End Culture of Impunity in Malaysian Police Force

July 7, 2013

MY COMMENT: It bothers me  to no end when I read reports of Malaysiansdin merican at GW dying while under Police custody. And we have one too many custodial deaths already. Yet politicians continue to bicker over this matter and the Police itself has not acted to deal uncompromisingly with custodial deaths.

I praise Roger Tan for his excellent article and by posting it on my blog, I am hopeful that Malaysians will be better acquainted with this subject, and can begin to campaign peacefully for an end to what is becoming a culture of impunity within our Police Force. I cannot understand why it is so difficult to set up  an Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the Royal Commission of Inquiry into the Operation and Management of the Royal Malaysian Police. Almost a decade has passed since RCI released its report in 2005.

After so much public pressure, the Government has set up an Enforcement Agency Integrity Commission (EAIC), although the Opposition wanted IPCMC.  It does matter to me what name one chooses for this Commission as long as it is independent, credible and impartial. Take prompt action so that we can deal with the problem of custodial deaths. “Any more deaths in Police custody would be one too many! (Justice Lee Swee Seng).–Din Merican

End Culture of Impunity in Malaysian Police Force

by Roger Tan@http://www.thestar.com.my

Our enforcement officers must appreciate, if not be made to appreciate, that it is the cornerstone of our criminal justice system that a person, including a suspect, is innocent until proven guilty.

ON June 28, Justice Datuk V.T. Singham indeed retired with a bang! Two days before his retirement, he awarded RM751,709 in damages and another RM50,000 in costs to the family of Kugan Ananthan who died on January 20, 2009 while in Police custody .

khalid-abu-bakarSingham held that the then Selangor Police Chief Tan Sri Khalid Abu Bakar, now the Inspector-General of Police, had committed misfeasance in public office.

In delivering his judgment, he also reportedly urged the government to urgently set up the Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the 2005 Royal Commission to enhance the operation and management of the Royal Malaysia Police (RCI).

However, at the time of writing this piece, his written judgment is still not available. In any event, the government and the IGP are expected to appeal against his decision.

This reminds me of the case of Mohd Anuar Sharip who vomited blood, collapsed and died in a police cell on Aug 19, 1999. In June, 2010, Justice Lee Swee Seng awarded about RM1.6mil in damages to his widow, Suzana Mohamad Aris. However, Lee’s decision was subsequently reversed by the Court of Appeal. In October 2010, Suzana failed to obtain leave from the Federal Court to appeal against the decision of the Court of Appeal.

But it is worthy to reiterate Lee’s words when he handed down his judgment: “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 (sic) 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 … The safest place to be in should not by default be turned into the most dangerous place to be taken to.”

This is in line with the oft-quoted words of Lord Bingham of Cornhill in the decisionLord Bingham of the House of Lords in Amin, R (on the application of) v Secretary of State for the Home Department, 2003. In this case, a young offender was murdered by his cell-mate due to the latter’s racial antipathy against the victim. Lord Bingham said: “This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it. But the duty does not stop there. 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. They must be protected against self-harm. Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm … But in any case where a death has occurred in custody, it is not a minor or unimportant duty. In this country … effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

Zahid HamidiLast month, Home Affairs Minister Datuk Seri Dr Ahmad Zahid Hamidi revealed that there were 231 custodial deaths between 2000 until May 2013. Of these, Zahid said only two cases involved foul play and they are understood to be that of Kugan in 2009 and, recently, N. Dharmendran. He went on to say that the allegation that there were many custodial deaths, and that it was racially motivated, was merely a perception.

If this is the case, then indeed the government and the Police are suffering from a serious perception problem. In the first place, no inquest was held for every custodial death when an inquest is mandatory for every death in Police custody under section 334 of the Criminal Procedure Code (CPC). The RCI Report noted that out of 80 custodial deaths between January 2000 and December 2004, inquests were held for only six of these deaths.

Further, the Enforcement Agency Integrity Commission (EAIC) too is suffering from theLim CW perception problem. In fact, I respectfully disagree with Singham weighing in judicially on the ongoing debate to support the inception of IPCMC when the executive branch of the government was in favour of EAIC and the Opposition, the IPCMC. But EAIC by its own volition had also just shot at its own foot by appointing former Deputy Inspector-General of Police Tan Sri Mohd Jamil Johari and former Bar Council chairman Lim Chee Wee as its consultants to a task force set up to investigate custodial deaths.

