One thing is clear from the Prime Minister Office’s reply to YB Yuneswaran Ramaraj’s oral question in Parliament on custodial deaths – its understanding of transparency and accountability in addressing and eliminating custodial deaths needs a significant overhaul. Making accurate data on all custodial deaths accessible at all times and re-opening investigations into past cases of custodial death and violence in custody perpetrated by law enforcement should be no-brainers compared to other systemic custodial death prevention efforts – implement them now without delay.
Inconsistencies worryingly still emerge between figures disclosed by different policymakers. Just last week, Home Minister Saifuddin Nasution stated that there were 24 deaths in police custody between January 2022 and May 2024. This statistic makes no sense, when the government disclosed the same number last year for police custodial deaths for the year of 2022. It also does not account for the 22 deaths disclosed by the Prime Minister Office’s parliamentary reply for the year of 2023.
Furthermore, glaring discrepancies between media-reported prison and immigration custodial deaths and official figures persist. Suara Rakyat Malaysia’s (SUARAM) documentation and monitoring efforts yielded only one media-reported prison custodial death, and none for immigration in 2023 – which is significantly underreported considering the case numbers disclosed by the government. Having streamlined and openly accessible data that reflects actual death-in-custody prevalence sends a strong message to the public and families of victims of the state’s stance of zero tolerance against the phenomena, as well as allows for more constructive interagency and multisectoral crosstalk to effectively address the relevant root causes.
Whilst we commend the government’s disclosure of the prevalence of convictions for murder and manslaughter in custodial deaths, greater transparency is needed in terms of the proportion of law enforcement and the nature of neglect in cases of manslaughter.
The government’s non-committal stance to the question of reopening investigations of past custodial deaths allegedly caused by law enforcement is also highly concerning. Access to justice is usually obstructed for families of the deceased. Getting an inquest done is already a persistent challenge, what is more having a satisfactory one that also investigates the manner of death including the presence/omission of unlawful acts that caused or contributed to the condition of the deceased. Civil suits, unfortunately, constitute the primary recourse for many families who seek justice such as S Balamurugan’s or Karuna Nithi’s, dragging across at least
5 to 10 years before any closure is reached. These families should not be deprived of their fundamental right to equality before the law enshrined in Article 8 of the Federal Constitution.
This non-committal stance is also chillingly apparent in cases of survivors who were tortured in custody by law enforcement. 16-year-old Ang Kian Kok in 2017 who was also an eyewitness to Balamurugan’s death in police custody, and 18-year-old Mitheswaran a/l Kumar in 2021 are crucial examples. Despite intervention by the National Human Rights Commission of Malaysia (SUHAKAM), the government has not conducted independent and impartial investigations into their ordeals, punished the perpetrators involved, nor provided reparations to these boys.
A new commission to reopen investigations on past cases is not necessary at this stage, when there are existing oversight mechanisms in place.
On deaths and torture in the custody of enforcement bodies other than the police, we have the Enforcement Agency Integrity Commission (EAIC). EAIC has demonstrated commendable investigation expertise back when police custodial deaths were still under its jurisdiction, as evidenced by the comprehensive investigations done on the deaths of S Balamurugan and Soh Kai Chiok.
For police custodial deaths, however, renewed investigations must go hand in hand with amendments to the Independent Police Conduct Commission (IPCC) Act to broaden IPCC’s scope of investigative powers. Unlike EAIC, IPCC’s investigative powers are limited, which would hamper the effectiveness of investigations conducted. Gaps that need to be addressed include IPCC being unable to conduct search and seizures without warrant, nor unconditionally compel persons to attend hearings and disclose sensitive information that are relevant for the investigation.
Notably, in May 2024, the government committed to setting up a special task force to fully implement EAIC’s recommendations to prevent custodial deaths, with the recommendations based on EAIC’s study covering the police and other enforcement agencies. Findings from renewed investigations by EAIC and IPCC of deaths and torture in custody can be used to improve the recommendations implemented by this special task force. It is also crucial that IPCC and the police be engaged as key stakeholders in the implementation process, as police custodial deaths are consistently among the top three in prevalence.
One cannot expect to effectively and holistically address custodial deaths by addressing longstanding factors on a selective basis. As we resound our calls for improved data transparency and renewed investigations on past cases of custodial deaths and torture in custody, we also strongly urge the government to initiate medium and long-term legislative and policy efforts to eradicate custodial deaths, among which include amending the IPCC Act to grant the Commission adequate investigative and disciplinary powers, amending relevant laws such as the Penal Code to concretise zero tolerance against torture, and ratifying the United Nations Convention Against Torture.
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