Friday, April 29, 2016

Abolish 'Contractor for Labour System' That is Weakening Unions and Workers Capacity to Protect Rights?

The 'contractor for labour' system weakens worker and trade union rights to the detriment of workers. The 'contractor for labour' is essentially a labour supplier - a supplier of workers.

It allows employers to use a large number of workers whilst evading employer responsibilities and obligations. Workers supplied are not considered 'employees' of factories and businesses they end up working, but Malaysia sadly considers them 'employees' of the labour supplier - the contractor for labour. If factories and businesses want to get rid of a 'supplied worker', it is as easy as picking up the phone, and the said worker no more works in the factory or businesses. Hence, no need for disciplinary proceedings, domestic inquiries and/or legitimate 'retrenchment' as means of getting rid of 'undesireable' workers.

These supplied workers, although they do the same work as the employees of the factory or business, can easily be discriminated - by being less or even being denied some of the other worker benefits. 'Supplied workers' also have no right to demand better rights and working conditions from their real bosses, the employer of these factories and/or businesses they work at. The labour supplier, of course, have no power to improve work conditions at the workplace...

Being supplied workers, they cannot even join the in-house trade unions at their workplace and hence this not only is a gross denial of 'trade union rights' - but also causes the existing trade union of employees at the work place to become 'WEAK' - well, this happens when number of supplied workers just keep increasing... in some workplaces, the number of these 'supplied workers' (some call them outsourced workers) may even exceed 50% of the total workforce at the workplace. Obvious weakening of trade unions - their bargaining powers...[Malaysia still does not place any legal limit on the permissible numbers of 'non-employee' workers working in the workplace...

Supplied workers can join national or regional unions....BUT they will not be able to enjoy the benefits and rights contained in a Collective Bargaining Agreement, that being an agreement between Union and Employer of the Workplace.

Contractor for Labour or 'Labour Suppliers' - supply worker to many different sectors and industries, and considering that Malaysia only allows national/regional unions based on sectors/industry/... it is near impossible for these supplied workers to be able to join a national or regional trade union and for that union to get the recognition of the employer, the said Labour Supplier/Contractor for Labour... The Southern Regional Electronics Union did try, but the 'government' also denied them the right to be recognized - not even a 'Secret Ballot"...

Malaysia had (and still has) the Private Employment Agencies -whereby they found 'workers for employers' or 'employers for workers' - and, when employer and worker meet, they enter into an EMPLOYMENT AGREEMENT and there is an employer-employee relationship. For their service, the Private Employment Agency receives a FEE - a one-time fee.

In comparison, these Labour Supliers (Contractor for Labour) remains employer to the supplied workers - and is PARASITE on the sweats and toils of these workers. The more the workers work and earn, the more Profits the Contractor for Labour earns. Like 'toll collectors', they continue to earn...and earn, and so those who get the license/permits to be able to do this is akin to 'striking gold'...and, who does the government give these permits to? They are akin to the 'kanganis' of old or even the 'slave masters' - use my 'slaves' and pay me.... 

The contractor for labour system is grossly unjust to workers and trade unions, it undermines worker-solidarity and certainly weakens unions... Bad factories and businesses like this - use the labour with no employer obligations is a great deal, and Malaysian government allows this. 

Malaysian Trade Unions including MTUC and so many civil society groups oppose the 'contractor for labour system' and want it gone...

Malaysia amended some labour legislations, giving statutory recognition to this practice - and, the government to pacify some unions and parties agreed not to make these new amendments applicable to some sectors. VICTORY - no, it is not for the 'contractor for labour system' is still going on everywhere, and all that is not in force is some provisions of law...

Has the Malaysian Trade Unions abandoned their demand for the abolition of the 'contractor for labour system' - I do not believe so, even if the demand seem to be 'forgotten' in some memorandums ...

See the joint statement below to understand better why the 'contractor for labour system' must be abolished. 

In the interim period, Malaysia could limit the usage of such 'non-employee workers' to no more than 5% - and/or insist that all such workers are made employees of the factory or actual workplace.

See also:-

What does Malaysian Trade Union Congress(MTUC) want? What 'clearer definition' of provision in law?

MTUC sends 'secret' MEMO to Prime Ministers? What MTUC asking unclear..?

Worker and trade union rights in BN-ruled Malaysia(Part 1)

Workers’ and trade union rights in BN-ruled Malaysia (Part 2)

Without Employment Security, Household Debt Obligations can be Onerous for Workers?

Union busting in Malaysia - Unions reduced, Union membership declining.

Electronic Union win in 'Union Busting' Case against Renesas Semiconductor? HRD Wan Noorulazhar?

93 Groups:- Abolish the ‘Contractor for Labour’ system Withdraw the 2012 amendments to Employment Act 1955.

Joint Statement – 3/5/2012

Abolish the ‘Contractor for Labour’ system

Withdraw the 2012 amendments to Employment Act 1955.

