Parliament must apply ‘Syed Azlan test’ to IPCMC Bill

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Eliminating Deaths and Abuse in Custody (Edict): On Thursday, 19 December 2019, Syed Azlan’s family and civil society groups were in a sombre mood.

They welcomed Justice See Mee Chun’s decision in the civil suit brought by Syed Azlan’s family against 13 policemen and the government. They were glad the judge sent a strong message by awarding RM448,000 in damages and costs, plus interest beginning from November 2014.

But, on four fronts, they were sad. They were sad because a civil suit was needed. They were sad because the Enforcement Agency Integrity Commission (EAIC) usurped the role of the coroner. They were sad because of the role the Attorney General’s Chambers played in the civil suit. They were sad because civil suits will become more difficult if the independent police conduct commission in the Independent Police Complaints and Misconduct Commission (IPCMC) Bill is established. We will discuss each front separately.

Front one: The need for a civil suit

First, the disciplinary authority of the police force (JIPS) failed to discipline the policemen who (1) assaulted Syed Azlan, (2) failed to provide him with medical attention and (3) concealed the truth. Indeed, the police force promoted the leader of the team which carried out the misconduct. If that isn’t condonation of assault and battery during arrest and questioning, we don’t know what is.

Second, the police failed to act on the recommendations of an investigation conducted by the EAIC. Based on a careful review of documents and the conduct of interviews, the EAIC recommended disciplinary action and criminal trials. The offences included destruction of evidence, hiding of a material witness and causing death.

Third, the Attorney General’s Chambers failed to successfully prosecute three policemen who physically assaulted Syed Azlan during the arrest. The accused were discharged and acquitted first in a Sessions Court and later in a High Court. Five years on, an appeal is pending.

Fourth, the independent police complaints and misconduct commission (IPCMC) recommended 14 years ago by the hugely expensive Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police, has not been established.

Front two: The EAIC usurped the role of the coroner

First, no coroner’s inquest was conducted, although mandated in the Criminal Procedure Code, Chapter 32, see especially Section 334. Therefore, the family of Syed Azlan had to wait one year – when the EAIC report was published – before they knew how he died.

Second, if a coroner’s inquest had been held, the family would have received many documents during the inquest and would not have had to wait for the documents to be first produced by the prosecution in a criminal trial. Not having access to the documents almost resulted in the family being unable to file a civil claim against the government before the statutory limit of three years.

READ MORE:  Retain Enforcement Agency Integrity Commission for officers other than police

Third, the secrecy provisions in the EAIC Act almost resulted in the EAIC investigation report not being accepted by the court. The Attorney General’s Chambers proposed an interpretation of subsections 4(1) and 30(4) of the EAIC Act which would have resulted in the EAIC report not being accepted. Subsection 4(1) is about the function of the EAIC while subsection 30(4) states that evidence obtained may be used for criminal proceedings (and is silent on civil proceedings). Thankfully, Justice See chose to be guided by Section 52 which allows the EAIC to release information. The EAIC left it to the judge to decide.

Front three: Hypocrisy in the Attorney General’s Chambers

First, Edict met with Attorney General Tommy Thomas on 11 December 2018 to protest the decision of the Attorney General’s Chambers to reverse an earlier decision NOT to defend the three defendants in the civil action. Edict highlighted to him the absurdity of the Attorney General’s Chambers defending in one court persons whom it was prosecuting in another court for the same actions. His response was “even Hitler deserves a defence”.

Second, in the criminal trials, the prosecution’s (Attorney Generals Chambers’) star witness was Abdillah, who was in a room with Syed Azlan when the police burst in. He testified that the police brutally assaulted Syed Azlan, who was screaming in pain and asking for mercy. His testimony, taken together with that of the pathologist who described 61 injuries found on Syed Azlan’s corpse, led the EAIC, the Attorney General’s Chambers and Justice See to reject the “police version” of what happened on that dreadful night. Yet, in the civil trial, the Attorney General’s Chambers questioned the credibility of Abdillah!

Third, because the only way to defend the 14 accused in the civil suit was to question the credibility of Abdillah, the Attorney General’s Chambers did so. But by doing so, it has weakened the credibility of its star witness in the criminal trial. In the aftermath of the 22 December 2019 decision, how likely is it that the three policemen who brutally assaulted and caused Syed Azlan’s death will be found guilty?

