©The Malaysian Insider (Used by permission)
by Vazeer Alam Mydin Meera
JAN 26 – Custodial death often brings with it an air of suspicion. The suspicion may be real or misplaced; the death may have resulted from suicide, natural causes or foul play.
When a person is taken into legally sanctioned custody, the law imposes a duty on the custodial officer to ensure the safety of the person in custody.
Therefore, there is always the need to be transparent and accountable; and to provide satisfactory answers to the grieving family members on the causes and circumstances of the death.
The deceased’s family ought not be left groping in the dark for answers which they are entitled to know; that they may come to terms with their loss and lay to rest their loved ones.
The failure to conduct timely independent inquests into such deaths often creates suspicion in the minds of the public that the authorities have something to hide. This would then result in a consequent increase in negative perceptions of custodial authorities.
However, the fact of the matter is that such independent inquests are not readily forthcoming.
The lack of interest and speed in conducting inquests into custodial deaths is even more troubling when the law makes it mandatory for the local Magistrate to conduct such inquests when the death occurred whilst the deceased was in police custody or incarcerated in prison or held in a psychiatric hospital.
The Criminal Procedure Code provides that when a person dies while in the custody of the police, the officer who had custody of that person shall immediately give intimation of such death to the nearest Magistrate and that the Magistrate shall hold an inquiry into the cause of the death.
The law recognises the need for an independent judicial body to conduct inquiry into custodial deaths. In this regard, the Magistrate is given the power to subpoena potential witnesses, order the production of evidential material and documents that may assist the Magistrate to arrive at a considered opinion.
Parliament in its wisdom has provided safeguards and mechanisms to arrive at an unbiased decision devoid of accusations of conflict of interest. However, in reality these provisions of the law are hardly used.
The Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police had found that during a period of five years from 2000 to 2004 there were 80 deaths of persons in police custody.
Out of the 80 cases, only 39 cases had been referred to the Magistrate for inquiry. And of the 39 cases, only in 6 cases did the Magistrate conduct inquest.
Adding insult to injury, the Royal Commission found that in some 22 cases which had been referred to the Magistrate, decisions had been made to not hold inquests.
Quite correctly, the Royal Commission pointed out that this was contrary to the provisions of the Criminal Procedure Code which requires and mandates that inquests be conducted in all cases of death in custody.
To say the least, the system was not working. There was glaring dereliction of duty by those who had been entrusted with the task of carrying out judicial inquiries into custodial deaths. There was an urgent need to build public confidence which had been eroding for sometime.
In acknowledging this failure, the then Home Minister in 2006 said the government would implement the recommendations of the Parliamentary Select Committee looking into the overhaul of the Criminal Procedure Code, to set up Coroners Courts in Malaysia, so that cases involving “death under suspicious circumstances” which would include deaths in police custody can be dealt with more efficiently and humanely.
He lamented that, “at present, such cases do not seem to get sufficient attention” and that “many get lost in the maze of other cases brought up before the Magistrate”.
The Parliamentary Select Committee also recommended that qualified doctors and medical professionals be appointed as Coroners to further enhance the efficacy, credibility and impartiality of the process. The legal fraternity was in support of the reform.
However, as in most proposals of legal reform promised by the government, they are yet to materialise.
The urgency for the need of such reform is illustrated by the recent death in custody of Kugan Ananthan and the ensuing events which have contributed to further erosion of public confidence in the criminal justice system and the police force.
The Commonwealth Human Rights Initiative (CHRI) in 2005 issued a comprehensive report entitled “Police Accountability: Too Important To Neglect, Too Urgent to Delay”, in which the need for external accountability mechanisms was emphasised.
The report found that “As governments increasingly embrace the philosophy of democratic policing, attempts are on to make policing more transparent, involve outsiders, build public confidence, allay fears of bias, assure impartiality of investigation, make the receipt of complaints easier, reduce abuse of power and misconduct, change the internal culture and ensure ever better performance.”
Therefore, the CHRI hoped that “new external civilian oversight systems will complement existing mechanisms and together create a web of accountability from which it is increasingly difficult for police misconduct to escape without consequences”.
The Coroner’s Court, in addition to the Independent Police Complaints and Misconduct Commission (IPCMC) would have been two such civilian oversight systems which would have well augmented the existing internal accountability systems within the police force.
