THE recent events relating to the death of Kugan Ananthan while in police custody have revived public concern and outcry over the ways police carry out their investigation, especially in interrogating suspects.
Death in custody further complicates the situation, and in this case the family, community and general public have lost confidence in the independence and neutrality of police to investigate such deaths. There are, therefore, calls for an independent enquiry to determine the cause of death and recommend appropriate state action.
It is often thought that the police have developed a “culture of practice” characterised by “arrest first and question later”, and the extensive use of remand provisions for questioning suspects. There have also been allegations of use of force in extracting confessions, apart from the major issue of death in custody and the weakness in inquest procedures.
All these concerns are well documented in the report of the Royal Commission to enhance the operations and management of the Royal Malaysian Police, which was released on 29 April 2005.
The commission was not established by civil society but by the Agong on the prime minister’s advice. Why are its findings not taken up seriously and implemented?
If they were, it could help prevent the recurrence of similar problems in the management of allegations of excessive use of force, abuse of power and death in custody.
It is when such incidences are not addressed promptly in a transparent and independent manner that there is a corresponding loss of public confidence. The danger is that these incidents could degenerate and be racialised, politicised and radicalised by certain quarters.
This must be avoided at all cost, and public confidence in national leaders and the judiciary should be restored in a satisfactory, just and fair manner based on fundamental human rights for all.
The Royal Police Commission Report (2005) addresses some of the main concerns pertaining to death in custody and the related issues through proposed legislative and procedure changes. These include amendments to the Criminal Procedure Code (CPC) pertaining to the rights of person arrested and the duration of remand for investigation as in Sections 28 and 117 of the CPC.
In addition, the commission proposed a Code of Practice relating to the arrest and detention of persons. These included 24-hour camera surveillance, and independent custody officers who would be responsible for detainees’ welfare and custody.
The commission report included the documentation of 76 cases of death in police custody between 2000 and 2004. It was noted that in the majority of these cases, no inquest was conducted although it would have been preferable for the magistrate, pursuant to Section 334 of the CPC, to have ordered an inquest.
The Royal Commission concluded that “the current provisions for inquiry into deaths in police custody in the CPC are not sufficiently rigorous and do not provide for a transparent and accountable process”. Therefore amendments for a number of sections of the CPC were recommended, including:
- to inform the magistrate and government medical officer immediately of death;
- magistrate to immediately examine the body of the deceased in situ;
- police to submit sudden death report to magistrate immediately i.e. within one week;
- post-mortem report must be completed by government medical officer within 24 hours upon receiving the report;
- to immediately inform the family of suspect’s death, andallowing the family to be present at the post-mortem;
- magistrate to convene the inquest immediately or within one month of receiving a death report;
- family of deceased to be allowed to be present at the inquiry.
It is important to note that in light of public interest and the suffering faced by families, there is an urgent need for our lawmakers to revisit the Royal Police Commission Report and also make specific amendments to the CPC. This would provide the check and balance on death in custody cases. A stronger judicial role might be necessary to address the current weaknesses in restoring public confidence in the system.
The commission also made a number of suggestions to improve the professionalism of police investigations, including:
- adopting proactive investigation;
- improving training for investigation officers;
- effective supervision through case management;
- greater use of scientific and technical aids in investigation, and
- early involvement of public prosecutors in police investigation.
I do not think we need to reinvent the wheel on these matters as much work has already been undertaken by independent commissions. Four suggestions in this connection might be relevant.
That Parliament must re-study the findings of the two Royal Commissions that were established on various aspects pertaining to the police. It must also study the Suhakam annual and inquiry reports pertaining to the police and ensure its speedy implementation.
Parliament should establish a Parliamentary Select Committee which can review all the relevant sections of the CPC and strengthen the provisions for independent and transparent mechanisms pertaining to death in custody.
The Independent Police Complaints and Misconduct Commission proposed by the Royal Commission must be established without delay.
The Home Ministry must prepare a White Paper to be tabled in Parliament on the death in custody cases which occurred between 2000 and 2008. This disclosure will provide a balanced view on the matter from what is currently perceived through media coverage.
Datuk Dr Denison Jayasooria was a former member of the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police which was established in 2004. He is currently a member of the Malaysian Human Rights Commission. He is also a Principal Research Fellow of the Institute of Ethnic Studies, Universiti Kebangsaan Malaysia.
Views expressed in this article are his personal views and do not reflect the official position of the organisations he is currently associated with.