READ MORE:  Malaysian Bar lauds tabling of IPCMC Bill

Front four: the independent police conduct commission proposed in the IPCMC Bill

The fourth front is the independent police conduct commission (IPCC) proposed in the IPCMC Bill. Even if all the changes proposed by de facto Law Minister VK Liew and the parliamentary special committee headed by Ramkarpal Singh are accepted, the commission will make it harder to punish policemen who misuse their power, as happened in the case of Syed Azlan. This is because:

First, central to the Syed Azlan decision on 19 December was the investigation report made public by the EAIC. Although the Attorney General’s Chambers objected to the EAIC report being accepted as evidence, the judge accepted it – and clearly explained her grounds for doing so. However, under the IPCC, there is no provision to publish such reports. The EAIC is a little opening in the blue wall of police deceit. This little opening through which the public can see into the force will be closed by the IPCMC Bill.

Second, the IPCMC Bill does not create a police force to police the police force, as is done for example in Northern Ireland and in England and Wales. The IPCMC Bill does not provide the IPCC with officers who are always on duty – like the Malaysian Anti-Corruption Commission. The IPCC can only begin an investigation after the commissioners meet and officially form a “taskforce”.

Third, the IPCMC Bill does not mandate that the police must hand over an incident scene (which may later be classified as a crime scene) to investigators appointed by persons who are not in the police chain of command. We note that, in the Syed Azlan, case the first investigating officer (“A4”) was from the same district (Kota Tinggi) where Syed Azlan died and that the second investigating officer (“A5”) was from Segamat, a neighbouring district – both report to the same state chief police officer.

Summary and next steps

We have pointed out four fronts of concern arising from the death in custody of Syed Azlan. We conclude with four calls.

First, we call upon Home Minister Muhyiddin Yassin to announce what action he will take to avoid families having to mount civil suits to obtain justice in cases of death in custody and what disciplinary action will be taken against the miscreant policemen.

Second, we call upon Attorney General Tommy Thomas to explain the decisions made by the Attorney General’s Chambers in the Syed Azlan case. We also call upon him to provide an assurance that he will not appeal the decision handed down by Justice See.

READ MORE:  Police intimidation of activist should be condemned

Third, we call upon the home minister to tell the de facto law minister to replace the current version of the IPCMC Bill with a version which includes all the principal elements in the draft bill prepared by the Police Commission in 2005.

Fourth, we call upon the opposition front, Barisan Nasional, to work with the Pakatan Harapan government to form an effective IPCMC. We urge that the new bill be subjected to a “Syed Azlan test”, as follows:

  • The IPCMC must not take over the investigation of deaths by coroners, as mandated by the Criminal Procedure Code (Chapter 32).
  • The IPCMC must publish reports of all investigations it conducts
  • The IPCMC must use “balance of probability” as the standard of proof
  • The IPCMC must cooperate with parties who initiate civil action based on findings contained in IPCMC investigations
  • The IPCMC must publish data on investigations and disciplinary actions at least quarterly

We further urge the government to enact a coroners act, which will upgrade the coroners’ courts so that coronial inquests will be far more effective and efficient than they currently are. Coroners should be directing investigating officers, not leaving it to the police and the Attorney General’s Chambers to take the lead.

Eliminating Deaths and Abuse in Custody (Edict)
23 December 2019

Attachment One

Misconduct by policemen in the death in custody of Syed Azlan (see EAIC investigation report, Section 9, found on pages 45-59)

  1. Used excessive force during arrest and questioning of Syed Azlan
  2. Conspired to use excessive force against Syed Azlan (‘abetment’ by five officers)
  3. Failed to provide medical attention despite bruising him severely
  4. Misappropriated money taken from Syed Azlan after his arrest
  5. Used an unauthorised pair of handcuffs on Syed Azlan.
  6. Did not disclose the presence of an eyewitness to the arrest of Syed Azlan
  7. Instructed the eyewitness, Abdillah, to make himself scarce for a couple of months
  8. Falsely claimed that Syed Azlan said he owned a pistol and that it was in his father’s house    
  9. Destroyed evidence. This includes washing the floor as well as removing and/or destroying materials such as a mattress, carpet and shoes at the crime scene.
  10. Made a sudden death report when in fact they knew Syed Azlan died due to untreated breathing difficulties occasioned by the use of brute force on him during arrest
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