Is there no justice or rule of law in Malaysia? Can members of the Royal Malaysia Police, Malaysian Anti-Corruption Commission (MACC) or any other government enforcement agency abuse their powers as and when they please? Should they escape the long arm of the law, justice, criminal prosecution and disciplinary action for all the unjustifiable and unlawful shootings, deaths in custody and torture? Are they above the law?
We are here to remind Minister of Home Affairs Hishammuddin Hussein, Inspector General of Police Ismail Omar, and Chief MACC Commissioner Abu Kassim Mohamed of the serious cases of police and MACC brutality in recent years that are still awaiting justice and answers. The family members of the deceased persons, survivors, their lawyers, supporters, civil society and the Rakyat will not be deceived by the authorities’ inaction or half-hearted actions on these cases who seem to hope that in time, the uproar and memory of these cases will simply fade away.
There are many more cases particularly affecting refugees, migrants and foreigners who have died in custody, tortured, whipped and subjected to inhumane or degrading treatment, then deported without their stories being told or revealed to us. Consequently, these enforcement agencies continue to act with impunity in treatment of persons.
Our Indignation /Memory
We wish to remind the Minister, IGP and Chief Commissioner the names of these Malaysians and what they have suffered at the hands and guns of the police and MACC:
- August 2012: Dinesh Darmesena, 26 – shot dead
Dinesh was shot to death in Ampang while unarmed and in cold blood when unmarked cars suddenly blocked the car he was travelling in. A few men in plain clothes appeared and started shooting indiscriminately at the car. When Dinesh tried to flee, he was gunned down. Although he did not have any criminal record, the police was quick to accuse the deceased as a gangster who had tried to attack the police, resulting in them discharging their firearms in self-defence.
- April 2011: Ahmad Sarbani, 56 – found dead at the MACC office compound
This senior customs officer was found dead at the MACC office compound in Kuala Lumpur after having “fallen/thrown” to his death from the 3rd floor. Sarbani had gone to the MACC office to assist in the investigation of a massive corruption scandal involving the customs department. There were numerous suspicious circumstances surrounding his death but none more damning than the intentional erasure of CCTV footage during his visit to the office. In September 2011, the Magistrate’s Inquest ruled Sarbani’s death as an “accident”.
- November 2010: Mohd Shamil Hafiz Shafie, 15, Mohd Khairul Nizam Tuah, 20, and Mohd Hanafi Omar, 22 – all shot dead
All three youths (including a minor) were shot dead by the police in Glenmarie, Selangor. Although they did not possess any criminal records, the Acting Selangor Police Chief A.Thaiveegan made an incredible claim that all were “seasoned criminals” known as “Geng Minyak” which preyed on petrol stations. The police alleged that the suspects had rushed at the police with machetes and the police shot them in self-defence. The police version appears to be inconsistent with the findings of the post-mortem reports which indicate that they were summarily executed in cold blood while kneeling or in a seated position.
- April 2010: Aminulrasyid Amzah, 15 – shot dead
He was shot dead by the police in a car chase – all because his car had driven past a red light over a minor car accident in Shah Alam. Only one policeman was charged with manslaughter but no charges or serious disciplinary action were taken against the other policeman involved in the fatal shooting and the subsequent cover up by making false allegations and fabricating evidence against the deceased and his 15-year-old friend Azammudin, including then Selangor CPO Khalid Abu Bakar. There was also no apology from the police or government officials but instead they sought to blame the parents for not watching their children.
- October 2009: Mohd Afham Arin, 18 – shot dead
He was shot dead while riding a motorcycle late at night with another person in Johor Bahru when four men in plain clothes on motorbikes suddenly tried to stop them claiming to be policemen. Thinking they were robbers, the duo fled and the men who later turned out to be policemen shot and killed Afham. As usual, the police claimed that the deceased and his accompanying friend were criminals and had weapons threatening the police. No charges were laid against any police personnel for causing death, grievous hurt or for fabricating evidence.
