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Death in Custody - One death too many

Updated: Mar 29, 2023

Definition — Death-in-custody refers to the occurrence of death, while a person is under the custody of any enforcement agency.

What’s new?

Death in custody is neither rare nor new. As of July 2022, Bukit Aman has recorded 19 deaths in police custody this year and across Malaysia.

On June 22, 2022, Kim Shih Keat was detained at Kluang Prison for driving under the influence. His brother, Shih Hoe, said the family was only informed of his death by a funeral home. “Until now, Kluang police have not contacted us to confirm the actual cause of death and whether the case is being classified as sudden death or foul play,” Shih Hoe said at a press conference in Kluang.

(From left) Kim Shih Hoe, Michelle Kim, Dr Boo Cheng Hau, Lee Chee Hiang and Kelvin Chong are demanding an explanation on the cause of the man’s death at Kluang Prison. (FMT)

On 21 May 2013, N. Dhamendran died in police custody in Kuala Lumpur in which according to reports, could have been from a blunt force trauma with his body presenting signs of torture. The family was then awarded RM440,200 in 2019 by the KL High Court . However, the 4 policemen related to the death were free from charges due to lack of evidence.

Aside from death from physical abuse, there have been cases where detainees have pre-existing mental health conditions like the case of Nobuhiro Matsushita and Sugumar Chelladuray, with the former died from suicide and the latter from heart failure. Are SOPs and conditions in prisons fit for people with health conditions?

With Malaysia elected to the United Nations Human Rights Council (“UNHRC”) in 2021, this serves as an opportunity for us to take a long and hard look at our own human rights approach at home. Cases like these and many others have worried the public of jails becoming a ticking time bomb. Who might be the next victim?

Malaysia has won one of the 18 seats in the UN Human Rights Council with 183 votes. (FMT)

In a ‬modern, ‬mature and ‭‬evolved ‭‬constitutional democracy ‭‬such ‭as ‬Malaysia, ‭‬it is ‭‬imperative there should be zero deaths of detainees in police custody.

Do people in custody have rights too?

All lock-ups are subjected to Lock-up Rules 1953 and it applies to all detainees to cover the minimum standard of treatment towards them by law enforcers. As detainees have their liberty deprived (in accordance with law), this is to ensure basic human rights as detainees are vulnerable towards risk of human rights violation during police custody.

The Rules act as a guide, providing instructions like how often prison staff should check up on prisoners’ health, how their hygiene should be taken care of, and many more to ensure prisoners’ well-being.

Article 5 and 8 of the Federal Constitution also states that every human life is sacred and every citizen of this country is expected to be treated as a human being, including suspects of crime and convicted criminals. Thus, the very idea that acts of police officers or prison authorities result in the preventable death of prisoners in custody violates those articles.

Progress or just a mask up?

In February 2004, then Prime Minister Tun Abdullah Ahmad Badawi established a Police Commission to enhance the accountability of its operations. The commission has recommended the establishment of an Independent Police Complaints and Misconduct Commission (IPCMC) to ensure police observe and apply rules with the ability to give punishments.

Literally, “policing the police”.

The closest this idea came to fruition was in 2019 under the Pakatan Harapan administration but faced backlash from the police themselves due to the fact an outside body can mingle with internal matters of the police.

The then Prime Minister Mahathir Mohamad announces the formation of IPCMC to replace EAIC (Benar News)

The Enforcement Agencies Integrity Commission (EAIC) was then established in 2011, tasked to oversee a range of government agencies including the police and having the power to refer any cases of misconduct to the public prosecutor.

However, according to the former EAIC chairman himself Datuk Yaacob Md Sam, the body has been unable to investigate all deaths in custody cases due to the lack of resources. Disciplinary authorities are also seen not taking recommendations from EAIC when it comes to punishments as EAIC’s powers are only confined to making recommendations. It was toothless, as Prof Ramasamy said.

The then Perikatan Nasional government watered down the IPCMC with its own Independent Police Conduct Commission bill (IPCC). The Bill that sought the establishment of this commission was passed in Parliament on July 26th this year. According to Home Minister Hamzah Zainuddin, commissioners would need to be screened by the Malaysian Anti-Corruption Commission (MACC) and Bukit Aman’s special branch but needs approval from the Home Minister.

Suhakam, the Human Rights Commission of Malaysia takes particular issue with the IPCC bill. They are primarily concerned with the “lack of independence and weakened functions of the IPCC,” not only because of its lack of authority but the fact because the proposed bill accords to the appointment of the IPCC’s secretary to the Minister of Home Affairs.

SUHAKAM concerned over the lack of independence and conflict of interest of IPCC bill. (Malaysiakini)

The possibility that members of the police could be afforded responsibility over the IPCC raises serious conflicts of interest. IPCC might end up being another toothless tiger like the EAIC, claims Bukit Gelugor MP, Ramkarpal Singh.

The same concerns were raised by Amnesty International whereby IPCC will further weaken the already inadequate EAIC, when Malaysia is in dire need of an independent commission overseeing the police.

How stakeholders can contribute to action

Lawyers for Liberty has recommended ways different stakeholders can take part in ensuring these cases don’t happen again:

1. Ministry of Health

  • Ensure access to adequate healthcare for detainees, including presence of medical personnel at all places of detention and for detainees unfit to be transferred to secured hospital wards

  • Subject post-mortem reports to an auditing process by independent pathologists from different hospitals.

  • Stricter laws for negligent pathologists who cover-up facts on cases of custodial deaths.

2. Royal Malaysian Police

  • Declassify and make public all police Standard Operating Procedures (SOPs) on arrest, detention, medical treatment, use of firearms and make sure police officers adhere to them

  • Ensure all lock-ups adhere to standards suggested under Lock-up Rules 1953 and update provisions to meet international standards.

  • Install and properly maintain CCTV cameras in all police stations, especially lock-ups.

3. Federal Government

  • Implement recommendations made by the Enforcement Agency Integrity Commission (EAIC) and Malaysian Human Rights Commission (SUHAKAM) in previous death in custody inquiries.

  • Table an independent Coroners’ Act in Parliament to empower the role of a coroner in an inquest. This gives coroners the ability to directly supervise and have comprehensive investigations to determine the cause of death.

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