The efforts to stop deaths in police custody must be further supported; otherwise, the body count will simply continue to rise. And this cannot be an option, asserts Prema Devaraj.
An average of 18 people have died yearly under the watch of the police force, and this indicated systemic problems in managing and handling detainees in lock-ups, said the Human Rights Commission of Malaysia (Suhakam). – The Sun Daily, 29 May 2014
The first four months of 2014 has already seen at least nine people die in police lock-ups in the country (Suaram monitoring of newspaper reports. These are not official Home Ministry figures.)
Suaram has been documenting deaths in police custody for over 10 years. Other groups including Aliran, the Malaysian Bar, Suhakam, Lawyers for Liberty and various individuals have, over the years, also highlighted this issue and called for police reform.
In 2005, the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police published a report with 125 recommendations dealing with a range of issues including the conduct of police, police welfare, human rights, crime and corruption.
But frustratingly, reform has been very slow to come. The calls for the implementation of the Independent Police Complaints and Misconduct Commission (IPCMC) continue to go unheeded. The implementation of the Enforcement Agencies Integrity Commission (EAIC) to probe complaints of misconduct by law enforcement agencies has hardly inspired public confidence in its ability and is said to be largely ineffective.
In June 2013, the government promised the setting up of a permanent coroners’ court, a centralised lock-up in every state and a stronger EAIC as part of steps to deal with deaths in custody. But 11 months on, we have seen that people continue to die even in centralised lock ups and the effectiveness of permanent coroners’ courts, which were meant to come into effect in mid April this year, remains to be seen.
Causes of custodial deaths
According to Home Minister Ahmad Zahid Hamidi, between 2000 and May 2013 there were 231 cases of custodial deaths of which only two were due to injuries inflicted by police personnel. Of these 231 custodial deaths, 196 were due to illness, 29 committed suicide, two from a fight between detainees, two slipped and fell, and two due to injuries caused by the police (The Star, 26 June 2013; Malaysiakini 26 June 2013).
What is one to make of these figures? If indeed the vast majority of deaths in custody were due to illnesses and suicides, what then is the duty of the state to ensure the health of suspects taken into custody?
Detainees, once in police custody, no longer have the freedom to seek independent medical treatment for any ailment or illness (e.g., chronic infection, asthma, drug or alcohol addiction, and poor mental health) they may have. The onus is on the police to ensure as far as possible, the health needs of suspects in custody.
Anything less than this can only be considered a dereliction of duty and the police should be held accountable. The Lockup Rules (1958) apparently state that the police officer on duty has the responsibility to ensure the health of detainees and the lockup conditions in the station. How exactly is this being implemented if people are dying in police custody due to illnesses or committing suicide?
Causes vs circumstances of deaths
The descriptions of ill health as given in some post mortem reports (i.e., stomach ulcer, HIV, chest infection, suicide, coronary failure, pulmonary edema, etc) do not actually describe the circumstances of deaths in custody.
For example, in 2009, A Kugan was said to have died of pulmonary edema (water in the lungs) but a second post mortem showed that his death was due to acute renal failure due to blunt force trauma.
Of the nine custodial deaths thus far this year, three have involved allegations by family members that the bodies of the victims suffered bruising:
- In the case of Kamarulnizam Ismail who died in March 2014, a chest infection was given as cause of death, but his brother says there were bruises on his brother’s body.
- In April 2014, N Harirajan was said to have died of coronary artery and retroviral disease but the family described bruising on the head and chest and stitches above the eye.
- A few days later, Murugan Muniandy was said to have died of “severe sepsis secondary to pneumonia”. His mother described his body as having bruises on his right arm, right shoulder, right thigh, and ribs on the right hand side. According to the media report she alleged that there was also a deep cut on his right calf and bruises on his back.
One can only wonder about the veracity of post mortem results of deaths in police custody given these scenarios.
When a custodial death takes place, an inquest into the death is mandatory by law.
(The Criminal Procedure Code Section 334 states: “When any person dies while in the custody of the police or . . .in prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, . . ., shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate . . . in the case of a death in custody of the police, and in other case may, if he thinks expedient, hold an inquiry into the cause of death.”
Section 339 provides that “the public prosecutor may anytime direct a magistrate to hold an inquiry . . . into the cause of, and the circumstances connected with, any death as referred to in sections 329 and 334.”
Section 329 outlines the duty of police officer to investigate death.)
In practice, however, very few inquests are conducted. According to the Royal Commission report, between 2000 and 2004, inquests were carried out in only six out of the 80 deaths in police custody. Will the newly set up permanent coroners’ courts be able to address this issue?
Duty of the state
There are many questions to be answered when a custodial death occurs. What is the duty of the state towards ensuring an independent and thorough investigation into the death? What is the duty of the state towards prosecuting the officer(s) responsible for a death in custody? What is the duty of the state towards families of detainees who die while in police custody?
One or two deaths a month may mean nothing to those in power but it may mean everything to the families of those detainees who have died.
The calls for our government to acknowledge the situation in Malaysian police lock ups and abuse of police powers have been made years ago and continue to be reiterated each time a death in custody occurs.
How many more deaths will it take before the government calls the Home Ministry to account? Something is very wrong when people continue to die in police custody i.e., under state care and control. It is increasingly necessary for us to intensify efforts of monitoring and pushing for Home Ministry and police accountability.
The ongoing efforts to stop deaths in police custody must be further supported; otherwise, the body count will simply continue to rise. And this cannot be an option.