LETTER | Suhakam needs solidarity when investigating death in custody

Nalini Elumalai

Modified 29 Jan 2021, 4:26 am

LETTER | For the past few days, the new findings by the Human Rights Commission of Malaysia (Suhakam) on G Jestus Kevin's death in the Bentong district police headquarters has sparked open debate. Since then, Suhakam's power to investigate death in custody cases has come into question.

We stand in solidarity with the family of Jestus and we hope this finds them in high spirits to fight this through until they get justice for their family. As a former staff of Suara Rakyat Malaysia (Suaram), my colleagues and I handled, and continue to work on, cases of police abuse and human rights violations.

The current situation is a continuous discussion and we believe that our humble perspective would enhance the discussion and humanise the way we see how justice is done.

Cases of death in custody and police abuse are public interest cases. Custodial deaths due to wrongful exercise or abuse by the police should never occur with impunity in any constitutional democracy like Malaysia.

The police force has an obligation to ensure that those detained under police custody are safe and cared for. Whenever a death in custody comes to the attention of the public, it's no longer an interest of the court of law per se but it is now a matter of larger public interest.

Deaths in police custody continue to plague the country because the existing justice system has consistently failed to hold the police force accountable for each and every death that happened in the past and present.

We want to draw attention to a few key issues that must be addressed before we debate whether Suhakam has the power or duty to be involved in investigating deaths in police custody.

Under the Lockup Rules 1953, police lock ups are subjected to rules and regulations that apply to all detainees in police custody. This is to protect and ensure that detainees' fundamental rights are not unlawfully violated or deprived during police custody.

These rights are the minimum standard of treatment expected in line with international principles on detention. The findings by Suhakam with regard to Jestus was alarming, to say the least, as it highlights the continued trend that the minimum standard of treatment and protection of detainees was not only disregarded but explicitly violated and undermined by the authorities.

As a result, people are tortured, beaten up, and denied rights to get treatment and help in detention. We must prioritise and fix this before we lose more lives. All of us want a criminal justice system where alleged offenders are brought to justice and not killed or harmed in detention or police custody.

In previous cases, such as the late A Kugan, Ulaganathan, and others, the respective families took up civil suits to seek justice and hold the police and the government accountable for police brutality and misconduct.

In the case of A Kugan and Ulaganathan, the court finding was favourable to the victim and family. Despite the successes in the civil suit for Kugan’s case, justice and truth were still denied to the family when the police officers who were involved in those cases escaped criminal prosecution due to lack of evidence against them.

This only contributes to the culture of impunity within our criminal justice system as there is a violation of fundamental rights and the law, but the violators are not made to account for their crimes. The victory for justice and truth was only a small cause for joy as the overall system is not fixed and the quest to eliminate the culture of impunity within the system marches on.

This progress, especially pertaining to deaths in custody, was the result of persistence and tireless advocacy by various stakeholders including NGOs, political parties, Suhakam, the Malaysian Bar, and others in their pursuit of justice.

Their persistence was rewarded when the government acknowledged the issue by establishing the Royal Commission to Enhance the Operation Management of the Royal Malaysian Police (Police Commission) in February 2004 to enhance police accountability.

One of the key recommendations of the report that was released in 2005 was to establish the Independent Police Complaints and Misconduct Commission (IPCMC) to ensure that the police are accountable when they enforce, apply law, rules, and procedures.

The Royal Police Commission also recommended a code of practice called Independent Custody Officer to be adopted by the police force with regard to arrest and detention of persons. The independent custody officer will be responsible for the welfare and custody of every detainee.

The police rejected the IPCMC then and continue to do so now. But the call to establish the IPCMC will never stop. Until the day we have an independent body with the power to put an end to the impunity of the police, all of us have the responsibility to ensure that the police are held accountable through means that are available to us.

It was in this context that the discussion on the formation of a Coroner's Court took place. Again, after many meetings, workshops, discussions, debates, and push back, the judiciary finally agreed to the call and established 14 Coroner's Courts in 2014 to address growing public outcry over the increasing numbers of deaths in custody.

Before the establishment of the Coroner's Courts, all inquests of death proceedings were conducted by a magistrate. The establishment of the Coroner's Court was a milestone for the struggle against police impunity.

The Coroner's Court system is not perfect and has its own flaws. The Coroner's Court still relies on the police to investigate its own officers, and the Coroner's Court is limited in its power to investigate or supervise following the discovery of a death in police custody.

On top of that flaw, the Coroner's Court in practice was unable to determine the cause of death in critical cases and left some cases with an open verdict. When the Coroner's Court fails to fulfill its duty to determine the cause and circumstances of deaths in custody, justice would be deprived for the victim and the struggle against impunity will come to a grinding halt.

