Episode 3: Abuse of Police Power

Welcome to UM Consti Team's law review. In our third episode, we will discuss about the situation of abuse of power by police in Malaysia and what are the causes of it. We are excited to share our ideas and hopefully, inspire you through our law review! Here we go!

Introduction

Police abuse of power is no longer a peculiar issue in Malaysia. It remains an appalling human rights problem in our country that we seem to be so entangled by this never-ending spiral. Unjustified shootings, unlawful detention, mistreatment and deaths in custody, and excessive use of force in dispersing public assemblies persist due to an absence of efficacious accountability for Malaysia’s police force, the Royal Malaysia Police (RMP) (Human Rights Watch, 2014, p. 8).

Woefully, police officers responsible for abuses are rarely prosecuted. This is because investigations into police abuse of power are conducted predominantly by the police themselves and thus render them lack of transparency. Also, according to the judgment in Government of Malaysia v Lay Kee Tee, every civil suit requires plaintiffs to name the specific government officials allegedly responsible for the abuse. This is often unfeasible because, as many victims stated, police often do not wear identification name tags while on duty.

To make matters worse, victims of police abuse in Malaysia who do report abusive treatment or question police conduct have meagre chances of seeing the police investigated, punished, or prosecuted. The police’s excessive secrecy denotes that victims and their families scarcely learn whether their complaint is being investigated or any disciplinary action has been taken. Hence, police standing orders often remain classified as state secrets (Human Rights Watch, 2014, p. 8).

In 2008, we were dismayed by the horrendous police abuse case of Gunasegaran Rajasunderam (“Death in the Custody of Gunasegaran Rajasundram”, 2020, para. 3). The victim, an RMP detainee, died in the police lock-up while under arrest for suspicion of drug possession. His family members were informed that his demise was due to drug abuse when the veracity was, it was due to police brutality. In the same year, in Abd Malek Hussin v Borhan Hj. Daud & Ors, the plaintiff was unlawfully arrested without a warrant of arrest by the police. He was then blindfolded and taken to the Ibu Pejabat Polis Kontinjen, Kuala Lumpur, where in a room at the first floor he was stripped naked, humiliated, and subjected to prolonged mental and physical torture by the first defendant together with the then Inspector-General of Police, Tan Sri Rahim Noor, and several other police personnel.

In May 2019, we were once again taken aback by the harrowing abuse case of S.Mahendran (Human Rights Pulse, 2020, para. 4). S.Mahendran, a 30-year-old Indian-Malaysian man, was arrested and held in custody on suspicion of an armed robbery. Essentially, he was assaulted, tasered, and coerced into confessing by having his genitals rubbed with chilli paste by the policemen. As though this abuse was not inhumane enough, he was then forced to lay naked on ice cubes. Furthermore, the police threatened to rape Mahendran’s daughter and mother with the intent to elicit a confession. Mahendran’s torture lasted for an excruciating 13 hours. In this case, justice upon the victim has yet to be upheld.

In September this year, 25 suspects of the recent Banting shooting have been detained despite repeated instructions by the magistrate court for them to be emancipated (Farek Zolkepli, 2020). After 28 days of detention under the Security Offences (Special Measures) Act 2012 (SOSMA), they were not charged for any offence but were rearrested for investigation under the Societies Act 1966 by the Ibu Pejabat Polis Kontinjen Selangor. On 11 November 2020, police application for further remand was again denied with the magistrate instructing the police to immediately release the detainees. The police did not comply with the instructions and have reportedly placed all the detainees under the Prevention of Crime Act 1959 (POCA).

Irrefragably, the cases mentioned above are merely the tip of the iceberg for the malady of police abuse of power in Malaysia. In most cases, justice has yet to be upheld. Hence, this article aims to analyze the issue and further elucidate on several recommendations to ameliorate this plague which had long been bombarding our nation.

Why Is There a Need to Address This Issue?

In light of the recent Banting shooting case, many have expressed their disappointment towards the police for ill-treating the detainees and demanded their immediate release (Sadho Ram & Arisha Rozaidee, 2020). It is crystal clear that abuse of power by the police is heavily condemned within the society. We would like to further highlight the reasons why this issue needs to be addressed on a larger scale.

