators’ identification and prosecution.
Evidence from SUHAKAM’s investigation also identified numerous systemic failures on the part of the police in regard to the treatment of detainees in police custody, including but not limited to failures to follow the Lock up Rules 1953, police standard operating procedures, the Court Order and relevant international human rights norms and standards.
SUHAKAM reiterates that in accordance with Principle 1 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, “all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person”. Principle 6 further states that “no person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. SUHAKAM’s investigation however revealed allegations of torture, cruel, inhuman and degrading treatment of persons in police custody. The statements of the other suspects alleged that the police had during interrogations applied paint thinner and chilli powder on the body of two of the other suspects including on their genitals. They claimed to have been beaten with a rubber hose and wooden stick, as well as with a handcuff chain for their confessions.
Two suspects arrested in relation to this investigation were below 18. While the police must observe certain legal rights whenever they arrest or detain a child suspect, SUHAKAM’s investigation revealed that the police may have been in breach of section 85 of the Child Act 2001 that stipulates appropriate arrangements shall be made to prevent a child while being detained in a police station from associating with an adult who is charged with an offence. Both suspects who are below 18 were placed in custody with the deceased who was an adult. According to section 87 of the same Act, after the arrest of a child, the police officer or other person making the arrest shall immediately inform a probation officer and the child’s parent or guardian of the arrest. SUHAKAM notes that the law in this regard was not complied with.
Despite a growing awareness of issues concerning the proper treatment of persons in police custody, the implementation of best practices and recommendations, particularly from SUHAKAM’s 2016 Death in Custody Report is seriously lacking. Some recommendations have not been implemented at all and it is observed that the police are still ignorant of their duty of care to detainees or the fact that there is a responsibility on the police to ensure that the individual in their custody is not deprived of his right to life.
In accordance with its legal duty, SUHAKAM makes the following recommendations to the Government of Malaysia and Police Di–Raja Malaysia (PDRM):
To ensure that anyone deprived of their liberty is detained lawfully and in a lawful, recognised and gazetted place of detention in accordance with the law. To investigate cases of abuse and misconduct by the police, including as described above, and prosecute police officials responsible for the illegal detention, ill–treatment and/or torture of the deceased which in his case may have caused and/or contributed to his death. To investigate incidents of alleged torture and abuse of the other suspects by the police, and prosecute police officials responsible. To ensure internal disciplinary proceedings and criminal action for breaches of instructions, including the Court Order relating to the case. As police lock–ups or facilities are not intended for or equipped to handle suspects who require immediate or sustained medical , SUHAKAM reiterates its recommendation in its 2016 Report on Death In Custody to place a custodial medical team in police lockups as well as too review the 1953 Lock–up Rules.
SUHAKAM is of the view that the increase in the number of deaths in police custody warrants an increased scrutiny of the operation and funding of police lock ups, particularly in relation to health services and general conditions.
TAN SRI RAZALI ISMAIL
The Human Rights Commission of Malaysia (SUHAKAM)
29 March 2017