We, the 18 undersigned groups and organisations, are appalled by yet another extrajudicial killing by Malaysian police that happened on 13 August, when immediately after that the public was fed with the police version of what happened in an attempt to absolve the police from guilt, and with allegations that the deceased was a ‘bad person’.
Was there even sufficient time for the police to conduct a proper investigation into the killing? Were the police officers in uniform or in an easily identifiable police vehicle?
In cases of extrajudicial killing, it is the police who caused the killing who should be investigated for the crime of murder and culpable homicide – not the deceased.
However, it must be noted that there have been several cases in Malaysia, where the police version of what happened was found to be lies.
Police version of what happened found to be false
The High Court in Ipoh 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 a homicide.
“This court, under the Chief Justice’s Direction No 2 of 2019, makes a finding of homicide against the police,” Judicial Commissioner Moses Susayan said.
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The police and prosecution version were that Mohan got out of the vehicle and fired at the policemen, forcing them to shoot back.
However, [it was reported that] no bullet casing from the purported revolver used by Mohan was found. Neither were fingerprints, DNA or gunshot residue found on the alleged gun or the deceased.
The inspector general’s standing orders that require police to fire warning shots and to shoot at the leg were probably not followed.
On 31 May 2022 the coroners’ court, presided by Coroner Rasyihah Ghazali, for a police shooting that resulted in the death of three men, 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 was abuse of power and (actions in the nature of) criminal elements by police in the death of the men.”
She said police witnesses gave evidence that shots were fired at the men from an upright position but post-mortem reports stated that the bullets pierced their bodies at a downward angle. “The weapons described by the ballistic expert (Izzuwan Marzuki) and the investigating officer (P Visvanathan) were also in conflict,” she said.
We sadly note that there has been no news about the police personnel found criminally liable for the killing being investigated or charged in the courts, despite the findings of the coroner and the court.
End perception that Malaysia protects law enforcement personnel who broke the law
The perception that Malaysia protects police and law enforcement officers from criminal prosecution must end. This is not a matter to be dealt with through internal disciplinary actions – but requires that the suspected police officers to be charged and tried in court.
Sadly, in most of these extrajudicial killings, we do not hear about the findings of the independent coroner, who is legally the person who will inquire into and determine the cause of death, including whether any person, including the police, was criminally liable for the death.
Hence, we only have the police version of what happened issued hours after the killing.
The home minister must disclose the findings of the coroners’ inquiries into all cases of extrajudicial killing by law enforcement. He must explain why the police have not been charged in court for the crime of killing.
Whether, the police’s defence of ‘self-defence’ will succeed is something for the court to decide – not the police, not the prosecution and not the minister or government of the day.
Coroner must investigate immediately and decide fast
In cases of police killings that we hear about, the coroners’ findings are simply too long after the killings occurred. In cases of extrajudicial killings and deaths in custody, coroners must speedily inquire into the death and render a decision as fast as possible, preferably within a month – not after years.
Coroners must not only rely on the police for evidence but also do their own independent investigations, as the police do ‘lie’ at times to maybe protect their own officers.
Police are the suspects – not the deceased
In extrajudicial killings, the suspects of the crime are the police [personnel involved], not the deceased. It is the police suspects that need to be investigated, not the deceased.
It was odd that a media report stated that the police had commenced an investigation ‘under the Penal Code for attempted murder’. Are they investigating the deceased – for if they are investigating the police, it should be an investigation for murder, not attempted murder since the victim died.
Extrajudicial killings must be criminalised – offence and deterrent penalty
Extrajudicial, summary or arbitrary executions – the deliberate killing of individuals outside of any legal framework – are a violation of this most fundamental right.
In Malaysia, the Federal Constitution acknowledges the right to life. Article 5(1) states: No person shall be deprived of his life …. save in accordance with law.
This means that the state or its officers can generally only kill someone after he has been tried, convicted and sentenced to death. For the police, their duty is merely to arrest and investigate suspects – not kill them.
