Malaysia abstained from voting to activate the Optional Protocol to the United Nations Convention Against Torture and Other Cruel and Unusual Treatment 1984. The optional protocol was adopted on 18 December 2002, with 127 countries voting in favour, 42 abstaining and 4 voting against it. The optional protocol provides a unique mechanism for international and national human rights experts to conduct regular visits to places of detention to check on the condition of detention and detainees, and to make recommendations in countries that are parties to the optional protocol. In Southeast Asia, only Indonesia, Cambodia and East Timor voted in favour of the optional protocol. Moreover, Malaysia has not ratified the Convention Against Torture.
The failure to accept yet another international human rights norm is perhaps not surprising given the long history and notoriety of the Malaysian police in using an unacceptable level of violence in apprehending and investigating alleged criminals.
According to the 2002 Police Commission Report (Disciplinary Unit), disciplinary actions were initiated against 754 police personnel, and 98 were relieved of their duties in 2002. The statistics showed an increase of 177 cases, or 30.7 percent, compared to the previous year. In 2001, 577 police personnel were subjected to disciplinary action. According to the report, 145 police personnel were punished for “erring in their duties,” but this was not elaborated upon. It added that 48 others were involved in graft cases. The report also said one police officer was taken to task for rape, another for concealing his/her marital status and another for "creating fear."
Other offences that saw disciplinary action were inefficiency, irresponsibility and tarnishing the police force’s image. However, the report stressed that those who were punished constituted a mere 0.89 percent of the total police personnel in the country. It attributed the increase in cases to its disciplinary committee, which had acted more effectively in the past year. Deputy Minister in the Prime Minister’s Department M. Kayveas said the Home Ministry, which oversees the police force, topped the list of 22 ministries against which complaints of corruption were received. Deputy Home Minister Chor Chee Heung confirmed that most of the corruption cases involved police personnel.
In the Human Rights Commission of Malaysia (SUHAKAM) forum held on the Malaysian Human Rights Day in September, SUHAKAM chairperson Abu Talib Othman said some improvements could be seen now in terms of how the police handle suspected criminals. "They treat detainees better now. We believe these positive changes were brought about by discussions (with SUHAKAM) and human rights training for police officers… In fact, they have recently set up a human rights desk (in Bukit Aman) and have extended their fullest cooperation to us so far," he said. He added, "We no longer receive complaints of police brutality. This shows that things with the police have improved somewhat."
City deputy criminal investigation chief Superintendent Ramli Mat Arshad, speaking for the police, denied the use of intimidation tactics such as physical abuse or verbal threats to extract confessions from crime suspects because the law regarding the treatment of suspects in police custody is clear. “In my 30 or 40 years in the police force, I’ve not seen that happen. We don’t do things like that. We always adhere to the law," he replied to a question from a participant. In his speech, Ramli stated that although the Federal Constitution guarantees a suspect the right to counsel, it was, however, silent on the time and manner in which that right was to be granted. "Neither does it give (the detainee) the right to dictate the time at which he (or she) can see his lawyer." He said the constitution also does not compel the police to allow a lawyer to visit the detainee at an "inconvenient" time, or when such a visit might interfere with the course of justice. In the absence of any specific direction to that effect, he said the police are entitled to refuse the request for a visit by the detainee’s counsel.
This position perhaps sums up the level of denial that is endemic in the police force and in SUHAKAM on the human rights record of the police. It further illustrates the unbalance concentration of discretion and power in the hands of the police in interpreting as they like the constitutional and legal provisions.
Throughout 2003, there were numerous incidents of police brutality against criminal suspects resulting in serious injuries and deaths. In many cases, the victims were poor, had little education and lacked the proper “connections” to ensure proper treatment from the police. The treatment meted out against these suspects is a stark contrast to that accorded to persons of different backgrounds—namely professionals, affluent or well-connected people.
The culture of lawlessness has seeped into the day-to-day conduct of police personnel. The police act as though they are above the law. Complaints from the public that police are rude, corrupt, violent or high-handed have become commonplace. Basic civil, political, legal and constitutional rights are easily and often transgressed, as the police accuse people of some “crime” due to “suspicion,” even though objectively, one would not think that an offence has been committed. For example, distributing leaflets and demonstrating is viewed as suspicious or even criminal behaviour. The impulse of the police in policing may well be described as “arrest first, investigate later,” as little effort is made to ensure that the right person has been arrested for a criminal offence. Mass arrest is common, especially in cases connected to drug activities. Sometimes hundreds of suspected drug addicts are arrested or raids on entertainment outlets; often all the patrons of the establishment are arrested in order to check for substance abuse. Arrest of anyone remotely connected to the crime or crime victim is equally common, especially in high-profile cases. In the rape and murder of Noritta Samsudin in December which made the front pages of newspapers, ten persons who were acquainted with the deceased, including housemates, former boyfriends or male “friends,” were arrested and remanded for the crime. In the name of “investigation,” police personnel easily arrest and apply for remand orders from magistrates who oftentimes comply. For more serious offences such as murder, rape or drug trafficking, the situation for the suspect is made even more onerous, as even less respect is given to their rights, well-being and dignity.
Human rights and civil and political rights as accorded to the people by the Federal Constitution seem to mean nothing to the police, as they routinely trample all over these basic liberties. They often target civil society groups, opposition parties and any member of the public who dares to exercise the right to free speech, peaceful assembly and association or other rights that are construed as forms of dissent. These persons are subjected to threats, harassment, arrest, detention and, in some cases, violence.
