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The Malaysian Bar is deeply disheartened to learn of the recent incidents that occurred in detention facilities, namely the rape of a 16-year-old girl at the Miri police station by a male detainee, and the death of G Jestus Kevin, while detained at the Bentong district police headquarters last year as reported by the Human Rights Commission of Malaysia (“SUHAKAM”) on 21 January 2021.
According to 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”. It should also be noted under Principle 6 that “no person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”1 It is also stipulated under section 85 of the Child Act 2001 that children should be separated from adults charged with an offence, and that appropriate arrangements must be made when a child is detained in a police station, places of detention or in Courts.
Police officers are expected at all times to fulfil the duties imposed on them by law, with integrity and a high degree of accountability. When an individual is deprived of his/her liberty, his/her fate rests in the hands of the detaining authorities who must ensure that there is a proper system in place that guarantees the rights and safety of the detainee. In the case of the rape of the 16-year-old teenager, it is pertinent to note that there are special safeguards in place to guarantee the well-being of minors under the Child Act 2001. Such safeguards must be implemented by the detaining authorities to ensure that minors are not subjected to any harm.
The Malaysian Bar proposes several mechanisms to be considered and implemented in order to avoid the recurrence of such matters. All police stations should be equipped with functioning closed-circuit surveillance systems to record the happenings in the police station and detention facilities. This would help foster transparency in the police force and ensure that police officers behave responsibly and with accountability. There should be a proper system for referring detainees to medical facilities, and proper registration and admission records must be kept. As provided by the Criminal Procedure Code, a detained person should be accorded the right to communicate and consult with his/her legal counsel.
There should also be an independent and transparent complaint mechanism in place at all police stations, so that detainees have the opportunity to communicate freely and confidentially through these mechanisms. Detainees should also be kept in cells with natural light and ventilation. The cells must be equipped with basic facilities like blankets and mattresses, and the detainees must have access to food and water. These are basic human rights that detainees, despite their status, should be entitled to.
The Malaysian Bar reiterates its call for Parliament to debate, review and strengthen the powers of the Commission under the mooted Independent Police Conduct Commission (“IPCC”) Bill, and hopes that it will be passed with the close-knit provisions of the original Independent Police Complaints and Misconduct Commission (“IPCMC”) Bill. These incidents should also set in motion better systems to be put in places of detention to prevent any such incidents from reoccurring.
Salim Bashir
President
Malaysian Bar
25 January 2021
1 “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”, Office of the United Nations High Commissioner for Human Rights (“OHCHR”).