Bar Resolution on Deaths In Police Custody and Police Brutality(2017)

Resolution Adopted at the 71st Annual General Meeting of the Malaysian Bar Held at Renaissance Kuala Lumpur Hotel (Saturday, 18 Mar 2017)

Resolution Regarding Deaths in Police Custody and Police Brutality

WHEREAS the Malaysian Bar,

(1) Recalling the Malaysian Bar resolution passed at the 53rd Annual General Meeting on 20.3.1999 on police shootings and custodial violence, among others, calling for the holding of inquiries into death in police custody cases and prosecution of the relevant police personnel;

(2) Recalling the Malaysian Bar resolution passed at the 55th Annual General Meeting on 17.7.2001 on unlawful shooting to death of individuals by police personnel and police brutality and deaths in police custody;

(3) Recalling the Malaysian Bar resolution passed at the 57th Annual General Meeting on 22.3.2003, among others, condemning the alarming statistics on deaths in police custody and shooting to death by police personnel, and calling for transparency and accountability in each and every case;

(4) Recalling the Malaysian Bar resolution passed at the 58th Annual General Meeting on 27.3.2004 calling for the Inspector General of Police of Malaysia and the Attorney General to investigate and institute the appropriate criminal proceedings against the relevant police personnel and commence immediate inquiry into mysterious deaths in police custody and shooting to death by police personnel;

(5) Recalling the Malaysian Bar resolution passed at the 61st Annual General Meeting on 17.3.2007 calling for the urgent formation of an Independent Police Complaints and Misconduct Commission (“IPCMC”) and for the Attorney General to prosecute without fear or favour all or any criminal abuse of police powers; 

(6) Recalling the Malaysian Bar resolution passed at the 65th Annual General Meeting on 12.3.2011, among others, on inquiries into death in police custody cases;

(7) Noting with deep regret that the resolutions as recalled above have largely been ignored or unheeded as deaths in police custody under questionable circumstances, unlawful shooting to death by police personnel and police brutality while in the custody of the police continue to occur. 

(8) Whereas the Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi Manusia Malaysia, “SUHAKAM”) has reported that from the years 2000 to 2014, 242 deaths in police custody were recorded.  Suara Rakyat Malaysia (“SUARAM”) has recorded 11 deaths in police custody for the year 2015, and 2 deaths in police custody for the year 2016. 

 

(9) Whereas to date in 2017, at least 3 deaths in police custody have been reported, which are as follows:- 

(9.1) Soh Kai Chiok, aged 49:

(a) The deceased (Soh Kai Chiok) was arrested and detained at Bera District Police Headquarters (IPD) in Pahang.  He was suspected of stealing bananas and was being investigated under Section 379 of the Penal Code.

(b) It has been reported that Soh Kai Chiok was arrested by the owner of the banana plantation and his four employees, and was handed over to the police with injuries on his left arm, left leg and on the face.  He was taken to the Triang Health Clinic and was referred to the Sultan Haji Ahmad Shah Hospital in Temerloh.

(c) According to the Bera district police chief, the guard at the police headquarters men's lock-up found Soh Kai Chiok unconscious.  Soh Kai Chiok was pronounced dead at 12.15am on 18.1.2017.  He also said that post-mortem results showed ulcers the size of a 50-sen coin were found in Soh’s intestines.

(9.2) S Balamurugan s/o M Suppiah, aged 44:

(a) The deceased (Balamurugan) was arrested on 6.2.2017.

(b) On 7.2.2017, Balamurugan was brought before a Magistrate for a remand order.  According to Balamurugan’s lawyer, at his remand hearing, Balamurugan was weak and unable to walk, had bruises on his face, was bleeding from his nose and mouth, and vomited blood.

(c) Upon observing Balamurugan’s condition, the presiding Magistrate queried the Investigating Officer but the Investigating Officer did not reply.  The presiding Magistrate then rejected the remand application and instructed the Investigating Officer to take Balamurugan to the hospital for treatment immediately.

(d) Balamurugan was neither released nor brought to the hospital for medical treatment.

(e) On 8.2.2017, Balamurugan was found dead at the North Klang Police Headquarters.

(f) The first autopsy carried out at the Klang Hospital had reportedly indicated that Balamurugan had died of “heart problems”. However, the results of the second post-mortem conducted by Hospital Kuala Lumpur and released on 18.2.2017 states that the cause of death while Balamurugan was in police custody was “coronary artery disease with multiple blunt force injuries”.

(g) On 22.2.2017, the Inspector General of Police Tan Sri Khalid Abu Bakar said that police have started investigations under Section 345 of the Penal Code (wrongful confinement) against the investigating officer for failing to abide by a court order to release the deceased.  However, there has been no news since then. 

(h) On 9.2.2017, the Enforcement Agency Integrity Commission (“EAIC”) stated that it would commence investigation into the death of Balamurugan immediately.  On 28.2.2017, the EAIC stated that it has taken 47 witness statements. 