- October 2009: Norizan Salleh, 30 – shot several times but survived
The single mum was shot several times by the police while travelling with a few other persons in a car which was chased by a police patrol car in Kuala Lumpur. She was also kicked and stepped on her back when she exited the car although it was clear she was seriously injured and in pain. No charges were filed against any of the policemen involved despite an undertaking given personally by the Minister of Home Affairs to Norizan that action would be taken. She is now saddled with a hospital bill of RM20,000 after two surgeries.
- July 2009: Teoh Beng Hock, 30 – found dead at the MACC office compound
The political aide to a member of the Selangor State Executive Council was found dead at the MACC office compound in Shah Alam after having “fallen/thrown” to his death from the 14thfloor of the building. He had been arrested and questioned for a corruption allegation for a mere sum of RM2,400 which he disputed. Although the Royal Commission of Inquiry concluded he had been driven to commit suicide due to the aggressive interrogation by three MACC officers, many have disputed the findings and remained convinced he was killed. No one has been charged nor disciplined over Beng Hock’s death.
- July 2009: Gunasegaran, 31 – dead in police custody
He died on the same day of his arrest at the Sentul police station where according to the police, he suddenly collapsed and died. The Magistrate’s Inquest ruled his death an “open verdict” as the post mortem stated he died of drug abuse even though eye-witnesses saw a policeman kicking and beating Gunasegaran until he was unconscious. Further, the second autopsy found a 28cm long, 8cm width and 5cm depth scar on his chest. On the day of the verdict, one of the witnesses K.Selvach who testified in the inquest was arrested and detained without trial under the Dangerous Drugs (Special Preventive Measures) Act and all habeas corpus attempts to free him failed.
- January 2009: A. Kugan, 22 – tortured to death in police custody
The most shocking death in police custody in recent memory, not only did a healthy young man die after being in the USJ Subang Jaya police custody for 5 days with obvious signs of torture, the police and hospital authorities attempted to cover up the death by stating that he died due to “fluid in his lungs.” After tremendous public pressure, only one low ranking police constable was charged for causing grievous hurt. The pathologist who carried out the first post-mortem Dr Abdul Karim Tajuddin was later reprimanded by the Malaysian Medical Council for failing to conduct a proper and honest examination and report.
The above highlights only a handful of such cases in recent years. According to the Minister of Home Affairs in reply to questions in Parliament in October 2012, 209 detainees have died in police custody since 2000 while 298 alleged criminals were shot dead since 2007.
1 Failure to take action, lack of independent and effective investigations
Even after the shocking statistics of fatal police shootings that have risen 17-fold since 2001 was revealed in November 2010, the law enforcement agencies especially the police continued to act in blatant lawlessness. This is reflected in the failure to commence independent and effective investigations in response to the numerous police reports lodged against them for fatal shootings and deaths in custody.
The police force and MACC’s failure to independently and effectively investigate the shooting and deaths in custody demonstrates clearly the culture of impunity and lawlessness that is deeply woven into the practice of law enforcement – thus threatening the lives and safety of the general public. Anyone of us could be next in line.
No policemen have been charged and convicted for any killings except for the case of 15-year-old Aminulrasyid and A.Kugan, and that too after massive protest and public pressure.
2 Recurrent excuses, disturbing trends and false accusations
We note the disturbing similarity in the justification given by the police after most fatal police shooting cases. In almost all cases, the police claimed that the suspects were wanted criminals who attempted to attack police. The police in turn, opened fire, killing all instantly. Subsequent to the shooting, police claimed to have discovered weapons in their vehicle and accused the dead of being involved in all sorts of crime. However, in a few cases, some have survived and witnesses had come forward to describe what had actually happened, which is a far cry from that described by the police.
