Putrajaya must set up independent commission to look into custody deaths, says Bar
BY JENNIFER GOMEZ
Published: 16 August 2014
The Malaysian Insider
The track record of one death in custody every three weeks is a damning indictment of the Malaysian police force, Bar president Christopher Leong says, making it imperative that Putrajaya implement the Independent Police Complaints and Misconduct Commission (IPCMC) mooted nine years ago to address this.
He said the Enforcement Agency Integrity Commission (EAIC), which was set up in 2009 as an alternative to the IPCMC, had failed to address the concerns raised by the public as detainees continued to die under questionable circumstances while in police custody.
"There should be no more dithering, delays or excuses, the IPCMC remains as relevant today as when the Royal Commission's report was released in 2005," he said at the Bar's revived campaign for the establishment of the independent commission.
Leong was referring to the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police which published a report in 2005.
The report addressed widespread concerns about the high incidents of crime, perception of corruption in the police, and dissatisfaction with the conduct and performance of police personnel.
Leong also said the three-year term of the six EAIC commissioners, who were appointed in April 2011, expired on March 31 and no new commissioners had been appointed to date.
Former Bar president Datuk Yeo Yang Poh said that the main obstacle to the IPCMC was police resistance.
He said this was evident when police had, in 2006, posted on its official website 10 reasons the IPCMC was not needed, including a warning to the government of the day that it would eventually lose power and control over the police.
Yeo said the statement, which was posted following strong calls for the setting up of the IPCMC, remained on the website for about three weeks before being removed.
According to Yeo, who had downloaded the statement before it was taken down, one of the reasons stated was: “If facilities are in place and the government is ready (when the police are required to be neutral and people-centric), only then the IPCMC could be considered with suitable amendments to the bill in fairness to the police".
Yeo said this clearly showed that the police were admitting that they were neither neutral nor people-centric.
He said politicians viewed the police force as an institution that helped them to remain in power for more than 50 years.
"That is why we have not seen any breakthrough in the IPCMC," he said, calling on everyone to get on board to push for the establishment of the commission.
But, Yeo did not think it was realistic for the IPCMC to be set up unless there was a change in government.
He said in the custodial death case involving A.Kugan, the pathologist who did the first post-mortem was found guilty of misconduct for failing to conduct a proper examination and prepare a report, but got away with only a reprimand from the Malaysian Medical Council.
In 2011, MMC had found government pathologist Dr Abdul Karim Tajudin guilty of negligence for failing to prepare an honest report into the death of Kugan.
The second post-mortem done on Kugan by Dr Prashant N. Samberkar from University Malaya Medical Centre (UMMC) revealed that his death was caused by acute renal failure due to blunt trauma to skeletal muscles.
"How can a professor and a doctor make such obvious errors and give the most convenient and superficial reasons for his death?
"Of course he died because his heart stopped beating, but what caused it," Yeo said, adding that it was a clear indication of a custodial death and should have sounded alarm bells.
Leong also raised the Kugan case in his speech, saying that the Court of Appeal had recently called for “zero tolerance “of custional deaths and recommended independent public inquiries be held for such cases.
Leong said judge Datuk David Wong Dak Wah was concerned over the admission of then Selangor police chief Tan Sri Khalid Abu Bakar (now IGP) that he had negotiated with the Attorney-General that investigations into the death be confined to Section 330 of the Penal Code, which is for voluntarily causing hurt to extort a confession or to compel the restoration of property.
"The judge described Khalid's actions as an affront to fair play and transparency and had added that in a complaint of this nature, the police should not be permitted to investigate themselves, where they would be acting as both judge and jury," Leong said.
Kugan's mother N. Indra, filed a RM100 million suit against Khalid, former constable V. Navindran and the government over her son's death.
Kugan, was 22 when he was arrested in Puchong on Jan 14, 2009, and held overnight at the Puchong Jaya police lock-up before police obtained a remand order.
He was taken to the Taipan USJ police station in Subang Jaya two days later for questioning and was found dead on January 20.
A week ago, the appellate court upheld a High Court ruling that Khalid and his police officers were responsible for Kugan death.
Leong said that given the blatant misunderstanding of good governance, fair play and transparency by the highest ranking police officer, the need for the IPCMC could not be clearer.
Another speaker at the forum, Human Rights Watch (Asia) deputy director Phil Robertson, said that resisting the setting up of an independent oversight commission was a clear indication that the police wanted to be a power unto themselves.
"It’s that simple and to date, Malaysia's leaders have allowed them to be so," he said.
He added that he also found a culture of “reliable impunity”, where the police officers responsible for abuses know that they don't have to fear being held responsible for abuses.
"This is because if a complaint is filed, it will be their police peers investigating them, sometimes even police from the same station.
"Our assessment is that the government and the IGP have abdicated their responsibility by not making the necessary changes to ensure effective oversight and accountability in cases of alleged wrongful deaths," Robertson said.
He added that at the recent Universal Periodic Review session on Malaysia at the UN Human Rights Council in Geneva, the government rejected recommendations by other governments that it establish the IPCMC. – August 8, 2014.