We, the undersigned 93 trade unions, civil society groups and organizations object to the actions of the government of Malaysia in destroying direct employment relationship between the principal, as employer, and their workers, as employees, with the latest amendments to the Employment Act 1955.
The Malaysian Trade Union Congress (MTUC) , which not only represents the about 800,000 unionized workers but also the over 12 million workers in Malaysia,  have strongly and consistently opposed the proposed amendments since it was first tabled in Parliament vide Bill No: D.R.25/2010 in July 2010, which the government later withdrew. The government re-introduced the Bill with minor changes in June 2011 vide Bill No: D.R.15/2011. MTUC came out even more strongly and also picketed at the Parliament House on 3rd October 2011 and in spite of strong resistance from many quarters, including on the Dewan Rakyat  floor, the controversial Bill was passed on  6th October 201, did finally come into effect on April 1st 2012.

We would like to address just one of several aspects of the new amendments that is the main bone of contention, i.e. the introduction of the new provision for the definition of “contractor for labour”.

With the amendment, the contractor for labour will be the third party (or the middleman) who will come in between the now direct employment relationship between the owner-operator of trade or business (defined as the “principal”) and their worker-employee.


The Employment Act 1955 was introduced before independence (Merdeka) by the British Administration effectively abolishing indentured labour, bonded labour and the “kanggani” system in Malaya. (collectively then known as the “contract system”). The Act also did establish two very important principles of law which are considered sacrosanct to this day. They are, security of tenure – ensuring permanence of employment, and proprietary right to the job – where termination of worker, shall be only with just cause and excuse and by due process.

The employment scenario in the country began to change in the early 1990s. In 1992 the government allowed migrant workers for the construction and plantation sector. In 2000, it was extended to manufacturing and service (hotel and restaurants) sectors and in 2002, it was extended to all sectors.

Originally migrant workers were employed directly by the principal employer but this started to change in 2005, when the Cabinet Committee on Foreign Workers in its meeting on 5-July 2005 agreed to the recruitment of foreign workers through outsourcing companies (now known as ‘Contractor for Labour’ in the amended Act). The issuance of these outsourcing licenses was strangely done by the Ministry of Home Affairs, not the Ministry of Human Resources. There are today about 277 registered labour outsourcing companies in the country today. (The Star, 23-Feb 2010).  

This establishment of the outsourcing companies allowed for the re-emergence of the old ‘contract system’. It opened doors resulting in a direct assault on the basic foundation of labour rights, the undermining dignity of labour, perpetuating the establishment and operation of dehumanized and bonded labour. The practice, which started with migrant workers, was then extended to local workers.

These outsourcing companies recruited local workers and migrant workers, some on fix term contracts, with terms and conditions usually less favourable than that of workers directly employed by principals.

The incidence of principals using workers supplied by outsourcing companies is growing. The principal company pays the outsource company an agreed sum of money for the number of workers supplied, whether they be local or migrant workers. The principal company effectively is able to avoid the employer’s duty and obligation to ensure their workers’ rights and welfare are protected. This practice also saved principal company money that would have ordinarily been expended for workers like medical cost, insurance, bonus, wage increments, retirement benefits, transportation and accommodation, service awards, and several other benefits. It also allows them to evade statutory contributions to the Employees Provident Fund and for social security schemes. The principal company also evades all obligations and safeguards in law when workers are hired or terminated, including domestic inquiries and lay-off and termination benefits. If the principal wants to now get rid of workers, it now merely have to inform the outsource company.

To convert the workforce from permanent employees to short-term contract employees, and now outsourced workers, most principals either retrenched their workers, used “voluntary separation schemes” or other methods, or simply terminated their employees substituting them now with workers supplied by the outsourcing companies.


These outsourcing companies have been allowed to operate outside the law with no law regulating them. Even though they were manpower/labour suppliers, they were not created under and/or regulated by the Private Employment Agencies Act 1981, which would have also ensured these manpower/labour suppliers would only provide workers and not become employers of workers supplied.  

The recent amendment to the Employment Act is to give these outsourcing companies statutory recognition under the Employment Act, and at the same time institutionalize and legitimize employment through the outsourcing companies, which  now legally will be legally known as the “contractor for labour”.  

A primary reason for the creation of the ‘contractor for labour’ and the introduction of labour outsourcing is to stifle workers and trade unions capacity to demand and negotiate for better rights and benefits. The MTUC Memorandum to the HR Minister dated October 7, 2008 refers to an interview with Datuk Ishak Mohamed, the Enforcement Director of the Immigration Department that was published in New Straits Time, July 20, 2008, where he, amongst others, said, ‘…outsourcing is good as it will attract foreign direct investment. Investors do not want unions to be formed in their establishments. Through outsourcing, it would be difficult for unions to be formed as outsourcing company, and not the factory, would be the employer…’ is indicative of the intention of the government.


