By Rama Ramanathan

I’m in a state of shock. Not over the recent deaths of the two, seemingly due to custodial actions taken by police in Gombak, Kuala Lumpur. But over the responses of politicians and activists whom I hold in high regard.

I agree with their call for independent investigation of the deaths. The call springs from the fact that, for decades, the police have investigated these deaths, and nearly always, have failed to discipline or punish their own who are responsible for about 16 deaths in police lockups each year.

But I’m shocked that many well-known activists and politicians have called for Suhakam and/or the EAIC to investigate the deaths.

I’m especially shocked that some think Suhakam would do a great job because it did a great job in its inquiry into the disappearances of social activist Amri Che Mat and Pastor Raymond Koh.

I observed that inquiry in person. I reported it extensively. So, I speak from close observation when I say that the steps, approach and conclusion of the inquiry were excellent, as I have often said. But there are several features of the inquiry which many appear to have forgotten.

First, it took two years. (April, 2017 to April, 2019).

Second, Suhakam officers could not compel all witnesses to give recorded statements. Some witnesses refused to cooperate. On the other hand, a police officer can compel attendance for purposes of recording a statement. Even EAIC and MACC officers can do so.

Third, the police refused to share with Suhakam evidence which they had already collected, for example their sketch plans of scenes, evidence allegedly recovered from places related to the case, etc.

Fourth, key turning points in the inquiry came through investigative work done by skilled professionals and skilled framing and questioning by many lawyers, all of whom worked on the case pro bono.

Fifth, Suhakam’s ‘investigators’ sometimes did a poor job taking and recording statements from witnesses. The inquiry panel even noted this in public. For many witnesses, there was one statement recorded by Suhakam and another recorded by the firms which acted for the families.

Sixth, as Suhakam itself pointed out in its 2016 report on lockups and deaths in custody, officers who conduct investigations which may lead to criminal charges must be well trained to do so. I’ve not been able to find any evidence that Suhakam has trained investigators on its staff.

Seventh, Suhakam does not have established processes to ensure the chain of custody of evidence, retain evidence, examine evidence, and assess evaluations of evidence.

Eighth, Suhakam officers are not trained to deal with situations which may turn violent. Their lack of training will likely predispose them to choose less productive means of obtaining evidence.

Ninth, Suhakam’s statutory role is not to conduct investigations which may lead to criminal charges. So, their lack of training is to be expected.

I think those nine points are enough to support my contention that Suhakam’s exhaustive work and brave conclusion in the Amri and Raymond affairs does not mean that august institution is well-suited to investigate the deaths of the two.

But what about the fact that Suhakam has conducted other death in custody investigations, for example of the deaths of Benedict Thanilas in the Jinjang lockup, Jestus Kevin in the Bentong lockup and of Thomas Orhions Ewasinha in the Bukit Jalil Immigration Depot?

Those who ground their advocacy of Suhakam on that fact fail to point out that Suhakam has not supplied its reports to the families of the deceased. (I do not know if Suhakam supplies its reports to the coroner and the public prosecutor receive them. I’ve not heard mention of Suhakam’s reports during the dozens of days I’ve spent attending inquest hearings.)

They fail to point out that Suhakam itself calls for coronial inquests to be conducted – not on the basis of findings supplied by it, but on the assumption that the police have made similar findings.

They fail to point out that the families of Benedict, Jestus and Thomas, through their lawyers, have objected to Suhakam’s investigations.

So, if you want Suhakam to do the investigation, tell me how long do you want the families to wait for the results? Will Suhakam’s findings stand up in court? Will the families miss the opportunity to get evidence which only the police have? How about the duty of the coroner to conduct an inquest? Who will over-rule the Criminal Procedure Code (CPC, chapter 32) and the Chief Justice’s Directive which mandate inquests and control how inquests are conducted? Should the families have a say?

How about the EAIC?

Well, the EAIC does have full-time investigators. I don’t know the number, but I would guess no more than five.

And, EAIC has published excellent investigation reports. Also, my reading of the EAIC Act and EAIC reports inclines me to believe that the EAIC has resources and procedures for handling evidence.

Furthermore, unlike Suhakam, per section 17 of the EAIC Act, members of EAIC task forces are endowed with “all the powers of investigation as contained in the Criminal Procedure Code [Act 593].” They can even exercise “power to obtain documents or other things” (section 32) and “power to search without warrant” (section 40).

The big question, however, is whether the Attorney General’s Chambers (AGC) and judges will accept evidence gathered by EAIC officers and the testimony they give.

I’m aware of one case in which the AGC objected to admitting EAIC’s report. Fortunately, the judge disagreed, and the AGC did not appeal.

I’ve not even touched on the fact that the EAIC can only investigate if the police fail to charge anyone for the deaths. Furthermore, the CPC mandates that the police must investigate the deaths of the two. Indeed, by now the police investigation into Ganapathy’s death should be near complete.

I could say much more, but I’ll move on.

Whom do I think should investigate the deaths of the trio?

My hope is that the, oh so silent, Inspector General of Police (IGP) will agree that the police should not lead the investigations of the deaths of Ganapathy and of Sivabalan, investigations which are already in-progress.

I hope the IGP will ask the MACC – which is overseen by the de facto Law Minister in the Prime Minister’s Office – to take over and lead the investigation, assisted by EAIC investigators and serving police officers, since the latter know best how to get evidence from behind the blue wall of silence. (I refuse to believe all cops are unworthy of the uniform.)

I should add that MACC officers are likely to be viewed with greater respect by police officers. Why? Because they, like police officers, are deemed to be always on duty (MACC Act, section 9), have uniforms, badges and ranks (section 6). And they have a semi-decent track record.

Yes, I think the ball is in the court of the Inspector General of Police and the Chief Commissioner of the MACC. Will the Home Minister, the Law Minister and the Prime Minister prod them to act? Do they understand the extreme urgency of restoring faith in the men in blue?