Unabated deaths in custody, Malaysian Bar expressed concern

In the case of N Dharmendran’s arrest, the protocol prescribed under the Yayasan Bantuan Guaman Kebangsaan (“YBGK”) scheme, which is an initiative made possible by Prime Minister Dato’ Sri Najib Tun Abdul Razak, and supported by the Government, does not appear to have been complied with by the police. The guidelines for enforcement officers stipulate that as soon as an arrest has been made, and before the suspect is questioned, the police officer must inform the suspect’s family (or friend) of the arrest, and must also provide details of the suspect and the arrest to YBGK, who will then despatch a lawyer to offer legal representation to the arrested person.

However, we understand that YBGK did not receive any notification from the police about N Dharmendran’s arrest. We regret to note that this is the second occasion that we are aware of where YBGK was not notified of an arrest, and the detainee later died in police custody. In the first incident, 32-year-old K Nagarajan had been found dead on 24 Dec 2012 in the Dang Wangi police station lockup.

The present state of affairs has led to much public outrage and an erosion of confidence in the police. The police must be proactive in ensuring that the wrongful actions of some amongst them do not tarnish the standing of the whole force. Unless this is addressed, the police force will unfortunately remain a diminished institution in the eyes of the public.

The unabated deaths in police custody reinforce the Malaysian Bar’s repeated calls for the Government to implement the recommendation of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, in its report published in May 2005, for the setting up of an Independent Police Complaints and Misconduct Commission (“IPCMC”) to function as an independent and external oversight body to investigate complaints about police personnel.

It is untenable for the Government to continue to ignore the dire need for the IPCMC, in the face of continuing cases of deaths in police custody.

The Malaysian Bar takes the view that every death in custody must be thoroughly and impartially investigated. Although Chapter XXXII of the Criminal Procedure Code requires that all custodial deaths be investigated by way of inquest, no inquest is held in most instances. Thus, the Malaysian Bar calls on the authorities to urgently implement comprehensive structural reform where inquests are concerned. The few recent enquiries into deaths of persons that occurred whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts. In this regard, the Malaysian Bar urges the Government to introduce a Coroners’ Act, and establish a Coroners’ Court with the following features:

(1) A clearly-stated aim, which will focus on identifying the deceased and ascertaining how, when and where the person died;

(2) The creation of an official position of a State Coroner, and Coroners. These would be appointed by the Prime Minister upon the recommendation of the Chief Justice. The State Coroner must be a Sessions Court Judge, ie a more senior position than that of a Magistrate, who currently conducts the inquests;

(3) The Coroner would be specially trained and be responsible for supervising investigations by the police, ensuring that all relevant evidence is gathered, presiding over enquiries, and making findings; and

(4) The specific use of pathologists and forensic pathologists. Only pathologists, or medical practitioners supervised by pathologists, may conduct post-mortems.

In the meantime, the Malaysian Bar calls for an immediate inquest into N Dharmendran’s death, as a matter of public interest warranting the highest level of priority. The police must render every assistance to the inquest and undertake a prompt and transparent investigation into the incident. In this regard, we are encouraged by the statement of the police authorities that they have set up a special task force to investigate the matter.

Those responsible for N Dharmendran’s death must be identified and be made to face the full force of the law immediately. The key question is who the culprits responsible for this heinous crime are. The police force owes it to the families of the deceased, the public and itself, to do all that is required to ensure that such incidents do not occur again. It is incumbent upon the police to continuously work to establish the confidence and trust of the public whom they are duty-bound to serve and protect.

As stated by the Supreme Court of India, death in police custody is “. . . one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens . . . . and is an affront to human dignity. . . .”4 It is shocking that detainees continue to die under questionable circumstances while in the custody of the police.

The Malaysian Bar hopes that N Dharmendran’s death will not be relegated to a mere footnote in the disturbing history of custodial deaths in our country.

The Malaysian Bar expresses its deepest condolences to the family and friends of N Dharmendran.