A-G must have political will to charge cops over custodial deaths, say lawyers

Puchong MP Gobind Singh Deo wants police to be held 'criminally liable' for the condition of the detainees under their charge. – The Malaysian Insider pic, January 28, 2015.Attorney-General Tan Sri Abdul Gani Patail must have the "political will" to prosecute law enforcement officers responsible for custodial deaths, said lawyers, adding that this would also serve as a deterrent to would-be offenders.

Not much has changed, they said, because reports of deaths, especially in police lock-ups, continue to occur even after the high-profile cases of A.Kugan  and Teoh Beng Hock, who both died while in the custody of enforcement officials in 2009.

"This sad state of affairs will remain until and unless the Attorney-General who is also the public prosecutor acts against the perpetrators of the crime without fear and favour," said lawyer Ramesh Sivakumar.

"However, if the A-G, who is the guardian of public interest had the political will to act decisively, then custodial deaths in 21st century Malaysia would be a thing of the past," he added.

He was responding to a recent statement by opposition MP Gobind Singh Deo who suggested that laws be enacted to hold police "criminally liable" for causing injury and the death of any detainee who are in their custody.

The Puchong MP said that officers in charge of police stations and investigating officers should be held liable for the condition of the detainees under their charge.

Gobind's reaction followed a coroner's court ruling on January 6 that police were responsible for the death of lorry driver P.Chandran while in custody as they had failed to provide him with timely medical assistance.

Today, another coroner’s court ruled that policemen and inmates were responsible for the death of an unemployed man, P.Karuna Nithi, while he was detained at the Tampin district police headquarters in Negri Sembilan two years ago.

Suara Rakyat Malaysia (Suaram) recently announced a total of 14 deaths in police custody, which the rights group had recorded for 2014. Since 2001 until last year, the total custodial deaths recorded was 111.

In Chandran's case, Sessions judge Ahmad Bache, who sat as coroner, said in his verdict that police officers from the Cheras and Dang Wangi district police headquarters had committed unlawful omission by not giving Chandran his medication and sending him to hospital.

In today’s case, coroner Datuk Jagjit Singh said Karuna Nithi’s death was caused by multiple injuries by blunt objects inflicted by persons unknown, including police officers and other detainees.

He said there was failure or omission on the part of the police to provide the necessary medical care and attention required by Karuna Nithi, and added that the police had also failed to stop other detainees from abusing Karuna Nithi in the police lock-up.

Ramesh said human rights abuse by law enforcement authorities, especially the police, would continue although deceased family members could file lawsuits and obtain compensation.

He also noted that it was the taxpayers' money being used to pay the plaintiffs for the negligence of police.

In June 2013, then High Court judge Datuk V.T.Singham awarded Kugan's mother RM871,000 in damages after the court found the police liable for the car salesman's death in a police lock-up in Subang Jaya.

Singham, who has since retired, said Inspector-General of Police Tan Sri Khalid Abu Bakar was also liable for misfeasance as he failed to carry his duty required of a senior civil servant.

The Court of Appeal which upheld Singham's finding also said custodial deaths should not happen in this country and there must be zero tolerance.

Both courts also held that former constable V.Navindran alone could not have been responsible for Kugan's death although he was convicted for causing hurt to the 22-year-old man.

Lawyer M.Visvanathan said the Attorney-General was given discretionary power under the Federal Constitution and the Criminal Procedure Code to institute, conduct and discontinue a criminal case.

"He should exercise his authority prudently and prosecute cops who were responsible  for such deaths," he said.

Visvanathan, who appeared for Chandran's family in the inquest, said there were sufficient provisions in the Penal Code to frame criminal charges.

"The prosecution can frame charges like murder, manslaughter, causing hurt, fabricating of evidence against those who were responsible for custodial deaths," he said.

Visvanathan also questioned what effort has been taken to reopen investigations into the death of Teoh Beng Hock who died under mysterious circumstances.

Police said it would re-look at Teoh's case to decide if it should be reclassified as murder following last September's Court of Appeal which set aside the open verdict by a coroner into Teoh's death.

The appellate court ruled that “a person or persons were responsible” for the former political aide's death.

Teoh was an aide of Seri Kembangan state assemblyman Ean Yong Hian Wah, and had been called by the Malaysian Anti-Corruption Commission (MACC) to assist them in an investigation into Ean Yong's use of public funds.

After the questioning, Teoh was found dead on a lower-level rooftop adjacent to the MACC offices in Shah Alam.

Teoh 's family had also filed a civil suit against the MACC and the matter is still pending in the High Court.

Lawyers for Liberty executive director Eric Paulsen said public perception was strong that police investigations involving members of the force were a "sham" and more often than not, inquiries were not properly executed.

"A strong message will be sent to law enforcement agencies if the Attorney-General acts to uphold the rule of law," he said, adding that prosecutors could always direct investigators to collect evidence that was sufficient for a fruitful prosecution.

Paulsen said there would be a breakdown in trust and public confidence by the people if those in authority kept protecting culprits for crimes against detainees.

He said there was an urgent need to seriously consider implementing the proposed Independent Police Complaints and Misconduct Commission (IPCMC) for police reform due to the sharp rise in torture and death in custody cases.

- TMI