Another great article by Malik Imtiaz Sarwar.
IN LATE May this year, Utah authorities arrested six individuals for the torture of their roommate, Thomas Chapman. They are alleged to have handcuffed him, repeatedly assaulted him with boards and sticks, kicked him repeatedly in the ribs and the head, and stapled his ears, chest and lips, all while he was being held at gunpoint. His assailants believed that Chapman had set one of them up earlier in the month.
Chapman was fortunate enough to have survived his ordeal. He was released and was able to go to the police with his story. Reports suggest that the six assailants have since been charged with, among other things, aggravated assault, an understated description of torture.
His assailants were clearly sick in the head, and some might say, psychopathic.
At about the same time in Malaysia, one N Dhamendran was being tortured in a strikingly similar way. He too was handcuffed, brutally assaulted (from what I have read in the media reports, the nature of injuries suggest he was struck repeatedly with an implement like a rotan), repeatedly kicked and punched, and had his ankles and ears stapled, among other things.
There is no disputing that he was tortured in the most horrific way. Lawyer and Member of Parliament N Surendran disclosed at a press conference that based on his reading of relevant medical reports, there were 52 significant injuries.
Dhamendran, however, did not live to tell his tale. He died while in police custody. His alleged assailants were police officers, three of who have since been charged with murder. The fourth appears to be on the run.
And for all the outrage being expressed over the death, which I share, the sad truth is that Dhamendran was just one of a series of persons to have died in custody. In the 11-day span from the date of Dhamendran’s death, two other detainees, R James Ramesh and P Karuna Nithi, died in police custody.
Going back in time, there have been a number of other controversial deaths, with the names Kugan, Gunasegaran and Francis Udayappan coming to mind.
The Tun Dzaiddin Commission Report of 2005 recognised an alarming number of such deaths as well as a propensity towards brutality on the part of the police, factors that in the mind of the commission warranted the establishment of an independent oversight mechanism.
Official figures reinforce this concern. Last September, then home minister Datuk Seri Hishammuddin Hussein told parliament that there were 209 deaths in police custody from 2000 until September 2012. Civil society groups say that the figure now stands at 221.
It is apparent that something needs to be done. This requires a consideration of not only measures aimed at accountability, but also measures aimed at ensuring that only appropriately qualified individuals – not just in terms of education or physical aptitude, but equally in terms of psychological and emotional make-up – can join the force.
Putting it bluntly, and without intending to disrespect the majority of police officers who serve this country without cause for complaint, those officers who have tortured and brutalised detainees, sometimes to the point of death, perhaps share the same kind of mental make-up as the assailants of Thomas Chapman. If so, how could this have been allowed?
It is time for the government to stop prevaricating over the subject. The price we are paying in human life is simply too high. The trend will continue until the government is willing to admit that it has a legal and moral obligation to deal with what is beyond doubt a matter of great national concern in a way that transcends political expediency.
As others have asked, how many more people have to die for decisive action to be taken? After all, the 2005 report of the Tun Dzaiddin Commission has given us a clear roadmap of the reforms that are needed.
These pertain to the qualification of candidates applying to become police officers, training and human rights awareness. The commission painstakingly approached the subject and I cannot do justice to it in the space I have here. I strongly recommend that those interested in the subject read the report if you have not done so already.
For immediate purposes, however, it is noteworthy that among the more significant recommendations is the establishment of an independent commission with specific focus on police misconduct, which the commission called Independent Police Complaints and Misconduct Commission, or IPCMC for short.
A dedicated commission
The Tun Dzaiddin Commission appears to have been persuaded by the experience in the UK, in which an Independent Police Complaints Commission (IPCC) was established in April 2004. The rationale underlying the recommendation of the IPCMC echoed that which grounded the formation of the IPCC in the UK: a need for accountability on the part of the police by way of a process which the public believed would investigate allegations thoroughly and impartially.
A dedicated commission is necessary. As noted in a report entitled An Independent Police Complaints Commission (2000) by Liberty – a UK-based NGO that has been at the forefront of the promotion of civil liberties there since 1934 – the “police hold a unique position in society, with powers to interfere with the lives of the public, and responsibilities to act independently to uphold the law”.
This uniqueness distinguishes the nature and focus on investigations where police misconduct is concerned from complaints against other public officials or civil servants. The public will not be satisfied unless they believe that enquiries are transparent and accountable, and this can only be achieved in having a body focusing wholly on the police.
It is of significance that the Liberty report, the preparation of which was supervised by an advisory committee chaired by Lord Archer of Sandwell QC, considered then existing methods of ensuring accountability, including the Police Complaints Authority, established after a recommendation for independent investigation of police complaints by the Scarman Inquiry in 1981 following the Brixton Riots. The recommendation for the setting up of an independent mechanism was a major factor in the establishment of the IPCC.
This, in itself, ought be sufficient to bring to an end the current debate over the effectiveness of the Enforcement Agencies Integrity Commission (EAIC) as a means of independent investigation into alleged police misconduct, including deaths in custody. Other agencies do not loom in our lives as the Royal Malaysian Police does.
The overwhelming majority of complaints to date on matters of serious concern, such as deaths in custody, have pertained to the police. This is a fact that cannot be ignored, just as we cannot blind ourselves to the fact that the EAIC simply does not enjoy the confidence of the majority of Malaysians, many of whom had not even heard of the commission until the current debate started.
Others have written on why the EAIC is simply not equipped to deal with the extent of investigations contemplated, and I share their view. I should add that a perusal of the IPCC annual reports would show that hundreds of investigations have been commenced into the most serious complaints since its establishment.
Just for the period 2011/12, the IPCC started a further 126 independent investigations, having completed 130 independent investigations arising from the previous year. Additionally, it dealt with 6,400 appeals from the public and processed 12,400 complaints. The EAIC is not in a position to process even a fraction of these figures.
The facts are obvious. It is clear that the avoidance of the IPCMC stems from other difficulties that the government is unwilling to admit to. The song and dance about the EAIC is simply that – a performance aimed at obscuring the unwillingness of the government to deal with the subject in the way it needs to and its overriding need to pander to political interests.
The government should remind itself that no one is above the law. Those who have wronged this society must be brought to justice.
I cannot imagine what the families of Dhamendran or Kugan or the numerous others who have suffered a similar fate are feeling. They deserve to know what it is that actually happened to their loved ones, to know that if they were killed, then their killers will face the consequences of their actions.
To expect them to walk away from this need to know in the face of politicking is akin to expecting them to admit that they never cared about the deceased in the first place. It is an insult to them, and to all Malaysians.
Were any of us in their place, would we not above everything simply want to know the truth? Is that too much to ask?
Malik Imtiaz Sarwar is a practising lawyer and the immediate past president of the National Human Rights Society (Hakam). This is the personal opinion of the writer and does not represent the view offz.com.
This article was first published in The Edge Malaysia June 17-23 issue.