Malaysiakini Letter

Arrest, detention doesnt presume guilt

Gerard Lourdesamy  |  Published:  |  Modified:

Outrage would be an understatement to describe the comments made by Deputy IGP Musa Hassan that the police will only take action against the person who filmed the disgraceful incident of a woman in police custody being asked to do ear squats in the nude rather than the policewoman who perpetrated the vile and offensive act in question.

A case of killing the messenger and sweep the message under the carpet. Are senior police officers so ignorant of the blatant abuse of power and degrading treatment meted out to the detainee in this case or are they in an awkward position of defending the indefensible?

To make matters worse Deputy Internal Security Minister Noh Omar has added credibility to Musa's statements by insisting that the police had followed proper procedures. Does he mean that violating a person's self-respect, human dignity and fundamental rights under the disguise of "proper procedures" is justified under any circumstances?

Just because a person is arrested and detained does not mean that they are guilty of any crime nor does it imply that the police can impose arbitrary methods of search and seizure in respect of a detainee.

Provisions in the IGP' Standing Orders or the Standard Operating Procedure (SOP) of the police force cannot exist in a legal vacuum without any statutory basis. The Criminal Procedure Code (CPC) and the Lock-Up Rules 1953 contain the relevant rules of procedure to deal with police custody.

They are the primary and secondary sources of legislation in respect of such cases. The IGP's Standing Orders and the SOP are not subsidiary legislation and do not have the force of law. These are mere administrative guidelines issued to the police force. These guidelines cannot by themselves supercede, delegate from or repeal the CPC or the Lock-Up Rules.

A full cavity search under the Rules is only permitted in exceptional circumstances where warranted by reasonable suspicion of either concealment of a weapon or drugs. Furthermore, it has to be sanctioned by a senior police officer and conducted by an officer of the same sex as the detainee. Such searches should be the exception rather than the norm.

Are the police trying to say that every person in custody is subject to a full cavity search upon detention irrespective of the reasons for their arrest? If that is the case. then the police should enlighten us if similar searches were carried out on former politicians, civil servants, businessmen and even police personnel charged with corrupt practices or abuse of power?

I hope the former IGP Rahim Nor was also subjected to such a search when arrested for assaulting former deputy prime minister Anwar Ibrahim!

It is time that the police came clean and owned up to their faults. The public is just fed up and disgusted with their lame excuses and constant threats of criminal defamation and intimidation against any body who dares criticise their actions. There is no transparency or accountability in the force whatsoever.

How can the police be expected to be free and fair in investigating complaints against themselves? Most of the time it is an eye wash. The few occasions when action is ever taken, it is hesitant, protracted and mild compared to the accusations made.

The time is right for the establishment of an independent Police Complaints and Misconduct Commission (PCMC) with wide ranging powers to deal with cases of police abuse and misconduct.

While the recommendations of the Royal Commission on the Operations and Management of the Royal Malaysian Police are laudable and very welcome, the government must show its resolve and determination to implement its recommendations in full. Political patronage of the police force must end.

Only the right sort of people should be allowed to join the force; salaries and conditions of service must be improved to root out corruption and inefficiency; promotions must be based on merit, competence, integrity and seniority; transparency and accountability must be the norm; police personnel must be given every opportunity to improve themselves through continuing education and training programmes notably on race and gender sensitivity; disciplinary procedures must be made more open; and there must be an independent structure to deal with complaints from police personnel themselves against their superiors without being subjected to pressure, intimidation and threats from their superiors.

The government must also take a closer look at the archaic laws still in force in respect of the police force, the powers of arrest, search, seizure and detention, the lock-up rules, access to counsel, remand and bail procedures. While the setting up of the Select Committee on the Criminal Procedure Code is a step in the right direction, either a Royal Commission or an all-party Select Committee should be set up to review the criminal justice system as a whole.

The relevancy of some laws also need to be questioned in the present age and changed circumstances notably the numerous emergency ordinances that have been in force since 1963 until today. Laws that give the police such wide and untrammeled powers, without any supervisory function from either the courts or other independent bodies, have resulted in the abuses that we are seeing today.

The prime minister is right in seeking an independent inquiry into this sordid affair that has tarnished the image of the nation and questioned our own values and beliefs. Racial profiling and stereotyping are so widespread that one shudders when dealing with public departments where the treatment meted out to you is based on race and religion.

Sadly, many foreigners such as those from China and India have been subjected to these abuses and threats to the point that they leave this country in disgust and anger. It is we who are losing out on such talents and expertise especially from those who are genuine and legitimate.

It is pointless spending millions of ringgit on state-of-the-art technology and office systems, training programmes and new management modules and methods if the people responsible for delivery are beyond change in every aspect, complacent and comfortable in their entrenched positions.

The government must have the political will, determination and vision to force changes despite being unpopular and divisive. Otherwise, we as a nation are going to be left out to dry in this era of globalisation and competition.

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