How would you improve it?

Don’t worry about specifics. Be general.

Let us assume that the body you’d wish to suggest has a name.  Say, a ‘Commission’.

Funds and Resources?

Don’t you think that to prevent custodial deaths (as we saw in Part-1) the Commission would need a whole lot of resources – money, people, material, administrative and financial systems?

Only this way can the Commission be effective, right?

So Parliament should allocate it adequate resources, don’t you think? That is a good start.

Commission’s Objectives?

What sort of aims should the Commission have?

You might say, e.g.

(A).     Preserve the rights of those in police custody,

(B).     Investigate injuries, deaths, or ill-treatment by the police, and

(C).     Punish for improper behaviour.

A:        What rights should be given to those in custody?

You would expect that those in custody be treated like human beings, right? With procedures that comply with international standards, right?

Like what?

A-1      Medical supervision?

Don’t you think the Government should provide adequate medical attention and to persons in police custody?

A suspect is brought in.  He is complaining of chest pains. Shouldn’t the lowest ranking policeman call for immediate medical back-up?

Even better – shouldn’t there be a Medical Screening before the police send him off to the lock-up?

Shouldn’t there be doctors on standby, and procedures for all this? [1]

A-2:    Shouldn’t conditions of detention centres be improved?

If one improves the very places where these crimes are taking place, don’t you think the incidents would fall?

Wouldn’t it be a good idea to improve the conditions of lock-ups, prisons and immigration detention centres?

A-3:    Shouldn’t family and lawyers be informed straightaway?

Shouldn’t  that loved ones and legal counsel be advised immediately of a person’s arrest?

A-4:    Public Awareness Campaigns?

Aren’t  greater public awareness of the issue important? [2]

A-5:    Police Retraining? Gender- Sensitivity? Human Rights Training?

Having a Commission is all very well, but should we not treat the illness at the source?

Should not the ‘right kind’ of ‘professional-retraining’ be given to the police?

The professions constantly ‘re-train’ themselves all the time: doctors, lawyers, engineers, architects, nurses etc.

Why not the police?

Do you think that enforcement personnel should be more ‘gender sensitive’?

Should not our police be trained to understand – and uphold – Human Rights?

Should not this training extend also to prosecutors and judges? So that they too can appreciate its relevance to their duties? [3]

A-6:    Shouldn’t there be rules on firing weapons?

Don’t you think there should be ‘rules of engagement and escalation’ on how the police can fire their weapons?

That would stop our policemen firing their guns at the slightest of provocation, right?

Shouldn’t those procedures accord with international procedures? [4]

B:    How should investigations be conducted?

How would you want Investigations to be conducted?

You might say, e.g. ‘Use the ‘WH questions’ formula: ‘Who, What, Where, and How’

B-1:    Who should investigate?

Should the investigator be from the police? Send foxes into the chicken coop?

Obviously not.

It must be someone who has no conflict of duties.

It must be someone outside the police.

B-2:    What qualifications should Investigators have?

The Investigator must be a specialist, you’d agree.

Specialising in what?

He must be able to discover exactly how a death had occurred.

He must have both medical and judicial experience.

Who would that be?  In the western countries they use a coroner.

The word ‘Coroner’ comes from the same source as the word ‘crown’.

Historically, it is someone acting under the King’s orders.

In medieval England, ‘sheriffs’ exercised police powers.  So coroners acted as a counter-balance to the power of sheriffs.

In modern times, coroners supervise examinations on deceased persons.

They determine the cause of death. They visit death scenes at all hours. In some countries, coroners must be doctors.

So who do you think should be appointed a coroner?

We need a lawyer, right? Hopefully someone with experience?

What about a judge?

Currently magistrates conduct inquests.  They are not sufficiently experienced. Look at the magistrate who decided that Teoh Beng Hock had ‘committed suicide’.

Would you want someone like that?  No.

So a good choice would be a Sessions Court judge, right?  He’d have greater experience and would’ve been used to wielding authority.

B-3:    We now come to the ‘How’ part

How would you expect the Coroner to do his job? You’d not disagree that he must supervise investigations over ill-treatments or of deaths.  He’d have to preside over all enquiries.

That would not be enough.

He must have the power to ‘make findings’.

He should be able to point fingers.

