MALAYSIA does not need to wait for an incident like the death of George Floyd in the US in order to reform local laws and procedures in custodial deaths, Eliminating Deaths and Abuse in Custody Together (EDICT) chairman M. Visvanathan said.

More Malaysians also need to take a stand on deaths in custody as it is one of the areas of police reform needed that can impact innocent lives, he said.

“When George Floyd died in the United States, many people jumped on the bandwagon and took the matter to social media with the Black Lives Matter hashtag, but similar problems here are seen as only affecting a certain segment of society.

“Why should we wait for another death to happen in order for police reforms to be carried out? Why should we wait for someone else to die and cause misery to their family, before we Malaysians stand up?

“This should change. Malaysians must take cognisance that anybody can die in police custody,” Visvanathan told The Malaysian Insight in an interview.

EDICT is a relatively new group, formed in November 2017 to focus on deaths in custody.

Various civil society groups have at one time or another spoken up on such cases, but EDICT is arguably the first one dedicated to it.

On its website, EDICT said the issue of custodial deaths in Malaysia is often shrouded in secrecy, leaving families unable to pursue legal action. Authorities deny liability while inquests into cases, if they are held, are seldom reported by the media.

“There is no public pressure to make things right,” EDICT states.

Visvanathan, EDICT’s founder, said the organisation works to represent victims and families in their pursuit for justice while pressing for reforms.

Dire need for IPCMC

According to EDICT, a parliamentary reply in 2017 revealed there were 110 lockup deaths from 2010 and 2016 that have been publicly disclosed, and the deaths show the need for the Independent Police Complaints and Misconduct Commission (IPCMC).

Visvanathan said the commission will act as a complimentary mechanism to the coroner’s court.

“Once the coroner’s court does its inquiry and investigation, and if it finds that there are some police officers who have been negligent or there are some police officers who have done something wrong, then the IPCMC can come in to complement the mechanism, to complete the story and to take action against these people,” he said.

The IPCMC was first envisioned 15 years ago as one of the recommendations by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police.

Long resisted by the police, steps towards its formation gained headway under the Pakatan Harapan government with a bill tabled in Parliament in July 2019. The bill was also referred to Parliament’s Special Select Committee for Consideration of the bills, which made further amendments.

The bill would have gone through its second and third reading in March this year but it was stalled by the change in government.

It remains to be seen if it will be revived when Parliament convenes in the coming session beginning Monday. 

Exemplary damages

Visvanathan also highlighted the reluctance of Malaysian courts to grant exemplary damages in custodial death cases.

He said this was among the multiple statutes and areas of law that need to be dealt with in order to prevent a repeat of such cases.

He cited the case of P. Chandran, a lorry driver who died in the Dang Wangi police lockup four days after he was arrested on suspicion of being involved in a kidnapping case of a newborn baby from a hospital. 

Chandran, a father of six, was arrested on September 6, 2012. During that period, he was not allowed to take medication that his family members provided to the police. He died in the police lockup four days later, before 7.48am on September 10, 2012.

In 2017, the high court held the police liable for Chandran’s death, citing negligence and abuse of public office by the policemen in failing to provide medical treatment for the deceased.

The court awarded a total of RM357,000 in damages to Chandran’s widow N. Selvi and daughter C. Rita, as well as RM200,000 in exemplary damages.

Later that year however, the Federal Court ruled that Section 8(2) of the Civil Law Act expressedly bars the award of exemplary damages in a suit by the estate of a deceased person.

“So, they don’t want this awarding of exemplary damages. This is because of the Federal Court’s decision in the infamous A. Kugan’s case, where it said Section 8(2) expressly bars the award of exemplary damages in a suit by the estate of a deceased person.

“This is the state of the law in the country. If you want to send out a strong message to the police that people should not die in custody, surely the awarding of exemplary damages is something that must be looked at very seriously,” he said.

Visvanathan said the police force has its own Department of Integrity and Compliance with Standards (JIPS) but the public could not know if proper action was being taken against culpable police officers.

If there was, the department was not being transparent with the public on its decisions.

“The information that is given to the general public is not very satisfactory.”

Visvanathan also cited a case he represented, involving 25-year-old welder Syed Mohd Azlan Syed Mohamed Nur, who was arrested in the early hours of November 3, 2014 on suspicion of rioting and possession of a weapon.

He was found dead several hours later in police lockup in Sg Rengit, Johor.

Sixty-one injuries were counted on his body and the post-mortem showed that he died due to blunt force trauma to the chest. 

Syed Azlan’s family started civil proceedings in 2015 against three policemen and 11 others, including the inspector-general of police and the government.

The Attorney-General’s Chambers eventually pursued charges against three policemen. Later, the three accused were acquitted by a high court.

Four years later, in December 2019, the family of the late Syed Azlan was granted RM448,000 in damages by a high court.

However, Visvanathan said one of the policemen involved was promoted from inspector to assistant superintendent of police (ASP) while the civil case was ongoing. 

“How on earth can the PDRM do that? I challenged the IGP to give me an explanation why this police officer, despite having a criminal charge, and with the appeal going on, as well as a civil case going on, is promoted to ASP and also transferred to his hometown.

“Why did the police allow this to happen?”

Other reforms

Visvanathan said custody under the Immigration Department also needs to be covered by Section 334 of the Criminal Procedure Code (CPC) so that an inquiry can be made if a death occurs at immigration detention centres.

“It’s high time that the deaths in immigration be included in the CPC.

“The CPC is an old code from pre-Merdeka days. The law has not developed in tandem with changes in society.

“From EDICT’s standpoint, the CPC needs to be amended, the coroner’s court needs to be empowered with more powers of investigation, civil law needs to be amended, and establishment of the IPCMC must happen before we can stop deaths in custody.”

He also urged the Inspector-General of Police’ Standing Orders (IGSO), which is classified under the Official Secrets Act, to be made public. 

As long as the IGSO is not disclosed to the public, it will be viewed with suspicion. 

“In every other civilised country, the IGSO is disclosed publicly.

“Standard operating procedures of enforcement agencies should never be secret. So long as it is a secret, the public shall view it with suspicion, that there is something to hide.”

Besides EDICT, the Malaysian Bar has also called for the IGSO to be made public. – July 12, 2020.