Firstly, no Police personnel, whether current or former, should even be involved in any investigation into custodial deaths if EAIC is to be perceived as independent. This is particularly so when it involved Dharmendran and R. James Ramesh who died in Police custody in order to counter allegations of police prevarications. Secondly, Lim may be a former president of the Malaysian Bar, but according to EAIC website, one of its Commission members, Vinayak Prabhakar Pradhan, is also his partner in their law firm, Skrine. If EAIC were a local authority, it would have expressly infringed provisions of the Local Government Act, 1976.

Be that as it may, it is sad to see that even at its infancy stage, EAIC fails when it should have zealously espoused and embraced for its own survival the fundamental values of independence, integrity, transparency and good governance required of an enforcement body such as EAIC.

Having said that, I do welcome the government’s announcement to establish a permanent coroner’s court to deal with custodial deaths. But it will still be a waste of time if the enabling law does not provide, for example, the following:

  •   A coroner should not be a junior judicial officer such as a magistrate. He should be at least either a senior Sessions Court judge or a High Court judge depending on the severity of the case.
  • The process should be adversarial and not inquisitorial in nature. Relatives of the deceased should be made a party to the proceedings with a right to call and cross-examine witnesses.
  •  The various inhibitions to early disclosure of documents and information should be removed as currently there are just too many excuses and exceptions for important materials to be kept secret.
  •   Section 112 of CPC, which currently allows a witness to refuse to answer any questions which may incriminate him, should be dispensed with. In other words, all police officers and any persons who appear in the Coroner’s Court are compelled to give evidence and they cannot claim this privilege against self-incrimination. However, any such self-incriminating evidence can be rendered not admissible in any subsequent criminal proceedings filed against them.

In conclusion, I cannot emphasise enough that there can be no public confidence in the system if there continues to be government inaction and a culture of impunity when it comes to dealing with custodial deaths. A Malaysian’s right to life is enshrined in Article 5 of the Federal Constitution, and it is incumbent upon our law enforcement officers to uphold this. Custodial deaths are, therefore, unacceptable and inexcusable in a civilised society. Our enforcement officers must appreciate, if not be made to appreciate, that it is the cornerstone of our criminal justice system that a person, including a suspect, is innocent until proven guilty. This principle not only protects those suspects who are under their care, but also those police officers who are suspected of Police brutality. But that does not mean that those who have already been convicted and are in the prison should be treated otherwise than what Lord Bingham has elucidated above.

It follows the government must urgently either overhaul EAIC or establish an independent Police oversight body such as IPCMC with powers as suggested in the RCI’s Report. Do not drag any more. The reason is simple. This culture of impunity must not be perpetuated. It must be immediately discarded for the sake of our future generations. Otherwise, it remains a national shame.

policeHence, it is apposite to remind the government what the RCI said on page 122 of its report:Of growing concern around the world is the ‘culture of impunity’ within police forces and the PDRM is not exempted … culture of impunity feeds on itself. 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.”

  The writer, a senior lawyer, is a former Malaysian Bar councillor.

11 thoughts on “End Culture of Impunity in Malaysian Police Force

  1. Datuk Din

    I repeat my viewpoint that the problems faced by Malaysia is simply a government that cares more about self enrichment above anything else. Therefore the entire system is corrupted – all government expenditure, licensing, permits, and even education are simply means for self enrichment. Until the day the root cause of the ills of the Nation are removed, Malaysians will just get to see the ugly head of corruption.

    A rogue police force is simply an outcome of a corrupted government, because there is no morality – only money and power counts. Now that Malaysians seem to have taken in by the need for political stability, a new day brings in more of the same – the art of bigotry, fascism, extremism, greed will greet Malaysians like sunshine every morning. After all, wha’s another five years? There are lots more scams that time will unravel. For those who prescribe waiting another five years, it will mean five more years for BN to further perfect the art of corruption, bigotry and abuse of state power. Now should we be aghast by another ill of the government? What could surprise us? All the wrongs of Government in Malaysia is only natural because we allowed it to grow and get stronger. YB Kuli made the statement the other day that our education system has failed. He was being nice – he knows that the entire government has failed, and he is part of it. Everyone who supports BN, are the cause of all the ills of the Country. Just thing of every single government department and the things that one can do to improve it. Malaysians on the street, if given the authority, could make every single government entity a better public service agency. If all is great, Din Merican will remain a DJ, and we can blog about nasi lemak, teh tarik, roti canai, kopi-O, and for some with the liberty, some good reds. But the fact remains that scandals after scandals appear on a weekly, if not a daily basis for the Datuk and other online services to blog or report. That is how corrupted the country has become. That is why BN has to create issues such as forced conversion, red bean army, the threat of the slanted eyes, whilst the true purpose of governance – stealing and looting is being done with the blessing of the cowardice of the civil service and the judiciary. What can be done? Nothing really, because the Heads of States too have no power, and the average Malaysian is too busy trying to make a living, or is a beneficiary of the unbalanced scales. The real change will only come when the treasury has been completely depleted. We are the next Greece in the making.
    Change will come. The only question is will it be peaceful or will it be like Arab Spring where people become desperate–without jobs, high inflation, abject poverty, and corruption, just name it.–Din Mericna