The incidents recorded below are merely representative of the long list of incidents of abuse of power and lawlessness perpetrated by the police in 2003. While many complaints were filed, the action taken was sporadic at best. Despite numerous complaints and police reports lodged by victims, family members of victims, lawyers and non-governmental organisations (NGOs), there is still a severe lack of accountability and transparency on the part of the police in its investigation of allegations of police brutality. In the normal course of events, complaints go unanswered. When the police do "answer" complaints, the responses are usually standard statements that the police followed all proper procedures. For cases of deaths in custody, the police often claim that the deceased died of "heart attack," "stomach ulcer" or “natural causes.” In cases where there is a death by police shooting, the authorities allege that the deceased attacked and the police acted in self defence. For most complaints, the response is that the police are investigating or that the matter was investigated internally and the police are satisfied with the findings that the police personnel acted properly. These are the claims made despite credible evidence of impropriety and abuse of police powers. In many cases of death in custody or by police shooting, those associated with the victims have said that the police obstructed the complaint process by withholding or suppressing evidence of police brutality and colluded with hospitals to ensure that no cooperation is given to family members and lawyers who demanded evidence of abuse and impropriety.
Although there were some cases of criminal prosecution and disciplinary action taken, the number remains low in comparison to the number of complaints. In some cases, the charges brought against the errant police personnel are not commensurate with the severity of the crime committed. Oftentimes too charges are made only against the lowest ranking personnel involved. In the infamous case of the killing of Lee Quat Leong while in police custody in May 1995, although an inquest implicated the names of eleven police personnel up to the rank of Assistant Superintendent of Police (ASP) in the crime, only the two lowest ranking personnel were charged.
“Trigger-happy” Police
In the October parliamentary sitting, Deputy Home Minister Zainal Abidin Zin revealed the numbers of alleged criminals shot to death by the police: 2000—33 deaths; 2001—14 deaths; 2002—54 deaths; since January 2003—27 deaths. According to Police Watch and the Human Rights Committee, there were at least 29 deaths by police shooting in 2003. In most cases, the claims by the police were similar: the suspects shot at the police, causing the police to return fire, killing the victims. The victims were then depicted as highly dangerous and wanted criminals.
Deputy Home Minister Chor Chee Heung said in Parliament in April 2002 that a total of 579 suspected criminals had been shot dead by the police over the past 20 years, from 1981 to February 2002, for alleged involvement in a wide range of crimes such as robbery, theft, kidnapping, drug offences, firearms trafficking and possession, assault and trying to escape from police road blocks, firing at police, running amok, fighting, murder and because of their status as illegal immigrants. Among those killed were 82 non-nationals. He added that 19 policemen had been killed in the line of duty during the same period. He denied the rumour of the existence of a death squad in Malaysia.
The figure quoted was, however, questioned by Democratic Action Party (DAP) leader Lim Kit Siang, who noted that an earlier statistic released by then-Deputy Home Minister Abdul Kadir Sheikh Fadzir to Parliament in April 1999 revealed that 635 people had been shot dead by the police in the past 10 years.
However, in many cases, there were suspicious circumstances leading to doubts over claims made by the police. One should be mindful of the reversal by the Kota Bharu High Court in September 2002 of an inquest finding in which the magistrate had earlier said the police had acted “reasonably” and in “self-defence” in a case in Tumpat, Kelantan in 1998 in which six men were shot dead by the police. It was now showed that the claims by the police that they were fired upon could in fact be false. High Court Judge Suriyadi found, after scrutinising the evidence, that there was no evidence for the police’s claim that they were shot at by the men, who were then killed in a hail of 47 bullets. During the inquest, a pathologist testified that multiple shot marks were found on the head, forehead and eyes of the six victims. The Star reported the judge as saying: “I was quite stunned by the Magistrate’s decision as it bordered on the preparation of the defence of the police over-zealousness” and that “the conclusion went against the grain of evidence.” It could not be established that gunshots came from the van as claimed by the police, nor was any forensic investigation ever carried out on the guns allegedly seized from the deceased persons.
Families of those shot dead have often protested that the deceased had no history or track record of any criminal activity, again raising questions about the veracity of police claims. This was certainly the case in the deaths of V. Vikines, 19, Puvaneswaran, 24, and T. Kathiravan, 25, who were shot dead in October after the police said they ignored orders to surrender and opened fire at police personnel in Nilai, Negeri Sembilan. The police claimed that the trio was responsible for a spate of armed robberies. Vikines sustained two fatal gunshots to his chest in the alleged shootout with the police. S. Simon, 19, a friend of the deceased, claimed that the shirt worn by the deceased bore no bullet holes when he saw the body at the mortuary. He said the police refused to give him the shirt when the body was taken away and that there were bruise marks on the deceased’s face, legs and back.
Viknes
V. Vikines, 19-year-old school boy was fatally gunned down by the police. Viknes’ parents disputed the police’s claim that their son was a wanted criminal and "marksman and weapons expert."
The account presented by police was disputed by Vikines's family, who claimed that the youth was nothing more than an innocent schoolboy who still lives with his family. They raised suspicion of foul play. “Where are the witnesses? Where are the police cars that should be riddled with shots? Where are the wounded policemen?" asked his distraught father G. Vesvanathan at a press conference. He also accused Federal Criminal Investigation Department director Salleh Mat Som of being a “liar” for claiming that his son was a "marksman and weapons expert." Vikines’s uncle, Silva Govindasamy, questioned the police’s claim that his nephew was involved in about 20 criminal cases. "If he was a suspect in so many cases, why didn’t the police approach the school or family? The boy has never been arrested, never harassed, he doesn’t even have a (criminal) record!" The family also alleged that the police instructed the Tengku Ampuan Rahimah Hospital in Klang not to conduct a second post-mortem on Vikines’s body nor cooperate with them.
