Nearly 900 people died in judicial custody and 74 in police custody in India in 2017, according to the National Human Rights Commission, which revealed the shocking figures in a right to information response last August.
In Britain, on November 2, 2017, the authorities recorded at least eight deaths involving the use of a Taser or other methods and five deaths of other people who “became unwell” or were found unresponsive while in police custody. A number of critical conclusions in police misconduct hearings and trials have, yet again, questioned the ability of the police to police themselves. Between 1990 and 2016, it was recorded that more than 5,600 deaths occurred in prison and police custody in England and Wales.
In Malaysia, during my years of professional research into deaths in custody, a recurring theme has been the frustration and anger of the families of those who have died in the care of the state. In almost every case, they have felt detached, alienated even, from the process of finding out how their relatives died. There are various statements from relatives who have lost loved ones that will make uncomfortable reading for those charged with steering these families through the legal and psychological minefield that awaits them.
Unsurprisingly, the Malaysian Bar has been renewing calls for a dedicated Independent Police Complaints and Misconduct Commission (IPCMC) to be set up to review public complaints about the force. Instead, the Enforcement Agency Integrity Commission (EAIC) was set up and just like the Malaysian Human Rights Commission – Suhakam, it lacks the investigatory and prosecutorial means to bring the perpetrators and respective institution to open and transparent justice.
The Commission of Inquiry, chaired by former Chief Justice Dzaiddin Abdullah, was more emphatic about the need to keep the police force in check as the related report had described the force as brutal, inept and the most corrupt among the various government bodies. The truth is, the EAIC is more of a watered down version of the IPCMC.
The 2005 Commission of Inquiry deemed it necessary for the IPCMC to have wider investigative powers, whereby it could initiate or instruct the police to initiate investigations over reports of misconduct by the police regardless of whether a public complaint was made. The EAIC does not enjoy this privilege as it is could only investigate cases of misconduct by law enforcement bodies only after a public complaint was filed. It is downright ironic that until the recent case of N Dharmendran, who was allegedly beaten to death in custody, the EAIC had actually never investigated any case of death in custody, nor had it investigated police shootings.
Despite the call for the establishment of an IPCMC, nothing concrete has happened. The present government seems unconcerned about deaths in custody, perhaps because it doesn’t want to interfere with the police force’s activities.
It seems that the police force enjoys some degree of immunity from prosecution, especially when it comes to criminal investigations and interrogation.
The EAIC that was set up in place of the IPCMC remains ineffective at investigating and prosecuting those responsible for custodial deaths. It can merely recommend actions to the present government – whether its recommendations will be followed or not remains to be seen.
The discernible lack of political will on the part of the current government to address the problem has created a culture of impunity among police and prison officers
The discernible lack of political will on the part of the current government to address the problem has created a culture of impunity among police and prison officers. There seems to be a belief among some sections of the police that they can get away with extreme forms of interrogation to obtain information.
It was revealed in the Malaysian Parliament in 2017 that between 2010 and 2016, there were 110 deaths in police lock-ups, including 20 foreigners. An observation made by Suhakam Commissioner Mah Weng Kwai, recently in a Malaysian Bar Council-organized forum on police accountability, highlighted the profile of many victims. A large majority of them have been Malaysians from the Indian ethnic group from the lower socioeconomic strata of society.
Suaram, Malaysia’s pre-eminent civil society and human rights advocacy group, through its executive director, Sevan Doraisamy, pointed out during the same forum that there is a tremendous need for the accession of various international conventions such as the Convention Against Torture, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the immediate establishment of the much-vaunted IPCMC without undue delay.
With general elections due to be called on or before August 24 as the 13th Malaysian Parliament will automatically dissolve on June 24, the global embarrassment caused by the 1MDB Kleptocracy Scandal and the US Department of Justice conducting a related criminal probe may or may not steer a lackadaisical government in that direction.
Despite the recent Federal Court ruling on exemplary damages, among the guarantees against such violations of civil liberties resulting in custodial deaths is for an ever-vigilant civil high court to exercise additional powers of issuing orders for exemplary damages pursuant to Paragraph 1 of the Schedule of the Courts of Judicature Act of 1964 (Act 91). This could address injustice wherever it is found as it enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of Malaysia.
Many constitutional and civil liberties lawyers will certainly agree with this conclusion.