Where do Malaysians go when their judiciary agree there are grounds but lack the guts to deliver JUSTICE

On 19 December 2013, the High Court was packed to hear the decision on the civil suit filed by Madam Ganga Gouri (sister of death in custody victim Gunasegaran) against 12 defendants including the Royal Malaysian Police and Government of Malaysia. The judgement turned out to be a disappointment for many.

The High Court Judge, Datin Yeoh Wee Siam stated that the plaintiffs claims are dismissed with no order as to cost. She did not read out the grounds of the judgement, but informed the lawyers that they can obtain the judgement upon request at a later point.

According to the written judgement, the court finds that Ganga Gouri, 36, had no locus standi for the civil action because according to S.7(2) of the Civil Law Act 1956, since the plaintiff is not the wife, parent or child of the deceased, but is the sister, the plaintiff is not allowed to file the action on behalf of herself. Furthermore, the judgement states that at the time when the suit was filed, Ganga Gouri was not legally appointed as the representative or administrator of the estate of the deceased.

Many friends came in solidarity with the family members today with the hope a similar judgement as per Kugan's case might be read out. In the case of Kugan, Jugde VT Singham delivered a landmark decision on the 26th June 2013. Justice Singham said Tan Sri Khalid Abu Bakar, then Selangor Police Chief was liable for the death of Kugan four years ago and the court awarded a total sum of RM851,700 for the mother, N.Indra for assault and battery, false imprisonment, pain and suffering damages. Now it's a disgrace to hear the government is filing an appeal over the decision to avoid setting the judgement as future precedents.

Despite so many positive findings, court lacked the guts to deliver justice

In Gunasegaran's case, although two witnesses, saw and identified Lans Koperal Mohd Faizal bin Mat Taib in the court house as the police officer who kicked Gunasegaran while he was giving the urine test, the court finds it unsatisfactory.

The court clearly states in the judgement that "It is highly probably that the Deceased was kicked by D1 (referring to Mohd Faizal bin Mat Taib) at the time of arrest near Toddy shop, and later he was also kicked and further beaten with a rubber hose by D1 at the Sentul police station".

Despite that, based on a written judgement by Judge Yeoh Wee Siam, the court decided that it was not proved to the satisfaction of the court that the kicking and beating resulted in injuries that caused Gunasegaran's death.

The court agrees that there was abuse of power by the arresting officers and they did not comply with procedures in carrying out their duties, which includes failure to report the death of a Gunasegaran until today!

Datin Yeoh's written judgement also mentioned the breach of statutory duties of the Police under the Criminal Procedure Code (CPC) and the Police Act 1967 to investigate the claims by Ganga Gouri in the 2 police reports she made regarding the death of Guna. Till today, Ganga was never called by the police to make a statement.

Despite all the evidence, suspicions and doubts raised, the men in blue can still walk scott-free among us. Is this an impunity the police officers get when ever someone dies under their custody or they become trigger happy and take out lives of individuals whom are suspects and are still innocent till proven guilty?

The judiciary seems to be a stumbling block for many in search of justice. Ganga Gouri was saying that people hope that the judiciary will provide justice, but when the judiciary fails where else can the people go?

We need an independent mechanism which investigates the abuse of power by the police force. The mooted Independent Police Complaints and Misconduct Commission (IPCMC) back in 2005 seems to be frightening word for the Royal Malaysia Police. We reiterate again, in order to stop this culture of impunity: an oversight mechanism to monitor the police force is crucial in this country. Set up the IPCMC now!

R Thevarajan, Right to Justice Desk, SUARAM