DEATHS IN CUSTODY: INCAPACITY FOR OUTRAGE IN ‘NEW MALAYSIA’

Press statement by Kua Kia Soong, SUARAM Adviser 14 July 2019

What does it take to make every elected representative and police officer feel outrage whenever there is a case of a death in custody?

Under the bad old Barisan Nasional regime, deaths in police and enforcement agencies’ custody were shrugged off with sickening indifference. It is already 10 years since the death of Teoh Beng Hock at the headquarters of the Selangor Malaysian Anti-Corruption Commission (MACC), 10 years without the closure that only the truth can make possible.  

We expected all that to change after May 9th 2018 with the change of regime and former human rights defenders flocking to legitimise the new Pakatan Harapan regime. Yet, what has changed? The outrage that human rights defenders feel when deaths in custody happen with sickening regularity is still absent in the “New Malaysia”.

From Teoh Beng Hock to Ewansiha

The latest death in custody is that of Nigerian student Thomas Orhions Ewansiha who was arrested by the Immigration Department during a raid at apartments in Desa Aman Puri in Kuala Lumpur, which led to the arrest of 20 foreigners. The raids were a result of complaints lodged against African nationals who were suspected of not having valid documents, the department said. Ewansiha was found to have valid documents but he was still detained for 14 days for further investigations. Like so many other cases of deaths in custody, he was said to have suffered a seizure in his cell and died on the way to the hospital. The nonchalant response by the police was that “they had followed the standard operating procedures, no more, no less…”

Ewansiha’s death led to a protest by Nigerian students outside the Nigerian high commission. They were outraged as they should be. They were outraged as Malaysians would be if they were subject to similar racist discrimination and harassment while studying in a foreign country.

It’s culpable homicide, stupid!

The statement of Home Minister Muhyiddin Yassin that the government has exhausted all avenues and implying that Teoh Beng Hock’s family is unfairly demanding more shows that this “New Malaysia” minister does not understand the outrage that Teoh’s family feels about his death at the hands of the MACC. This outrage is felt even more strongly when it is clear the Home Minister has not bothered to understand how Teoh Beng Hock died.

The Court of Appeal in Teoh Beng Hock’s case had ruled in 2014 that one or more people had caused Teoh’s death while he was in MACC custody. This case was previously investigated under Section 304 of the Penal Code, which covers culpable homicide. It has now reportedly been reclassified under Section 342 of the Penal Code, which deals with the much less serious offence of “wrongful confinement”.

After ten long years of anguish for Teoh Beng Hock’s family, it is time that outraged Malaysians demand that the Prime Minister, the Home Minister and the Attorney General proceed with the prosecution of those MACC officers involved in causing Beng Hock’s death. It is surely not a case that requires the intervention of Sherlock Holmes or Hercule Poirot.

Professional investigation, not another Task Force please!

It has become a foot dragging tactic of the new PH government to form “Task Forces” to put off the swift professional investigation work that is necessary. This is seen in the case of missing pastors Raymond Koh and Amri Che Mat, who have been missing since 2017.

The families of the missing pastors are rightly outraged that the new PH government should form a task force made up of police officers when the Suhakam enquiry had concluded that the two pastors were victims of enforced disappearance. Adding new members to this task force is not going to convince Malaysians that the Government is seriously concerned about finding the missing pastors. Enough pussy footing please!

Unacceptable Deaths in Custody

From SUARAM’s Human Rights Report 2018, between 2010 and February 2018, nine police officers were charged in court with disciplinary action taken against them for negligence or causing injuries or deaths to detainees. N. Dharmendran was one such detainee who died in IPK Kuala Lumpur on 21 May 2013 after allegedly suffering from an asthma attack. The post-mortem conducted on the deceased on 22 May 2013 found ‘diffuse soft tissue injuries due to multiple blunt force trauma’ as the cause of death. The post-mortem also noted 52 injuries in the form of bruises caused by blunt force trauma which were two to three days old at the time of the post-mortem. It also found staples from a bullet stapler on the deceased’s ears.

In a Parliamentary reply to a question on the issue of custodial deaths in April 2018, the Ministry of Home Affairs claimed that it had introduced a new standard operating procedure requiring a form in which the detainee’s health condition has to be filled by the detainees themselves. Detainees suffering from infectious diseases or high risk will be detained separately from others, and detainees of different categories must be separated in detention centres. The Parliamentary reply in question also highlighted that 414 out of 730 police lockups in the country now have CCTV installed whereas the remaining 316 police lockups had CCTVs that were not active or not used.

In the 20 years of SUARAM’s monitoring and documentation, torture has been and remains a well-documented and reoccurring issue in Malaysia. Incidents of physical violence inflicted upon detainees under remand or during investigation are prevalent especially when there are elements of chain remand or detention under security laws. In general, it is difficult to provide the appropriate medical evidence to prove torture has been inflicted because detainees are often locked away until their next court appearance and are subjected to threats of further violence by investigating officers if they were to reveal what had been inflicted upon them. While evidence of torture can be difficult to ascertain, the gruesome deaths of A.Kugan, N.Dharmendran, S. Balamurugan, and other similar cases continue to expose the extent of physical violence and torture inflicted upon those detained by the police.

Who can forget the black eye inflicted on the former Deputy Prime Minister Anwar Ibrahim by the then IGP himself while he was in police custody! If the police can do that to a deputy Prime Minister, what about poor old you and I?

From 2011 to 2018, there were a total of 104 deaths in custody: 56 “medical” cases, 8 “suicides”, 2 “accidents”, 4 by “blunt force”, 34 “unknown”. These deaths in custody according to ethnicity were as follows: 28 Malay, 14 Chinese, 31 Indian, 5 ‘Others’ and 12 foreigners.

Although the inquest proceedings are laid out in the Criminal Procedure Code and the Guidelines on Death Enquiry 2014, there has been widespread public concern over the lack of transparency and accountability of the post-mortem examination conducted during each inquiry. As we can see from the figures above, the most common findings in most inquest cases are presented as “natural causes” or “suicide”.

From outrage to reform now!

The lacklustre performance by the police and the foot dragging by the Home Ministry continues to evoke outrage and frustration by the family members of the deceased and points to an urgent need for the government to implement a credible Independent Police Complaints and Misconduct Commission (IPCMC) to inquire into cases of deaths in custody to ensure police accountability.

A credible and effective IPCMC would undoubtedly provide some closure and justice for the deceased and their families if it is afforded prosecutorial powers in cases where police abuse of power results in harm or death. A police force keen to build their credibility as a neutral blue line that respects and abides by the law it is meant to uphold would welcome such prosecution as it would foster a culture of accountability within the force. This requires political will by the executive and upper echelon of the police force. The police force must also be ready and willing to cooperate with existing mechanisms, civil society and the public in resolving these issues.

Most importantly, the motivation for this reform must spring from the capacity of Malaysians, the police and the Government to feel outrage whenever there is even one case of death in custody of the police or enforcement agencies.

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