The creation of this new sub-class of workers, who are not considered employees of the principal, also jeopardizes existing employment relationship between the principal and their current worker-employees, likewise the relationship with their trade unions. Today, these new sub-class of workers, made up of both local and migrant workers, are found in most workplaces, including even government-linked companies, whereby in some factories they currently make up about  50% of the total workforce. Trade unions are being weakened, and their bargaining powers for better rights and benefits for workers are slowly eroding by the increasing presence of workers who are not employees of the principal, and also by the loss of security of tenure created by short-term contracts.

‘Contractor for labour’ is actually outsourcing of labour which is very different from outsourcing of work. Outsourcing of work is when principal employer outsources some specified work or operations which are not their core operation, to another company who carries out the work for the principal using their own employees under their own control and supervision. For example, in several manufacturing companies, cleaning, turf/gardening, canteen and security services are examples of outsourced work. This outsourcing of work is legal, and the workers of those who are doing outsourced work are protected by the Employment Act.
Contrary to the principle that workers doing core operation work should be employees of the principal, this amendment to the Act now allows the ‘contractor for labour’ to supply workers to perform the core operation under the control and supervision of the principal’s supervisory staff and managers. The ‘contractor for labour’ merely collects the salary of the labour supplied and apportions a part to himself  and pays his workers, usually less than the workers who are under the direct employment of the principal, though they do the same work. The principle of equal pay for equal work is thus breached. 
The principal, who is considered not the employer of the workers supplied, absolves himself of all liabilities and employer’s obligations with regard these workers supplied by ‘contractor for labour’ who are working for the principal’s benefit,


The MOHR Minister, in an attempt to placate the MTUC, trade unions, civil society groups and workers issued an exemption order, effective April 1st 2012, which, amongst others, stated:-
 “…Any person who enters into contract for service with a principal to supply employees required by the principal for the execution of the whole or any part of any work for the principal in any industry, establishment or undertakings other than the agriculture undertakings, is exempted from sections 31, 33A, 69 and 73 of the Act...”
However, the words used in the said exemption order, which by the way also did not include the amendment in section 2, which was the very amendment that gave statutory recognition to the ‘contractor for labour’ and its practices, only further affirms the contractor for labour and their practices. The exempted sections referred to in the said Order merely dealt with ancillary matters like registration of employees when supplied to principal and priority of debt. The exemption order also would deny access to justice for workers now being supplied by these ‘contractor for labour’ in all the exempted sectors. 
MTUC and all groups that opposed the amendments were not appeased by this exemption order, and continue their objections to the ‘contractor for labour’.
We strongly object to the ‘contractor of labour’ system. All workers that work under the control and supervision of the principal must be the employees of the said principal not some third party. The Malaysian government’s action is in breach of article 8 of the Federal Constitution. In 1998, Malaysia also ratified the ILO Declarations on Fundamental Principles and Rights at Work but this amendment is in  contravention of the said Declaration. Further, it also is in contravention of the ILO’s Decent Work Agenda which Malaysia has committed to. 
The International Trade Union Confederation (ITUC), many trade unions and civil society groups, also opposed, and still oppose this amendment. The Malaysian Bar also recently passed unanimously a resolution on March 10th 2012, amongst others, calling for the maintenance of existing 2-party employment relationships, and also that labour suppliers and/or contractors of labour should never be or continue to be employers of workers after they are supplied, accepted and start working at the workplaces of principals.

The contractor for labour and their practices should not be allowed in any sectors including the plantation and agricultural sector.


We, therefore, demand for the repeal of all amendments to the Employment Act 1955, in particular the amendments to section 2, 31, 33A, 69, 73 brought about by Employment (Amendment) Act 2012 [ACT A1419] relating to the ‘contractor for labour’ and their practices,  and pending repeal for an immediate stopping operation of the said amendments.

We call for the abolition of the contractor for labour and their practices and that all workers, currently supplied by these 3rd party manpower/labour suppliers (contractor for labour) who are still not direct employees of the principal employer be immediately made employees of the said principal and be accorded same benefits and treatment as accorded to all other employees without discrimination, including the right to form/join trade unions or afford protection and entitlement to the benefits accorded through their respective Collective Agreements.

We call for the abolition of precarious employment, and for retention of a just 2-party employment relationship between principals and workers, and for the respect of worker and trade union rights.

Charles Hector
Pranom Somwong
Bruno Pereira

For and on behalf,

ALIRAN (Aliran Kesedaran Negara), Malaysia
Amalgamated Union of Employees in Government Clerical and Allied Services(AUEGCAS )
Amalgamated Union Employees Tenaga Nasional Berhad (AUETNB )
Anak Muda Sarawak (AMS)
Asian  Migrants Center (AMC)
Asia Monitor Resource Centre(AMRC)
Asia  Pacific  Forum on Women , Law and Development  (APWLD)
Asian Network for the Rights of Occupational and Environmental Victims (ANROEV)
Association for Community Development -ACD, Bangladesh
BASF Asia Pacific Network
Burma Campaign Malaysia (BCM)
Burma Partnership
Centre For Reflection And Action On Labour Rights (Cereal Guadalajara), Mexico
Center for Indonesian Migrant Workers-CIMW
Center for Migrant Advocacy, Philippines (CMA-Phils)
Centre des travailleurs et travailleurs immigrants / Immigrant Workers' Centre (Montréal, Québec)
Centre d'appui aux Philippines - Centre for Philippine Concerns (Montréal, Québec)
Christian Development Alternative (CDA)-Bangladesh
Clean Clothes Campaign

