DEATH IN CUSTODY AND RELATED MATTERS - SOME POINTERS FOR DISCUSSION WITH YB DATO PAUL LOW

Brief Paper presented on June 11, 2013

By Datuk Dr Denison Jayasooria

Contents

Introduction

1          What do we do when a death takes place?

1.1        Amendments to the CPC on Inquest procedures

            1.2        Role of the IPCMC in the inquest

2          How do we prevent death in custody?

            2.1        Ratification of the UN Convention against Torture

2.2        Enhancing Investigative Policing

            2.3        Check & Balance Measures

 Appendix (not included here)

Appendix 1 - RPC recommendation including the draft amendments to the CPC

Appendix 2 – RPC Recommendations on IPCMC

Appendix 3 – Article on Eliminating Misconduct through the IPCMC

Appendix 4 - RPC chapter 10 on ‘Code of Practice relating to the arrest & detention of Persons’

Appendix 5 – Proham Press Release (June 3, 2013)

 Introduction

The recent cases of death in custody has revived public demand for an independent mechanism which can address this issues as there is a loss of public confidence in existing institutions.

Comments here draw from two sources namely the reports of two Royal commissions:-

·         Report of the Royal Commission to enhance the operation and management of the Royal Malaysian     Police (RPC)

·         Royal Commission to enquire into the death of Teoh Beng Hock (RC-TBH)

It is important to note that in the 2004-2005 all the current public concerns were addressed and major recommendations made which were not seriously reviewed by the Federal Government nor implemented.

The current public outcry has further forced the government to revisit these issues and therefore it will be helpful to study the two Royal Commission reports as well as other inquiry reports prepared by SUHAKAM

The public concerns are addressed in two questions. Brief analysis and recommendations are drawn from the two Royal commission reports.

It is important to note that the RPC did not give a singular solution to the issue at hand but a multiple range of interventions which are needed to be in place. A singular approach will not solve the problem.

1          WHAT DO WE DO WHEN A DEATH TAKES PLACE?

1.1        Amendments to the CPC on Inquest procedures

The RPC in its report (2005) recognised deaths in custody as “a serious cause for concern”. It went on to note that “of even greater concern is the fact that inquest were only held for 6 of the 80 deaths” in the period 2000 -2004 “when s334 of the CPC makes it mandatory for the magistrate to conduct an inquest”.

The RPC concluded “that the current provisions for inquiry into deaths in police custody in the CPC are not sufficiently rigorous and do not provide for a transparent and accountable process. The Commission therefore recommends that section 331, 332, 333, 334, 335, 337 and 338 be amended.

It is of utmost importance that the immediate CPC provisions so that section 334 is amended that “the Magistrate shall immediately examine the body 'in situ' and shall direct the officers to investigate and draw up a report of the apparent cause of death…”

Refer to Appendix 1 for the RPC recommendation including the draft amendments to the CPC

1.2        Role of IPCMC in the inquest

The IPCMC was proposed as an external oversight body after studying the systems in the United Kingdom, Australia and Hong Kong. A draft bill was also prepared by the commission for the speedy tabling of the IPCMC

In response the federal government first introduced in 2008, the Special Complaints Commission (SCC), which did not secure the support of a majority of Malaysians and there were also objections from the back benchers in Parliament.

In its place a new bill entitled Enforcement Agency Integrity Commission Bill (EAIC) was tabled in parliament on March 11, 2009 which finally became law and today is in operations.

Public opinion is against the EAIC as it is perceived to be a weak replacement of the original IPCMC and because since its establishment it has not been able to win the confidence of the Malaysian public that it could serve as an effective external oversight mechanism.

While there are many points of similarities and difference between the EAIC and the IPCMC, the most critical and fundamental is that the EAIC have no legal powers to act independently other than channelling the findings to relevant agencies.

This is similar in the case of Suhakam which is advisory. While Suhakam has done lots of good work and has gained much public confidence in Malaysian public, at the end it too is not effective due to the limitation of powers.