When Suhakam was founded in 1999, many were sceptical about it as it was established during former prime minister Dr Mahathir Mohamad’s administration and many viewed its establishment as another political maneuvre to placate public objection to the administration post-Reformasi.

Irrespective of the scepticism, the Human Rights Commission of Malaysia Act 1999 (the 1999 Act), was enacted in a hurry and powers afforded to Suhakam are very limited in comparison to other national human rights commissions in the region. Many described it as a deliberate motive to limit Suhakam's power and influence in line with the political trend of Mahathir’s era. This eventually led to the decade in which Suhakam was described as a toothless tiger.

More than 20 years have passed since Suhakam's establishment and it has since proved its worth in investigating human rights violations and calling out abuse of power by the government. However, Suhakam's development was not necessarily a smooth one as it is still hobbled by the limitation in the 1999 Act and other administrative limitations or restrictions.

With this history of development and growth, one would hope that the issue of whether Suhakam has the power to investigate is not open to debate among human rights advocates. As per the 1999 Act, Suhakam has the power to investigate all human rights matters and would only be limited if the subject matter pursued is before the court.

The Section 12(2) of the 1999 Act bars Suhakam from inquiring into any complaints of human rights violations that are determined by the courts. In the past, this provision had the effect of causing Suhakam's investigation into serious human rights violations cases to be aborted on the grounds that the cases were brought before the courts.

For example, in 2007, Suhakam was compelled to cancel its public inquiry into the alleged excessive use of force, police brutality, and violence during a ceramah in Batu Buruk, Terengganu. Suhakam was forced to cancel its investigation because two individuals who participated in the assembly were charged.

More recently, in the public inquiry into enforced disappearances, Suhakam's investigation was yet again obstructed by peculiar charges levelled against an individual who was not associated with the issue of enforced disappearances.

As human rights advocates, we must consider any call for further restriction of Suhakam's power in the context of the challenges posed by instigators or institutions involved in human rights violations in the past.

In the context of investigations into deaths in custody, the Suhakam inquiry process should not be equated with the judicial process and seen as mutually exclusive. Ideally, the Coroner's Court process should take precedent and be allowed to take place and deliver justice for the victims.

However, what is the position if the Coroner's Court process fails to take place as observed in the case of Syed Mohd Azlan? Failure of the Coroner's Court system in consistently investigating and delivering a verdict has left a gap in the system that leaves much to be asked for.

If there was no indication that the Coroner's Court system would be engaged to investigate deaths in custody, does that mean Suhakam or similar bodies should just perpetually wait before it can take action?

In the past, civil societies, opposition parties, and many others have protested at the Suhakam office many times to ensure that the commission upholds its duty as a national human rights institution to protect and promote human rights.

Civil society has always addressed the inadequacies of the Suhakam Act and pushed the commission to address human rights violations in a broader sense and push the boundaries within its restricted mandate and powers.

Nevertheless, even with the limited powers, we have seen notable success of Suhakam to protect human rights and investigate human rights violations. Suhakam's findings through public inquiries have brought abuses and misconduct of the police force during protests and in detention centres to light.

One good example is the recent enforced disappearances of Pastor Raymond Koh and two others. When everything seems helpless and bleak, Suhakam's inquiry and brave findings brought much hope to the families of the victims.

We don’t view Suhakam's finding of death in custody as an end to our pursuit for justice. We see it as another stepping stone in the broader push for accountability and fight against the culture of impunity within the police force.

Every finding by Suhakam affirms the continued disregard for human rights and police abuse of power and only strengthens the collective call for the IPCMC. We owe it to the victims of police misconduct to explore and fully utilise every and all available mechanisms and avenues to shine a light on the human rights violations experienced and seek justice where we can.

We are of the opinion that if Suhakam's findings are consistent with what the families are claiming, then use this as additional proof to expose the violations and strengthen the legal challenges against the police.

In a political climate where the culture of impunity is the norm, and when the system that is supposed to support justice is flawed and repeatedly fails to deliver justice, any available mechanism and means to seek truth and deliver justice should be adopted and utilised collaboratively and not exclusively.

Suhakam has made a positive finding affirming that violation has taken place. It is our collective duty to ensure that the finding is not left unattended, but utilised to pursue truth and justice in all other avenues available to us.

The pursuit of truth and justice should never be limited to certain institutions or figures but it has to be a collective movement in solidarity with others. At the end of the day, all the work and effort calling for truth and justice is not for our own pleasure, but the dignity of the victims who we stand in solidarity with. For that, the victory at the end of the day must always be of the people and not benefit those in power.

This statement is supported by:

1. Parti Sosialis Malaysia (PSM) Deputy Chairperson S Arutchelvan

2. Suara Rakyat Malaysia (Suaram) Executive Director Sevan Doraisamy

3. Suaram Project Coordinator Dobby Chew

NALINI ELUMALAI is a former executive director of Suara Rakyat Malaysia (Suaram).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.