Wednesday, January 02, 2013

End Deaths in Police Custody Now!

Press Release: End Deaths in Police Custody Now!

Wednesday, 02 January 2013 11:20am
The Malaysian Bar is once again appalled and deeply troubled that yet another person has died in police custody.  32-year old K Nagarajan was found dead on 24 Dec 2012, before his scheduled court appearance, after having spent three nights in the Dang Wangi police station lock-up.  According to the police, he died from a fall, but his family reportedly found inexplicable injuries on his body.

It is shocking that individuals continue to die in such highly suspicious circumstances while under the care of the police, which raises very alarming questions about the treatment of detainees in police custody and the methods of interrogation used.

The duty of the police is set out in very clear terms in the leading judgment of Lord Bingham of Cornhill in Amin, R (on the application of) v Secretary of State for the Home Department [2003] 4 All ER 1264, where Lord Bingham said:

. . . a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it.  But the duty does not end there.  The state owes a particular duty to those involuntarily in its custody. . . . Such persons must be protected against violence or abuse at the hands of state agents.  They must be protected against self-harm. . . . Reasonable care must be taken to safeguard their lives and persons against the risk of foreseeable harm.  
Death in custody, especially under dubious conditions, is among the worst crimes one can imagine in a civilised society under the rule of law.  The burden of proving that such a death did not occur by foul means must surely fall squarely on the law enforcement agency in question.  The reasons are plain: the victim was being held in isolation and was wholly within the control of the detaining authority; rarely are there independent witnesses to such a crime, as the witnesses are generally interested parties or persons under enquiry; and the police adhere to a strict chain of command code and are bound by a “blue wall of silence”.

Based on the statistics disclosed by the Ministry of Home Affairs, 156 persons died in police custody between 2000 and February 2011, and this was reportedly at least the sixth incident of custodial death at the hands of the police in 2012.  Such tragedies underscore the dire need for an Independent Police Complaints and Misconduct Commission (“IPCMC”), to function as an independent, external oversight body to investigate complaints about police personnel and to make the police accountable for their conduct.  K Nagarajan’s death is inexcusable, and is another incident demonstrating that the police are unable to police themselves. 

The Malaysian Bar calls for an immediate inquest into the incident, which is a matter of utmost public interest and warrants the highest level of priority.  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.  Every death in custody must be thoroughly and impartially investigated.  K Nagarajan’s death must not be relegated to a mere statistic.
The Malaysian Bar also calls on the authorities to urgently implement structural reform, where inquests are concerned.  Recent enquiries into deaths of persons that occur whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts.  

The Malaysian Bar thus 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 are 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 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.

It is also disquieting that, in the case of K Nagarajan’s arrest, the protocol prescribed under the Yayasan Bantuan Guaman Kebangsaan (“YBGK”) scheme does not appear to have been complied with.  The guidelines for enforcement officers provide that as soon as an arrest has been made, and before the suspect is questioned, the officer must inform the suspect’s family (or friend) regarding the arrest, and must also provide details regarding the arrest and the suspect to YBGK.  However, K Nagarajan’s family has reportedly stated that they were not informed about the arrest, and YBGK did not receive any notification.

K Nagarajan’s tragic fate is the latest in a deplorable string of deaths occurring in the context of investigations carried out by law enforcement agencies.  It must be the last.  The Malaysian Government must act now.

Our heartfelt condolences go out to K Nagarajan’s family and friends.

Lim Chee Wee
Malaysian Bar
2 January 2013

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