The decision of the Kuala Lumpur High Court to acquit a police constable, Tony Beliang, who shot and killed Dr. Tai Eng Teck in a car when the latter tried to flee after being “caught” in a compromising position with a Muslim girl in September 1999, was set aside by the Court of Appeal in July. Instead, the Court of Appeals affirmed the eight-year jail sentence imposed by the Sessions Court. Augustine Paul J. in the High Court had overturned the decision of the Sessions Court, which found the constable guilty of manslaughter. Paul J. said that the police should be given every encouragement to book criminals and, if necessary, should have the right to shoot in order to enforce the administration of law and order. He said if the police are brought to court for the use of force, then the administration would be halted, thus causing the police to hesitate in carrying out their duties and instead “think of other possibilities before using their weapons.”
Earlier in December 2000, Sessions Court Judge Ahmadi Asnawi convicted Tony and sentenced him to eight years in jail. Ahmad Asnawi said the intention to cause death was evident, as Tony had fired the shots nonstop without knowing who or how many people were in the car and what they were doing. During the trial, staff nurse Suhana Mohamed Nor, who was with the victim during the incident, testified that they panicked when they heard a loud knock on the windscreen of the car, which was parked at the LRT station. She said they became even more petrified when they heard shouts of anger, and the victim decided to drive away fearing that the people were criminal, robbers or vice officers.
Deaths in Police Custody
According to statistics released in Parliament in October by the Home Ministry, 23 people died in the country’s police lock-ups between 2002 and July 2003. Out of this total, 16 died in 2002. During the same period, 425 prisoners died during their incarceration, 237 of them in 2002; this is an average of 19.75 deaths per month. The monthly average for the first seven months of 2003 rose to 26.86 deaths per month, with 188 fatalities reported in prisons nationwide. Deputy Home Minister Chor Chee Hueng refused to specify the cause of the deaths.
Statistics, however, are sometimes manifestly unreliable as they often contradict statistics issued by other departments or even the same department or official. Parliament was told in the October 2002 sitting that a total of 34 persons had died in police custody since 2000—6 deaths in 2000, 10 deaths in 2001 and 18 deaths from January to September 2002. The number of deaths reported for the first nine months of 2002 was higher than that reported in 2003 for the whole of 2002.
Deputy Home Minister Chor Chee Heung denied that methods of torture were used to obtain information from suspects that led to their deaths. He claimed rather that the majority of deaths were the result of attempts to escape from police custody. However, what is evident is that there is a clear lack of supervision, medical care and concern for the general well-being and rights of suspects while under police remand.
The new-found publicity on police brutality in 2002 as highlighted by civil society, the press and the commencement of two inquests on deaths in custody did little to rein in the police in their disregard for proper police procedures and the rights of suspects, as there were more deaths of suspects while in police custody in 2003. It might be said that the situation worsened, as the two inquests thought to be “victories” by civil society to bring to book the perpetrators were plagued with serious inconsistencies and disinterest.
The inquests into the death of both Tharma Rajen, 20 and M. Ragupathy, 22 stuttered throughout the year, as magistrates and deputy public prosecutors seemed uninterested and unaware of the gravity of the situation. Time after time, the inquests were postponed due to the unavailability of medical records or hospital authorities to verify these reports as evidence. The doctors who testified oftentimes appeared to be defensive and not interested in testifying candidly and truthfully. Counsel for the family members of the deceased also had a difficult time during cross examination, as the presiding magistrates were over-zealous in defending the testifying witnesses.
In June 2002, Tharma Rajen died under mysterious circumstances while in the custody of the police. He was detained consecutively for 66 days in four different police stations and was eventually detained under the Emergency Ordinance (EO). According to the official post-mortem, this previously healthy young man apparently died of pneumonia, although a different post-mortem said that he died of tuberculosis. The latter, private post-mortem also observed that the body was “malnourished and emaciated.” There were allegations of Tharma Rajen being beaten up while in police custody. There had also been repeated pleadings made by Tharma Rajen and his family members that he be taken to the hospital, but they were ignored. He was finally taken to the hospital when he became critically ill. The deceased's mother claimed that, two hours before he died, her son was handcuffed to the hospital bed despite being emaciated and unable to breathe properly. At the inquest, a nurse also testified that he was handcuffed by both hands to the bed even though he was so weak that he needed assistance to eat and shower.
Tharma
Tharma Rajen, 20, died in the custody of the Putrajaya Police Station after he was detained consecutively for 66 days in four different police stations and was eventually detained under the Emergency Ordinance.
M. Ragupathy was arrested together with nine other persons after fleeing from an illegal gaming outlet following a dispute with the proprietor. The group stumbled onto a police patrol car and were arrested on suspicion of committing a robbery. All 10 men were taken to the Sepang Police Station and were later remanded for 12 days, from 18 to 30 July 2002. Ragupathy had undergone a heart operation several years earlier during which a prosthetic valve was installed that requires a medical supplement known as waffarin, a type of anti-coagulant. Due to the operation, he had a visible 8-inch scar running below his neck across his chest.
According to a statutory declaration affirmed by the cousin brother of Ragupathy who was detained with the deceased, Ragupathy started complaining of chest pains and inability to sleep to the police beginning on 20 July. His condition worsened and he was not able to eat for three days; he also had bouts of vomiting. Ragupathy and his friends made repeated pleas for medical attention, and his special circumstances were conveyed to the police but to no avail. On 26 July, the police finally brought him to a government clinic, where an assistant treated him, as the doctor was absent. The assistant said that he was “treated” for asthma, as that was what the police told him about the victim. He was given some medication, but his condition further deteriorated. On 27 July, the police took him to Putrajaya Hospital. He was pronounced dead the next day. The Sepang police
[U1] [U1] denied any negligence or foul play and said that the deceased could have “died anywhere,” since he had not taken his medication and did not inform the police of his condition. He added that the hospital only detected the condition when they did a chest X-ray.