  2. the problem is always been the police are a force of their own and it looks like they will get away with it, in any other country even if a police man commits a crime against the civilian he would be immediately suspended but here he will not report it because nothing will be done in fact the civilian will probably get into trouble. Look at anwar case even with such a high public profile he was beaten up by a senior police officer he got away with a token punishment what does tell all the other police personnel we are above the law.

  3. 55 years of Free and Fair Elections, free press, rule of law, and much else as claimed by those in power should have given the citizens of this country a government that cares for the people. I am not saying that this government does not care but what I am saying is that only those associated with it have felt the caring. Our development record is better than good but the distribution of the wealth derived form that development is not felt by all the citizens. To my mind Malaysia should today have per capita income at least ten times that of what we had in 1970 simply because the cost of living has also increased by 10 times since that year.

    Social services and education is still in experiment stage with those who are in a position to demand for better services getting it. Now it is common to read reports that top government servants go to private hospitals and send their children to private schools or special MARA schools. As we have witnessed in many other developing countries big public interventions aimed at uplifting health, education, and other standards have brought about gains, but gains only to half the population. To improve public health and education private institutions have been set up with government incentives. But, unfortunately, these institution charge fees the those in the middle class cannot afford even if they are willing to pay their annual salaries for the services..

    The money is there to sustain viable education and health services because we never seem to short when it comes to hosting international events. Our rural areas are clearly at a disadvantage when it comes to these two services.

    Change can come. But we must first put an end to a ruling elite defined along racial line, gender, education and how much you earn. Today were run the risk of putting in place a ruling elite that is drawn from privileged background. But having said that I am inclines to believe that there are still many Malaysians who want to make Malaysia work as envisaged by our founding fathers. We will only fail if they, too, give up.

  4. The simple fact of the matter is that our police force is the biggest gangster group in this country. They are triads, mafia, kuṇṭarkaḷai – the biggest protection racket in the world..

  5. ” ……. the problem with Malaysia is simply a government that cares more about self enrichment above anything else “. – Chua

    Chua is right . Mediocrity gripping all institutions is a boon for corruption and other ills and not good governance. Mahathir knew what he was doing during his 22 years as prime minister. And those who followed him were no better because they did not nor have made any effort to improve governance.

    There was some promise from Pakatan that they will make some effort to improve governance – but alas , they were disappointed by the electorate or voters.

  6. We need a leader who can face the raging bull, take it by its horn and ground it head against earth.

  7. The latest news to break in Twitter is that the IGP will investigate the thugs that was sent to harass Crime Watch NGO president Sanjeevan… and these thugs were believed to be from a drug syndicate and it seems the investigation will include the Selangor CPO…. now this is scary with top cops involved in drug syndicates….

  8. How do you expect us to respect a police force when a ranked officer at ASP level can throw a driver’s license back into the face of a lady driver who refused “to settle on the spot” but demanded a summon?

    ** that lady driver is my wife

  9. Yesterday, Waytha Poonusamy came to the rescue of two Indians who were arrested in Bangi, for preventing a Landlord (landowner, who was in contempt of a July 1, Court Order) because the cops insisted in throwing them into the lokap.

    Luckily they had the YB Deputy Minister (in charge of Indian Affairs) phone number.
    when Waytha came there were arguments traded between the lawyer and the minions, and the estate men were `saved!’

    So, we need someone like W.P. around within phoning distance or one may end up in bodybags?

    Not surprising, when a Secondary school leaver gets to command RM 53 billion assets Tabung Haji and an assault and battery Defendant (case pending in Court ,with the victim now blind in one eye and suffered broken bones) has been appointed the new Home Minister. The IGP, formerly Selangor CPO has been adjudged by a High Court as gulity of `covering up’ A. Kugan 2009 murder!

    Concoctions, perceptions and deceptions – tool of trade of the men in blue, starting with these two men who themselves should be locked-up!

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