Communication Workers Union Victoria,Australia
Community Action Network (CAN), Malaysia
Democratic Party for a New Society (DPNS), Burma
Dignity International
Ecumenical Institute for Labor Education and Research (EILER), Philippines
Electronic Industry Employees Union Western Region Peninsular Malaysia (EIEUWRPM)
FAIR (Italy)
Families Against Corporate Killers, UK
Federation Independent of Trade Union (GSBI) Indonesia
FSPMI ( Federasi Serikat Pekerja Metal Indonesia)
Future In Our Hands, Norway
Garment and Allied Workers Union, India
Hsinchu Catholic Diocese Migrants and Immigrants Service Center (HMISC), Taiwan
Institute for Occupational Health and Safety Development (IOHSAD),
International Metalworkers' Federation (IMF)
International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF)
Jaringan Rakyat Tertindas (JERIT), Malaysia
Kesatuan Pekerja-Pekerja Polyplastics Asia Pacific (KPPAP)
Kesatuan Sekerja Industri Elektronik Wilayah Selatan
Kesatuan Sekerja NUTEAIW Isuzu Hicom (M) Sdn Bhd, Pekan, Pahang, Malaysia
Kesatuan Industri Elektronik Wilayah Timur Semenanjung Malaysia
Konfederasi Serikat Nasional (National Union Confederation)[KSN] , Indonesia.
Labour Behind the Label, UK
Lal Zenda Coal Mines Majdoor Union (LZCMMU), India
Lembaga Informasi Perburuhan Sedane-Sedane Labour Resource Centre Bogor-Indonesia
LHRLA - Lawyers for Human Rights & Legal Aid (Pakistan)
MADPET (Malaysians Against Death Penalty and Torture)
Malayan Nurses Union(MNU)
MTUC (Malaysian Trade Union Congress)
Migrant CARE, Indonesia
Migrant Forum in Asia(MFA)
Migrante International
National Domestic Workers Movement- AP Region
National Hazards Campaign of UK
NLD-LA (National League for Democracy-Liberated Areas), Malaysia
National Union of Banking Employees (NUBE)
National Union of Petroleum & Chemicals Industrial Workers (NUPCIW), Malaysia
National Union of Transport Equipment and Allied Industries Workers (NUTEAIW), Malaysia
Network of Action for Migrants in Malaysia (NAMM)
Occupational and Environmental Health Network of India (OEHNI)
Pakistan Rural Workers Social Welfare Organization (PRWSWO)
Paper & Paper Products Manufacturing Employees Union(Reg No 444), Malaysia
Parti Rakyat Malaysia (PRM)
Perak Women for Women Society (PWW)
Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)
Persatuan Sahabat Wanita, Selangor (PSWS)
PINAY - The Filipino Women's Organization in Quebec
Public Services International, Malaysian Affiliates National Coordinating Committee
Pusat Komunikasi Masyarakat (KOMAS), Canada
Sarawak Medical Services Union (SMSU)
Solidarity of Cavite Workers, Philippines
Tenaga National  Berhad Junior Officers Union (TNBJOU)
Tenaganita, Malaysia
Thai Committee for Refugees Foundation (TCR)
Thai Labour Campaign, Thailand
The Live And Livelihood Foundation, Bangladesh
The Women's Caucus (Southeast Asia Women's Caucus on ASEAN)
Think Centre – Singapore
United Filipinos In Hong Kong (UNIFIL-MIGRANTE-HK)
United Students Against Sweatshops,  US
University of Malaya General Staff Union (UMGSU)
WARBE Development Foundation, Bangladesh
Women's Legal and Human Rights Bureau, Inc.(WLB),Philippines
Workers Assistance Center, Inc., Philippines
Workers Hub For Change (WH4C)
Yayasan LINTAS NUSA Batam-Indonesia
Yokohama Action Research (Japan)
Clean Clothes Campaign, the Netherlands
Migrant Forum India
BRAC Safe Migration Facilitation Program, Bangladesh
IMA Research Foundation, Bangladesh


Police officers making FALSE POLICE REPORT, FALSE ENTRIES in Police Diaries, etc.....Police officers 'covering up the truth' - to possibly protect fellow 'bad police officers'..well this is the EAIC'S findings

Well, charging a few police officers for 'Murder' is not enough. We need to charge all of them who tried to hide the truth and cover up - especially the Senior police officers... In fact, we need to clean up the police force - and maybe even terminate these police officers...

Interesting that the AG raises the issue of 'SUBJUDICE' now.... and then we have a Police Chief saying that the EAIC should not have looked into this because of 'Subjudice'? Will, subjudice now be the excuse to protect wrongdoers still not brought to justice....

