No preferential treatment for police law-breakers, especially in extrajudicial killings

Malaysians Against Death Penalty and Torture (Madpet) applauds the fact that police are investigating the killing of a 24-year-old man by police in Sarawak for murder under the Penal Code and offences under the Arms Act 1960.

Later, one may be charged with murder, culpable homicide not amounting to murder, or some lesser killing offence.

Police who shot dead ‘suspect’ investigated for murder

On 15 December 2021, a man driving a Proton Saga was shot dead by police after he allegedly tried to evade and ram into the police along Simpang Tiga Road in Kuching, Sarawak.

It was alleged the man had been instructed to stop for checks by the police for driving recklessly, but he ignored the order and sped off, hitting several cars along the way before arriving at a traffic light junction in Simpang Tiga Road.

Another report said that the man driving a Proton Saga was said to be behaving in a suspicious manner and when instructed by police to stop, he drove his car at high speed towards them.

Another report suggested that the police already knew he was a wanted criminal suspect.

There are contradictions in media reports, and the real truth is difficult to determine from media reports. The only known truth seems to be that the man was shot dead by the police.

Sarawak Police Commissioner Datuk Aidi Ismail when contacted confirmed the case. “Police will carry out a complete investigation into the case under Section 307 of the Penal Code and Section 8(a) of the Arms Act 1960,” he said. The road was closed for more than five hours for the police to investigate the case, forcing motorists to use alternative routes. (New Straits Times, 16 December 2021).

This reasonably means that the police are investigating the police officers who shot dead the victim, for it is nonsense for the police to be now investigating a dead victim.

In this case, Madpet sees no other option but to now charge the suspected police officers for the killing of this person, and in court the accused police officers then will have every opportunity to raise whatever defences including maybe ‘self defence’, and leave it to the court to decide on their guilt or innocence.

Police can only arrest not kill suspects

The police in Malaysia, under the law, are empowered to only arrest and are permitted to use reasonable force to arrest – not kill as provided for in Section 15 of the Malaysian Criminal Procedure Code.

Only police killing of only those already accused of serious crimes while trying to arrest them may be excusable under the Criminal Procedure Code.

Section 15(3) of the Criminal Procedure Code clearly states that “(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 life.”

In this case, it seems clear that the victim was certainly not a person “accused of an offence punishable with death or with imprisonment for life”. If he was accused, he would have already been charged in court, and so, at most, now he was merely a suspect, and as such, the killing of such suspects is not permissible under Malaysian law or the Criminal Procedure Code.

Premeditated or accidental encounter?

Media reports suggest that the police shot the victim dead allegedly because he tried to use his car to ram into the police, but there is no indication that the now deceased had used any firearms on the police. Another media report suggests this may have been a pre-meditated or planned police action to arrest the suspect of several crimes, and hopefully not to kill. Or was it merely a chance encounter by a police patrol unit? [Astro Awani, 15 December 2021; Malay Mail 16 December; Borneo Post 15 December).

Ensure independence of investigation or prosecution

  • Madpet calls for a comprehensive and independent investigation of these police suspects, with no cover-ups or preferential treatment simply on the basis that the suspects are police officers. It is best that investigating officers are not from the same station or the same police district or even the police. It may be best if the coroner and the public prosecutor are involved in the investigation from the onset
  • Madpet also urges the Malaysian national human rights commission Suhakam and the Enforcement Agency Integrity Commission to also closely monitor this case to ensure that there is an independent investigation and prosecution of the said police officers
  • Madpet calls for the suspects to be charged and tried in court, and not be simply subject to some ‘secretive’ internal disciplinary action. Crimes must be punished in accordance with the law.

Prove it was not an extrajudicial killing

If the police officers were acting on orders or with the authorisation of police, then this would be extrajudicial killing. If they were acting in pursuance of their duties, it would again be extrajudicial killings.

However, if they were acting on their own at the behest (or orders) of another or for payment, then it may not extrajudicial killing but simple murder or an ordinary crime.

The truth must be revealed, and at present, it will be reasonable for it to be presumed to be an extrajudicial killing, making it a priority for the government and the police to prove it was not an extrajudicial killing.

There have been too many incidents of police shooting alleged suspects or other innocent persons in Malaysia, where there was no closure – let alone proper independent investigations and prosecutions. Were they all extrajudicial killings?

Even in cases of deaths in custody, where Suhakam or the Enforcement Agency Integrity Commission, after a proper inquiry, found police officers criminally liable for the death of victims or for other related offences like tampering with evidence, makes recommendations that they be charged in court, we have seen a failure of the government, police and the public prosecutor to charge and try them in criminal courts. It is embarrassing when thereafter, civil actions by the deceased’s families against the officers and the police succeed.

Recent Suhakam findings after public inquiries of enforced disappearance caused by police officers have not yet to see any police officer being charged and tried in court.

This recent assurance by the Sarawak police commissioner of a thorough investigation of the police officers in this recent ‘shoot-to-kill’ incident gives us hope, that even police officers that committed crimes are not above the law and will be investigated, charged and tried.

  • Madpet reiterates the call for an independent investigation or re-investigation into all past ‘shoot-to-kill’ or extrajudicial killing incidents, as there is no limitation for crime and the wrongdoers must be charged and accorded a fair trial in an open court. Secret disciplinary actions must be avoided
  • Madpet reiterates the need for the criminalisation of extrajudicial killings in Malaysia
  • Madpet also calls on the government to disclose statistics and information about all deaths due to police shootings, and the steps taken against the perpetrators

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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