In September 2002, Deputy Home Minister Chor Chee Heung said in Parliament that police investigations revealed that there was no criminality in police conduct in the deaths of the three detainees, Tharma Rajen, Ragupathy and Vivashanu Pillai (whose decomposed body was found in a river), and that there was no evidence to link the deaths to the conduct of police personnel.
VIVASHANU PILAI
The semi-decomposed body of Vivashanu was found in a river after the police claimed that he must have drowned after escaping from the custody of the Dang Wangi Police Station in Kuala Lumpur. The family alleged that he was killed while in police custody and his body was thereafter dumped into the river.
Many of the reported deaths in police custody were viewed with suspicion by family members of the deceased. Human rights groups called for compulsory inquests on all cases of deaths in police custody and demanded a second and independent post-mortem procedure on the deceased done upon the requests of family members. However, this has fallen on deaf ears; no inquests were held in 2003.
Among those who died in police detention were:
Name
Age
Date of death
Place of detentionSyed Fadzil Syed Ibrahim
21
9 January
Jasin Police Station, MelakaHasrizal Hamzah
27
9 February
Kajang Police Station, SelangorPrakash Moses
23
18 February
Hang Tuah Police Station, Kuala LumpurKannan Kanthan
45
1 March
Batu Pahat Police Station, JohorAhmad Salleh
42
7 June
Kuala Krai Police Station, KelantanUlaganathan Muniandy 19
19
21 July
Kajang Police Station, SelangorHo Kwai See
28
5 August
Sungai Buloh Prison, Kota Damansara Police Station (died in prison)Ravichandran Ramayah
38
21 October
Penang Prison, North East Police Station Veerasamy Gopal
52
28 November
Ampang Police Station, SelangorL. Yoges Rao
22
11 December
Sitiawan Police Station, Perak.Source: Police Watch and Human Rights Committee and SUARAM monitoringIn January 2003, Syed Fadzil Syed Hamzah, 21, died while in the custody of the Jasin Police Station in Melaka. According to Melaka Chief Police Christopher Wan Soo Kee, the deceased died after receiving out-patient treatment for stomach pains at Jasin Hospital. According to him, the suspected drug dependent arrested on suspicion of motorcycle theft died of germ infection—as revealed in an autopsy. He added that the deceased had received medical treatment on a few occasions after complaints of stomach pain.
In February, Hasrizal Hamzah, a police detainee suspected of murder, leapt to his death from the fourth floor of the Kajang Police Station. Selangor Criminal Investigations Department Chief Senior Assistant Commissioner Abu Bakar Mustaffa claimed that the deceased had confessed momentarily before killing himself. He said: “We are confident we detained the man responsible…the suspect chose to jump to his death.” According to him, the incident happened when the handcuffed suspect was being moved. He apparently shoved the accompanying policeman aside and hurled himself over the balcony. He also claimed that thus far no “foul play” had been detected in the case. However, Selangor Police Chief Deputy Commissioner Mohd Noor Hamat said that he had directed that an internal inquiry be conducted
In February, Prakash Moses collapsed while being detained at the Jalan Hang Tuah Police Station Detention Centre. Three days later, he died at the Kuala Lumpur Hospital. His son, Steven Moses, claimed that there was a gash on his father’s head that was likely to have caused his death. He added that his father was well the last time he saw him, three days before his death. The deceased and his son were arrested in an anti-narcotics operation and subsequently detained at the Jalan Hang Tuah Police Station Detention Centre, formerly Pudu Prison. It is now a detention centre for suspected drug dependent-persons who are arrested en mass in operations. In January, the first batch of 179 suspected drug dependents arrested in Kuala Lumpur were detained there.
In March, Kannan Kanthan, 45, died in Batu Pahat Police Station in Johor after being arrested three days earlier by the police. The deceased’s nephew, Sri Rajesh Kanna Viladan, said that when he saw Kannan in court a few days earlier, he was in good health. At the mortuary, Sri Rajesh identified the body and claimed that he found injuries on the deceased—a swollen neck and injuries on the left eye and right hand. Fourteen persons were arrested in relation to the death including three police personnel. Seven of them were later charged with causing the death of Kannan in Cell ‘C’ lockup. In addition, a police lance corporal Azmi Harun was charged with abetting the five by transferring the deceased from Cell ‘F’ to Cell ‘C’ and allowing him to be assaulted by the detainees. The two other police personnel were subjected disciplinary actions.
In July, Ulaganathan Muniandy, 19, died in the Kajang Police Station, Selangor after being arrested and detained under the Emergency Ordinance (EO), which allows the police to hold suspects for up to 60 days. According to the deceased's mother, she visited her son four times, and on the last occasion, she saw that he had bruises on his eyes and suffered other injuries. She also claimed that her son deceased could not sit properly. The police claimed that Ulaganathan died from asthma, a cause disputed by the mother as she said that her son was healthy and did not suffer from asthma. Further, the burial certificate issued by the Kajang Hospital only said that the cause of death was “undetermined.”
In July, the murder trial of a detainee under police custody, Wan Deraman Wan Yusof, 44, began with testimonies saying that a police lance corporal together with two other detainees kicked, stomped on and beat up the detainee in a police lockup in Setapak Police Station in Kuala Lumpur in 2001.