AG Apandi, do not underestimate the professionalism and integrity of Malaysian Judges?

IGP: Sub judice to discuss Dharmendran, EAIC should've rejected complain

Well, if that be the case, then police officers who 'covered up' or LIED or ...will all get away. After all, a criminal trial, with all its appeals can last for years... What we need is no more cover up...and let us clean up our police force. And we do not need internal disciplinary action - but criminal trials with maximum media coverage...That will be the way to deter all other police wrongdoings in the future. Well, that is my opinion.

We need to stop TORTURE, DEATH IN CUSTODY, POLICE ABUSE OF POWERS,...We need honest and good police officers who will be quick to weed out 'bad' police officers... Disappointing that the Director of CID Bukit Aman failed to appear as witness for the EAIC hearings ... this is so wrong...and what action will be taken against him...? Some of the other big police officers found to have done wrong include ... Deputy Head of the Criminal Investigation of Intelligence and Operations Department (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy officer in-charge of D9 IPK Kuala Lumpur (SP39)...

Read the full police statement of the EAIC.... 



Putrajaya 28 April 2016 – The Enforcement Agency Integrity Commission (EAIC) in pursuant to section 30(5) of the Enforcement Agency Integrity Commission Act 2009 [Act 700], hereby announces the findings of its public hearing on the investigation into the death of Dharmendran a/l Narayanasamy (N. Dharmendran, the deceased) in the police custody at the Special Crime Investigation Division (D9) Lock-up, Criminal Investigation Department (CID), Kuala Lumpur Police Contingent Headquarters (IPK Kuala Lumpur) on 21 May 2013.

Five (5) sessions of public hearings were held, the first three sessions were held at Menara TH Perdana, Kuala Lumpur on 27 to 31 July 2015 (first), 17 to 21 August 2015 (second) and 14 to 18 September 2015 (third), while the fourth and fifth sessions were held at Menara Usahawan, Putrajaya on 26 to 29 October 2015 and 16 November 2015.

The public hearings were co-chaired by Yang Arif Datuk Yaacob bin Haji Md. Sam (Chairman of EAIC), members of EAIC’s Commissioner Dato' Sri Robert Jacob Ridu, Mr. Vinayak Prabhakar Pradhan and Mrs. Leong May Chan assisted by three (3) consultants, namely Tan Sri Dato' Seri Mohd Jamil bin Johari (Former Deputy Inspector-General of Police), Professor Tan Sri Dato' Seri Dr. Sharifah Hapsah binti Syed Hasan Shahabuddin (Former Vice-Chancellor of Universiti Kebangsaan Malaysia) and Mr. Lim Chee Wee (Former President of Malaysian Bar Council). 

The public hearings were also attended by watching brief counsels representing the Malaysian Bar Council, counsels representing the families of the deceased and the representatives from the police. The public hearing sessions were opened to media representatives and public.

The Commission would like to reiterate that the scope of the public hearing was restricted to the issues within the terms of reference given by the Commission during the setting up of the Task Force under section 17 of Act 700. The Commission would like to express its gratitude to all witnesses and watching brief counsels for their co-operation and assistance during the hearings, and members of media, both online and print, for their coverage of the hearings.

A total of 62 witnesess were called to testify at the hearings. There were 72 exhibits including post-mortem report and photographs of the deceased, pictures of the D9 Lock-up of IPK Kuala Lumpur, D9 Lock-up Diary [Polis 40 (Pin 4/890], official directives and other relevant documents tendered in the course of the hearings.

In the course of the hearing, the Task Force of the Commission made two visits on the D9 Lock-up and the Special Criminal Investigation Division’s office of IPK Kuala Lumpur.


The findings of the Commission are based on the testimonies of the witnesses and the evidence presented before the public hearings. Hence, the Commission has prepared a full report on the investigation and its findings.

The findings of the Commission are as follows:


(i) The Commission found the death of Dhamendran a/l Narayanasamy (I.C Num 811028-14-5551) on 21 May 2013 resulted from the use of physical force by the police.

(ii) Evidence of the pathologist from Forensic Department of Hospital Kuala Lumpur (HKL) who conducted the post-mortem on the body of the deceased on 22 May 2013 revealed that the cause of death was due to “diffuse soft tissue injuries due to multiple blunt force trauma". The post-mortem conducted also confirmed the injuries of the deceased as follows:

(a) A total of 52 bruises on the deceased caused by a blunt force object (blunt force trauma) causing acute massive loss of blood into the tissues causing hypovolemic shock.

(b) The injuries were estimated between 2 to 3 days prior to the post mortem, but not more than 4 days.

(c) There were two staples found embedded on the deceased’s ears, one on the right ear and the other on left ear causing puncture wounds on both ears. The pathologist confirmed the deceased’s ears were stapled while he was alive estimated between 2 to 3 days prior to the post morterm.