Next, s/he must have the authority to investigate.

If someone prevented him from proper investigations, or he found evidence of tampering – they call it ‘spoliation of evidence’ –  as in the Balamurugan or Azlan case – he’d have the power to charge them for obstruction.

B-3:     Who should assist the Coroner, you think? 

The Coroner is a lawyer.  He needs a specialised medical person to conduct investigations. Take for example a pathologist: s/he is an expert on the cause of death.

Pathology is the study of the cause of disease, and the effect of disease.

B-4:     Do we need pathologists who ‘think dirty’?

After the fiascos in the P. Karuna Nithi case, and the Sasikumar Selvam case in Kluang, there has been a demand  that we need pathologists who would be able to ‘think dirty’.

This means pathologists should be open to the worst possibilities.

They should ‘actively search for signs of non-natural death’.

Karuna Nithi

Karuna was 42 years old. On June 1, 2013, he died in custody at the Tampin police station.

Despite the existence of 49 injuries on his body pathologist strangely concluded he had died of ‘fatty liver change’.

His liver disease was mild, by comparison.

During a 2015 inquest, the coroner rejected her post-mortem findings.

He held that the cause of death was ‘acts and omissions committed by fellow inmates and policemen’.

New evidence showed that Karuna had suffered ‘multiple blunt force trauma’ (i.e. beaten to death’).

He merely had ‘moderate fatty change of liver’.

The Government then claimed that the first pathologist had been ‘misinformed’.

Sasikumar

The Sasikumar case is not only bizarre, it is horrid by any standard.

Sasi was found hanging in his cell at the Kluang prison.  The prison department and the police declared that ‘there was no foul play’.

How did he get to prison in the first place?

He had been accused of stealing a few tins sardines and a bag of rice.

It gets worse.

He was arrested and charged for ‘robbery’.

He was 19 at that time. He was, therefore, a ‘young offender’. There are many reasons why young offenders come into conflict with the law.  One is poverty. [5].

So the law requires that a welfare officer be present at the time of his conviction. A Welfare Officer’s report is read to court. This was not done.

He was also a first-time offender.

Worse, he was unrepresented.

Amazingly, he had pleaded guilty immediately – which is a ‘strong mitigating factor’.  The courts will immediately grant a ‘discount on the sentence’.[6].

What sentence was he given, you think? Ten years imprisonment!

When he was incarcerated, Sasi had told a prison officer that he had feared for his life:[7].

The pathologist took an opposite view. She supported hypothesis of the police and prison department.  She testified that Sasi had hanged himself. Her ‘story’ drew the incredulity of the JB Coroner, Kamaruddin Kamsun.  It moved the Coroner to say,

‘…The pathologist’s story was a good story, but not true’. [8]

He held that the cause of death was ‘homicide’.

Someone had killed Sasi.

Why had he been killed? His family’s argument during the inquest was that Sasi had threatened to expose a drug syndicate operating within the Kg Gajah Prison, Kluang.

Who had killed him?

No one knows.

So, do pathologists in Malaysia need to ‘think dirty?’

Definitely.

It goes with the territory.

B-5:     Who should conduct post-mortem investigations?

So you wouldn’t disagree that only pathologists should conduct post-mortem investigations, would you?

This, must be established by law, wouldn’t you agree?

B-6:    How would this Investigative team work?

Merely investigate and do nothing?

Or just ‘make recommendations’ and fold their hands?

You’d expect the Coroner to report to the Commission.  Then what?

C:    Who should punish wrongdoers? The police?

Surely the Commission or the Coroner’s Court should have that power?

If the presence of a crime is present, shouldn’t the Commission have the power – in the appropriate cases – to charge the offenders in open Court?  Should the courts not have the right to punish them?

Otherwise why have a toothless Commission?

Doesn’t make sense, does it?

D:    Who do you think should sit on the Commission?

Retired, or serving police officers? Or retired or serving members of the AG Chambers? To the outside world, it would be like sending a python into the chicken coop, right? You’d want highly qualified, senior people, wouldn’t you?

What sort of people?

Obviously if you are going to investigate death in custody, you would want experienced pathologists, wouldn’t you?

Also someone from the judiciary.

And some senior lawyers.

No one from the Police.