28-year-old Ho Kwai See died at the Sungai Buloh Prison in August after earlier being detained for a week by the Kota Damansara police in Selangor. According to the post-mortem findings, he died from a "perforated ulcer." Family members suspected foul play after seeing bruises on the body and sought a second post-mortem. Kwai See's brother wanted the authorities to explain how his apparently healthy brother had died so suddenly while in custody. "He did not have any illness and he did not have any stomach pains. We want to know what happened. I also saw a lot of blue black marks on his body," he said. He said that he was unaware of his brother’s arrest until he received an anonymous telephone call informing him that his brother had died.
Ho Kwai See
28-year-old Ho Kwai See died after being detained for a week by the Kota Damansara police in Selangor.
The deceased’s brother (centre) with his lawyers (left and far right) from Police Watch and the Human Rights Committee, a non-governmental organisation which campaigns against police brutality, fatal shootings and deaths of suspects while in police custody.
After initially agreeing to conduct the post-mortem, University Malaya Medical Centre (UMMC) forensic pathologist K. Nadesan later declined following a dispute with the family’s lawyers. UMMC then asked the family to present a magistrate’s order or a police permit before proceeding with the second post-mortem. The family members than attempted obtain a court order to compel the UMMC to conduct the post-mortem on Kwai See to determine the cause of death. However, the application was rejected by the Kuala Lumpur High Court on grounds that the requirements under the Special Relief Act 1950, which gives powers to the court to order officials to carry out certain acts, were not satisfied. In three such cases earlier, UMMC had performed second post-mortems at the request of the family members without requiring any official permit. However, the court decision would mean that all future requests for second post-mortem would only be performed if authorised by a magistrate or the police.
In October, Ravichandran Ramayah, 38, died a week after being arrested and detained by the Penang North East Police Station. Family members claimed that medical needs were not provided to Ravichandran even though it was clear that his condition was very poor when he appeared in the Magistrate's Court for remand proceedings. The deceased then could only walk with the help of family members, causing the magistrate to order that he be brought to a hospital for medical attention. However, the police instead took the deceased to the Penang Prison, where he eventually died. State Police Chief Deputy Commissioner Othman Talib said that no wrongdoing had been committed on the part of the police. He said that a post-mortem showed that Ravichandran died from natural causes and there were no signs of physical abuse or assault.
In December, Veerasamy Gopal, 52, died in the Ampang Police Station in Selangor after being detained for four days. Police ruled out foul play and said that a post-mortem revealed that he had died from an infection of the pancreas. However, this was contradicted by his family members who alleged that he had been assaulted in the lock-up, leading to his death.
Veerasamy
Veerasamy Gopal, 52, died in the Ampang Police Station in Selangor after being detained for four days.
In December, 22-year-old L.Yoges Rao died while in the custody of the Sitiawan Police Station in Perak. Yoges was arrested on drug-related charges and brought to his home by six police personnel. His, sister who was at home at the time, said that the policemen proceeded to assault Yoges by punching him several times his stomach and abdomen. She said that the policemen then took Yoges into one of the rooms and locked the room from the inside. She claimed that she could hear her brother screaming in pain and pleading with the police to stop assaulting him. When he was brought out of the room about half an hour later, she saw him vomiting blood. He died in police custody the next day. Despite evidence of abuse on Yoges’ body, the burial permit stated that he had died of a stomach ulcer.
In March, A. Subramaniam died after allegedly being assaulted by prison officials at the Air Molek Prison in Johor. Lawyer Uthayakumar lodged a complaint that Subramaniam, his friend S. Sherma Naidu and two other detainees had been assaulted and tortured by prison officials after they went on a hunger strike to protest against filthy conditions in the prison. Subramaniam then allegedly fell ill and died while being rushed to the hospital. His parents lodged a police report claiming police brutality and lack of care while under incarceration. However, Johor Police Chief Mukhtar Ismail said police investigations ruled out foul play in the detainee’s death. The prisons department also cleared the Ayer Molek authorities of any wrongdoing, as the findings of a post-mortem report and investigations of an inquiry board said that the youth had died of Septicaemia meningitis.
Other Acts of Brutality
In February, police personnel were alleged to have beaten P. Lingeswaran together with another 19-year-old, P. Poobalan, while the two were being detained at the Subang Jaya Police Station in Selangor. According to a police report, the duo was arrested and blindfolded at the police station before they were beaten with rubber hoses. The complainant said: "I saw that Poobalan had red bruises of about 6-inches long on his back and his right hand. There were also swellings on his head, feet and the soles of his feet. As for Lingeswaran, there were (similar) bruises on both his shoulders." The two youths were subsequently released by the Petaling Jaya Magistrate’s Court but were re-arrested the same day by the Subang Jaya police. Lawyer Uthayakumar said the two were re-arrested while they were seeking medical treatment for their injuries at the Universiti Hospital. The hospital staff apparently notified the police, who came and removed the two back to the Subang Jaya Police Station. The police later suddenly brought the two youth back to the hospital’s police booth and released them at about 2 a.m. Malaysiakini.com reported that when it contacted the Subang Jaya Police Station, a police officer who declined to be named said that there were no records that the two youths were held during the past two days at the station.
In March, two general operational force policemen, Mohd Fauzi Yahya and Ahmad Nazri Zainorddin, were charged in court for raping a 13-year-old girl detainee in Menggatal Immigration Detention Camp in Sabah between 27 July and 12 August 2002. The girl was arrested together with tens of thousands of suspected undocumented persons in a massive government drive against them that resulted in misery, deportation and deaths linked to the prolonged detention. The girl’s rape caused a diplomatic row with the Philippines as she was initially thought to be Filipino. However, Sessions Court Judge Nurchaya Arshad acquitted both accused persons after finding that the prosecution failed to establish a prima facie case against them.