(iii) The Commission found the physical force that had caused injuries and the death of the deceased while in the custody and during interrogation has violated the Para 33 of Inspector General of Police’s Standing Order (IGSO) Part A '118' which prohibits the use of physical force against detainee during interrogations.


(i) The Commission found the last six (6) entries in the D9 IPK Kuala Lumpur lock-up diary i.e. entry 3150, 3151, 3152, 3153, 3154 and 3155 written by the two lock-up sentries (SP24 and SP25) were false / misrepresentation.

(ii) The Commission also found the following entries 3156, 3157, 3158, 3159, 3161 in the lock-up diary were written in an unusual manner by the lock-up sentry (SP25) in which the entries were not written in contemporaneous while he was on duty, but only after two or three days after the death of thedeceased.

(iii) The Commission also found that entries 3150 to 3153 were jointly made-up (fabricating) by the senior officers of the police, comprising the Deputy Head of the Criminal Investigation of Intelligence and Operations Department (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy officer in-charge of D9 IPK Kuala Lumpur (SP39) and the officer of D9 IPK
Kuala Lumpur (SP44) (at that time) by instructing the two lock-up sentries SP24 and SP25 respectively to write false entries into the lock-up diary
(Exhibit P32) on the night of 21 May 2013.

(iv) It is also the findings of the Commission that entries 3154 to 3161 were jointly made-up (fabricating) by the senior officers of the police comprising the Deputy Head of the Criminal Investigation Department of Intelligence and Operations IPK Kuala Lumpur (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy Officer in-charge of D9 IPK Kuala Lumpur (SP39),SP41, SP42 and SP43 of the D9 IPK Kuala Lumpur by instructing the two lock-up sentries SP24 and SP25 respectively to write false entries into the lock-up diary (Exhibit P32) after two or three days after the death of the deceased.

(v) The Commission found a serious misconduct have been committed by the senior officers of the police in making-up those false entries in order to coverup the actual fact surrounding the death of the deceased preventing a fair and just investigation of the death.

(vi) The Commission found in providing the false or incorrect information /misrepresentation as stated above, SP60, SP39, SP27 and SP44 may have committed an offence under sections 192, 201 and / or 203 of the Penal Code.


(i) The Commission found two entries in D9 Lock-up Diary (Exhibit P32) i.e entry 3149 and 3150 had been tampered from the original entries by SP24 upon the instructions of SP60, SP39, SP41 dan SP43 in order to synchronize with the time stated in the rearrest report of the deceased (Exhibit P50).

(ii) The Commission found that the act of tampering an official document that is the D9 Lock-up Diary by SP60, SP39, SP41 dan SP43 is an offence under section 177 or section 182 of the Penal Code.


(i) The Commission found the police report on the death of the deceased lodged by SP25, the D9 Lock-up Sentry made upon the instructions of the Deputy Head of the Criminal Investigation Department of Intelligence and Operations IPK Kuala Lumpur (SP60) and written by Sergeant Major Ali (D9 personnel) contained false / misrepresentation of actual state surrounding the death of the deceased.

(ii) Lodging a false police report is an offence under section 177 or section 182 of the Penal Code.


(i) The Commission found the re-arrest of the deceased by the D9 members SP41 and SP43 at 1.00 p.m. of 21 May 2013 was made upon the instructions by the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 Officer (SP44). The re-arrest was made based on the Police Report Petaling/001384/13 (Exhibit P71) taken at random from the Police Reporting System (PRS), which has nothing to do with the deceased in which the investigation paper of the said police report has been ordered as No Further Action (NFA) by the Deputy Public Prosecutor on 17 May 2013.

(ii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 officer (SP44) has committed a serious misconduct of abuse of power by instructing the re-arrest of the deceased on the 21 May 2013 (who was scheduled to be released on that day after the expiry of his remand period) without a just and valid justification.


(i) The Commission found the CCTVs in D9 Lock-up and the D9 Office has not been in operation since 2009 during to the construction and renovation works of the IPK Kuala Lumpur new building. The CCTVs remained inoperation even after the completion of the construction. The CCTVs were put into operation only after the death of the deceased.

(ii) Due to the inoperation of the CCTVs, the movement of detainees as well as the D9 personnels went unmonitored and not recorded. As such, the Commission has been denied with the best evidence on how the deceased was taken back into the D9 Lock-up during the absence of the D9 Lock-up Sentries (SP24 and SP25) after he was taken out at 2.20 p.m. on 21 May 2013, the fatal day.

(iii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the Logistic Unit of IPK Kuala Lumpur, (knowing the inoperation of the CCTVs) have not taken sufficient effort in ensuring the CCTVs of D9 Lock-up and D9 Office be put back into operation.


(i) The Commission found that the deceased was taken back into the D9 Lockup by D9 personnel during the absence of lock-up sentries (SP24 and SP25).As a result, the entry of the deceased into the lock-up was not recorded in thelock-up diary (Exhibit P32).

