Deaths in detention an arduous battle for justice

From Malaysiakini

COMMENT On the Aug 11, 2012, Cheah Chin Lee was a 36-year-old furniture shop assistant in Tanjung Bungah, Penang, with no history of health or emotional problems.
On Aug 12, he was arrested by the police in connection with a motorcycle theft case. On Aug 13, he was found dead, hanging from his neck in the Tanjung Tokong police station lockup.

Cheah’s case is one of many appalling deaths in detention in Malaysia. Whether or not the police caused such deaths in detention directly, there is no question that they are fully responsible for the health and safety of all detainees.

These cases, along with reports of beatings and torture while under police detention, form one of Malaysia’s biggest ongoing human rights violations.

Seeking justice in such cases has always been an uphill battle, in a country where the administration of justice is flawed on multiple levels.

In the most recent developments in Cheah’s inquest, the coroner has shockingly denied the family’s lawyer from access to notes of evidence and court records, as well as disallowed said lawyer from making submissions during the inquest itself – creating an undeniable obstacle in the pursuit of justice and an atmosphere that brings to mind collusion and cover-ups.

Inquests an uphill battle

Many deaths in custody do not even get an inquest. What should be a standard procedure to investigate any and all deaths in custody is in fact a rarity that is often only called as a result of public pressure. This is the first injustice that requires remedy.

Successfully calling an inquest however, does not guarantee justice – far from it.

In over a thousand recorded deaths in custody (including in prisons and immigration detention centres), there have been almost no inquests which clearly and unambiguously hold the authorities responsible.

Often times, the inquest proceedings are beset by the unbearably frustrating phenomena that some of us have come to expect of our courts.

In one example, the lawyer representing the Malaysian Anti-Corruption Commission in Teoh Beng Hock’s inquest famously suggested that Teoh Beng Hock might have strangled himself.

Severe conflicts of interest

A key problem in these inquest proceedings is how many of the parties involved perceive themselves to be ‘on the same side’, even in cases where technically, they are not supposed to be.

For example, the Attorney General’s Chambers (AGC) are responsible, along with the coroner, to push for the truth as to how an individual died in custody.

The police themselves, by virtue of being the ones detaining the individual, must have their culpability thoroughly investigated.

A problem arises when the AGC and the police often regard one another as two parts of the same body (the government).

In the same way that a long standing problem with police misconduct is that the ‘proper’ way to seek redress is by lodging a police report against the police with (the same) police, there appears to exist a serious conflict of interest.

The relationship between the AGC and the police is further complicated by the fact that the AGC also in essence acts as counsel to the police.

For example, after an inquest, should the family of an individual who has died in custody opt to bring a civil suit against the police, it is the AGC that represents the police in the suit.

We saw the odd manner in which this plays out in the case of R Gunasegaran, a man who died in police custody on the very same day as Teoh Beng Hock.

During the inquest proceedings, the AGC acted as deputy public prosecutor, and submitted to the coroner that the police had abused their powers, and were culpable for Gunasegaran’s death.

After the coroner returned an open verdict (a phenomenon far too common in such cases), Gunasegaran’s family filed a civil suit against the police.

This time, the AGC represented the police as federal counsel, and now lawyers from the same institution were then arguing the opposite of their colleagues earlier – that the police in fact had done nothing wrong whatsoever. Clearly there is a serious disconnect here.

As if this was not bad enough, there are some questions regarding coroners as well. The coroner in an inquest was previously a magistrate, and is now a sessions court judge.

Neither are technically independent in the same way a high court judge is, but are in fact part of the AGC, and serve at the pleasure of the attorney general.

It appears then, that everyone – the police, the deputy public prosecutor from the AGC, and the coroner – is on the ‘same side’ (“the government”), except for the family of the deceased.

Surely within such a system, the conflict of interest and opportunity for collusion to exonerate anyone perceived to be ‘on the side’ of the government is much higher than it should be.

Why is family shut out?

Thus far, most inquests have been decent enough to allow lawyers representing the family of the deceased to participate fully and meaningfully in the inquest proceedings.

The lawyer representing Cheah’s family, M Visvanathan (left), was thus shocked when the coroner refused to allow him access to the notes of evidence and recordings of the court proceedings, or to make submissions in the inquest, effectively shutting the family’s lawyer out of the process.

Visvanathan is still allowed to ask questions during this inquest; beyond that however, he has been reduced to little more than a spectator with almost as little involvement and standing as a member of the public in the gallery.

Visvanathan filed for an application for revision of this decision in the Penang High Court, which was dismissed. The AGC unprecedentedly went as far as to raise preliminary objections in this application, supporting the coroner’s decision. Visvanathan is now taking the matter to the Court of Appeal.

The question then becomes: why is the lawyer representing the family of the deceased being shut out from the process?

Given the conflicts of interest described above, if the family is not allowed to participate in the inquest, would a finding that exonerated the police be believable?

Surely there are questions here of whether or not this renders the judicial process incomplete and/or defective.

No more cover-ups

The problems here lie both in the design of the system and in its execution. For too long, Malaysians have suffered from the falling reputation of its judicial system.

Cases like Cheah’s do nothing to dispute perceptions of how the system is one-sided and lacks integrity.

By blocking the family from the inquest proceedings, surely suspicions will be raised that there is a concerted effort to block a thorough examination into the causes of Cheah’s death. Some may even speculate as to efforts towards a cover-up of sorts.

We hope against hope for good sense and justice to prevail, such that a clear precedent will be set that allows the families of those who have died in custody to participate in the process of determining how their loved ones have died.

NATHANIEL TAN is not quite back yet, and intends to continue grappling with the big picture in relative quiet. He tweets much less nowadays @NatAsasi.