Above the law? End ‘policy’ or perception of protecting law enforcement officers

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We, the 25 undersigned groups and organisations, call for an end of the perception that Malaysia protects police and law enforcement officers who break the laws from being speedily investigated, charged and tried in an open court.

These acts and omissions inadvertently violate the rights of another, and can affect the perception of the administration of justice in Malaysia.

Law-breakers, even if they are police and law enforcement officers, should, like everyone else, be charged in criminal courts. If convicted, they must be sentenced according to law. The use of disciplinary action only, and not criminal prosecution, does not serve justice.

Enforced disappearance of Raymond Koh and Amri

In 2019, the Malaysian Human Rights Commission (Suhakam) after a public inquiry, concluded that Pastor Raymond Koh and Amri Che Mat were victims of enforced disappearance by the police, specifically Special Branch officers.

The government’s response was to form a special taskforce to look into Suhakam’s findings. But when the taskforce report came out, it was marked as an ‘official secret’, and was not available to the public.

Now, in a civil trial by these victims’ families, parts of the report have been disclosed. The taskforce apparently confirmed Suhakam’s findings. It differed only in its view that the said police officers were rogue officers.

According to a recent news report, “(The special taskforce) Found that the incident behind Amri and Koh may have been caused by the actions directly or indirectly of irresponsible rogue police officers who acted on their own individually or in a group.”

Malaysia’s presumed ‘protect police policy’ is supported by the government’s failure to speedily investigate and prosecute these police officers for their crime. This did not happen in 2019, and has not happened even until today.

What has happened to Raymond and Amri? Are they alive, or have they been killed? Why are these ‘rogue’ police officers, yet to be charged for abduction, kidnaping and murder?

Assault against Ong Ing Keong

On 28 May, deaf and mute rider-hailing driver Ong Ing Keong, 46, was allegedly assaulted by a security personnel (a police officer) who was escorting a VIP.

Despite video evidence of the offence and other evidence, the said public officer has not yet been charged and tried in court. Again, Malaysia exhibits a ‘protect the police’ policy.

Clear laws – but no offence?

The Federal Constitution and other laws in Malaysia stipulate the duties and obligations of the police and other law enforcement officers when they arrest, investigate, conduct body searches and detain suspects for investigations purposes.

  • What happens when police or law enforcement officers break these laws, hence violating rights of suspects?
  • What happens when a police officer beat or torture suspects, which Malaysian law prohibits?
  • What happens if a police officer breaks laws on body search?
  • What happens when police deny access to a lawyer?
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We believe that they should be charged in court and tried for their offences.

In cases where offences do not clearly exist for when police and law enforcement break laws, the government must amend the law. It should clearly state criminal offences (plus sentence) for violations like not telling suspects the grounds of arrest, denying their right to communicate and consult with lawyers before interrogations or violating the law when conducting body searches.

Police can only arrest, not kill

What happens to police or law enforcement officers who kill, rather that arrest ‘suspects’? Killing anyone whilst effecting arrest is strictly prohibited, except for limited categories.

Section 15(3) of the Criminal Procedure Code stipulates:

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for a term of not less than thirty years but not exceeding forty years or with imprisonment for life.’

A total of 298 alleged criminals were shot dead by the police from 2007 to August 2012, and such incidents continue to happen to this day.

In these cases, police officers should reasonably be charged for the killing. The courts will then decide on guilt, and whether any of defences the said officers may have are accepted or not.

But this is not happening at the moment, even though it reasonably should.

Charge police officers

On 31 May 2023, a coroners’ court ruled on a police shooting that resulted in deaths of three people. It concluded that there was abuse of power and elements of a criminal nature in the death of three men who were shot at close range by police three years ago. “The shots were not fired in self-defence.”

There should have been immediate investigations, and the said police officers should have been charged. This did not happen, adding fuel to the public perception that Malaysian police are above the law and will not be charged for crimes, even if they result in death.

The High Court on 1 February 2024 set aside an open verdict delivered in an inquest involving a police shooting in Sitiawan, Perak nearly eight years ago, and ruled it to be a homicide.

Judicial Commissioner Moses Susayan stated: “This court, under the Chief Justice’s Direction No 2 of 2019, makes a finding of homicide against the police.”

Yet again, no police officer was charged and tried in court for homicide.

No reports?

There have been many allegations of torture by police or law enforcement, with clear proof emerging in some death-in-custody cases.

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However, there seems to be a lack (or absence) of police reports by still living victims of torture and other law-breaking by police officers during arrest, investigation and detention.

Does this mean that the public has already lost confidence in the administration of the criminal justice system, especially when it involves police and law enforcement?

When the administration of criminal justice fails, does the risk that people may resort to ‘self-help’ rise? Are cases of police being killed or assaulted by others caused by people who no longer trust the system to get justice?

This is why any police or law enforcement officer must be charged and tried in open court – as an indication that the government will not tolerate any kind of law-breaking by those responsible for the enforcement of law. They will all be investigated, charged, tried and if convicted, sentenced according to law.

Need for enactment?