(ii) The Commission found that the failure of the two D9 Lock-up Sentries on duty (SP24 and SP25) at the lock-up between 2.30 p.m. until 4.30 p.m on 21 May 2013 has allowed the D9 personnel to place the deceased into the lock-up without a need to comply with the required procedures on entry of detainee into the lock-up.

(iii) The admission of detainee into the lock-up without being recorded in lock-up diary and leaving lock-up unattended is a serious breach of the Lock-up Rules 1953,
Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89 Tugas Pengawal Lokap IPK, Kuala Lumpur and IGSO Part A '118'.


The Commission found that SP41, SP42, SP43 and SP44 (the D9 Project Team members) assigned for the investigation and interrogation of the deceased have a close connection with injuries and the death of the deceased. This is based on the testimonies and documents which showed that the deceased was under the sole custody of the D9 Project Team commencing from 13 May 2013 to 21 May 2013. The evidence also disclosed that only the D9 Project Team has an access over the deceased during that period.


(i) The Commission found that there was no investigation / interrogation carried out by the D9 Project Team on the deceased from the date of his admission into the D9 Lock-up up to the afternoon of 19 May 2013. It remained unexplained by the Project Team and the officer in-charged of D9 (SP27) on why no investigation / interrogation taken place on the deceased during that period.

(ii) The Commission is of the view that with the short period of remand left, (in this case the deceased’s remand was due to expire in two days time) has placed the Project Team in the ‘last ditch’ situation in obtaining information from the deceased, resulted to the use of force on the deceased.

(iii) In the absence of explaination of the D9’s officers and the Director of CID of Bukit Aman, it remained unresolved whether the investigation / interrogation on the deceased has no priority or the Project Team was occupied with heavy workload.

(iv) The Commission observed that a subpoena had been issued and delivered to the Director of CID Bukit Aman in order to get clarification over the workload faced by the Criminal Investigation Department. However, it is disappointed that notwithstanding the two sessions allotted, the Director has failed to appear at the hearings.


(i) The Commission found there was a delay in access to the deceased by family members (SP2 and SP16) which was only given on 19 May 2013, that was 8 days after the deceased was placed under remand commencing from 12 May 2013 to 15 May 2013 (first remand) and further extended from 16 May 2013 to 21 May 2013 (second remand).

(ii) It is observed that both the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and D9 Officer in-charge of the Project Team (SP44) had no valid justification in denying early access on the deceased by his family members, in particular the deceased wife (SP2).

(iii) Unreasonable delay in giving an access of family member to the detainee or detainee to his family member contravenes the provision of section 28A (2) of the Criminal Procedure Code and Para 8.2.1 of the IGSO Part A '118'.


(i) The Commission found that not less than 4 detainees have been placed in D9 lock-up since 13 May 2013 until 20 May 2013. In specific, on 14 May 2013 there were 16 detainees placed in the D9 Lock-up of IPK Kuala Lumpur as recorded in the D9 Lock-up Station Diary (Exhibit P31/32).

(ii) In placing of more than 4 detainees at one time in D9 Lock-up has infringed Article 2 of
Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil.1/89 and D9 Lock-up Gazette which clearly stated the maximum number of detainee allowed in the D9 Lock-up shall only be four (4).

(iii) It is observed by the Commission that on the 21 May 2013, the fatal day, only the deceased remained in D9 Lock-up.


(i) Based on testimonies of D9 personnels and admission at the hearing, it is observed that certain officers and members of D9 neither had no knowledge of nor had seen the contents of IGSO Part A ‘118’ and Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89 governing the management and administration of D9 Lock-up which are still in force.

(ii) As a result, detainees have been handled based on the D9 own practices ignoring the requirements and existence of SOPs.


(i) The Commission found although two staplers (Exhibit P54 pic. no. 8 and 9) from the D9’s office (based on the two staples found on the deceased’s left and right ears) were seized by the investigating officers (SP53 and SP54), however no DNA samples that obtained from any of the D9 personnels who have an access over the deceased for purposes of DNA analysis and comparison.

(ii) The lack of blood sample has caused the DNA comparison analysis unable to be done in order to ascertain the identity of "Male 1" found on the stapler (“K5(a)”) by an expert from the Malaysia Chemistry Department to resolve the issue whether the Male 1 identity belongs to any of D9 personnels.


Based on the findings as stated above, the Commission recommends the following:


(i) The Deputy Head of the CID (Intelligence and Operation) of IPK Kuala Lumpur (SP60), Officer in-charge of D9 (SP27), Second Officer in-charge of D9 (SP39) and D9 Officer (SP44) for jointly or abetting in fabricating false information / misrepresentation of the entries in D9 Lock-up Station Diary (Exhibit P32) in relation to the fact surrounding the death of the deceased.

(ii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur (SP60) and the two members of the Project Team (SP41 and SP43) for instructing the lock-up sentry personnel SP24 to tamper times in entries 3149 and 3150 of the the D9 Lock-up Station Diary (Exhibit P32).

