By Rama Ramanathan
Ganapathy died soon after an extended encounter (weeks) with the police. Sivabalan died after a short encounter (hours) with the police.
The situation is awful. Why? Because police impunity is so well entrenched. Why do I say so? Because on average 16 persons die each year in police custody. And, hardly any cop is disciplined or prosecuted.
Why? Because Home Ministers ad infinitum – the last one is now Prime Minister – refuse to insist that the police take concerted action to end impunity.
Why? Because the Inspectors General of Police collude in cover-ups and buttress the blue wall of silence.
Why? Because the Public Prosecutor (Attorney Generals Chambers, AGC) say at inquests that the evidence indicates police failures resulted in deaths, but in higher courts, in the same cases, they defend the police.
People want action. NGOs, politicians, statutory bodies such as Suhakam, clamour for action.
Groups – such as Tamilar Munnetra Kalagam, which sounds so like the name of a political party in Tamil Nadu – have rallied to speak for the family of Sivabalan.
Lawyers are offering their services. Pro bono, free of cost!
Members of Parliament – such as my friend, Charles Santiago, the honourable (and I don’t say this lightly) Member of Parliament for Klang – have spoken up, calling for persons other than the police to investigate what actually happened.
Over the past couple of years, I’ve spent many days in courtrooms, observing inquests conducted by Sessions Court judges sitting as coroners, into deaths in custody. I’ve listened to dozens of days of testimony in Shah Alam and in Kuala Lumpur. I’ve written numerous accounts of the deaths of Thanabalan Subramanian, Benedict Thanilas and Thomas Orhions Ewasinha. I’ve studied many decisions and Notes of Proceedings.
I’m a constitutionalist. I’m law-abiding. Even when the law is bad – such as section 233 of the MCMC Act – I abide by it, at great cost to myself. And this brings me to the heart of the matter.
In Malaysia, there is an established law pertaining to investigations of deaths in custody. That law is in chapter 32 of the Criminal Procedure Code. That law, in sections 329 and 334, mandates that a police officer must investigate any death in custody. That law also mandates, in section 334, read together with a practice directive issued by the Chief Justice, that an inquest must be conducted to determine the cause of death.
According to the law, which I – and all lawmakers, including my friend YB Charles – must abide by, it is the police who must conduct an investigation into the death of Sivabalan. And there must be an inquest. And the family must be given the opportunity to participate. And a coroner must hold an inquest. And the DPP must assist the coroner.
The justice system is so broken in Malaysia that death investigations are done by three statutory bodies: the police, the Enforcement Agency Investigation Commission (EAIC) and the Human Rights Commission of Malaysia (Suhakam). The investigations of the latter two bodies have proved to be very valuable in several instances. But they are doing work which ought to be done by the police, under our current law.
So, what should Members of Parliament be calling for? Let me, a non-lawyer, but an advocate for justice, and a citizen of Malaysia, offer ten suggestions.
One, the IGP must appoint an independent investigating officer – one from a different state. And he must be given a team of dedicated resources to catalogue information, conduct interviews and research and compile findings. During the course of the investigation, they must work on nothing else.
Two, the Minister of Health must expedite completion of postmortem reports in cases of deaths in custody, including analyses to be conducted by the Chemistry Department. Currently it takes up to 3 months. It can be done within 2 weeks – trust me, I used to manage a string of laboratories.
Three, the Home Minister must commit to submitting Investigation Papers to a standard acceptable by the Public Prosecutor (AGC) within 30 days of any death in custody.
Four, while the investigations are ongoing, any officers directly involved with the deceased must be suspended on full pay. They must be forbidden from speaking with each other, forbidden from going into their place of work, forbidden from speaking with anyone in their place of work.
Five, if the AGC decides not to prosecute anyone for actions which contributed to the death of the detainee, an inquest must proceed. Currently the law appears not to mandate a coronial inquest for those who die in immigration custody. This can easily be remedied by a directive from the AGC.
Six, the Notes of Proceedings of any inquest must be made available free of cost to the family of the deceased. Now, the often-destitute families are required to pay several thousand ringgit in fees.
Seven, the IGP and the heads of Suhakam and EAIC must appoint representatives to observe, from the gallery, all hearings at inquests. They must use the knowledge thus gained to pursue reforms. Reforms must be initiated before the coroner delivers his/her decision.
Eight, the coroner, at the end of every inquest, must issue a directive to the IGP and/or the heads of relevant bodies such as hospitals to institute reforms – and they must commit to respond within 30 days. This is easily accomplished through directives issued by the IGP (standing orders), by the Chief Justice (practice directives), and others.
Nine, set aside one parliamentary sitting day each year to discuss a report on coronial inquests. The report must be compiled by a standing committee of Parliament until a Chief Coroner is established by law.
Ten, the AGC must stop appealing every decision by High Courts to award damages. The award of damages should be considered a goal to be reduced. But not through wrangling in courts. It should be through reforms which eliminate the causes of deaths in custody.
I hope this will be a spur to action for all heads of institutions and lawmakers.
Ten things Members of Parliament should press for to end deaths and abuse in custody
By Rama Ramanathan