(i) Two teenagers, both age 16, who had been arrested together with Balamurugan and who had witnessed Balamurugan being assaulted, have, according to their lawyer, been beaten up and detained in an adult lock-up instead of being kept in a separate facility. 

(9.3) Thanaseelan Muniandy, aged 43:

(a) The deceased (Thanaseelan) was arrested in Bukit Beruntung on 21.02.17 for an alleged burglary.

(b) Thanaseelan was under a court remand from 22.02.17 to 25.02.17 at the Bukit Sentosa Police Station in the Hulu Selangor District. He was found unconscious in his cell at 1.50am on Saturday 25.02.17. An ambulance was called but Thanaseelan was pronounced dead at the scene by a medical personnel.

(c) According to Hulu Selangor Police Chief Superintendent R. Supramaniam, Thanaseelan had been complaining of stomach pains; and he was brought to the Kuala Kubu Baru Hospital for treatment on 24.2.2017.  The doctors gave him some medicine and the police brought him back to Bukit Sentosa Police Station. 

(d) Subsequent inquiries with the hospital have disclosed that Thanaseelan was not warded on 24.02.17, but the outpatient department could not confirm if he was brought in for treatment.  Investigations are on-going as to why he was sent back to police custody without adequate diagnosis and treatment.

(e) The pathologist who prepared the post-mortem report has said that preliminary findings show that Thanaseelan had died from “blood poisoning from suppurative peritonitis due to a perforated gastric ulcer” and that Thanaseelan would have suffered acute pain as there was so much pus in his stomach.  Thanaseelan had a history of chronic gastritis.

(f) Thanaseelan’s wife and family members have confirmed that despite being pronounced dead at 1.50am on 25.2.2017, the police only informed them approximately seven hours later. The distraught family members also claimed that they were never informed of the arrest. 

(10) Whereas Article 5(1) of the Federal Constitution guarantees that no person shall be deprived of his life and personal liberty save in accordance with the law.

(11) Whereas Article 8(1) of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law. 

(12) Taking note that Malaysia is obliged to uphold the underlying values of international human rights laws and norms set out in, inter alia, the Universal Declaration of Human Rights which sets out, among others, that every human being has the inherent right to life and dignity.

(13) Noting with regret that the Government of Malaysia has yet to establish the IPCMC, as recommended by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in its report in 2005.  

(14) Taking note that by the time decisions are made to hold public inquiries or inquests, the trail of evidence relating to the circumstances of deaths in police custody or police brutality could easily be lost due to concealment, fabrication or destruction of evidence, as borne out by the recent findings of the Enforcement Agency Integrity Commission ("EAIC") into the death of N Dharmendran while in police custody, and taking further note that the IPCMC provides an effective mechanism to intervene into any attempts or afterthoughts to conceal and destroy evidence almost immediately after any death in custody.

(15) Taking note that the many recommendations by SUHAKAM and EAIC to address deaths in police custody and police brutality have fallen on deaf ears, and enforcement of these recommendations remains weak and lacks political will. 

(16) Noting with regret that Malaysia has yet to ratify the United Nations Convention Against Torture which would, among others, ensure that law enforcement agencies are duty-bound to protect the people against torture or any forms of ill-treatment by providing the mechanism to prohibit, prevent and punish acts of torture and ill-treatment, as well as means of redress for victims.

(17) Deeply disturbed that the incidents of questionable deaths in police custody, unlawful shooting to death by police personnel and police brutality while in the custody of the police have significantly shaken public trust and confidence in the police force to uphold the law and order in this country, and reflect that the police force has failed to portray itself through its actions or inactions, as an accountable, transparent, disciplined and responsible police force.

THEREFORE it is hereby resolved that the Malaysian Bar:

(A) Is gravely concerned, disapproves and condemns the continuing occurrence of deaths in police custody and police brutality while in the custody of the police.

(B) Is deeply disturbed by the inaction or failure on the part of the Inspector General of Police of Malaysia and the Public Prosecutor respectively in commencing investigation and instituting criminal prosecution against the police personnel connected with deaths in police custody and police brutality in but a handful of the reported cases.

(C) Calls upon the Government of Malaysia to respect, promote and protect the rights of persons under the Federal Constitution and international human rights laws and norms.

(D) Calls upon the Royal Malaysia Police to abide by the principles of justice, good governance and the rule of law, and to respect, promote and protect the human rights of people in Malaysia.

(E) Calls upon the Government of Malaysia to urgently set up the IPCMC without any more delay.

(F) Calls upon the Government of Malaysia to ratify the United Nations Convention Against Torture and thereafter take steps for legal, policy and institutional reform in adherence to the same. 

(G) Mandates the Bar Council to take and continue all appropriate and necessary action to urge the Government of Malaysia to establish the IPCMC.

The motion was proposed by Steven Thiru (Chairman, Bar Council), on behalf of the Bar Council.