(iii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur (SP60) and Sergent Major Ali of D9 for jointly or abetting in making false police report (Exhibit P38) by using SP25 as the complainant of the report pertaining to the death of the deceased.

(iv) The Officer in-charge of D9 (SP27) and the Project Team Leader (SP44) for an abuse of power or position in instructing the re-arrest of the deceased on 21 May 2013 without any valid justification (Exhibit P50).

(v) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for unreasonable delay in giving an access of family member to the deceased which has violated the provision of section 28A of the Criminal ProcedureCode.

(vi) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for the failure to supervise the members of the Project Team (SP41,SP42 and SP43) in conducting prompt investigation / interrogation on the deceased which was only carried out on the seventh day (19 May 2013) of the remand.

(vii) The D9 Lock-up sentry personnel (SP24) for leaving the lock-up unattended between 2.30 p.m to 3.00 p.m on 21 May 2013.

(viii) The D9 Lock-up sentry personnel (SP25) for failure to station himself at the lock-up between 3.00 p.m to 4.30 p.m on 21 May 2013.


PDRM should review the existing supervising and monitoring mechanisms in relation to:

(i) Compliance of the IGSO / SOPs

PDRM to ensure the understanding and strict compliance of the IGSO including Part A "118" and Standard Operating Procedures (SOPs) by all members of the police force.

(ii) Compliance of Lock-Up Management SOP

PDRM to make compulsory that every officers in-charge of the police lock-up and lock-up personnel including any member of the police who has an access over the detainee to adhere to the Police’s Lock-up Management SOP /Standing Orders issued by Bukit Aman on 21 April 2014 and the Lock-up Rules 1953, including on the limit of the number of detainee that can be
placed in a cell or lock-up and prohibition of use of force on detainee.

(iii)Use of Pocket Book / Diary and Its Supervision / Monitoring

PDRM to review and provide effective supervision / monitoring on the use of pocket book / diary and its up-dating including its safekeeping. Any loss or damage of the same should be reported promptly to the immediate officer incharge of the said police personnel.


PDRM to carry out continuous training (i.e refresher course and refresher training), including on job training and to issue constant reminders on all police personnels involved in law enforcement activities on the requirement and compliance of the SOPs / Standing Orders.


PDRM should review the existing procedure or mechanism to allow its personnel to file or to lodge a complaint or report of any illegal instructions / orders /directions by the superior officer that against the SOPs / Standing Orders or laws.

Investigation on the complaint shall be carried out by an independent special committee within the PDRM.


It is recommended that all cases involving death in custody shall be investigated by an independent and experienced investigating officer who is holding an office not from the same state police contingent where the death occured. This is to ensure transparency and credibility of the investigation.


PDRM to adhere strictly on the compliance of Rule 10 of the Prison Regulation 1953 and the para 24 of IGSO Part A '118' requiring detainee to undergo medical examination by a medical officer upon his/her entry into the lock-up.


MOH should review and amend its existing SOP in relation to the following:

(i) Coordination Between MOH and Enforcement Agencies Particularly PDRM

MOH to coordinate with enforcement agencies especially the PDRM on the proper implementation of Rule 10 and Para 24 of the IGSO Part A '118' requiring detainee to undergo medical examination by a medical officer upon his/her entry into the agencies’ lock-up. The implementation shall take into consideration the safety of all parties including the medical staffs.

(ii) MOH’s Procedure / Method of Examination

MOH to provide a comprehensive guidelines and procedures including method of examination involving custodial deaths for medical officers /assistants / personnels guidance with emphasizing on body inspection, photo/ image recording, examination kit and the preservation of the evidence at the scene / lock-up (not contaminated or tampered).

(iii) Guideline on the Preparation of Post-Mortem Report

MOH to formulate a comprehensive guideline by taking into considerations of the international standards on preparation of post-mortem report by pathologist, and in particular the cause of the death must be stated precisely.


The Chief Registrar of the Federal Court is urged to provide comprehensive guideline to be used by Magistrate / Coroner on examination of the deceased body involving custodial death.


The Commission recommends that the Attorney General Chambers (AGC) to consider criminal charge to be filed against the police personnels identified in this report for committing an offence of fabricating false information / misrepresentations and tampering of the D9 Lock-up Station Diary (Exhibit P32).


The Commission recommends that the AGC and Ministry of Home Affairs (KDN) to amend the Penal Code (Act 574) and Evidence Act 1950 to provide for a provision of presumption that placed the burden of proof on the enforcement agencies personnel who has a custody of the detainee to be liable for any injury or death occured on detainee while in custody, until proven otherwise.

The recurrence of deaths in custody and the use of force against detainee is

EAIC urges all findings and recommendations in the report to be considered and serious actions to be taken by all parties, particularly the PDRM in order to prevent the recurrence of such cases in future.

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Enforcement Agency Integrity Commission (EAIC)
28 April 2016

Source: Official Website of  Enforcement Agency Integrity Commission (EAIC)/ Suruhanjaya Integriti Agensi Penguatkuasaan