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Wednesday, 17 June 2015

Proham on Marital Rape

Proham on Section 375A of the Penal Code
does not go far enough to criminalize rape in a marriage

Rape is a heinous crime against women.  Appallingly, such a heinous crime is usually perpetrated by a man known to the woman. It is thus even worse when the man is one, whom she calls husband.   

PROHAM recognises that there is no room for doubt that; a husband neither has control nor ownership of his wife, equality in a marriage should be the norm, and the law must uphold this right. 

We are to some extent relieved that Minister Nancy Shukri has pointed out there is protection of sorts to wives under Section 375A of the Penal Code which states inter alia that a man who during the subsistence of a valid marriage, caused hurt or fear of death, or hurt to his wife in order to have sexual intercourse shall be punished. 

However, we have learnt from the women’s groups dealing with rape survivors that in reality women who are forced to have sex with their husband can be coerced by emotional and psychological violence and not necessarily physical violence. It is to be noted with concern that since the enactment of this specific provision in 2007, not a single rape case has been investigated under Section 375A. 

PROHAM calls for an amendment to the Penal Code to remove the exception that states that sexual intercourse by a man with his wife is not rape. Marriage cannot act as a defence to rape; it is time for Malaysia to uphold women’s equality as guaranteed by Article 8 of the Federal Constitution and not fall back on a mistruth that religion permits non - consensual sex in a marriage.

 Issued on behalf of Proham by Ms Ivy Josiah (Proham Exco member)
June 18, 2015

Sunday, 7 June 2015

Proham calls for a public enquiry on Police powers in preventing free speech

Proham reiterates the right of citizens to participate and speak on public matters as a fundamental human right. The actions by authorities to restrict public participation in forums and public places especially for individuals to speak up as a major restriction on human rights and a practice which contradicts democratic principles in a modern society.

Proham also reiterates that it is the duty of the Police to protect human rights and ensure the safety and security of all.

According to media reports at the Nothing2Hide Forum held on June 5, 2015 at Putra World Trade Centre in Kuala Lumpur, Police had stepped in to stop Tun Dr Mahathir Mohamad from speaking at a forum on 1Malaysia Development Berhad (1MDB).

It was also reported in the media that it was the Inspector-General of Police, Tan Sri Khalid Abu Bakar who issued an order on Twitter for the forum to be shut down in the interest of public order.

Proham’s review of the media since that incident has also indicated that the Police have not provided the Malaysian public any clear explanation on the nature of the security threat as well as the justification for preventing the event from continuing in the interest of public safety.

Proham calls on Suhakam to undertake a public enquiry on this incident as it sets an unhealthy precedence in restricting the fundamental right of a citizen of Malaysia from speaking up on a matter of public interest.

It is important for all Malaysians to know if the Police had violated basic human rights and exercised powers beyond the legal provisions. The General public also needs to know if such an act by the Police was justified.

Proham is of the opinion that this incident sets a dangerous trend and can be constructed as a new wave of restrictions by authorities on  free speech & fundamental liberties in the context of increasing issues pertaining to good governance. It contradicts our aspirations of becoming a fully developed nation by 2020 especially as a matured democracy.

Issued on behalf of Proham by Datuk Kuthubul Zaman (Proham Chairman) and Datuk Dr Denison Jayasooria (Proham Secretary General)
June 8, 2015

Saturday, 6 June 2015

PROHAM’s RENEWED CALL – SET UP THE IPCMC, as originally proposed in 2005, ten years ago

PROHAM participated in a timely discussion hosted by the Bar Council and HAKAM on Rogue Corps: Workable Solutions – Police Accountability in Malaysia on May 30, 2015. Both Datuk Kuthubul Zaman, (the Proham Chairman) and Datuk Dr Denison Jayasooria (Secretary General) were speakers on the panel moderated by Ms Firdaus Husni of the Bar Council

The Keynote address was given by Tun Mohamed Dzaiddin Abdullah who was the Chairman of the Royal Police Commission. Also participating at the discussion was the EAIC Commissioner Ms Leong May Chan

The event was hosted in the context of reviewing the key findings of the Royal Police Commission which was completed ten years ago on April 29, 2015. There is a renewed call ten years on for the Federal Government to establish the IPCMC- Independent Police Complaints and Misconduct Commission

The reason for this is the general public unhappiness over the current state of affairs especially in the continuing issue of death in custody, the public perception of high corruption levels and the continuing practice of “arrest first and investigate later approach”

At the Bar Council hosted discussion a majority of the panel speakers and the public highlights all made reference to misconduct of Police officers and the failure of the current initiatives to provide effective check and balance.

While it was recognised that the Police had established an internal Department of Integrity and Standard Compliance to strictly monitor “any form of misdemeanour or abuse of powers” among officers, and that the EAIC has been established and undertaking its task over the past four years, however there is a public view that these mechanisms were inadequate to address the current issues and restore public confidence.

We heard the presentation of the EAIC Commissioner and the updates of the EAIC officer. It was brought to our attention that a total of 1,064 complaints were received between 2011 and 2015 of which 789 were on matters pertaining to the Police. We were also briefed that only about 200 of these were investigated.

PROHAM is dismayed with the way the data was released and the explanations given. We feel that such data must be treated as public information and more needs to be done at the level of the public and civil society engagement to win public opinion and perception. A clearer presentation of the cases especially to why a majority of the complaints were not investigated must be clearly explained so as to restore public confidence

PROHAM feels that one major reason for the current ineffectiveness is due to the number of enforcement agencies that EAIC has to monitor namely 21 enforcement agencies.  Furthermore based on the number of public complaints on the Police, there is therefore a justification that original Police Commission recommendation be adopted.

PROHAM calls on the Federal Government to establish the IPCMC to monitor the police and the EAIC continues the work of monitoring the remaining 20 enforcement agencies.

Issued on behalf of PROHAM by Datuk Kuthubul Zaman (Proham Chair) and Datuk Dr Denison Jayasooria (Proham Secretary General) June 6, 2015

Friday, 5 June 2015

Opening remarks at “Forum on Rogue Cops: Workable Solutions – Police Accountability in Malaysia”

 by Steven Thiru, President of the Malaysian Bar,  (30 May 2015)
Thursday, 04 June 2015 12:12pm
A very good morning to: 

1. Tun Mohamed Dzaiddin Abdullah, former Chief Justice of Malaysia and the former member of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police;
2. Dato Ambiga Sreenevasan, Chairperson of HAKAM and former President of the Malaysian Bar;
3. Tan Sri Zaman Khan Rahim Khan, former Director General of Prisons, Malaysia, former police commissioner, Federal CID Chief;
4. Dato Sri’ Sanjeevan R, Chairperson of Mywatch;
5. Leong May Chan, Commissioner of the Enforcement Agency Integrity Commission (EAIC);
6. Shamini Darshini, Executive Director, Amnesty International;
7. Dato Denison Jayasooria, Secretary General, Society for the promotion of Human Rights;
8. Members of the Bar,
9. Distinguished guests,
10. Ladies and Gentlemen,

1. On 16 May 2015, we celebrated the 10th anniversary of the Report by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (“Royal Commission”). We celebrate the tremendous effort and scholarship by the Royal Commission that went into the Report, and its visionary recommendations.  However, it is a matter of great regret that the Report has not completely achieved its desired effect and remains in many parts aspirational.

2. The Report by the Royal Commission addressed the “widespread concerns regarding the high incidence of crime, perception of corruption in the Royal Malaysia Police (Polis Diraja Malaysia, “PDRM”), general dissatisfaction with the conduct and performance of police personnel and a desire to see improvements in the service provided by the police.”  The Report dealt with these concerns and was generally focused on improving the capabilities of the PDRM as a crime combating agency. 
3. The massive challenges confronting the PDRM were acknowledged in the Report and these included:
(a) Widespread corruption in PDRM;
(b) Widespread non-compliance with prescribed laws and human rights obligations among police personnel; and
(c) Inadequate awareness and respect for the rights of women and children.

4. The Royal Commission stressed that, owing to the nature of the job and existing police culture, the code of conduct within the force had failed to ensure supervision and command accountability in protecting the rights and the interests of the public.  The preoccupation of being a “force” as opposed to a “service” was at the heart of these concerns.

5. In addition, the Royal Commission also identified the mounting incidences of deaths in custody, as well as the failure of the Police to investigate these deaths, and the refusal of the authorities to hold inquests into them.  Deaths in police custody under questionable circumstances are reprehensible and represent an abject failure on the part of the Police as an enforcement agency.
6. To address these challenges, the Royal Commission made 125 specific recommendations and emphasized that the internal oversight mechanism governed by the police themselves was “inadequate, unreliable and frequently ineffective.”  These recommendations were timely and far-reaching.  The recommendations were necessary to cure the systemic flaws in our policing system and to upgrade our police to a modern enforcement agency. 

7. One of the chief recommendations of the Royal Commission was the setting up of the Independent Police Complaints and Misconduct Commission (“IPCMC”), an independent, external commission tasked solely to receive and investigate complaints of misconduct and abuse against the PDRM.

8. In recommending the setting up of the IPCMC, the Royal Commission stated in its Report that:

“… When officers act in contravention of laws and regulations without fear of investigation or reprimand, the culture of impunity begins to develop. Each wrongdoing that is not investigated or punished or is supported by higher ranks within the police leadership leads to the perception that such misconduct is permissible. As each new generation of officers observes and learns from their superiors, the culture becomes embedded in all the ranks of the PDRM.” 1

9. On the 10th anniversary of the Report , the Malaysian Bar  reiterates our call to the Government to establish the IPCMC.  This external oversight mechanism has been proven to be effective in meeting the challenges faced by the police force in other jurisdictions.  It is seen as necessary to enhance the ability of the police to discharge their functions and to weed out the rogue elements in the force.  In Malaysia, the IPCMC is particularly required given the continued, and unabated occurrence of deaths in police custody and the other serious concerns over the conduct of the police, particularly in the past few months.

Deaths in Police Custody

Ladies and gentlemen,

10. Today, names such as Ahmad Sarbani, Kugan Ananthan, P. Karuna Nithi, Teoh Beng Hock and N. Dharmendran have become household names for all the wrong reasons.  They have become part of the alarming statistics for deaths in custody.  These appalling numbers of unexplained deaths are a national gallery of shame. 

11. In this regard, it is worrying that detainees in police custody continue to die under suspicious circumstances despite this matter having been repeatedly highlighted to the PDRM and to the Government.  The PDRM have hardly been held accountable for this sorry state of affairs.  How long more can this continue?

12. Based on information provided by the Government in Parliament on 26 June 2013, there were a total of 231deaths in police custody between the year 2000 and May 2013. There were at least 7 more deaths in 2014.  On a broad basis, there was approximately one death in custody every three weeks between the year 2000 and May 2013. 

13. Now, the Criminal Procedure Code mandates that an inquest must be conducted in every case of death in custody.  When a person dies while in police custody, the police officer who had custody of that person must immediately notify the nearest Magistrate of the death and the Magistrate shall hold an inquiry into the cause of death. 

14. From a Parliamentary answer provided on 23 March 2011, the Government stated that between 2000 and February 2011 it would appear that inquests are conducted on less than 5% of the total deaths in police custody.  Thus, how can the family of a person who died in police custody, or a person with a complaint against the PDRM for that matter, get their grievance addressed? 

15. In this regard, the Coroner’s Court was established on 15 April 2014. The Coroner’s Court is not established under statute.  It is set up under the Sessions Court and uses the Criminal Procedure Code.  It does not have the important features of atypical Coroner’s Courts such as a Coroner who is specially trained and responsible for supervising investigations by the police, who ensures all relevant evidence is gathered, as well as presides over enquiries, and making findings.  Be that as it may, the recent inquest of custodial death of P Chandran by the KL Coroner’s Court which singled out the police as being responsible for his death is laudable. However, to quote Aristotle, “one swallow does not a summer make”. 

Enforcement Agency Integrity Commission and Internal Affairs Division.

16. It cannot be disputed that the Police have resisted the formation of the IPCMC.  The Government then proposed to establish the EAIC as an alternative to the IPCMC, claiming that the EAIC would be able to provide the necessary oversight.  The EAIC Act was passed by the Dewan Rakyat on 1 July 2009, four years after the IPCMC was first mooted.  It took another 19 months for the EAIC to officially begin operating on 1 April 2011.

17. The EAIC’s avowed mission is to strengthen the service delivery system with integrity amongst the Malaysian enforcement agencies through the management of complaints and investigations in a transparent, bold, dutiful and professional manner. 

18. It is now 2015. It is apparent that the EAIC has failed in its purpose.  The EAIC is not only a watered-down IPCMC; it would appear that the EAIC was in fact designed to fail. 

19. First, the EAIC is not wholly dedicated to receiving and investigating complaints of misconduct by the PDRM.  It has 19 different government agencies under its purview.  The agencies include PDRM, which has over 112,000 personnel (excluding the Special Branch), Ikatan Relawan Rakyat Malaysia (“RELA”) which has over three million members, and the Malaysian Road Transport Department which has over 8,000 personnel.  Thus, the EAIC’s workload and focus are diverse, heavy and not specialized.

20. Despite having 19 different agencies under its purview, the EAIC is severely under-resourced. According to federal budget reports, the EAIC received a budget of RM7.2million in 2013 and RM7.7million in 2014.  This is insufficient funding given the breath of its responsibilities.

21. The EAIC is also under-staffed.  In an interview with The Malaysian Insider in 2013, the then-CEO of the EAIC, Nor Afizah Hanum Mokhtar, revealed that the EAIC had only one investigation officer as of 16 May 2013.  Thus, the caseload of 312 complaints received just last year alone would be impossible if there is only one investigating officer.

22. Lastly, the EAIC does not have any bite.  It can investigate and document a complaint and then submit its recommendations to PDRM but it cannot compel the PDRM to accept or implement its recommendations.  Furthermore, upon receiving the EAIC’s recommendations, the PDRM’s internal disciplinary mechanism can ignore them and conduct its own investigation.  Thus, there is a duplication of work causing a waste of resources.

23. The deaths of N. Dhamendran and James Ramesh in quick succession in 2013 led to the EAIC establishing a task force to investigate the custodial deaths of the two men.  In December last year the High Court acquitted the four officers on trial for the custodial death of N. Dhamendran.  This has led to calls for the EAIC to release its report on the case.  However, to our knowledge; no such report has been made public.

24. Instead, the EAIC released its findings on the custodial death of James Ramesh earlier this year, finding (i) that there was no element of misconduct or any use of physical force by the police officers involved during the arrest and detention periods; and (ii) that James’ death was caused by alcoholic liver disease with myocardial fibrosis due to excessive consumption of drugs and alcohol. This exculpatory finding has not been well received and has contributed to sustained criticism leveled at the EAIC.

25. Apart from the EAIC, there have been reports of a proposal to establish an Internal Affairs Division within the PDRM, after the Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi, visited the New York Police Department last year.2  An Internal Affairs Division will lack the credibility and transparency of the external oversight by the IPCMC and will therefore be insufficient.  In short, any internal oversight mechanism will not improve public perception of the police nor invite public trust. 

The Courts

26. It is commendable that there have been strong pronouncements from the Courts on custodial deaths.  In the High Court case of Mohd Anuar bin Sharip, Justice Lee Swee Seng said:

“Let the message go forth from this place that any more deaths in police custody would be one too many! Those with power to arrest and detain must ensure that the basic human rights of a detainee to seek medical treatment while in custody, is immediately attended to. There should be no more wanton and wasted loss of life in police custody for every life is precious.” 3

27. Next, the Court of Appeal, in upholding the decision of the High Court in the case of A Kugan who died in police custody, Justice David Wong said:

There should be zero tolerance to any custodial death in all remand centres in the country. And should custodial death happen, a public independent inquiry must be initiated commensurate with the right of the family of the deceased to know when there is some doubt as to the cause of the death.” 4

28. The Court of Appeal in the landmark case of Teoh Beng Hock, which concerned death in custody involving the MACC, overturned the finding of an open verdict and stated:

“…it will be abhorrent to the notion of justice and fair play to say nobody is culpable when there is a clear evidence to say otherwise. MACC or the relevant officers being a responsible body simply cannot disclaim liability when its officers had taken the deceased to custody and kept the witness throughout engaging in oppressive conduct which resulted in his death. In ordinary circumstances if the oppressors had been lay persons on the facts of the case the oppressors would have been charged by the police and/or Attorney General’s Chambers for murder or culpable homicide not amounting to murder to be read with s 34 of the Penal Code relating to common intention. That was not done in this case which has resulted in a public outcry and in my view such failure breached the rule of law…” 5

29. These strong pronouncements by the Court strengthen the argument for an independent oversight body that could ensure that there is “zero tolerance” of custodial deaths.

Prevention of Terrorism Act (“POTA”) & Prevention of Crime Act (“POCA”)

30. Distinguished guests.  The need for the IPCMC grows with each passing day
31. We have in the first 3 months of this year seen a spate of arrest of dissident voices.  There were 159 arrests as at 1 April 2015.  There are serious allegations that the police have misused their investigative powers by detaining over-night persons who have agreed to assist in police investigations, and the seeking of oppressive remand orders to punish suspects prior to charge or conviction.

32. There is then the use of Twitter by the police to announce, for example, intended police action to investigate or to arrest persons.  Why is this necessary?  Is it meant for any ulterior purposes, such as to cause anxiety and fear to the person or family members?  If so, is that the role and function of the police?  Moreover, should the police by Twitter declare whether a crime has been committed (for example, sedition)?   Surely, as an investigating authority the police are required to investigate whether a crime has been committed and it is not for them to make pronouncements on the commission of a crime.  It will make the investigations redundant if such premature pronouncements are made by the police.  These are some examples of complaints of misconduct that could be levelled against the police and require an impartial external body such as the IPCMC to look into.

33. There are then new laws, such as POCA and POTA.  Both  provide for extremely wide powers of arrest, where a police officer may without a warrant arrest and keep in remand any person if there is reason to believe that grounds exist which would justify the holding of an inquiry under the respective Acts.

34. With such enhanced powers of arrest there needs to be more accountability to prevent abuse.  It is here that an IPCMC would be required transparency and credibility that would otherwise be lacking.


35. As stated by the Supreme Court of India in the case of Pradesh Munshi Gautam (Dead) v State of Madhya Pradesh [2005] AIR SC 402, death in police custody is “…one of the worst kinds of crime in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens … and is an affront to human dignity …” 
36. The track record of one-death-in-custody-every-three-weeks is a damning indictment of the PDRM. It harms the very soul of Malaysian society that lives have been lost under the supervision of the very officers who have the duty to protect and serve the public.

37. If the PDRM is serious in aspiring to be a world-class professional and disciplined police force that embraces the values of integrity, efficiency, accountability and service, there is no reason for the PDRM to be resistant to the proposed IPCMC. 

38. It must be courageous enough to submit itself to an independent external oversight commission that is dedicated to the police force.

39. Only then can the PDRM develop itself into an institution that lives up to its motto of “Tegas, Adil dan Berhemah” (Firm, Fair and Prudent) and engender consistent respect from all Malaysians.

Thank you

Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (2005), 122.

2 The Sun Daily, “NYPD to share best practices with us” posted on 29 September 2014, accessed at on 28 May 2015.

3 Suzana bt Md Aris (claiming as administrator of the estate and a dependent of Mohd Anuar bin Sharip, deceased) v DSP Ishak bin Hussain & Ors [2011] 1 MLJ 107 per Lee Swee Seng JC at [40].

4 Datuk Seri Khalid bin Abu Bakar & Ors v N Indra a/p P Nallathamby (the administrator of the estate and dependent of Kugan a/l Ananthan, deceased) and another appeal [2015] 1 MLJ 353 per David Wong JJCA at [86].

5 Teoh Meng Kee v Public Prosecutor [2014] 5 MLJ 741, 804-805 per Hamid Sultan JCA at [159(c)].

Wednesday, 3 June 2015

Proham’s call to establish an alternative dispute resolution mechanism – Community Mediation

Proham hosted a public lecture on the theme of “Community Mediation and Human Rights” on  Friday May 29, 2015 at the Birckfield Asia College, PJ Campus. The lecture was delivered by Datuk Kuthubul Zaman Bukhari and during the discussion time we received feedback from Datuk M Shankar, Mr Asrul Daniel of GMM, Mr Andrew Khoo of the Malaysian Bar and Mr Ho Khek Hua of the National Unity Training and Research Institute.

We do recognise that many community disputes pertaining to ethnicity and religion is being publically debated and disputed in media which is causing disharmony in society. We also note that the informal mechanisms of community leaders sitting down and mediating disputes has failed due to the politicisation of many issues pertaining to ethnicity and religion in contemporary Malaysian society.

We recognise that there is now in Malaysia no formal mechanism for community resolution as the only grievance mechanism available is the courts. While the judicial mechanism is the best safe guard for a citizens protection against human rights violation, however on community related matters a non-judicial system might be preferred.

Datuk Kuthubul Zaman highlighted the alternative dispute resolution schemes or non-adjudicative mechanisms such as Mediation, where an impartial and independent mediator helps the parties negotiate a resolution to the dispute.

He drew lessons from effective models in New Zealand and Singapore which we could learn from. He further highlighted the Malaysian Mediation Act 2012 which was a voluntary process being utilised by the business community but the current Act lacked a provision for community mediation and the enforcement of the act.

Proham therefore calls on the Federal Government to recognise the need for a formal mechanism to resolve community disputes in a way that promotes social cohesion in society and address the root grievances of these conflicts. We note that siting down and talking about this in a safe environment with a trusted, professional and well trained mediator is the current best option.

We call on the Government to study the New Zealand example where the Human Rights Commission has the power to mediate disputes and could consider this provision in the Suhakam Act if suitable.
We also call on the Government to study the Singapore example where a special act provides for community mediation and resolution. If the second model is adopted one way forward is for the Government to amend the current Mediation Act 2012 and provide for a special section on Community mediation.

Our appeal is for the Federal Government to treat this matter with some urgency and do the needful intervention for a Malaysian provision for an alternative community dispute resolution mechanism which enhances human dignity, human rights and ensures peace and harmony in Malaysia society.

Issues on behalf of Proham by Datuk Dr Denison Jayasooria, Secretary General Proham

June 4, 2015