However, we have been made to wait. The resistance to change and reform has been stubborn and persistent. This resistance can be overcome only with the responsible exercise of political will.
For, ultimately, the main obstacle to reform is the lack of political will.
The deceased’s family ought not be left groping in the dark for answers which they are entitled to know; that they may come to terms with their loss and lay to rest their loved ones.
The failure to conduct timely independent inquests into such deaths often creates suspicion in the minds of the public that the authorities have something to hide. This would then result in a consequent increase in negative perceptions of custodial authorities.
However, the fact of the matter is that such independent inquests are not readily forthcoming.
The lack of interest and speed in conducting inquests into custodial deaths is even more troubling when the law makes it mandatory for the local Magistrate to conduct such inquests when the death occurred whilst the deceased was in police custody or incarcerated in prison or held in a psychiatric hospital.
The Criminal Procedure Code provides that when a person dies while in the custody of the police, the officer who had custody of that person shall immediately give intimation of such death to the nearest Magistrate and that the Magistrate shall hold an inquiry into the cause of the death.
The law recognises the need for an independent judicial body to conduct inquiry into custodial deaths. In this regard, the Magistrate is given the power to subpoena potential witnesses, order the production of evidential material and documents that may assist the Magistrate to arrive at a considered opinion.
Parliament in its wisdom has provided safeguards and mechanisms to arrive at an unbiased decision devoid of accusations of conflict of interest. However, in reality these provisions of the law are hardly used.
The Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police had found that during a period of five years from 2000 to 2004 there were 80 deaths of persons in police custody.
Out of the 80 cases, only 39 cases had been referred to the Magistrate for inquiry. And of the 39 cases, only in 6 cases did the Magistrate conduct inquest.
Adding insult to injury, the Royal Commission found that in some 22 cases which had been referred to the Magistrate, decisions had been made to not hold inquests.
Quite correctly, the Royal Commission pointed out that this was contrary to the provisions of the Criminal Procedure Code which requires and mandates that inquests be conducted in all cases of death in custody.
To say the least, the system was not working. There was glaring dereliction of duty by those who had been entrusted with the task of carrying out judicial inquiries into custodial deaths. There was an urgent need to build public confidence which had been eroding for sometime.
In acknowledging this failure, the then Home Minister in 2006 said the government would implement the recommendations of the Parliamentary Select Committee looking into the overhaul of the Criminal Procedure Code, to set up Coroners Courts in Malaysia, so that cases involving “death under suspicious circumstances” which would include deaths in police custody can be dealt with more efficiently and humanely.
He lamented that, “at present, such cases do not seem to get sufficient attention” and that “many get lost in the maze of other cases brought up before the Magistrate”.
The Parliamentary Select Committee also recommended that qualified doctors and medical professionals be appointed as Coroners to further enhance the efficacy, credibility and impartiality of the process. The legal fraternity was in support of the reform.
However, as in most proposals of legal reform promised by the government, they are yet to materialise.
The urgency for the need of such reform is illustrated by the recent death in custody of Kugan Ananthan and the ensuing events which have contributed to further erosion of public confidence in the criminal justice system and the police force.
The Commonwealth Human Rights Initiative (CHRI) in 2005 issued a comprehensive report entitled “Police Accountability: Too Important To Neglect, Too Urgent to Delay”, in which the need for external accountability mechanisms was emphasised.
The report found that “As governments increasingly embrace the philosophy of democratic policing, attempts are on to make policing more transparent, involve outsiders, build public confidence, allay fears of bias, assure impartiality of investigation, make the receipt of complaints easier, reduce abuse of power and misconduct, change the internal culture and ensure ever better performance.”
Therefore, the CHRI hoped that “new external civilian oversight systems will complement existing mechanisms and together create a web of accountability from which it is increasingly difficult for police misconduct to escape without consequences”.
The Coroner’s Court, in addition to the Independent Police Complaints and Misconduct Commission (IPCMC) would have been two such civilian oversight systems which would have well augmented the existing internal accountability systems within the police force.
However, we have been made to wait. The resistance to change and reform has been stubborn and persistent. This resistance can be overcome only with the responsible exercise of political will.
For, ultimately, the main obstacle to reform is the lack of political will.