Foremost, from the trend of cases, it is evident that no justice was served to the victims of police abuses and their families. Complaints and reports filed over police misconduct often go unanswered (Human Rights Watch, 2014). The police’s excessive secrecy further frustrates the victims in the sense that they fail to cooperate with investigations (Human Rights Watch, 2014, p. 9). In cases of police custodial deaths, Human Rights Watch (2014) found that the results of post-mortem examinations conducted by government pathologists were often vague and questionable (p. 8). Due to insufficient proof or medical evidence, the police officers were rarely held accountable for their actions. In the end, victims have little recourse and no closure to them being wrongfully detained.

Secondly, the government exhibits little effort to change its practices and there have been no improvements to local legislations pertaining to this matter. It is statistically proven that the present system is not workable as the number of police abuse cases has yet to decline (Gan, 2018). Investigations done by Human Rights Watch (2014) showed that police often justified their actions as ‘self-protection’ (p. 28). The absence of accountability facilitates more deadly police practices (Human Rights Watch, 2014, p. 4). When the Independent Police Complaints and Misconduct Commission Bill was proposed in 2019, it seemed like the silver lining to tackle police abuses in Malaysia. However, the bill was absurdly withdrawn by the Perikatan government in August 2020 (Carvalho et al., 2020). As of now, the responsible body to investigate complaints made against government officials is the Enforcement Agency Integrity Commission (EAIC) but their powers are limited in the sense they cannot take action (Matdura, 2020). Such futile attempts to enhance accountability in the police system is incredibly concerning.

Furthermore, abuse of police power offends the principles of constitutionalism. In recent years, many anti-subversion legislation were enacted under Article 149 of the Federal Constitution. However, these legislations are oppressive as they contain draconian provisions. Tay (2019) noted that the legislations present challenges to constitutionalism and the rule of law in Malaysia. Abuse of police power often arises out of these broad anti-subversion powers embodied in the statutes. For instance, the Malaysian Bar (2017) opined that POCA is an affront to the rule of law and natural justice. Custodial deaths due to police brutality should not even be happening, considering Malaysia is a constitutional democracy (Yap, 2020). Hence, abuse of police power is unacceptable as it undermines constitutionalism in Malaysia.

Thus, this issue should not be taken lightly. Considering how police are mandated to safeguard the people’s lives and freedom, it is crucial to fight against police abuse to ensure local law enforcement bodies maintain high levels of competency.

Causes

Often hovering in the space of our mind, why do cases of police abuse always occur in Malaysia? There is no specific answer to this question. Nonetheless, we may scrutinize some possible factors that may contribute to the situation nowadays.

First, the culture practised among the police officers may be one of the reasons contributing to this problem. Frankly, if we are to talk about culture, we must look back to the history of our country. Prior to the emergency state (1948-1960), the government enacted the Internal Security Act 1948 (ISA). One of the significant powers given to police officers by ISA was detention without investigation. Despite its purpose to combat terrorism due to communist activities in the country at its early stages, the culture of abusive acts was cultivated among the police forces as time pass by. We may look at the most recent issue of 25 suspects involved in the case of Banting shooting. Setting aside the abusive act of police officers towards the suspects, we must also take note on how the police officers practise the ‘chain of remand’ to detain the suspects by prolonging it through relentlessly pleading to the court despite being rejected by several times (SUARAM, 2020).

Apart from that, the political situation in Malaysia also contributes to the culture of police abuse. As SOSMA was enacted after the repeal of ISA, it was contended that the presence of SOSMA serves the same as ISA. In addition, SOSMA was also broadly used to deal with the instability of the political situation in Malaysia (Malaysian Bar, 2013). For example, this can be seen in the case of Maria Chin Abdullah in November 2016. The former Bersih 2.0 chairman was wrongfully detained under SOSMA for 10 days with harsh living conditions during her detention period. Subsequently, the then Home Minister and the government agreed to pay RM25,000 in damages due to the wrongful detention. As we can see from this case, it was lucid that the police had violated the power of detention under SOSMA (The Star, 2019)

What about the use of SOSMA against ordinary citizens other than politicians? In the news article written by Kenneth Tee, Malaymail (2019), 12 individuals linked with LTTE, a terrorist group in Sri Lanka were arrested on 10 October 2019. In this case, the individuals were arrested under SOSMA due to their alleged link with LTTE. However, it was later revealed that the police had no proof of the accusations. Alongside with claiming damages for their unlawful detention, this case also sparked questions on the constitutionalism of the SOSMA act under the issue of unlawful arrests and detention. Nevertheless, according to its provisions, people still always have their rights during their detention under the act. The disparity was how the police officers conducted their duty under the act that led to the abuse of police power.

