No more custodial deaths please

Malaysians will surely welcome the ruling by the Court of Appeal yesterday that a public inquiry must be held whenever someone dies while in the custody of the authorities.

It also affirmed that there must be zero tolerance for custodial deaths. Most Malaysians would agree with this too.

There have been too many deaths of people in custody, especially of those in police lockups, in recent years.

According to the non-governmental organisation Suaram, which has been keeping track of custodial deaths, there were 11 deaths in custody – seven in police lockups, three in prisons and one in a hospital – between January and July this year.

Suaram points out that of these 11 deaths, two occurred at the Bayan Baru, Penang, police lockup and three at the Bandar Perda,Penang, police lockup. And we are only talking about the first seven months of 2014.

Deaths in custody continue despite improvements instituted last year by the police to their standard operating procedures regarding detainees. The government has also initiated the setting up of coroner’s courts to deal with deaths in custody.

The question is whether this is enough, in the face of continuing custodial deaths.

It must also be noted that police have a job to do: reduce crime. And that is what they are doing when they investigate crimes and detain suspects. Also, I don’t think any policeman wants to intentionally cause the death of any detainee.

But police officers need to fully understand that a foundation of our criminal justice system is that one is innocent until proven guilty. This protection also applies to any policeman who is detained for causing custodial deaths or taking bribes.

It is to the benefit of the police to be more transparent. They could, among other things, have a doctor check every detainee before he is placed in the lockup and again when he leaves. Also, lawyers and family members must be given access to detainees without delay. When someone dies in custody, a public inquiry should be immediately initiated and this must become part of the standard operating procedure.

Interestingly, Deputy Home Minister Datuk Wan Junaidi Tuanku Jaafar told Parliament in July 2013 that only three of the 231 cases of death in custody since 2000 were a result of police brutality.

Police personnel suspected of involvement in the three cases, he said, had been charged in court.

He said most of the others died due to poor health while some had committed suicide.

Most of those who died were young men who had been detained on suspicion of being involved in criminal activities. So, if what the minister said is true, are we to believe that there are many unhealthy young men in the country? Or that most of those who are criminals or who are suspected of being criminals are rather unhealthy fellows?

That is why the ruling by the three-man Court of Appeal is good news. The court comprised of justices Datuk Ariff Mohd Yusof, as chair, Datuk Mah Weng Kwai, and David Wong Dak Wah.

In reading out the decision, Justice Wong echoed what so many people have been saying for years: that custodial deaths "cannot and should not happen in this country".

"There should be zero tolerance to any custodial death in all the remand centres in the country," he said, adding that "remand prisoners are innocent until convicted in a court of law and like other citizens are entitled to their basic human rights during their lawful detention".

Saying common sense and decency demanded a full public inquiry into custodial deaths, he added: "We must also not forget that where there is a custodial death, the family of the deceased is entitled to know the truth as to what happened during the detention.”

The Court of Appeal said this in upholding a High Court verdict that Inspector-General of Police Tan Sri Khalid Abu Bakar and his police officers were responsible for the death in custody of A. Kugan, 22, five years ago in a police lockup in Subang Jaya, Selangor.

Kugan's mother N. Indra, had filed a RM100 million suit against Khalid, who was then the Selangor police chief, former constable V. Navindran, former Subang Jaya OCPD Assistant Commissioner Zainal Rashid Abu Bakar (deceased), the Inspector-General of Police, and the government.

The Court of Appeal affirmed the findings of High Court judge Datuk V. T. Singham. Among other findings, Singham said there were elements of a cover-up by Khalid during the investigations and that Khalid was liable for misfeasance as he had failed to carry out his duty as a senior civil servant.

However, the appeals court reduced the RM801,700 Singham had awarded the family of Kugan last year to RM701,700.

Singham had then said: “Custodial death should not become the rule of the day. It is a heinous crime perpetrated by the custodians of the law. If custodians of the law themselves indulge in committing such crimes, then no part of the society is safe and secure.”

Saying there was an urgent need to establish the Independent Police Complaints and Misconduct Commission (IPCMC), as recommended by the Royal Commission on Police Reform, he added: “The recommendations of the Royal Commission should not be kept in ‘cold storage’ and continue to freeze but must be activated or implemented as soon as possible.”

Most Malaysians would agree with him and the Court of Appeal on all of this.