by Stephanie Bastian

The logical query is: "If you are not safe in police custody, then where can you be safe?"

In recent years, numerous cases of violence in custody have been highlighted and exposed, prompting urgent calls for accountability, transparency and reform of law enforcement agencies. These calls have been made by the Bar Council, human rights groups, NGOs, opposition parties, victims and their families and Suhakam. The law enforcement authorities too have admitted to the many flaws and weaknesses in their agencies and departments.

During his speech in conjunction with police day celebrations, the IGP of police, Norian Mai conceded that criticism against the police included alleged corruption, abuse of power, lackadaisical attitude, rudeness, carelessness and involvement in criminal activities (malaysiakini.com 26.3.03)

Incidents of custodial violence that are a cause of deep concern include the shooting sprees of suspects, physically abusive arrests, violence and deaths in police lockups, sexual assaults and rapes in lockups and immigration detention centres. The latest case was the assault on political detainee Tian Chua by about twenty officers at the Kamunting detention centre.

An Irony

The Home Affairs Ministry houses the main law enforcement agencies such as the police department, the prisons department, the immigration department and the drugs treatment and rehabilitation division.

Custodial detention in the country can take several forms. The most common form of custody is detention in a police lockup; within 24 hours the detainee is to be brought before a magistrate, who can approve a maximum 14-day remand period in the lockup for investigation purposes. It is indeed ironical that those 14 days - while the detainee is under the care of the police and guilt has yet to be established - could prove fatal.

Other custodial establishments are the prisons and correctional or rehabilitation centres for juveniles, drug addicts, religious offenders and young women. Detainees are also held in the infamous detention centres for illegal immigrants and for those detained under preventive detention laws such as the Internal Security Act (ISA). The secretive and incommunicado nature of these detentions provides the ideal setting for custodial violence by law enforcement officers.

Where can you be safe?

Daily thousands of people pass through our criminal justice system. Many get detained in custody for various reasons and are clueless about their rights and the procedures. Their grievances are often unheard and they are helpless. Many too unfortunately become victims of the heinous crime of custodial violence - at the mercy of law enforcement officers, who present themselves as the only link between the detainee and the outside world. Violence in custody includes verbal abuse, threats, physical attacks, sexual assault, rape, degrading and inhuman treatment, denial of medical assistance, torture and death.

The recent destruction of political detainee Hishamuddin Rais�s garden plot at the Kamunting detention center represents the subtler forms of custodial violation where clearly the intent is to punish and break the human spirit of the detainee. Sadly, violations of this nature serve only to reveal the inner levels of the inhumanity of humankind.

Custodial violence is cowardly and deplorable - a criminal act. It is the misuse of powers by enforcement officers who are supposed to be responsible for upholding the law and protecting the rights of citizens. They take advantage of the unequal power relations in custodial settings to engage in heinous dehumanizing acts of violence. An equally important aspect of custodial violence is the betrayal of the trust placed on the authorities by society and the families of those in custody. The logical query is: �If you are not safe in police custody, then where can you be safe?�

The implications and consequences of custodial violence are extremely damaging. It erodes trust in the enforcement agencies and it ridicules the old adage: �Trust the police, let them do their job�. It also discourages cooperation from the public, who feel that a suspect will not be given a fair hearing by the authorities.

Take for instance the death of Sundara Raju, who was allegedly beaten to death by fellow inmates at a lockup in Klang. He was reportedly drunk and had been placed in the lockup, following a domestic violence complaint by his wife. He was beaten into a coma and later died in hospital. This case sadly reflects the serious consequences of an irresponsible police authority. Can the police really hide behind the claim that the violence was inflicted by inmates � what a shame that the police are not even in control of their own lockup. Would it not have been a simple logical solution to place him in an empty or safer cell, if he was drunk and shouting? How many people will now, be reluctant and apprehensive about lodging domestic violence or other complaints for fear of a similar tragedy? (New Straits Times 24.11.02)

Haggling of Rights

International human rights standards have differing legal status. There are treaties, which are binding on the states that ratify it, and non-treaty standards that represent the consensus of the international community, to which states should aspire. Despite repeated calls from human rights bodies in the country, Malaysia has not yet ratifired the treaties such as the Covenant on Civil and Political Rights 1966 and the Convention against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment 1984 (CAT).

Non-treaty standards such as the Universal Declaration of Human Rights 1948, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 1988, the Standard Minimum Rules for the treatment of Prisoners 1955, Basic Principles for the Treatment of Prisoners, Code of Conduct for Law Enforcement Officials 1979, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 1990 provide detailed standards on the rights and treatment of people in custody . While these standards and references exist and as human rights groups lobby for them to be entrenched, the state should exhibit its sincerity by exercising its political will.

Rights in custody are also outlined or implied in domestic laws such as the Malaysian Constitution, the Prisons Ordinances of Malaysia and the lockup rules. Often even these basic provisions are not implemented, as disclosed by Suhakam recently. Persons in custody and their families are, by and large, unaware or misinformed about the laws and procedures. Rights to legal representation, information, communication, medical care, food, living conditions, trial, legal redress and safe custody, are not granted as a matter of right. Instead they become issues to be haggled between the authorities and the families.

Going to the Roots

Notwithstanding that laws and standards exist; they are empty promises without effective implementation, political will and a receptive mindset. A question that needs to be asked is - why does custodial violence exist? How can a human being (or a group) take advantage and violate another human being, who is at his mercy, unarmed and alone? Perhaps we should closely examine the law enforcement agencies and their supporting mechanisms

Selection of law enforcement officers � Are physiological profiles done in order to eliminate trigger-happy applicants seeking a legitimate position to indulge in violence and authority over people?

Training and orientation � Do components of the training include the concept of reasonable force and the use of discretionary powers and discernment when dealing with different types of suspects? Does the orientation incorporate a sensitization programme to overcome discrimination and prejudices on the grounds of race, gender, sexual identity and drug addiction?

Investing in investigative skills � What emphasis is placed on modern technology and forensic science as methods of investigation and crime solving as opposed to the use of violence to obtain information and confessions. There are people who are supportive of the use of violence in interrogation and who simplistically allude that �a few slaps will do the trick.� Evidence and experience has revealed that this is an infantile perception, especially with the increase in cases of abuse. Once the floodgates are open to violence, there will be no accounting for the limits and in the long run it will make for a lazy and ineffective police force. Injury and deaths in custody should not be regarded as collateral damage that is unavoidable.

Impunity � (the failure to bring those responsible for violence to justice) Survivors of custodial violence often experience not justice but further abuse and intimidation. Violence is normally carried out in places shielded from public scrutiny; considerable efforts are often made to conceal evidence vital to the successful prosecution and conviction. Investigations, where they occur, are often stalled because of the inaction, ineffectiveness or complicity of the investigating body.

Even where complaints are pursued, only a tiny proportion of officers prosecuted are eventually convicted, and generally the sentences meted out do not commensurate with the crime. This creates a climate where violators can continue to resort to violence, safe in the knowledge that they will never face arrest, prosecution or punishment - that they can get away with it. Bringing the offenders to justice not only deters them from repeating their crimes but also makes it clear to others that violence will not be tolerated.

Filing Complaints � Lodging official complaints against police abuse is a daunting and a time-consuming effort. The Police Disciplinary Committee, the body set up to receive complaints, is situated in the heart of Bukit Aman police headquarters. To reach this office one has to pass numerous gateposts, security checks and queries, which itself requires perseverance. This internal mechanism to address grievances not only appears inaccessible but also hostile and discouraging. Victims of violence and their families, who already feel stigmatized, nervous and terrified, would hardly find the courage to go through this process. Furthermore many victims are threatened, discouraged and advised that the best action would be to forget about the whole incident.

Policing the police � Clearly the lack of independent bodies to act as a credible check and balance on law enforcement agencies is a factor in the continued abuse of power. Enforcement agencies do not feel pressured or obligated to account seriously for their actions to a neutral third party. At the same time, victims and their families are also reluctant to take action against their violators in the absence of independent parties to the dispute. In addition, the prosecution and the judiciary, while working closely with law enforcement agencies in eradicating crime, need to preserve the rule of the separation of powers. They should not hesitate to exercise their roles and act against these agencies when the need arises.

Time to Act

There is nothing unique or radical about calling for reform of law enforcement agencies, as many countries across the globe have or are in the process of introducing programmes to reform their enforcement agencies.

The increasing incidence of custodial violence is proving to be an embarrassment for the state and its citizens. The recent diplomatic furore with India on the abusive raid and arrest of its IT professionals and the spat with the Philippines over the rape in a detention centre of a Filipino national (who then turned out to be a Malaysian) are signs that we need to tackle this problem urgently. The state must surely be aware that custodial violence defeats the image of a humane, just and civilized society.

Now e-mail us and tell us what you think.