As the society in Malaysia goes on its modern path, some traditional culture practised among the police seems to not fade away, as cases of police abuse still exist with the subsistence of the extant political circumstances and controversial acts.

Recommendations

In bringing the RMP practice into compliance with international standards, various recommendations have been proposed by local and international human rights organisations. However, change in the government has stalled the efforts to establish an independent police commission, or better known as Independent Police Complaints and Misconduct (IPCMC). The IPCMC bill was first tabled in Parliament in July 2019, 24 amendments were made for the second reading in October and 13 additional amendments in December. Subsequently, IPCMC bill which grants the commission the ability to conduct investigations was retracted and will be replaced by a ‘slightly different’ body named Independent Police Conduct Commission (IPCC).

Suara Rakyat Malaysia (SUARAM) opines that the new commission might be worse than the existing Enforcement Agency Integrity Commission (EAIC) as “investigation for key misconduct does not include acts covered by the inspector general’s standing orders (IGSO), police officers may refuse to answer based on a subjective and arbitrary excuse, and there is no power for the commission to ensure its recommendations are implemented”.

The call for the implementation of IPCMC is no longer new, it has been first envisioned 15 years ago, and Human Rights Watch in 2014 released a 108-page report which provided comprehensive measures and improvements to be implemented by the Government of Malaysia, the Inspector General of Police (IGP), the Attorney-General (AG) as well as the Office of High Commissioner on Human Rights. It is provided in the report that the government shall have sufficient human and financial resources to conduct complete investigations and to follow up with complainants within the stipulated time. Besides, in educating the public regarding their rights, accessible outreach programs with community offices across the whole Malaysia are vital.

SUHAKAM was established in 1999 but its recommendations on structural reforms have no binding effect upon the authority. Through the necessary amendment to the SUHAKAM Act 1999, RMP and other government agencies may be required by law to respond to the findings and recommendations of SUHAKAM in a timely manner. At the international level, the government is encouraged to sign and ratify International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Fifteen countries around the world have neither signed nor ratified the former while the latter has been signed by more than 140 countries.

For the IGP, to ensure transparency, the Parliament shall be notified with the number of complaints, relevant details and subsequent actions as the matter concerns public interest. When an officer faces civilian complaints of abuse or misconduct, a tracking system shall be established to identify problematic officers, or even officers who have repeatedly committed offences. During the course of an investigation against any officer for shooting incidents, death in custody or serious physical abuse, the officer should be assigned to desk duty for the moment. SUHAKAM and the EAIC or the upcoming IPCC shall be entitled to oversee and examine all Inspector General standing orders (IGSP) on use of firearms, procedures for arrest, procedures for investigations, and procedures for deaths in lock-ups, and subsequently improve these standing orders to comply with the international standards.

Conclusion

Despite the myriads of ongoing cases and complaints, it is extremely saddening that police abuse remains a serious human rights problem in our country. We live in a democratic society governed by the rule of law. Such blatant violation of law should never be condoned, especially when it is committed by a person with a duty to maintain the law and order. How could there be any trust when we will never know when our protectors will turn their back on us to join in the role as an assailant. It is clear that the core of police abuse lies with the failure of our system. We strongly urge the society not to take this matter lightly as this is an all-pervading issue and none of us can escape from being part of it. It is high time that we put an end to this vicious cycle of having innocent people suffer at the hands of a few bad apples. A clarion call must be sounded to demand significant and meaningful reform, and to hold the abusers accountable.

References

Bills

Independent Police Complaints of Misconduct Commission Bill 2019.

Cases

Abdul Malek bin Hussin v Borhan bin Haji Daud & Ors [2008] 1 MLJ 368.

Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009] 1 MLJ 1.

