On 13 January, a 63-year-old man, who would probably be alive, died in a police lock-up at the Taiping Police headquarters in Perak.
The deceased was an accused person who had already been charged in court in April 2021, and as such, he should rightly have been returned to his place of detention at the prison complex, possibly Taiping prison, and not placed in any police lock-up.
Bukit Aman Integrity and Standards Compliance Department (JIPS) director Azri Ahmad said, “The accused had been placed in the Taiping IPD [district police headquarters] lock-up after the first mention of the case on 11 January while awaiting the next mention tomorrow.”
Malaysians Against Death Penalty and Torture (Madpet) states that after his court date on 11 January, he should have immediately been returned to prison and brought back to court again on 15 January. It must be noted that the Taiping Prison, where he was most likely detained after being charged in April 2021, is very near. He cannot simply be placed in a police lock-up at this stage.
Persons in police lock-ups are only arrested suspects, remanded for investigation purpose only, and as such, the authorities must explain why this accused person awaiting his trial to end was even in a police lock-up when he died.
After an accused is charged in court, he is further detained if his application for bail was denied or because he simply could not afford to furnish the required bail.
In Malaysia, sadly, there are too many un-convicted persons waiting for their trial to end who are in prison. In 2015, for example, there were 51,602 persons in Malaysian prisons, and about 25.8% (13,000) of them were remand pre-trial prisoners. Great injustice happens when these detainees are later found not guilty, and Malaysia at present still does not compensate the innocent for their often years of lost liberties and freedoms.
Madpet reiterates the call for compensation for those wrongfully detained, who have been found not guilty or innocent.
CCTV and custodial medical units in lock-ups
In a parliamentary reply on 16 December 2021 [Q331], the home minister said that all police lock-ups will be monitored by CCTV at the latest by the end of 2021, and as such, it is hoped that the CCTV recordings will assist in the inquiry of this mid- January 2022 custodial death case.
Madpet hopes there will no more cases where the police come up with excuses of non-functioning or non-existent CCTVs, ‘fake’ CCTVs or even excuses that the CCTVs do not record.
To reduce deaths in police custody, the minister also said that steps have included a more stringent standard operating procedure, whereby there will also be increased monitoring at night and increased personnel responsible for monitoring lock-ups [Q331].
Madpet urges for a disclosure of this standard operating procedure, so that the detainees and others can ensure the compliance of the police.
The minister also informed about the setting up of custodial medical units, which will also do a medical examination of detainees before they are placed in police lock-ups [Q331].
Madpet is pleased that this will certainly reduce or eliminate deaths in police custody in Malaysia.
New custodial deaths investigations unit, which began in 2022, gets its first case
On 7 December 2021, Home Minister Hamzah Zainudin said that because of the number of complaints about deaths in custody, a decision was made to set up a new custodial deaths investigations unit, which would be under the federal police’s integrity and standards compliance department. This unit would be headed by a police superintendent and would begin investigating all deaths in police custody that occur from 1 January onwards. (Star, 7 December 2021).
Apparently, this new unit has sprung into action, and two policemen were among four individuals arrested to assist in the investigation into the death of this detainee. All four were remanded at the Taiping Magistrates’ Court for seven days until 20 January 20 to assist in the investigation.
Madpet is open to giving an opportunity for the police’s new death-in-custody investigations unit to show us that the police can investigate independently death-in-police-custody cases, even where the perpetrators may likely be police officers and the scene of the crime is a police facility.
Even before this new special unit, the police were duty-bound to investigate such deaths in custody, but unfortunately the lack of prosecution of police suspects has given rise to a public perception that the police cannot really be expected to independently investigate and bring to justice police officers responsible for such deaths. There is a need for a non-police independent investigation.
In 2018, the Enforcement Agency Integrity Commission (EAIC) found that police personnel had beaten Syed Mohd Azlan with criminal intent sufficient to make it a crime of murder. The EAIC also found that the police had tampered with evidence – even causing a rubber mat or carpet possibly stained with blood to vanish.
It is for this reason that many have called for an independent body, not the police, when the police themselves may be the perpetrators or are directly or indirectly involved in the crime.
Covering up by classifying such deaths as ‘sudden death’ must be avoided
A Bernama report said the victim “suffered from sudden death while in custody” (Sun Daily, 14 January). A sudden death, according to a dictionary like Merriam Webster, means an “unexpected death that is instantaneous or occurs within minutes from any cause other than violence”.
What the cause of death is, is for the coroner to determine after an open inquest.
In death-in-custody cases, violence cannot be ruled out prematurely – as the likelihood of violence by police officers or others in causing the death instantaneously or even much later after the acts of violence is there. The failure to provide speedy healthcare and medication also makes someone criminally liable for the death.
“A Magistrate holding an inquiry shall inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death” (s337).
It is the coroner that determines whether it is sudden death or otherwise, not the police and certainly not the media.
In a parliamentary reply on 16 December 2021 [Q402], the home minister said for the period from January 2015 to September 2021, there were 79 deaths in police custody. The minister said only 20 inquests were done, 17 cases are with the public prosecutor, 12 still being investigated and the police have classified 30 cases as “No further action”.
Madpet calls for an inquest for all remaining 59 death-in-custody cases in that period and for all death-in-custody cases, and these inquests must be done speedily, preferably before the body of the deceased, which is the key evidence, is disposed of. Cremation can destroy much-needed evidence.
An inquiry of death is not an investigation with the object of finding sufficient evidence to prosecute anyone. An inquest determines when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death (s337). As such, the most important question is whether anyone may be criminally responsible for the death or not.
As to the determination of who exactly is the criminal suspect, that is really not the responsibility of the coroner, but the police and the prosecutors.
An independent coroner’s finding after an open inquest can remove doubt of police criminal responsibility for the victim of a custodial death.
Madpet calls for a speedy inquest in this case and reiterates the call for inquests for all death-in-police-custody cases.
Madpet calls on the home minister, government and judiciary to practise transparency and accountability and make public the results of inquests, the coroner’s reasons for not holding inquests, investigations and prosecutions especially of death-in-custody cases through their websites and other means, without being always forced to answer because of some parliamentary question.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)