The Malaysian government cannot afford to be indifferent towards custodial deaths occurring in the country. Any death is one death too many, asserts Prema Devaraj.
And so it begins again in 2015.
In the month of January 2015, there were three media reports about custodial deaths:
- R Sivan, 31, was pronounced dead on 8 January 2015 at the Jalan Ayer Molek, Johor Bahru Detention Centre after being in police custody for four days. He apparently died of a perforated peptic ulcer.
- P Pott Fred, 61, died in Penang Hospital on 17 January apparently due to heart complications. An African national, he was under remand for a drugs hearing set for 9 February 2015.
- A 28-year-old man died in Penang Jail apparently from a lung infection on 22 January. He was under remand for a drugs case.
If these reports are anything to go by, then we have surpassed the statistical monthly average of reported custodial deaths of 1.2 (i.e., 14 deaths in 12 months) in 2014. Many believe the figures regarding custodial deaths are much higher than reported. Worryingly, Penang seems to be leading in this area.
Dealing with custodial deaths (or not!)
Custodial deaths take place all over the world – it is not merely a Malaysian phenomenon. But what is interesting is the ways in which the issue is dealt with in various countries. One example is the United Kingdom, where the Independent Police Complaints Commission (IPCC) oversees the police complaints system in England and Wales. An annual report on Deaths During or Following Police Contact is published as part of the IPCC Research and Statistics Series.
The UK IPCC also published a report of a study examining deaths in or following custody over a 10-year period to “identify trends, and the lessons that can be learnt for policy and practice to prevent future tragedies. The study looked at trends in the incidents, including the use of restraint, mental health and suicide, alcohol and drugs, risk assessment and medical provision, and investigation and investigations outcomes”.
So how has Malaysia chosen to deal with the issue of custodial deaths? Without clear acknowledgement by the government that custodial deaths are indeed an issue, we cannot address the problem effectively.
Despite calls for an Independent Police Complaints and Misconduct Commission (IPCMC), recommended by the Royal Commission in 2005, despite outrage and condemnation over custodial deaths in press statements, press conferences and forums by family members, concerned individuals and groups especially Suaram, Lawyers for Liberty and the Malaysian Bar, such deaths continue to take place.
While the government has introduced CCTV cameras in some lock ups and more recently set up the coroner’s court, these efforts are not producing the desired results of either stopping custodial deaths or holding people accountable for the deaths.
Instead we have been told by the Home Minister that the government “has decided that any investigation must be based on the scope of the Enforcement Agency Integrity Commission (EAIC/SIAP)….the Cabinet had given full authority to SIAP to assess all investigation procedures and this reflects the government’s concern with custodial death”.
The effectiveness of the EAIC has received much criticism. Recently, however, in a media statement on the results of an investigation into the custodial death in 2013 of James Ramesh a/l Ramasamy, the EAIC came up with several constructive recommendations, which will be summarised later in the article.
Police brutality, illness or suicide?
Custodial deaths are not only about people dying of injuries allegedly inflicted by police officers. Official statistics from the Home Minister state that of the 231 deaths in police custody between 2000 and May 2013, 196 (84.5 per cent) were due to illnesses and 29 (12.5 per cent) were due to suicide.12 There are concerns over the analysis of these results, including:
- post mortem results which indicate disease as the cause of death in cases where families allege brutality; and
- possible neglect of the health of pretrial detainees resulting in their deaths.
The concern over dubious post mortem results and the need for independently conducted post mortems have been highlighted, for example, in the Kugan case, where evidence of beating and torture was uncovered through a second independent post mortem.
More recently, we had the case of P Karuna Nithi, where the post mortem results did not reflect the finding of the coroner that the cause of death was due to “…49 multiple injuries by blunt objects including physical assault, abuse and unlawful acts by persons unknown, inclusive of police officers and other detainees.”
The issue of neglect of health was finally highlighted in the case of P Chandran, a lorry driver held in remand for four days, who succumbed to hypertensive heart disease in September 2012. The coroner ruled that the police were responsible for his death and had committed unlawful omission by not giving Chandran his medication and sending him to hospital despite knowing he was under medication.
That people die in detention without being assaulted is not a badge of honour or an exemption of police responsibility. On the contrary, it may well show a dereliction of duty in not maintaining suspects’ health well enough throughout the remand period so that they can stand trial.
One hopes that the recent decision by the coroner mentioned above, taken together with the recent EAIC recommendations, will spur the authorities into thinking about how to stop such neglect in police lock-ups and jails.
Gross violation of rights
It is not acceptable to argue that only a small number of men die in police custody every year or to ignore the situation because the men who die are suspects, hard core criminals, drug addicts, or have mental health problems.
The point is that nobody should be dying in police custody, be it through injuries inflicted allegedly by their jailors or through neglect of their medical needs. It is a gross violation of human rights. All those in custody or in remand have a right to have their safety ensured, to be able to stand trial and to be subject to the legal processes of the criminal justice system.
If we do not uphold this, what does it say about the rule of law and good governance principles that the country is purportedly upholding? And when we, the public remain silent about such violations what does it say about us? In December 2014, thousands of American protesters took to the streets, marching peacefully against police brutality especially against people of colour in New York, Washington and other major US cities16 – will that happen here?
New KPI for Home Ministry
The Malaysian government, having been part of the UN Human Rights Council, cannot afford to be indifferent towards custodial deaths occurring in the country. It is time to insist that the Home Ministry comes up with a new Key Performance Indicator (KPI). The new KPI should be about stopping custodial deaths.
A good starting point would be the immediate implementation of the recent EAIC recommendations,11 which include the following:
- Hardcore drug addicts should be classified as ‘patients’ and not ‘criminals’. They should be taken to medical institutions for check-ups and placed in special lockups to allow them to get continual medical treatment.
- Rule 10 of the Lock-up Rules 1953, requiring a medical officer to carry out health checks on inmates upon being arrested, must be enforced and complied with.
- There should be a simple and effective mechanism to enable prisoners to make a complaint on illnesses or injuries they are suffering from so that the officer in charge of the lock-up will allow prisoners to get treatment immediately.
- Lock-up officers should hold continual ‘refresher courses’ or ‘refresher training’ on the management of lock-ups and document protocols in managing lock-ups and detainees.
- There should be a Standard Operating Procedure (SOP) for special handling of alcoholic and narcotic prisoners and drunks (high-risk arrestees) and others such as children and the traumatised.
- Compliance of officers and members of the lock-up staff with the Standing Orders of the Inspector General of Police division A118 and Standing Orders of the district police chief as well as Lock-up Rules 1953 should be tightened.
- Lock-ups should be provided with more complete facilities including basic necessities such as a bathrooms, soap, adequate ventilation, and lighting. The safety factor should also be taken into account.
- Officers on duty should be supervised , and the frequency of patrols by lock-up officials should take into account the role of the CCTV cameras and the total number of people in the lock-up who need to be reviewed.
- Families of the detainees should be notified if there are any casualties or if the detainees receive any treatment in hospital.
The Home Ministry would do well to take these EAIC recommendations seriously and ensure immediate implementation. Any custodial death is simply one death too many. It is time to put an end to it.