The 16th death in police custody in Malaysia in 2022 – and this does not include other deaths in custody at other government facilities.
This time, it was a 48-year-old man who was temporarily placed at the Seri Alam lock-up while awaiting imprisonment after being sentenced to a five-month jail term from 27 April for drug-related offences. Why was he placed in a police lock-up, when he really ought to have immediately been sent to prison?
It must be pointed out that persons held in police lock-ups are persons or suspects arrested, who need to be placed in police custody, including detained in a police lock-up, for the police to complete their investigations. Other persons should be detained in the appropriate detention facility.
With so many deaths in police custody, one needs to be reminded of the rights of persons arrested, the right of the police to detain further to complete investigations, the status of the needed reforms to ensure the proper behaviour of the police and to reduce police responsibility for deaths and whether coroners are effectively carrying out their responsibilities.
Detention in police lock-ups unnecessary for all police probes
After the cases of of former Prime Minister Najib Razak, his spouse Rosmah Mansor, current Umno president Zahid Hamidi and several others, Malaysians now know that the police need not detain any suspect for the purposes of completing police investigations. Those arrested can be immediately released while requiring them to turn up at the police station at particular times for police to continue their investigations.
If a detainee chooses to remain ‘silent’, is further detention a ‘torture’?
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A suspect or a person investigated has the right to silence, in that he or she “may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture” (Section 112 of the Criminal Procedure Code).
Today, in Malaysia, a ‘confession’ given by an accused person while in police custody can no longer be used by the prosecution – a right move as such a confession may have been the result of torture, lies, etc.
Section 113 (3) states:
Where the accused had made a statement during the course of a police investigation, such statement may be admitted in evidence in support of his defence during the course of the trial.
which means that such statements can be used by the accused person, but not the prosecution. This is the general rule.
Section 28A(4) of the Criminal Procedure Code state:
Where the person arrested has requested for a legal practitioner to be consulted, the police officer shall allow a reasonable time –
(a) for the legal practitioner to be present to meet the person arrested at his place of detention; and
(b) for the consultation to take place.
The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication with the lawyer happens.
If a suspect and/or witness take the option to remain silent, what really is the purpose of keeping a suspect in police detention? All that police investigation entails then would be the taking of one’s photograph, fingerprints and maybe, in some cases, DNA evidence.
A person may need to be detained maybe if the police, as part of its investigation, wanted to do an identification parade. As such, how much time does a suspect really need to be detained – and during his or her detention, how much time did he or she spend with the investigation officer? How many hours did he or she simply spend in the lock-up, and would this not be considered ‘torture’, noting that the police in Malaysia are prohibited from using torture as part of their investigations?
Another problem could be the insufficiency of qualified investigation officers in the police, while the available few are burdened with simply having to investigate too many cases at the same time – so suspects awaiting their turn to be investigated languish unnecessarily in police detention.
Immediate medical check-up for those arrested
Deaths in police custody have been a concern for a long time, and in fact, the Malaysian government is in the process of making sure that every person arrested and to be detained ought to immediately be inspected by a medical practitioner. This would determine the health or medical condition of such detainees and would also ensure speedy healthcare, if needed, to prevent any deterioration of health and/or death.
As government healthcare facilities and doctors are available in most places, the implementation of this practice should not have been delayed. A medical examination will also help determine whether a person who later dies did not die by due to matters that happened post-arrest and/or while in police custody.
The minister, in a parliamentary reply on 16 December 2021, informed us about the setting up of a custodial medical unit, which will also do a medical examination of detainees before they are placed in police lock-ups. This, according to the minister, would start as pilot projects in five police lock-ups. This is not acceptable, and it must be implemented immediately nationwide.
Until then, persons arrested must undergo medical examinations by government doctors before being detained. This is rather easily done and must be a standard operating procedure for all arrested and who will be detained in police custody.
CCTV and body cams
Havnig CCTV at police stations has also been on the agenda for some time. If there are CCTV recordings that document what happens to a person from the point of arrest and for the time one is in police custody, it would be evidence that the police are not responsible for the causing of the death of a detainee and that the police conducted themselves in accordance with Malaysian law, including the fact that there was no torture.
In Hong Kong, it has been the practice for several decades now that the suspect and/or lawyer is provided with a copy of the CCTV recording, proving that the law was complied with by the police.
In Malaysia, the problem that has arisen before, even in inquests, was the fact that there were no CCTV recordings – sometimes because there was no CCTV installed, the CCTV was not functioning, or there were simply no CCTV recordings as the CCTV installed did not have recordings or storage capacity.
The government recently talked about body cams and cameras on police vehicles, which would help ensure the availability of documentary evidence right from the point of arrest. Madpet urges immediate disclosure on the current status of these CCTVs and body cams.
Has coroner been informed?
There is still a disturbing silence on the part of the coroners in Malaysia regarding the status of their inquiries into these deaths in custody, and media reports have mostly been about police investigations and findings.
The coroners must announce what is happening with their inquiries of the now 15 deaths in custody in Malaysia. What are the coroners’ findings? Will there be public inquests or not?
It will be good if the name of the coroner responsible for each death is informed [to the public], so members of the public with relevant information may be able to forward such information directly to the coroner, as many may be unwilling to disclose such information, more so if the information indicates possible police responsibility in the deaths.
Malaysians Against Death Penalty and Torture (Madpet) urges the Malaysian government to prioritise the elimination and investigation of deaths in custody in Malaysia. Post-arrest pre-detention medical examinations, CCTVs, body cams and other things that need to be done must be expedited.
Lives matter, even those of suspected and convicted criminals.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture