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Wednesday, 22 February 2017

Murder in Custody?

By Dato’ Ambiga Sreenevasan, President 
National Human Rights Society [HAKAM]
Balamurugan, aged 44, from Kapar, died in police custody at the North Klang police headquarters.  He was arrested on the 6th of February and brought before a Magistrate for his remand hearing on the 7th. It was reported that his mouth was bleeding and he vomited blood in court. The Magistrate quite correctly rejected the remand and ordered that he be released immediately and taken to the hospital. Both Balamurugan’s family and his lawyer Gerard Lazarus filed police reports after seeing bruises on his body.
In apparent defiance of the court order, the police took him back to the police station. Reports state that at about 11.30pm on the 7th, police noticed that he was unconscious while in a room and called for an ambulance. Paramedics pronounced him dead when they arrived. Police then classified the case as sudden death. In his affidavit, the brother of the deceased stated that the family received a phone call only at 6 am the next day from the police, asking them to go to the Hospital Tengku Ampuan Rahimah where they were informed that Balamurugan had died.
The first post mortem reportedly found that Balamurugan died of a heart attack. The family of the deceased then applied to the High Court for, and the Judge ordered, a second post mortem. The second post mortem concluded on the 18th of February that the cause of death was “coronary artery disease with multiple blunt force injuries.” (emphasis mine). I confirm sighting a copy of  the document entitled “Perakuan Pegawai Perubatan Mengenai Sebab-Sebab Kematian (Post Mortem) that contain these findings.
The police response
On the 11th of February, it was reported that the North Klang police chief ACP Mohd Yusoff Mamat said that more than 10 policemen at the North Klang district police headquarters were under investigation following Balamurugan’s death. However, not a single policeman was suspended pending investigation despite the seriousness of the possible offences committed. Further, the investigations appear to be headed or conducted by the police chief of the very station where the incident had occurred.