In May, 17-year-old Lee Kam Choon claimed he was physically assaulted by several plainclothes policemen in Penang. He was riding his motorcycle when at about 11:50 p.m. he was chased by about six unidentified men on motorcycles. He thought they were robbers. The men caught up with him and proceeded to assault, handcuff and drag him to the Butterworth Police Station. A medical report stated that Lee sustained "multiple bodily injuries affecting the back, right and left upper limbs, face and both ankles." Lee was issued two summonses, one for a “fanciful and tiny” registration number plate and another for reckless riding. A family member claimed that he was threatened by a senior police officer and was told not to pursue the case in court. He said he was warned that the boy could be charged for carrying arms and that the police would counter-sue if the matter was not settled amicably.
In May, a woman detainee claimed she was forced by a police officer to perform oral sex on another male detainee during her detention at the Gombak Police Station in Selangor. The 42-year-old woman was arrested along with her 40-year-old husband and 17-year-old daughter. According to the police report lodged by the victim, she was forced to perform oral sex on another 23-year-old male detainee who was brought into the room wearing only his underwear. The woman also claimed the police threatened to rape her daughter. The woman's husband too lodged a police report, claiming he was assaulted and harassed by the police. In his report, the man said he was stripped naked, photographed and asked to appear nude in front of his daughter.
In July, a Chin asylum seeker, was stopped by two uniformed policemen on a motorcycle. He was questioned, searched and handcuffed. Later the policemen slapped and kicked him. The policemen also took his ballpoint pen from his pocket and wrote on his face and used it to poke his stomach. The victim was later taken into a police patrol car whereupon money was demanded from him. When he could not produce any money, the policemen beat him up further, stripped him of his clothes and left him near the United Nations High Commissioner for Refugees (UNCHR) office. The policemen also took away RM 3, the only money he had on him.
In March, the police raided apartment blocks in Brickfield, Kuala Lumpur in search of undocumented Indian nationals. Police personnel conducted mass block searches, and 191 persons—186 Indian nationals, 4 Pakistanis and a Burmese—were arrested and detained. The detainees, most of whom were IT specialists, claimed that they had proper documentation, which most of them provided. However, this failed to satisfy the authorities, as the they were not familiar with the various types of visas and worker's passes. Of the 191 persons detained, 155 produced documentation while 36 were not able to. Many of the documents were scratched or defaced by the police during the “verification” of these documents. The detainees complained that the authorities acted in a high-handed manner, handcuffed most of them and detained them at the police station instead of checking the documents properly at the apartments. They added that some of those arrested were roughed up by being kicked and slapped and stripped naked. Some were detained for up to 12 hours without food or water. The operation started at 7 a.m. and their ordeal only ended at 7 p.m. that day. The immigration authorities did not participate in the raid, nor was appropriate verification equipment taken along.
An Indian national demonstrates how he was mistreated by the police when they unlawfully detained en mass 191 persons, most of whom had valid documentation.
Culture, Arts and Tourism Minister Abdul Kadir Sheikh Fadzir apologized to the people of the Southern Thailand after the police detained 60 Thai nationals for alleged immigration offences while crossing the border and shopping in Malaysia. In the operation in June, police personnel randomly arrested shoppers from duty-free zone shops for “lack” of documentation. Despite protestation, they were detained for 10 days, and it was only due to intervention from the Thai authorities that they were subsequently released. The confusion arose because there is a border agreement between Thailand and Malaysia stating that Thai nationals are not required to produce travel documents to enter the duty-free zone in Rantau Panjang that the police were apparently unaware of.
The 100-year old Sri Kalikamba Kamadeswarar temple that served residents formerly living in the Ebor palm oil estate in Batu Tiga, Shah Alam, was destroyed and burnt in June by a group of unidentified individuals and allegedly witnessed by police officers. According to lawyer and activist Uthayakumar, several unidentified individuals first tried to burn down the temple earlier but failed because it started to rain. Devotees from the temple lodged a police report asking for protection, and they took turns to watch over the temple. However, he alleged that two days later, another group of people came together with uniformed policemen and proceeded to destroy the temple. According to several police reports lodged over the second incident, three eyewitnesses claimed that some 10 uniformed police personnel had restrained them while another group of unidentified persons set the temple on fire. One of the witnesses, K. Chandrasegaran, said that he and two other men posted to watch over the temple were restrained by the police and forcibly taken out of the temple. "[The police] dragged us out by pulling our shirts with our hands held to the back. We were told that if we ran or resisted, we would be handcuffed," he said in his police report lodged on the day of the incident. Chandrasegaran said five men in civilian clothes then pulled out the carpet from the floor of the temple, placed it on top of the temple roof and set it alight after dousing it with petrol. Senior Assistant Commissioner (SAC) Abu Bakar met the temple committee and apologised for the incident, and said that he would send some policemen to help clean up the place. In return, he asked them not to make an issue out of the matter.
Meanwhile, the committee chairperson, P. Thanabalan, said that the temple had been built over a hundred years ago to serve estate workers living in the area. The workers were later relocated away from the area after the land was slated for development into a housing estate by Sime UEP 10 or 12 years ago. However, Thanabalan said the temple continued to serve the relocated residents, and no provisions had been made for them to move the temple to another location. Over the course of the year, several Hindu temples had been threatened with demolition as a result of encroaching development into former estates or residential areas. There had been some cases where temples had been demolished by local authorities either because they are not registered, were not managed by a lawfully recognised committee or because the land that they occupied had been converted for development.