At present, due to the absence of specific offences for police and other law enforcement personnel breaking the law, they are charged with ordinary criminal offences like assault, rape or murder. But for some offences like denial of access to lawyers or violating the legal requirements of body search, there is a need for specific criminal offences.

Most crimes of police or law enforcement occur in the presence of fellow police officers, or in premises or police stations filled with fellow police officers. Many officers feel reluctant to ‘betray’ or be seen to betraying fellow officers. This makes it necessary to consider the enactment of specific offences committed by law enforcement or police officers.

Even police chiefs, after extrajudicial killings by their officers, come out quickly – often before even conducting a proper investigation – to defend their officers’ actions or alleged crimes. This raises the question of who is the appropriate agency to investigate and prosecute crimes by law enforcement personnel professionally.

Therefore, we call for:

  • The immediate investigation, charging and trial of those “rogue police officers” responsible for the enforced disappearance of Raymond Koh and Amri Che Mat
  • The Malaysian government to immediately disclose the whereabouts of Raymond Koh and Amri Che Mat, and whether they are dead or still alive
  • the Malaysian government to be transparent and to immediately make public the finding of the special taskforce that investigated the enforced disappearance of Raymond Koh and Amri
  • The immediate investigation, charging and trial of those involved in the enforced disappearance of Joshua Hilmy and Ruth Sitepu based on the findings of the Suhakam public inquiry
  • the Malaysian government to immediately charge in the criminal courts and accord a fair trial the police officers and other perpetrators responsible for the crimes against ride-hailing driver Ong Ing Keong
  • Malaysia to immediately charge in the criminal courts the police officers guilty of homicide (as per the High Court decision in February 2024), the officers criminally liable for the killing (as determined by the coroner in May 2023), and other officers found to be criminally liable for deaths by coroners, courts and other commissions like Suhakam and the Enforcement Agency Integrity Commission
  • Malaysia to actively acts to discard the perception that police are ‘protected’ from criminal prosecution, and to ensure that all law enforcement officers who commit crimes are quickly investigated, charged and tried
  • Malaysia to considers enacting special criminal offences in law that can be better used against police and other law enforcement officers in Malaysia who break the law
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Justice must be seen to be done. This definitely requires the charging in criminal court and the provision of a fair trial in an open court for all police officers and other law enforcement officers who break the laws, which inevitably may also result in the violation of rights of others.

Disciplinary action is between employer and employee, and that does not satisfy the desire for justice, as demanded by victims or the people.

Awards of damages in civil actions against public officers and government also do not satisfy the demands of Justice, as shown by the example of Teoh Beng Hock’s family, who still continue to demand criminal prosecution of officers or those responsible for his death. Teoh’s mother has expressed frustration that the perpetrator has not yet been charged.

Charles Hector and Ng Yap Hwa issued this statement on behalf of the 29 groups listed below:

  1. Malaysians Against Death Penalty and Torture (Madpet)
  2. Aliran
  3. Teoh Beng Hock Association for Democratic Advancement
  4. Association of Home and Maquila Workers (Atrahdom), Guatemala
  5. Banglar Manabadhikar Suraksha Mancha (Masum), India
  6. Center for Orang Asli Concerns (COAC)
  7. Greenpeace Malaysia
  8. Global Women’s Strike, UK
  9. Haiti Action Committee
  10. KLSCAH Civil Rights Committee (KLSCAH CRC)
  11. Legal Action for Women, UK
  12. Migrant Care, Indonesia
  13. National Garment Workers Federation, Bangladesh
  14. North South Initiative, Malaysia
  15. National Union of Transport Equipment and Allied Industries Workers (NUTEAIW), West Malaysia
  16. Parti Sosialis Malaysia (PSM)
  17. PayDay Men’s Network, UK/US
  18. Persatuan Amal Progresif Malaysia
  19. Persatuan Sahabat Wanita Selangor (PSWS)
  20. Programme Against Custodial Torture and Impunity (Pacti), India
  21. Sabah Timber Industry Employees Union (STIEU)
  22. Sarawak Dayak Iban Association (Sadia)
  23. Saya Anak Bangsa Malaysia (SABM)
  24. Singapore Anti-Death Penalty Campaign (SADPC)
  25. The Workers’ Assistance Center, Inc (WAC), Philippines
  26. Union of Domestic, Maquila, Nexas and Related Workers (Sitradom), Guatemala
  27. Workers Hub for Change (WH4C)
  28. Black Women for Wages for Housework, US
  29. Women of Color/Global Women’s Strike, US/UK
The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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Gursharan Singh
Gursharan Singh
8 Oct 2024 11.15am

We, the 25 undersigned groups and organisations, call for an end of the perception that Malaysia protects police and law enforcement officers who break the laws from being speedily investigated, charged and tried in an open court.
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Would this perception also NOT APPLY to some in power positions [politics ellites professionals wealthy or relalted/connected and religions/corporate sectors?
How many suspects are free for years on perceived nominal amound of bail amounts and little is known about the status of their cases. Decades old findings of Aud Gen is another case. Bless all.