Journal Articles

Gan, C. K. (2018). An overview of police custodial death cases in Malaysia. Saudi Journal of Humanities and Social Sciences, 3(4), 540-545. doi: 10.21276/sjhss.2018.3.4.2.

Tan, W. T. V. (2019). Subversion and emergency powers. Malayan Law Journal, 4, 73-118.

Legislations

Internal Security Act 1948 (repealed 2013).

Enforcement Agency Integrity Commission Act 2009 (Act 700).

Prevention of Crime Act 1959.

Societies Act 1966 (Act 335).

The Security Offences (Special Measures) Act 2012.

Online Newspaper Articles

Carvalho, M., Hemananthani Sivanandam, & Rahimy Rahim (2020, August 26). Perikatan Govt Withdraws IPCMC Bill. The Star. Retrieved from https://www.thestar.com.my/news/nation/2020/08/26/perikatan-govt-withdraws-ipcmc-bill

Farek Zolkepli (2020, November 13). Detained under Poca: 25 members of gang involved in Banting school shooting. The Star. Retrieved from https://www.thestar.com.my/news/nation/2020/11/13/detained-under-poca-25-members-of-gang-involved-in-banting-school-shooting

Kenneth Tee (2019, October 21). Five detainees linked to LTTE file habeas corpus application in bid to challenge Sosma arrest. Malaymail. Retrieved from https://www.malaymail.com/news/malaysia/2019/10/21/five-detainees-linked-to-ltte-file-habeas-corpus-application-in-bid-to-chal/1802336

Sadho Ram, & Arisha Rozaidee (2020, November 13). PDRM Accused of Ignoring Court Order & Abusing Remand Process Involving 29 Malaysians. Says. Retrieved from https://says.com/my/news/pdrm-accused-of-ignoring-court-order-abusing-remand-process-involving-29-m-sian-indians

Yap, M. Y. (n.d.). More than 50 percent of prison death victims are Malaysian Indians. We need to talk about it. Mashable SE Asia. Retrieved from https://sea.mashable.com/social-good/11409/malaysian-indians-are-dying-at-a-higher-rate-in-prisons-we-need-to-talk-about-it

(2014, April 1). Malaysia: End Police Abuses. Human Rights Watch. Retrieved from https://www.hrw.org/news/2014/04/01/malaysia-end-police-abuses

(2019, February 19). Maria Chin settles suit with IGP and govt. The Stars. Retrieved from https://www.thestar.com.my/news/nation/2019/02/19/maria-chin-settles-suit-with-igp-and-govt

Press Release

Malaysian Bar. (2017, August 12). Amendments to Prevention of Crime Act 1959 Effectively Eliminate Due Process Protections, and are an Affront to the Rule of Law and Abhorrent to Natural Justice [Press Release]. Retrieved from https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-amendments-to-prevention-of-crime-act-1959-effectively-eliminate-due-process-protections-and-are-an-affront-to-the-rule-of-law-and-abhorrent-to-natural-justice

Report from an Organisation

Human Rights Watch. (2014). No Answers, No Apology” Police Abuses and Accountability in Malaysia. https://www.hrw.org/report/2014/04/01/no-answers-no-apology/police-abuses-and-accountability-malaysia

Malaysian Bar. (2013). The heat is on SOSMA. Retrieved from https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-heat-is-on-sosma

Suara Rakyat Malaysia (SUARAM). (2020). PDRM Must Stop Abusing the Remand Process. Retrieved from https://www.facebook.com/suararakyatmalaysia/posts/10157230358226152

Online Website

Death in Custody of Gunasegaran Rajasundram. (2020, October 6). Wikipedia, The

Free Encyclopedia. Retrieved from

https://en.wikipedia.org/wiki/Death_in_custody_of_Gunasegaran_Rajasundram

Kong, A. (2020, October 31). Addressing Police Maltreatment in Malaysia. Human

Rights Pulse. Retrieved from https://www.humanrightspulse.com/mastercontentblog/addressing-police-maltreatment-in-malaysia

Matdura, S. (2020, July 7). There’s a law to prevent prison deaths in Malaysia...but why isn’t it enforced yet? AskLegal. Retrieved from https://asklegal.my/p/custodial-death-in-prison-pdrm-ipcmc-bill