Malaysian law on arrest is very clear, and the right to kill [suspects] is limited to [offences that would] carry the death penalty or a sentence of imprisonment of 30 years or more.
Section 15 of the Criminal Procedure Code state that:
(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such officer or other person may use all means necessary to effect the arrest.
(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.
In all the known cases, those that end up being shot dead are certainly not accused persons facing trial for such serious offences.
Malaysia must enact a law to make extrajudicial killings by law enforcement a crime with a deterrent penalty, as the killers in these cases are public officers responsible for law enforcement who should never ignore the law and kill suspects, witnesses or others during the performance of their duties.
The fact that we have murder and other killing offences in the law is insufficient. The criminalising of extrajudicial killings will indicate Malaysia’s strong position against such killings.
First response by home minister should be to apologise and ensure proper investigation
After [a suspect] is killed [while law-enforcement personnel are] making an arrest or [while] in police custody, Home Minister Saifuddin Nasution Ismail’s first response should be to apologise for the death of any suspect. No one – during arrest, custody and investigations by law enforcement – should die.
The minister should also commit to an immediate independent investigation and for a speedy coroner’s inquiry to determine the truth of what really happened. Was there any acceptable legal defence for the killing of anyone by the police?
In any case, the police personnel involved should be investigated and charged. It is up to the court to determine whether any defence, including self-defence, will succeed in avoiding conviction.
The minister is responsible for the police, but that does not mean he should always come out in defence of police actions or in ‘justifying’ possible criminal wrongdoings while trusting the police version of the facts.
On the face of it, the police broke the law when they failed to arrest a suspect alive.
Hence, as minister responsible, he must come out expressing his remorse for what happened, and commit to a thorough investigation to determine the truth.
He must also make sure that the police do not try to prematurely justify killings on the basis that the deceased was a ‘bad person’. He must leave the determination of guilt to the courts.
It is not for the police to decide whether someone is a criminal or whether they deserve the death sentence. They are not judge, jury and executioner – the police are not “a person or group who has unchecked power to make decisions, impose punishments, and carry out those punishments without due process or oversight”.
Therefore,
We call for the criminalisation of extrajudicial killings, making it a crime with a deterrent penalty.
We call on Malaysia to adopt the principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions, as recommended by UN Economic and Social Council resolution 1989/65 of 24 May 1989, which states: “Governments shall prohibit by law all extra-legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences….”
We call on the home minister to disclose the findings of the coroner in all cases of extrajudicial killings in Malaysia, and explain why police officers or law enforcement personnel have not been charged and tried in court for these killings.
We call on Malaysia to end the ‘defamation’ of the dead, as an attempt to ‘justify’ killings by law enforcement.
We call for the police officers responsible for the death of suspects and others to be charged and tried in court, for it is the court only that determines guilt and whether any defence for the crime including self-defence is accepted.
Charles Hector and Ng Yap Hwa issued this statement on behalf of the 18 groups listed below:
- Aliran
- Malaysians Against Death Penalty and Torture (Madpet)
- Teoh Beng Hock Association for Democratic Advancement
- Workers Hub For Change (WH4C)
- Anti-Death Penalty Asia Network (Adpan)
- Association Of Home and Maquila Workers (Atrahdom), Guatemala
- Banglar Manabadhikar Suraksha Mancha (Masum), India
- Citizens Against Enforced Disappearances (Caged)
- Democratic Commission for Human Development, Lahore, Pakistan
- Global Women’s Strike, UK
- Legal Action for Women, UK
- Programme Against Custodial Torture & Impunity (Pacti), India
- Redemption, Pakistan
- Sabah Timber Industry Employees Union
- Union of Domestic, Maquila, Nexas and Related Workers (Sitradom), Guatemala
- Yaung Chi Oo Workers’ Association (YCOWA)
- Gerakan Belia Sepunjabi Malaysia
- Persatuan Sahabat Wanita Selangor (PSWS)
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