The power to act independently and implement the findings in terms of directly taking action on the guilty officer and by-passing the disciplinary authority or the public prosecutor is the core difference between the EAIC and the proposed IPCMC.

 “IPCMC may, after having decided that a police officer is guilty of misconduct or other offences defined in the IPCMC Act, order such actions as it deems fit to be taken including caution and discharge of the police officer, suspension of allowances and increments, reduction in rank, fine or dismissal of the police officer. The decision of IPCMC is final and unappeallable”

Ref to Appendix 2 – RPC Recommendations on IPCMC

Ref to Appendix 3 – Article on Eliminating Misconduct through the IPCMC

 It is important to note that the RPC did not recommend the IPCMC to replace the role of the Magistrate as per the CPC. In the case of the Magistrate the role is to conduct an inquest to determine cause and circumstance of death.

The role of the IPCM would be to investigate if the Police were involved in any way in the death of the detainee.

The RC-TBH made the ref on pg 5  to the "a blue wall of silence based on brotherhood ties among officers of the organisations involved". An effective external mechanism is needed which has the adequate powers is urgently needed to address these issues as well as regain public confidence.

2          HOW DO WE PREVENT DEATH IN CUSTODY

2.1        Ratification of UN Convention against Torture

The RC-TBH indicates on pg 119 (364) “…custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. We are of the view that the bulwarks of the rule of law have to be strengthened to eliminate any form of torture or cruel, inhuman or degrading treatment whether it occurs during the investigation, interrogation or otherwise by a law-enforcement agency such as the MACC"

The United Nations in 1984 passed the Convention against Torture and other cruel, Inhuman or degrading treatment or punishment. 153 countries are parties to this convention. Malaysia is together with 4 Asean countries that did not ratify namely Singapore, Myanmar, Brunei & Vietnam. However Asean countries like Philippines (1986), Indonesia (1998), Cambodia (1992), Thailand (2007) and Laos (2012) 

Ratification of a UN Convention is an important global benchmark. Malaysian being a member of the UN Human Rights Council and also active Asean member should be closer to Philippines, Indonesia and Thailand on this ratification matter.

Ratification will give both the Malaysian and International community that we are series in benchmarking our practices based on international standards especially in methods used during investigations and question of suspects or witnesses

RC-TBH: page 37 "(119)

“having considered all the evidence in its entirety, we found the TBH was driven to commit suicide by the aggressive, relentless, oppressive and unscrupulous interrogation to which he was subjected by certain officers of the MACC.."

2.2        Enhancing Investigative Policing

The RPC devoted a whole chapter on Enhancing Investigative Policing. This is found in chapter 8 and 26 specific recommendations are given. Central to these recommendations is a clear commitment to improve the standards of investigations by building the capacities of the officers involved

One of these recommendations is Recommendation & which is ‘establish reasonable grounds before arrest’. In this context the RPC recommended that “IOs must not practice the policy of ‘arrest first, investigate later’”.

The RPC made reference to proactive investigations – ‘intelligence, evidence based crime control systems’

Recommendations are made for improving training of investigation officers. The current case lead of IO needs to be reviewed so as to ensure what a manageable case work load per IO for effective investigations.

The underlining issues and concerns for public review are the interrogation methods and this must now come under public review to determine if methods used are lawful and moral consistent with the Un Convention on Torture

2.3        Check & Balance Measures

The RPC also called for the adoption of a code of practice relating to arrest and detention of persons including the need for independent custody officers in every Police station who shall be responsible for the welfare and custody of every detainee.

Other measures include the use of 24 hour camera surveillance, use of officers pocket book. These should be reviewed so as to ensure there a range of measures to prevent abuses and misconduct and if it does take place to identify it early

Please refer to Appendix 4  from RPC chapter 10 on ‘Code of Practice relating to the arrest & detention of Persons’ with a draft copy of the Principles and Code of Practice.