Charles Hector looks at the big picture of custodial deaths and calls on the government to end this terrible plague.
Deaths in custody in Malaysia happen and many a time, these deaths could have been avoided if there was sufficient monitoring and better health care of prisoners and/or detainees in the places of detention.
The Malaysian government is slow in revealing actual statistics and the actual causes of these deaths. Figures provided by the government are often vague and this prevents anyone from carrying out a proper analysis and reaching a conclusion as to whether the situation is improving or deteriorating. Whenever the government does provide figures, they are often for different periods and covering deaths in differing places of detention.
Deaths in Custody – What the Malaysian government has revealed
In Malaysia “…from 1990 till September last year , a total of 1,583 deaths among prisoners were recorded in 28 prisons nationwide, with the highest number in 2003 when 279 inmates died. During the same period, 150 detainees died in police lock-ups or custody…” (Malaysiakini, 7 February 2005).
‘…Prime Minister Abdullah Ahmad Badawi today revealed that 108 deaths occurred during police custody between 2000 and 2006…’ (Malaysiakini, 23 April 2007).
On 8 July 2008, the Dewan Rakyat (Parliment) was informed that there have been 1,535 deaths in custody in Malaysia between 2003 and last year” ‘…There were 85 deaths recorded in police lock-ups during the 2003-2007…’ (Bernama, 8 July 2008).
In April 2009, it was revealed that a total of 2,571 detainees died while being held in the country’s prisons, rehabilitation centres and illegal immigrant detention depots between 1999 and 2008. A total of 153 detainees died while in police custody during the same period (The Star, 24 March 2009, 2,571 detainees died in the past nine years). That would mean that there were a total of 2,724 deaths in custody but then does this include other places of detention like the MACC, where we do know that Teoh Beng Hock died?
A total of 279 suspects have been shot dead by the police between 2000 and 2009, while 147 died in police lockups during the same period, revealed Home Minister Hishammuddin Hussein today. (Malaysiakini, 28 June 2010, 426 deaths at hands of the police since 2000).
Suaram’s 2009 Report stated that In 2009, until 5 December 2009, there were seven deaths in police custody, one in MACC custody
We recall that it was reported in the media in December 2008, that “about 1,300 illegal foreigners have died during detention in the past six years, Malaysia Nanban quoted Malaysian Human Rights (Suhakam) commissioner N. Siva Subramaniam as saying. He said many of them died in immigration detention centres, prisons and police lockups because they were denied medical treatment at the right time” [The Star, 18 December 2008, ‘1,300 foreign detainees died due to neglect’]. This was again reiterated in ABC News (28 May 2009) about Malaysia detention centres ‘violating rights’. The Bar Council tells us that, “…The Dewan Rakyat figure would mean that an average of one migrant dies in custody almost every day!” (Bar Council: Deaths of migrants in prisons, rehabilitation and detention centres – Another Burmese migrant dies in Alor Star Detention Centre).
According to the Malaysian government, between 2005 and 2009, 78 persons died while in Immigration Detention Centres, and 32 of them were from Burma (Answer given at the Senate dated 26 July 2010).
The Malaysian government provides figures for differing time periods, and the answers also covers different places of detention and custody, and this makes it difficult to analyse clearly the actual number of deaths in custody in Malaysia.
Deaths in police lock-ups may mean just that and may not be the total number of deaths in police custody, which would reasonably also include deaths that also occur outside the lock-up.
One also wonders why many of the deaths that occur in detention centres allegedly by reason of illness or some other medical condition happen in places of detention, not in hospitals. Surely, a detainee that dies of a medical condition should have been in the hospital way before the death occurred. That raises doubts as to the real reason for the death. Are conditions resulting in death brought about by torture? Was it brought about by pure negligence on the part of detaining authorities?
No one dies because they were beaten up or tortured, for they will die by reason of some medical condition that was caused by and/or aggravated by torture and/or negligence on the part of the detaining authority.
Public servants, usually referred wrongly as ‘government servants’ in Malaysia, seem to be just too fearful to implicate the police and other detaining authorities in these deaths, and would sometimes allegedly ‘falsify’ their report and findings, by just not indicating in their report indications of torture and abuse, or an opinion of even the possibility that the deaths could have been caused by the actions and/or omissions of the detaining authorities. It is for this reason that some families/dependents of custodial death victims would like to have the right to be able to conduct an independent post-mortem, but alas this right is also often denied by the authorities. Delays and early disposals of bodies also make it difficult to carry out independent post-mortems to determine the real cause of these deaths. Further, the courts do not place equal weight on reports of independent postmortems/findings provided by non-government medical practitioners.
