Since 2000, at least 147 people have died in police custody (unless otherwise stated, statistics are from PDRM – released during P.Uthayakumar’s ongoing sedition trial) but yet there is little accountability, transparency or any real investigations by the authorities responsible, namely the courts, the police, the Attorney General’s Chambers and the hospitals which provide medical assistance or conduct post-mortems.

Despite the obvious seriousness of any death in custody, these important state institutions in most, if not all of these cases, chose to gloss, downplay, cover up, ignore or even make outrageous claims over these deaths – causing these institutions to lose credibility and public confidence.

Just look at the recent deaths of A.Kugan while in custody of the USJ police station in January 2009 and Teoh Beng Hock while in custody of the Malaysian Anti-Corruption Commission (MACC) in Shah Alam in July 2009 which caused extraordinary public outcry, anger and fear over the conduct of enforcement agencies during interrogations, the practice of torture and the lack of clear standard operating procedures.

Some of the outrageous claims made: for A.Kugan’s death – he suddenly collapsed and died while drinking water, and therefore the police are not to be blamed (Selangor police chief Khalid Abu Bakar); and Teoh Beng Hock – he committed suicide or choked himself and the officer even proceeded to demonstrate the act to the court! (MACC prosecution chief Abdul Razak Musa). How can these people continue to hold high level positions when it is clear that they are neither competent nor truthful when discharging their public duties?

Although under the Penal Code, inquest into deaths in custody is mandatory, in reality, very few inquests are conducted. The Royal Commission to Enhance the Operation and Management of the Police (May 2005) revealed that inquests were done on only 6 out of the 80 deaths in police custody in the four-year period.

Even when inquests are conducted, the whole process is extremely slow, cumbersome, often taking several years to complete, and highly unsatisfactory with the AG’s Chambers officers downplaying or suppressing the evidence, the medical authorities working hand in glove with the police and the AG’s Chambers and typically attributing “natural causes” and other unacceptable reasons for the cause of death. Such unholy alliance leads to “open verdicts” in many inquiries which simply meant that the cause of death was unclear and therefore no one can be held responsible.

Just look at the death of R. Gunasegaran at the Sentul police station in July 2009; no policemen were found culpable even though there were eyewitnesses to his brutal beatings. Worse still, one of the key eyewitnesses K.Selvach who bravely testified at the inquest was detained without trial on the very day the open verdict was delivered – an obvious case of police retaliation. Selvach is now being detained at the Batu Gajah rehabilitation camp.

Despite the long list of custodial deaths, very few policemen are criminally charged much less found guilty of any offence. Statistics between 2000 and February 2010 showed that 64 Malays died while in police custody, with 30 deaths among Chinese detainees, 28 Indians, 8 other races, and 14 foreigners. At least one thing you cannot accuse the police is that they practice discrimination – as all types of people die in their custody! (But probably not the rich, powerful and well connected).

Some of the reasons given for the cause of the deaths: 63 from “other diseases” such as ulcers, yellow fever (jaundice) and intestine, lung and throat infections, 23 were listed as “suicide” in the cells, and 12 deaths from brain hemorrhage, and 66 were termed as “no further action”. What century are we living in? Since when do people die from ulcers, jaundice and intestine, lung and throat infections? Do people for no apparent reason suddenly get brain hemorrhage and die?

The only case that I can recall where any policeman who was actually charged and convicted for a custodial death was over the death of Lee Guat Leong in the police lock-up in Jalan Ipoh, Kuala Lumpur in May 1995 after he was arrested on suspicion of bank burglary in Cheras. The police had initially classified his case as one of “sudden death”.

Although the AG had ordered an inquest following his dissatisfaction with police failure to identify the policemen responsible for Lee’s death, only 2 low ranking of 11 policemen found by the inquest to be “criminally involved” in Lee’s death were subsequently charged in court.  The two were jailed 18 months’ each by the Sessions Court and the sentence doubled to 36 months’ jail by the High Court (on revision by High Court judge K.C.Vohrah).

That was 15 years ago! And K.C.Vohrah is no longer in service. Do you expect today’s courts, hospitals and the AG’s Chambers to provide justice to any torture, shooting and custodial deaths perpetrated by the police?

The UMNO-BN government has absolutely refused to implement the most important recommendations of the Royal Commission – the setting up of the Independent Police Complaints and Misconduct Commission (ICPMC) which will certainly go a long way in preventing custodial deaths and enhancing public confidence. The UMNO-BN government instead tabled the Enforcement Agency Integrity Commission Bill 2009 (EAIC) to replace the IPCMC proposal that purportedly sought to oversee the integrity of 21 law enforcement agencies, including the police (but not the MACC).

However, the EAIC is wholly unsatisfactory, coming under intense criticism from the Bar Council, civil society and political opposition as it is essentially a compromised and watered down version of the IPCMC, only having the power to investigate but not to prosecute or punish those who are found involved in misconduct. The commission can only submit its findings and recommendations to the relevant disciplinary penalty units or prosecutors. Besides, nothing has been heard about the formation and the start of operation of the commission and it is likely that nothing of importance will come out of it.

The UMNO-BN government has continuously and blindly supported the police irrespective of whatever crimes, wrongdoings and abuses they perpetrate. This cannot continue forever as without any real reforms, sooner or later, there will be a total breakdown in public confidence leading to lawlessness, vigilantism and complete disregard for the law and its enforcement agencies – a not unnatural consequence when the people cannot get justice.

Eric Paulsen is a founder member of Lawyers for Liberty