SUHAKAM needs solidarity not brickbats when tackling serious human rights abuses
For the past few days, SUHAKAM’s new findings on G. Jestus Kevin’s death in Bentong District Police headquarters has sparked an open debate. Since then, SUHAKAM’s power to investigate death in custody cases has been in question.
We stand in solidarity with the family of G. Jestus Kevin and we hope this finds them in high spirits to fight this through until they get justice for their family.
As a former staff of SUARAM, my other colleagues and I have handled, and continue to work on cases of police abuse and human rights violations. The current situation is a continuous discussion, we believe that our humble perspective would enhance the discussion and humanise the way we see justice done and priorities are set.
Cases of death in custody and police abuses are Public Interest cases
Custodial death due to wrongful exercise or abuse by the police should never occur with impunity in any constitutional democracy like Malaysia. The police force has an obligation to ensure that those detained under police custody are safe and cared for.
Whenever a death in custody comes to the attention of the public, it’s no longer an interest of the court of law per se but it’s now a matter of larger public interest.
The death in police custody continues to plague the country because the existing justice system has consistently failed to hold the police force accountable for each and every death that happened in the past and present.
We want to draw attention to a few key issues that must be addressed before we debate whether SUHAKAM has the power or duty to be involved in investigating death in police custody.
Under the Lockup Rules 1953, police lock up are subjected to rules and regulations that apply to all detainees in police custody. This is to protect and ensure that detainees’ fundamental rights are not unlawfully violated or deprived during police custody.
These rights are the minimum standard of treatment expected in line with the international principles on detention. The findings by SUHAKAM with regard to G. Jestus Kevin was alarming to say the least, as it highlights the continued trend that the minimum standard of treatment and protection of detainees were not only disregarded, but explicitly violated and undermined by the authorities.
As a result, people are tortured, beaten up and denied rights to get treatment and help in detention. We must prioritize and fix this before we lose more lives. All of us want a criminal justice system where alleged offenders are brought to justice and not killed or harmed in detention or police custody.
In previous cases such as the late A. Kugan, Ulaganathan, and others of the respective family took up a civil suit to seek justice and hold the police and the government accountable for police brutality and misconduct.
In the case of A. Kugan and Ulaganathan, the court finding was favourable to the victim and family. Despite the successes in the civil suit for Kugan’s case, justice and truth were still denied to the family when police officers that were involved in these cases escaped criminal prosecution due to the lack of evidence against them.
This only contributes to the culture of impunity within our criminal justice system as there is a violation of fundamental rights and the law, but the violators are not made to account for their crimes.
The victory for justice and truth was only a small cause for joy as the overall system is not fixed and the quest to eliminate the culture of impunity within the system marches on.
These progress, especially those pertaining to death in custody were the results of persistence and tireless advocacy by various stakeholders including NGOs, political parties, SUHAKAM, the Malaysian Bar and others in their pursuit of justice.
The persistence is rewarded when the government recognized the collective call and acknowledged the issue by establishing the Royal Commission to Enhance the Operation Management of the Royal Malaysian Police (Police Commission) in February 2004 to enhance police accountability.
One of the key recommendations of the report that was released in 2005 was to establish Independent Police Complaints and Misconduct Commission (IPCMC) to ensure that the police are accountable when they enforce, apply law, rules and procedures.
The Royal Police Commission also recommended a code of practice called Independent Custody Officer to be adopted by the police force with regard to arrest and detention of persons. The independent Custody Officer will be responsible for the welfare and custody of every detainee.
Police rejected IPCMC then and now, but the call and advocacy for the establishment of IPCMC never stop. Until the day that we have an independent body equipped with the necessary power to put an end to the culture of impunity within the police force, all of us have the responsibility to ensure that police are held accountable through means that are available to us.
It was in this context that the discussion on the formation of Coroners Court took place. Again, after many meetings, workshops, discussions, debates and push back, the Judiciary finally agreed to the call and established 14 Coroners Courts in 2014 to address the growing public outcry over the increased numbers of death in custody.
Before the establishment of the Coroners’ Courts, all inquest of death proceedings were conducted by a magistrate. The establishment of the Coroners Court was a milestone for the struggle against impunity.
The Coroner Court system is not perfect and has its own flaws. The coroner court still relies on the police to investigate its own officers, and the Coroners Court is limited in its power to investigate or supervise following the discovery of a death in police custody.
On top of the shortfall in the system itself, the Coroner Court in practice was unable to determine the cause of death in critical cases and left some cases with an open verdict. When the Coroner Court fails to fulfill its duty to determine the cause and circumstances of deaths in custody, justice would be deprived for the victim and the struggle against impunity will come to a grinding halt.