The fact that inquests are presided by coroners who are Magistrates and/or Judicial Officers, who really are in fact public servants, and not Judges, who have the benefit of the safeguards that ensure independence, is also a problem. The public servants’ promotions depend on the government, and as such most coroners’ independence is also affected by this factor; they almost never would want to implicate the police or some other public servant in causing the death.
Deaths in police custody have been higher now, compared to the 1990s
Relying merely on data provided by the government, it has been disclosed that there have been 150 deaths from 1990 until 2004 (10.7 per year), 108 deaths between 2000 and 2006 (18 per year), and, 85 deaths between 2003 and 2007 (21.25 per year), 153 deaths between 1999 and 2008 (17 per year), and 147 deaths between 2000-2009 (16.3 deaths per year). There has been an increase in the number of deaths in custody until 2007, and the numbers seem to be dropping but it certainly is still higher than the 1990-2007 period.
One of the reasons for torture in police custody was believed to be for the purpose of getting confessions from accused persons, but since September 2007 the new law clearly states that such confessions cannot anymore be used by the prosecution in criminal cases. Section 113 of the Criminal Procedure Code now states that “….no statement made by any person to a police officer in the course of a police investigation made under this Chapter shall be used in evidence….’ save in cases where one is charged with making a false statement to the police. One hoped that this amendment would have seen the end of torture and deaths in police custody – alas, this is not the case.
One retired policeman told me that one of the problems is the quality of persons now being employed as police officers. Today, he says that about 90 per cent of those who apply to become police officers would have been rejected because they did not meet the mark. Alas, the number and quality of applicants have declined, and the police department has no choice but to take what they have. A couple of reasons for this: police wages and working conditions.
I, too, have had clients that have been tortured by police but who did not want to complain or take any action after he was not charged. One was just beaten up and later asked to confess to some murder, which shocked him for he was arrested on suspicion of handling stolen property. Many who do get tortured in custody do opt to just not complain or take any legal action, choosing to move on with life after their unsavory experience in police custody. One lawyer also told me that if they do complain or make a police report alleging police torture, there is always the risk of police repercussions maybe in the form of an allegation of making a false statement. Evidence of the police wrongdoing is also difficult to get as many a police officer would likely come to the defence of their fellow officer. This is why Malaysia really needs to set up the Independent Police Complaints and Misconduct Commission, as was recommended by two Royal Commissions of Inquiry.
Reforms to prevent torture and deaths in custody
Since the mid-1990s, the Malaysian Bar and civil society have taken up the issue of deaths in custody with renewed vigour. One has to note that the government has responded positively in law and policy, but apparently this is still not enough. The law was amended to include, amongst others, the right and access to free phone calls upon arrest, by shortening the period of remand orders that can be granted by a magistrate at any one time to now, stopping the practice of granting long remand orders of 14 days by magistrates, and the right to have access to and be represented by a lawyer during remand proceedings.
The Attorney General has also stated that there will be inquests for all deaths in police custody.
CCTV cameras were also introduced in police stations and police lock-ups. Alas, they did not have recording capabilities, but maybe this has changed now based on recent report where it was stated that police viewed CCTV recordings to rule out foul play in the death of an ex-convict who was found strangled in his cell at the Jempol police station on Monday morning (The Star, 2 February 2010, ‘No foul play in detainee’s death, cops say’). We really do need CCTVs with recording capabilities to be installed at all places in the police station, MACC offices, and other places of detention and we still do not have them. Teoh Beng Hock’s inquest would certainly have been assisted if there were such recordings that the Coroner’s court could look at.
Deaths in custody: More needs to be done to end them
Deaths in custody are still a serious problem in Malaysia, and much more is needed to put an end to the number of deaths, especially those being caused by the actions and omissions of detaining authorities. When a police officer and/or a public servant is found liable for these deaths, the government must take action in open court – and stop resorting to secret internal disciplinary action.
It may be time also for Malaysia to ratify the United Nations Convention Against Torture. Coroners should also be independent persons, not public servants who depend on the government for promotions and elevations.
More can be done but it all depends on whether the government really has the political will to do what is needed to eliminate torture and deaths in custody in Malaysia. A first step, may be the the Independent Police Complaints and Misconduct Commission, as was recommended by the two Royal Commissions of Inquiry – not some watered-down version as now being advocated by the current government.
Lawyer Charles Hector, an Aliran member, is coordinator of Malaysians Against the Death Penalty (Madpet).