Lawyer gives 5 reasons why the IPCMC will NOT investigate deaths and abuse in custody
Why do the public want an independent commission to investigate police actions and inactions? Home Minister Tan Sri Muhyiddin Yassin doesn’t want to say. De facto law minister V K Liew doesn’t want to say. Why? Because they “don’t want to embarrass the police.”
The public, whose voice is heard through Civil Society Organizations (CSO), can spell out the reasons why they want an Independent Police Misconduct and Complaints Commission (IPCMC).
Chief among the reasons are deaths in custody and injuries inflicted by the police, sometimes leading to death – denial of food and medicine, beatings and shooting; planting evidence (e.g. parangs in the EO6 saga); enforced disappearances; intimidatory detention “for questioning.”
In the draft IPCMC Bill first read in Parliament by Minister Liew in July 2019, this was section 47:
Responsibility to refer cases of grievous hurt or death in custody
The police force shall refer to the Commission any incident which has resulted in grievous hurt or death to any person under the detention or custody of the police force.
When the Bill was read for the second time in Parliament, the words “as soon as possible” had been added. Some cheered the Minister for “listening to CSOs.”
Some say that when the IPCMC Bill becomes law, deaths in custody and police shootings will be investigated by the IPCMC. I think they are wrong. Yesterday, I asked lawyer M Visvanathan for an opinion.
Visvanathan has represented numerous families of victims of the police. Courts have frequently decided in favour of his clients. He knows well the Criminal Procedure Code (CPC), especially Chapter 32, “Inquiries of Deaths.” He also knows well the Chief Justice’s Directives to Coroners.
When I asked Visvanathan “will the IPCMC investigate deaths in custody and police shootings,” he became animated. He burst into words.
He spoke about the 2014 Syed Azlan death in custody case which was investigated by the Enforcement Agency Integrity Commission (EAIC).
The police did not charge anyone. The EAIC investigated. Held a public inquiry. Published a report. Recommended pressing criminal charges against several police officers.
But the report did not include the names of witnesses it called or interviewed. It did not include the names of the officers whom it said should be charged with criminal offences including murder. It did not include documents gathered during the investigation and inquiry.
Since the police did not charge anyone for Syed Azlan’s death, per the CPC, the Johor Coroner should have held an inquest (section 334). He did not. Arguably, he failed to discharge his duty. “Arguably,” because he probably knew the EAIC was going to conduct an inquiry.
The CPC is the established law of criminal procedure in Malaysia. The CPC mandates that if no one is charged after the (mandatory) police investigation, the coroner must conduct an inquest.
Because an inquest is a “discovery” process – even family members may question witnesses (Chief Justice’s Directive to Coroners, section 5(B)(a)) – many documents must be given to the family.
Based on the information “discovered” during the inquest, the Public Prosecutor may decide to prosecute someone for the crime. Also, the family may seek legal redress by taking up a civil action against identified persons or institutions.
(The family of Syed Azlan took up a civil action. Visvanathan is acting for the family. The judge will deliver the verdict on 19 December.)
To exercise the family’s right to redress, Visvanathan had to compel, by subpoena, the EAIC’s legal officer to testify in court and reveal the “secret” names and documents. The Attorney Generals Chambers objected to admitting the EAIC “secrets.” The judge however overruled.
The EAIC report didn’t include names or documents because of the secrecy provisions in the EAIC Act. These provisions have been carried forward into the IPCMC Act.
Therefore, from the point of view of a practicing lawyer and soldier in the war to eliminate death and abuse in custody, the secrecy built into the IPCMC Act and the action of bypassing the coroner is not desirable.
Also, if the IPCMC were to take over, from the police, investigations of deaths and abuse in custody, the CPC must be amended – and this is not provided for in the IPCMC Act.
We may consider the foregoing points to be first, investigation of deaths in custody and shootings has been assigned to the police by the CPC and second, an investigation with secret findings must be rejected.
Visvanathan made three other points, which I will number three to five.
Third, the purpose of “refer” in the clause quoted above is unclear. Is it in order to handover the investigation or is it for record-keeping?
Fourth, the words “police force” in the clause are so broad as to be meaningless. If the section is to be retained, “police force” should be substituted by a designation such as “officer in charge,” as in the CPC.
Fifth, the officer should be subject to a penalty if he or she fails to “refer.” The IPCMC Bill includes penalties for non-compliance to other stipulations – as high as a fine of RM10,000 and two years in prison.
I think the Minister does not intend for the IPCMC to take over investigations of deaths and abuse in custody. What do you think?
Note: In the second reading, the name of the bill was changed to the “Independent Commission for Police Conduct” (ICPC).
Rama Ramanathan is an activist for Citizens Against Enforced Disappearances
The views expressed here are those of the author/contributor and do not necessarily represent the views of The Leaders Online.
