Making Kugan’s death matter

(Pic by Mark Coggins / Flickr)

THE fresh findings on what caused A Kugan’s death while in police custody are horrific and outrageous. Politicians, civil society groups and citizens have all expressed shock and anger.

Unfortunately, Kugan’s death is not an isolated incident. In February 2005, Datuk Seri Abdullah Ahmad Badawi, in his capacity as Internal Security Minister, revealed to the Dewan Rakyat that there were 159 deaths in custody between 1990 and 2004. And according to the Royal Commission on Police report, released in May 2005, only six out of the 80 deaths in custody between 2000 and 2004 were subject to inquests.

What is criminal is that more often than not, those responsible for deaths in police custody get away, literally, with torture and murder. What then should be done to address deaths in custody? More importantly, why isn’t anything being done?

Coroners Act

Human rights group Suaram is echoing the recommendations of the Parliamentary Select Committee on the Penal Code and Criminal Procedure Code (CPC), which in 2006 called for a Coroners Act. Such legislation would establish a Coroners Court, and include provisions for the appointment of coroners, and inquest procedures.

“The existing CPC does not adequately lay out procedures on inquests into deaths in custody,” Suaram’s Tah Moon Hui says in an interview, citing the United Kingdom’s Coroners Rules as a model.

“Ideally, the Coroners Act will make it compulsory for all deaths in custody to be investigated,” Tah explains.

Such measures will directly address the problem of deaths in custody, as well as other sudden death cases, including police shootings and prison- or detention-centre related ones, Tah adds.

The Coroners Act may also assist in ensuring that gravely dishonest post-mortems, such as Kugan’s first autopsy, will not happen in the future.

The initial autopsy, conducted by forensic pathologist Dr Abdul Karim at Serdang Hospital, suggested that Kugan had died from fluid accumulation in the lungs. The second post-mortem later proved that the body was beaten, starved and burnt.

Kugan’s second autopsy results being announced on 3 March 2009

Such a revelation calls into question all previous post-mortems into deaths in custody. For example, the family of Samiyati Indrayani Zulkarnain Putra, who died at the Wangsa Maju Police Station on 12 Sept 2006, claimed that her body bore evidence of bruising. But her cause of death was attributed to asthma.

Indeed, many deaths in custody are officially linked to natural causes.

Attempts to reach Hospital Kuala Lumpur’s National Institute of Forensic Medicine for comment about the discrepancies were unsuccessful. In the meantime, the Health Ministry said on 7 March it would conduct an independent probe into the two autopsy reports in the interest of justice and fair play.

Denial and deaths

Criminal lawyer Amer Hamzah Arshad says laws such as the CPC and subsidiary legislation such as the Lock-up Rules were designed to “uphold and ensure the basic rights of persons under arrest” as well as regulate lock-up conditions. However, these have been enforced in such a way that basic rights are denied.

Section 28A(3) of the CPC, for example, stipulates that when an arrested person wishes to communicate with “a relative or friend to inform of his [or her] whereabouts” or “consult with a legal practitioner of his [or her] choice”, the police officer involved should allow this “as soon as may be”.

Subsection 8 allows exceptions to this rule, but only with authorisation of an officer not below the rank of Deputy Superintendent of Police.

“However, the exception has become the rule,” Amer tells The Nut Graph, explaining that many detainees are denied their right to meet with counsel as a matter of course.

“Sometimes, when people want to visit an arrested person, they are told that it is ‘past visiting time’. So what happens that night, nobody knows,” Amer says.

“Allowing someone to see an arrested person ensures the person’s welfare.”

Having good laws alone is insufficient, Amer argues. “If we really want a first-class police force, officers must equip themselves with the laws, and be educated about human rights.”

Amer says that the police’s tendency to arrest suspects early in a criminal investigation also increases the opportunities for abuse in the lock-up. “This trend of ‘arrest first, investigate later’ needs to stop,” Amer says. “Arrests should only be made with the purpose of charging the person.”

An FRU officer behind the safety of a wire fence, observing events on the day of Kugan’s funeral on 28 Jan 2009

Whither IPCMC?

Teluk Intan Member of Parliament M Manogaran, at the press conference where the findings of Kugan’s second autopsy were revealed, asserted that “Kugan’s death will not be in vain, as it will eventually pave the way for the Independent Police Complaints and Misconduct Commission (IPCMC).”

The IPCMC, proposed by the Royal Commission in its 2005 report, would be an independent, external and transparent oversight mechanism that monitors the police. It would be empowered to receive, investigate, and take action on complaints about the police and its personnel.

“Now, the only avenue for people [with grievances against the police] is a civil suit in court,” says Amnesty International (AI) Malaysia’s K Shan.

According to Shan, the IPCMC would be a semi-judicial structure that would be able to take action against the police if necessary, at no cost to the complainant.

“We’ve always argued that the police are civil servants, and therefore accountable to the people,” Shan says. “The IPCMC would represent the people.”

“The police must have a specific, independent oversight mechanism, because they are the biggest law enforcement organisation, and one that comes into the most contact with people on a day-to-day basis,” Amer adds.

He stresses that if the police were under scrutiny by a strong, independent commission, there would be less abuse. “The police will be more careful, as they know that they are under scrutiny.” Criminals, after all, often commit crime because they think they can get away with it.

G Sara Lily, with a photo of her son, Francis Udayappan, 24, who died in 2004 after escaping from police custody
and allegedly jumping into a river behind the Brickfields police station. A coroner’s court cleared the police
of any wrongdoing. Sara Lily’s application for a review to the High Court was dismissed in November 2008

Resistance

Unfortunately, the Malaysian government does not appear to share this sentiment.

In December 2007, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz introduced the Special Complaints Commission (SCC) Bill in Parliament. It was a watered-down version of the IPCMC that was general to all law enforcement bodies, bound by secrecy laws, and subject to further amendments in the first two years.

Former Royal Commissioner Tunku Abdul Aziz Ibrahim called the SCC “fraudulent”, as it “utterly lacks independence” and was “powerless to act”.

“I think they were trying to dilute the IPCMC’s strong wordings to appease the police,” Shan says.

Indeed, in 2006 the police blasted the proposed IPCMC in their Buletin Bukit Aman, calling it “unconstitutional, prejudicial to national security and public order, can cause a state of anarchy and undermines the ruling coalition’s power.”

Shan finds the police’s resistance to the IPCMC puzzling. “Reform is good: it will make them look good, and gain public confidence,” Shan argues.

Countries such as the United Kingdom, Hong Kong, and Australia have effective oversight bodies that have benefited their police force. Shan notes that there was some resistance when oversight commissions in these countries were first introduced. However, there was political will to forge ahead in the public’s interest.

Malaysia sorely requires such political will.

A refrain from the politicians and community leaders at Kugan’s funeral procession was: “Today Kugan, tomorrow Kamarul, the day after Kim Seng!”

Crowd holding up placards condemning the police and asking for the IPCMC to be formed, on the day of Kugan’s
funeral. Emotions ran high; one individual shouted: “Hey polis! Mau mayat bukan? Mari angkat mayat!”

Indeed, since Suaram began keeping its own records, it has observed that deaths in detention involve people of all ethnic backgrounds. In 2006, for example, the human rights organisation found that five Malay Malaysians had died in police custody, compared with three Indian and two Chinese Malaysians.

“It is a myth that mostly Indians are involved,” says Suaram’s Tah.

Many have already perished while being held by police. Many continue to perish, as Kugan’s death has come to exemplify. And for every year Malaysia stalls at police reform, we pay a price in blood. The question is, just whose blood will be spilled next?