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.
[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].
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