The reasoning given for deaths in custody cases are also similarly suspicious and untenable: diseases such as ulcers, yellow fever (jaundice), intestine, lung and throat infections, “suicide”, brain haemorrhage, and many cases without explanation but closed as “no further action”. Since when do people die from ulcers, jaundice and intestine, lung and throat infections? Do people for no apparent reason suddenly get brain haemorrhage and die? Where is the timely and proper medical care and attention for detainees?
3 Lack of professionalism, complete disregard of well-established laws and guidelines
While we understand the police, MACC and other enforcement agencies have an important and onerous job to prevent and combat crime, they must understand that their wide powers to arrest, detain, interrogate suspects and discharge firearms, cannot be abused, used arbitrarily, excessively and/or indiscriminately. Every individual is presumed innocent until proven otherwise in a court of law. To cause death otherwise would amount to extra-judicial killings. As professional law enforcement agencies exercising these far reaching powers, they should act within the strict confines of the law and legal processes of the country and not with impunity. These include the legal procedures and guidelines on the discharge of firearms, arrest, detention and interrogation which can be gathered from international policing.
The alarming frequency of fatal shootings and deaths in custody is symptomatic of the police, MACC and other enforcement agencies’ inability to act professionally and within a modern criminal justice system without resort to the arbitrary use of firearms, torture and other cruel and/or degrading methods that do not require any real investigation and diligent work. They should instead strive to be a modern and professional force that conform to international standards and best practices and not regress to wrongful practices that have caused the public to lose much confidence with the respective agencies.
4 Culture of impunity
The aggressive and unlawful responses are reflective of the culture of impunity, general arrogance and lack of respect for international policing norms, the rule of law and other legal procedures that are supported and protected by the Government and UMNO-BN members of Parliament and senior party members. These are not isolated incidents but a continuation of a long standing series of acts by the police, MACC and other enforcement agencies that show their contempt for the rights of the Rakyat that have resulted in gross abuse of powers leading to deaths and brutality.
The police, MACC and other enforcement agencies cannot be permitted to continue to operate in an environment of impunity but as these tragic cases have explicitly illustrated, they have continued to act as they please with no regard to the rule of law, professionalism, the law and procedure governing their conduct.
With the nation facing its most important general elections in its history, we urge the Minister of Home Affairs, IGP and Chief Commissioner to take this opportunity to make a clean break from the police, MACC and other enforcement agencies’ long tarnished history and reputation of brutality, trigger-happy attitude, corrupt impunity, and acting as the protector of the rich and powerful and oppressor of the poor and weak. The Minister, IGP and Chief Commissioner are responsible to restore public confidence in the credibility, trust and professionalism of the police force, MACC and other enforcement agencies which even the most blinkered officials will acknowledge is extremely low.
There is no short cut in the road to police and MACC reformation and redemption. Hard decisions will have to be made and those in power and positions will certainly attempt to resist. Despite all the failed promises and half-hearted attempts at reform, we the Rakyat, civil society, the many victims, family members and survivors of brutality and the affected communities demand the following:
1. Without fear or favour, bring all offenders among the police, MACC and other enforcement agencies, to justice including for serious criminal charges and disciplinary proceedings that commensurate with the offences;
2. Immediately establish the Independent Police Complaints and Misconduct Commission (IPCMC) to function as an independent, external oversight body to investigate complaints about police personnel and to make the police accountable for their conduct;
3. Institute an Ombudsmen system that enforces human rights practice in all enforcement agencies and their places of detention such as prisons, immigration detention centres and lockups;
4. Review and make public the law enforcement agencies’ standard operating procedures including the Inspector General Standing Order on police guidelines on discharge of firearms and detention and interrogation;
5. Support the setting up of an independent and competent Coroner’s Court system to replace the current Magistrate’s Inquest which is extremely problematic and ineffective;
6. Support the enactment of an anti-torture legislation that criminalises torture, cruel, inhuman and/or degrading treatment that provides serious punishment and redress mechanisms as per Malaysia’s obligations under international customary law;
7. Support human rights education and training programmes, with a view to changing the attitudes, perceptions and methods of law enforcement personnel.