In August , Constable Razali Pilen, 27, was sentenced to 15 years imprisonment and ordered to be given 17 strokes of the cane for raping two women in the Ampang Police Station lock-up in Selangor in February 2002. His victims, a Filipino woman and an Indonesian woman, were both alleged to be undocumented sex workers. Razali was initially acquitted and discharged without his defence being called, but the High Court reversed the decision on appeal. Sessions Court Judge Mohamed Saman Mohd Ramli had earlier held the sexual acts between the parties to be “voluntary, just like between husband and wife,” and further undermined the credibility of the victims on the grounds that they were undocumented persons and married with children. The acquittal caused outrage among NGOs and women’s groups for the court’s failure to understand the vulnerability of women, especially undocumented women in police custody.
There were also numerous incidents of police collusion with influential companies and property developers in evicting and demolishing the houses of plantation workers or urban pioneers. In many cases, these unlawful acts were done while the disputes were still pending in court and in the absence of court orders. The protesters and occupants were generally threatened with violence and arrest, and in some cases the threats materialised, resulting in further misery to these vulnerable groups.
Abuse of the Remand Procedure by the Police and Magistrates
One of the main factors that contributes to the violations of the human rights of suspects while in police custody is the readiness of magistrates in granting remand orders to allow the police to investigate alleged crimes. Although the Criminal Procedure Code (CPC) allows remand orders to be granted not exceeding 15 days if investigations cannot be completed within 24 hours of the arrest, the police invariably inform the magistrate that the suspect is being investigated for an offence and the magistrate in the majority of cases as a matter of “due course” grants a remand order against the suspect without checking the desirability for such an order. The magistrate normally performs this task in an administrative manner and fails to scrutinise the propriety of the arrest, the investigation done in the preceding 24 hours and the connection between the suspect and the crime. In most cases, no investigation is carried out at all within the initial 24 hours, and in many cases there is no logical connection between the length of remand period and the alleged offence. As an illustration, a person suspected of being a drug dependent is sometimes remanded for a week or more when the only “investigation” that was needed was to obtain urine samples for a drug substance test.
Often remand procedures are carried out with neither the proper participation of the suspect nor the presence of a lawyer if he or she has one. The situation is made worse as there is a general lack of information regarding the fate of a suspect. A telephone call is not regarded as a right and is discretionary. The whereabouts of a suspect and details while under remand are normally not easily forthcoming from the police. Family members and lawyers are usually given the runaround concerning the place of detention. Access to the suspect and details as to when the suspect is to be brought to court for a remand order or to be charged are also often denied.
There is also the problem of the “chain smoking order” being made against a suspect. This is where the police inform the magistrate that the suspect is being investigated for a another offence as well; they thus call for a further and different remand order. The suspect is then further detained (in excess of the maximum 15 days) and sometimes taken to different jurisdictions to “solve” other crimes. In the different jurisdiction, the suspect is sometimes further remanded, and the presiding magistrate may not have been informed of the suspect’s history of being consecutively remanded. Even if the magistrate was duly informed, the cycle of automatic remand orders is frequently administered without due regard to the constitutional and legal provisions. There have been cases where suspects have been detained for more than two months in various police stations in various states, resulting in severe deterioration of health and even death while in police custody.
Some suspects in prolonged detention are detained under the EO, which allows the police to hold suspects for up to 60 days. Under the ordinance there is no need for a remand order from a magistrate. All that is required is that a police officer of or above the rank of deputy superintendent report the circumstances of the arrest. He must show the inspector general of police or his designated officer that actions were taken with a view to “preventing any person from acting in a manner prejudicial to public order” or for “suppression of violence” or for “prevention of crimes involving violence.”
In December, SUARAM brought to the attention of the Home Ministry and SUHAKAM the plight of five detainees who were remanded continuously for between 24 and 28 days. After the abuse of the remand procedure was highlighted, the police resorted to the EO to justify the continuous detention. The five have since been imposed with the two-year detention order under the EO and are serving their detention without trial in Simpang Renggam Detention Camp.
The bleak picture painted above concurs with the SUHAKAM report entitled “Rights of Remand Prisoners.” The report, dated December 2001 and released in October 2002, disclosed that police and magistrates have grossly abused the remand procedures. The commission made recommendations for improvements. Among the abuses highlighted were:
Remand persons were barred from contacting family members
Medical requirements were not fully fulfilled
Family members and friends of arrested persons, including juveniles, were sometimes kept in the dark of details and the reasons for their arrest, whether they would be remanded, whether they would be brought to court to be remanded or charged, which court would they would be brought to and when this would happen
Extortion by police personnel who demanded up to RM 40.00 for a telephone call
No access to lawyers was provided on the ground that it would interfere with police investigation
Remand proceedings were conducted in private between the police and the magistrate in chambers while the suspects were kept away
The readiness of magistrates to grant remand orders without considering whether it was necessary to further investigation, and without paying due consideration to the views of the suspect or his lawyers
The common practice of “chain smoking order” or repeated remand orders from one police station to another for suspicion of committing different alleged crimes resulting in months of incarceration
The deplorable condition of lockups; problems included congestion, absence of bed sheets, dirty blankets, inadequate clothing, spectacles being taken away, deprivation of privacy, stinking toilets with little of no water, etc.