No one from the AG Chambers.

No one from the enforcement services.

And, importantly, no ‘political appointees’ who’d be sent there to ensure that the Commission ‘doesn’t drop the ball’!

In the UK no one can sit on the Police Commission if they had ever worked for the police force.

E:        How would you make the Commission work?

You wouldn’t give control of the Commission to the Police – to the very body you are going to control, right?

If a Coroner recommends that someone be charged, shouldn’t  the Commission have its own Independent Prosecuting Officers? Or should it ‘borrow counsel’ from the AG Chambers?  As you know, AG Chambers is part of the Government.  Not a good idea.

To be independent, the Commission needs its own investigators and its own Prosecuting Officers.

In 2003, the UK Supreme Court said:

‘… The State must not unlawfully take life and must take appropriate legislative and administrative staff to protect it.

…The state owes a particular duty to those involuntarily in its custody.

… Such persons must be protected against violence or abuse at the hands of state agents.

… Death in custody, especially in dubious conditions, is among the worst crimes one can imagine in a civilised society under the rule of law’ said a judge. …’ [9].

F:       Protection of whistleblowers?

Where is the Commission going to get its evidence? Members of the public or someone from the enforcement body will have to come forward.

They will give evidence to whom?

At the police station?

People won’t come forward.

They’d be afraid of victimisation, wouldn’t they?

How should informers be protected, you think? Shouldn’t the Commission have the power to order security for ‘whistle-blowers’?

Shouldn’t they be put under ‘protective custody’?

That would be practical, wouldn’t it?

If so, that would require men, resources, and holding residences, right? [10]

G:       Multi–agency approach?

Do you think we should just blame the police for everything?  Shouldn’t there be an multi-disciplinary approach to this problem?

Shouldn’t the Malaysian Bar, the Health Ministry, Mental Health Department, Welfare Services, Ministry of Women, Family and Community Development, and Religious Organisations be part of a multi–agency task force assist in this the problem?

H:       Change police culture?

When the police break the law without fearing punishment, a culture of impunity develops within the PDRM.

When any wrongdoing goes unpunished, or is supported PDRM’s leaders, it makes every policeman think that ‘misconduct is permissible’.

This culture will become ‘embedded’ within the PDRM.  [11]

They become Untouchable. Remember the movie? Same thing.

Is that a good thing?

I:         Source of these proposals

In fact all these suggestions came from the Bar Council, the Royal Commission and the various NGOs.

K:       Fast Forward to G.E. 14, 2018

The establishment of the IPCMC was in Pakatan Harapan’s  manifesto for the 14th General Election.

The Prime Minister recently declared that,

‘IPCMC would replace the EAIC, and would act as an independent body to look into police complaints more holistically’. [12].

The Deputy IGP, Noor Rashid Ibrahim agreed immediately.

He said that decision was in line with Bukit Aman’s goal of ‘enhancing integrity among its personnel’.

Will the nation’s hopes be dashed?

We want our police to be world–class professionals.

There is absolutely no reason why a gentleman’s police force should be resistant to the idea of the IPCMC.

We wait with bated breath to see if we shall get an IPCMC with teeth – or a poor, gap-toothed cousin.

End Notes

[1].  Bar Council’s Recommendations

[2].  Bar Council’s Recommendations.

[3].  Recommendations of COMANGO [Coalition of Malaysian NGOs]: ‘Stakeholder’s Report on Malaysia’ in 2013.

[4].  Roundtable Discussion, 2016, dated 4 May 2016 entitled ‘Promoting Greater Police Accountability in Malaysia’.

[5].  Viwina Belmonte, UNICEF

[6].  Melwani v. PP; and PP v Abdullah Ang Swee Kang

[7].  FMT, 14, November 2017

[8]. FMT, supra

[9].  Lord Bingham in Amin, R v. Secretary of State for the Home Department [2003] 4 All ER 1264

[10].  Bar Council’s Recommendations.

[11].  2005 Royal Commission Report For Police Reform: Challenges and Recommendations’ at https://www.thestar.com.my/news/nation/2018/06/25/renewed-calls-for-ipcmc-but-what-is-it-a-refresher/#mmYOAkhDt6iBfmsm.99, reported in The Star, 25 June 2018

[12].  On 22 September.