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Justice served: Kugan’s mother Indra Nalathamby leaving the court. Kugan’s family was awarded RM751,709 in damages and another RM50,000 in costs. |
The Sunday Star
Legally Speaking by Roger Tan
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 while in
police custody on Jan 20, 2009.
Singham 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 decision 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.”
Last 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 the 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.
Hence, 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.”
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