Intimidation and Persecution of Lawyer P. Uthayakumar
In January, lawyer P. Uthayakumar was arrested outside the Sepang Magistrate’s Court in Selangor after attending an inquest into the death of S. Tharma Rajen, who died in police custody after being detained by the police for 66 days. The lawyer was detained for a period in excess of 24 hours by the police on charges of criminal intimidation of a police officer and of insulting a magistrate during the hearing of the judicial inquest. He was initially “released” after his statement was taken in the Sepang Police Station but re-arrested immediately and brought to the Sentul Police Station in Kuala Lumpur. Chief Police Officer Dell Akbar Khan denied any police harassment against the lawyer. He said: “If he is wanted for questioning in several places, what can we do? The case in Selangor is separate. It has nothing to do with us. We are investigating him for a total different case.”
The apparent sole reason he was arrested and kept overnight was to record his section 113 cautioned statement under the Criminal Procedure Code. SAC Abu Bakar told reporters that he would be released the following day and not charged immediately. Therefore, there was no need to detain him overnight (even though, technically, the police were within their legal rights to do so), as the statement and administrative matters pertaining to the arrest and bail could have been completed in a few hours; the prolonged detention must be viewed as punishment and an exercise of police powers in bad faith.
The arrest was condemned by the Bar Council. In a statement, it said: “The Bar Council is of the view that to arrest Uthayakumar at the doorsteps of the Sepang Magistrate's Court by an unnecessarily large team of around 20 police officers was completely unwarranted.” It was said further that it was not necessary for the arrest to take place in the full glare of the public, his clients and journalists. The Bar Council also noted that the police themselves were the complainant in the case, and voiced concern that the arrest was a serious abuse of police powers as seen from the calculated timing and publicity involved. The Bar Council also questioned the denial of Uthayakumar of legal counsel and the fact that he was not informed of the grounds of his arrest.
Uthayakumar was later charged under section 506 of the Penal Code for criminal intimidation when he allegedly said the words: “You watch out, I will fix you. We fix you.” The charge carries a sentence of up to seven years’ imprisonment and/or fine upon conviction. He was also charged under section 228 for intentionally insulting magistrate Norazmi Mohd Narawi when he ignored the magistrate’s order to be quiet and continued speaking. He was also charged with interrupting a court proceeding resulting in it being postponed. The offence carries a jail sentence of up to six months’ imprisonment and/or a fine of up to RM2,000. However, the Attorney General’s chambers later withdrew the charge on contempt of court after intervention from civil society, the Bar Council and UN Special Rapporteur on the Independence of Judges and Lawyers Param Cumaraswamy, who argued that the lawyer was immune from prosecution as the alleged offence was committed during judicial proceedings.
In May, in a revision application by Uthayakumar at the Shah Alam High Court on the charges of criminal intimidation, Suriyadi Halim Omar J. declared that the charges as they stood were groundless and discharged the lawyer from the accusation. The order does not, however, preclude the prosecution from re-charging Uthayakumar. The judgment was scathing of the police conduct: “According to Mr. Uthayakumar, at the police station he was verbally abused by some exceptionally obnoxious police officers, stripped down to his underpants, pictured and filmed in full view of nine policemen. If these allegations were true, I see no necessity for him to be humiliated and robbed of his human dignity in such manner and fashion. They should not have behaved like lords and masters in their little fiefdom, where others are equivalent to serfs, open to abuse and directions.”
Suriyadi J. was equally scathing of Magistrate Norazmi Mohd Nawawi’s conduct in refusing to recuse himself from the proceedings when Uthayakumar was charged and applied for bail.. The judge said: “Any uninitiated person could easily have seen or pointed out that the learned Magistrate should have been the last person to hear the bail matter, for the obvious reason of him being an interested party. Even if he had considered that the bail amount was fair, the perception gathered by the public would certainly militate against it. As far as the public and I were concerned, as justice was not seen to be done, then it was never done…In similar vein, when Mr. Uthayakumar ventilated that the charge or charges were groundless, it was inconceivable that any person in their right frame of mind would have seriously expected that Magistrate to agree to that view…certainly an aberration of justice has taken place on that fateful day.”
The International Commission of Jurist and Centre for the Independence of Judges and Lawyers (ICJ/CIJL) in its report on the matter, while commending the High Court judge’s decision and intervention, concluded that “the way this case has been handled gives serious rise for concern. The Malaysian legal system has been under international scrutiny for its prosecution of lawyers, particularly through its use of contempt power…It is therefore not without coincidence that this lawyer was arrested on the steps of a court where he was representing the family of a youth who died in police custody…ICJ/CIJL finds the circumstances and timing of Mr. Uthayakumar’s arrest and detention deeply disturbing.”
In October, Uthayakumar further complained of harassment, verbal abuse and obstruction of justice by police officers while he was attending to clients at the Petaling Jaya Magistrate’s Court. He said that he went to court to represent one of the suspects in a snatch-theft case in a remand proceeding, as the police were seeking to extend their remand by another nine days. Before the proceedings began, Uthayakumar said he tried to establish such matters as whether an identification parade had been conducted, the age of his clients, if they had a past record and circumstances of their arrest. He alleged that, as he started speaking to them in the court room, about 10 plainclothes and uniformed police officers started shouting at him and acting like "licensed gangsters" as they obstructed him from speaking to his clients. Uthayakumar then left the court room to complain about the officers’ conduct to Magistrate Yasmin Abdul Razak, who was temporarily engaged in another matter elsewhere in the building. When Uthayakumar tried to re-enter the court room, his way was allegedly blocked for a while by a plainclothes officer, who "verbally abused and threatened" him.
The lawyer has been aggressively campaigning against police brutality, fatal shootings and deaths of suspects while in police custody since 2002, and lodged numerous police reports, memoranda and complaints against the police on behalf of the aggrieved family members. During the campaign, there were a few fierce confrontations between the lawyer, his supporters and the police.
Courtesy from SUARAM
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