SUHAKAM
When SUHAKAM was founded in 1999, many were sceptical about it as it was established during Mahathir’s administration and many viewed its establishment as another political maneuvering to placate public objection to the administration post-Reformasi. Irrespective of the scepticism, the Human Rights Commission of Malaysia Act 1999 (the 1999 Act), was enacted in a hurry and powers afforded to SUHAKAM are very limited in comparison to other National Human Rights Commission in the region. Many described it as a deliberate motive to limit SUHAKAM’s power and influence in line with the political trend of Mahathir’s era. This eventually led to the decade in which SUHAKAM was described as a toothless tiger.
More than 20 years have passed since SUHAKAM’s establishment and it has since proved its worth and merits in investigating human rights violations and calling out abuse of power by the government. However, SUHAKAM’s development was not necessarily a smooth one as it is still hobbled by the limitation in the 1999 Act and other administrative limitations or restrictions.
With this rich history of development and growth, one would hope that the issue of whether SUHAKAM has power to investigate is not open to debate among human rights advocates. As per the 1999 Act, SUHAKAM has the power to investigate all human rights matters and would only be limited if the subject matter pursued is before the court.
The Section 12(2) of the 1999 Act bars SUHAKAM from inquiring into any complaints of human rights violations which are before or determined by the courts. In the past, this provision had the effect of causing SUHAKAM’s investigation into serious human rights violations cases to be aborted on the grounds that the cases were brought before the courts. For example, in 2007, SUHAKAM was compelled to cancel its public inquiry into the alleged excessive use of force, police brutality and violence during a ceramah in Batu Buruk, Terengganu. SUHAKAM was forced to cancel its investigation because two individuals who participated in the assembly were charged. More recently, in the public inquiry into enforced disappearances, SUHAKAM’s investigation was yet again obstructed by peculiar charges levelled against an individual who was not associated with the issue of enforced disappearances.
As human rights advocates, we must consider any call for further restriction of SUHAKAM’s power in the context of the challenges posed by instigators or institutions involved in human rights violations in the past.
In the context of investigation into death in custody, the SUHAKAM inquiry process should not be equated with the judicial process and seen as mutually exclusive.
Ideally, the Coroner Court process should take precedent and allow it to take place and deliver justice for the victims. However, what is the position if the Coroner Court process fails to take place as observed in the case of Syed Mohd Azlan? Failure of the Coroner Court system in consistently investigating and delivering a verdict has left a gap in the system that leaves much to be asked for.
If there was no indication that the Coroner Court system would be engaged to investigate death in custody, does that mean SUHAKAM or similar bodies should just remain in perpetual wait before it can take action?
In the past, civil societies, opposition parties and many others have protested at SUHAKAM office many times to ensure that SUHAKAM upholds their duty as a national human rights institution to protect and promote human rights.
Civil societies have always addressed the inadequacies of the SUHAKAM Act and pushed SUHAKAM to address human rights violations in a broader sense and push the boundaries within its restricted mandate and powers. Nevertheless, even with the limited powers, we have seen notable success of SUHAKAM to protect human rights and investigating human rights violations.
SUHAKAM’s findings through public inquiries have brought abuses and misconduct of the police force in protest, in detention and beyond light. One good example is the recent enforced disappearances of Pastor Koh and 2 others. When everything seems helpless and bleak, SUHAKAM inquiry and brave findings brought much hope to the families of the victims.
We don’t view SUHAKAM’s finding of death in custody as an end to our pursuit for justice. We see it as another stepping stone in the broader push for accountability and fight against the culture of impunity within the police force. Every finding by SUHAKAM affirming the continued disregard for human rights and police abuse of power only strengthened the collective call for IPCMC.
We owe it to the victims of police misconduct to explore and fully utilize every and all available mechanism and avenue to shine light on the human rights violations experienced and seek justice when we can.
We are of the opinion that, If SUHAKAM’s findings are consistent with what the families are claiming, then use this as an additional proof or evidence to expose the violations and strengthen the legal challenges against the police.
In a political climate where the culture of impunity is the norm, and when the system that is supposed to support justice is flawed and repeatedly fails to deliver justice, any available mechanism and means to seek truth and deliver justice should be adopted and utilized collaboratively and not exclusively.
SUHAKAM has made a positive finding affirming that violation has taken place. It is our collective duty to ensure that finding is not left unattended, but utilized to pursue truth and justice in all other avenues available to us.
The pursuit for finding truth and justice should never be limited to certain institutions or figures but it has to be a collective movement in solidarity with others.
At the end of the day, all the work and effort calling for truth and justice is not for our own pleasures, but the dignity of the victims who we stand in solidarity with. For that, the victory at the end of the day must always be of the people and not benefit those in power.
Nalini Elumalai (Former Executive Director of SUARAM)
The views expressed here are those of the author/contributor and do not necessarily represent the views of The Leaders Online