After the disclosure of the second post mortem by the deceased’s lawyers, the police chief ACP Mohd Yusoff Mamat was reported to have said that once the results of the second post mortem were reviewed, police would question the pathologists involved.
The problem of deaths in custody
The problem of deaths in custody has been with us for far too long. The 2015 Suaram Human Rights report shows that there have been 250 deaths in police custody in the last decade. That is 250 too many.
In the yet unsolved case of Teoh Beng Hock, the Court of Appeal found that his death was caused by multiple injuries from a fall from the 14th Floor due to or accelerated by the unlawful act or acts of those including the relevant MACC officers.
In his judgment Justice Datuk Mah Weng Kwai said :
“The MACC owed Teoh Beng Hock a strict duty of care to ensure that he was kept safe at all times while under their custody and that he did not come into harm’s way such as from beatings and assault by anyone.  The Court must deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith not only in the police force but in the judiciary itself (see State of Madya Pradesh v Shyamsunder Trivedi & Ors [Appeal (crl) 217 of 1993].”                                                                                                                                                                                         (emphasis mine)
Justice Datuk Dr Hamid Sultan in his judgment said :-
“As the deceased was in the custody of the ‘MACC’ officers followed by the evidence of injury in his neck, and the fact that he was subsequently found dead will prima facie attach culpability to the relevant officers of ‘MACC’……..”                                            
                                                                                                            (emphasis mine)
There is therefore a strict duty of care upon any enforcement agency to ensure the safety of the person in their custody. Once an arrest is made and a person is in custody and injuries are found where death follows, there is prima facie evidence of the culpability of the relevant officers concerned.
In the case of Balamurugan, given the visual evidence, the vomiting of blood by the deceased, and the pathologists’ report in the second post mortem, I would argue that there is indeed a prima facie case to pursue a prosecution against the officers concerned. This is the legal basis for immediate action to be taken against the perpetrators of what is clearly a heinous crime. But there is a moral dimension that we must not lose sight of. Balamurugan was a powerless man at the mercy of those who have sworn to protect us.  And he is not the only victim.  His family must now struggle with his death in the hope that they will get closure when the culprits are brought to book.  Sadly there are many, including Teoh Beng Hock’s family, who have not had closure yet.
The pathologists concerned must also be allowed to carry out their tasks without fear or favour. At the time of the death in custody of Kugan, the then president of the Malaysian Medical Association, Datuk Khoo Kah Lin decried deaths in custody, and reminded doctors to always be objective when conducting examinations and not be influenced by any authority. 
No Accountability
The concern of the family is that no one will be held accountable for the death of Balamurugan.  We must (as stated by Justice Mah Weng Kwai), ensure that the common man does not lose faith in the criminal justice system.  Recent events however may not inspire such confidence.
In the Teoh Beng Hock case, no one has to date been held accountable although it was reported that Bukit Aman was reopening investigations. When questioned in Parliament, Minister in the Prime Minister’s Department said in a written reply that the Attorney General’s Chambers found no criminal element involved. This is despite the strong findings in the Court of Appeal judgment!
On 28th April 2016, The Enforcement Agency Integrity Commission
[EAIC] made damning findings in respect of the death of N. Dharmendran in police custody and found that physical force had caused the injuries and the death of the deceased. Nevertheless, the four police officers charged were acquitted by the High Court. Similar findings were made by the EAIC on 30 October 2015 in the case of Syed Mohd Azlan Bin Syed Nur who died in police custody on the 3rd November 2014. Prosecution of three police personnel is on going.
In the N.Dharmendran case, the EAIC had also recommended that all cases involving death in custody should be investigated by an independent and experienced investigating officer who is not from the state police contingent where the death occurred; but this is not happening in the Balamurugan case.
To date, it does not appear as if any of EAIC’s recommendations or findings  have been implemented or acted upon. Even the suggestion by the Home Minister in 2014 to install CCTV’s in lock-ups, has not been implemented.
There is clearly a lack of urgency and seriousness in holding any police officer to account in cases of deaths in custody. It effectively amounts to a condoning of murders and it is this that undermines the faith of the public in the criminal justice system.
Solutions
It is time for real solutions to this intolerable situation.  I wish to offer the following :-
In the case of Balamurugan
1.            That there be an immediate suspension of all the officers implicated pending full investigations.
2.            That the case be investigated as a matter of urgency by an independent, experienced investigating officer who is holding office in a different state from where the death occurred and that charges be preferred against the perpetrators as soon as possible.
3.            That the Attorney General’s Chambers take immediate steps to ascertain if and why the order of the learned Magistrate to send Balamurugan to hospital was not complied with and take appropriate action in respect of those who defied the court order.
4.            That the Ministry of Health, and the MMA, step in to ensure protection of the pathologists concerned and to ensure that they are not intimidated and are free to act independently and without fear or favour.

General recommendations
1.            That the recommendations of the EAIC in the Dharmendran case be implemented immediately.
2.            That CCTVs be installed in all police lock ups with immediate effect.
3.            That there is urgent disclosure of steps taken by the police to bring to justice all those found culpable by the Courts (for example Teoh Beng Hock case) and the EAIC (for example the case of Dharmendran).
4.            That the recommendations of the Police Commission for the establishment of an Independent Police Complaints and Misconduct (IPCMC) be implemented with immediate effect.
Conclusion
If the authorities concerned are not yet convinced of the dire need for the IPCMC, then what will it take? A few policemen who break the law must not be allowed to tarnish the name of all the other professional policemen who work hard to keep us safe. How many more must die in custody before we take the necessary steps to address this problem? We are talking of possible murder and yet we treat every case as just another statistic of death in custody. All lives matter. Until we establish this as our primary truth, we are far from being a civilized society.
Foot Note : As I was writing this article, I have read the very recent reports of the case of Chandran Muniandy who was hospitalized in the ICU with visible injuries after 1 month in prison; and the case of the three teenagers who were allegedly beaten up while being hung upside down in the Klang police headquarters.  There was also the case of Soh Kai Chook who was found unconscious and then pronounced dead while in the Bera district headquarters in Kuantan in January 2017 (And we have not even come to the end of February!).  These cases underscore the urgent need for the setting up of the Independent Police Complaints and Misconduct Commission [IPCMC].

1 comment:

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