Malaysian Bar Resolution on on Detention of P Uthayakumar, M Manoharan,...

Malaysian Bar Resolution on on Detention of P Uthayakumar, M Manoharan, R Kengatharan and V Ganabatirau under the ISA , passed on 14th March 2009 at the 63rd Annual General Meeting of the Malaysian Bar held at the Grand Ballroom, Legend Hotel, Kuala Lumpur

(1)	Whereas Article 5 of the Federal Constitution guarantees that no person shall be deprived of his life or personal liberty save in accordance with law.
(2)	And whereas Article 8 of the Federal Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.
(3)	And whereas Article 8(2) of the Federal Constitution guarantees that except as expressly authorized by this Constitution there shall be no discrimination against citizens on the ground only of religion, race or descent or place of birth
(4)	And whereas Article 10 of the Federal Constitution guarantees freedom of speech, assembly and association.
(5)	And whereas Article 11 of the Federal Constitution guarantees freedom of religion.
(6)	And whereas Article 12 of the Federal Constitution provides that there shall be no discrimination against any citizen on the grounds of religion, race, descent or place of birth:-
	(a)	in the administration of any educational institution, maintained by a public authority and in particular the admission of pupils or students or the payment of fees or; and
	(b)	in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational, institution (whether or not maintained by a public authority and whether within or outside the Federation)
(7)	And whereas Article 153(1) of the Federal Constitution provides that it shall be the responsibility of the Yang Di Pertuan Agong to safeguard the special position of the Malays and natives of any of the states of Sabah and Sarawak and the legitimate interest of the other communities in accordance with the provision of this Article.
(8)	And whereas Article 153(2) provides that the Yang Di Pertuan Agong is to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and when any permit or license for the operation of any trade or business is required by Federal law
(9)	And whereas Section 42 of the Legal Profession Act 1976 empowers Advocates and Solicitor to represent their client’s interest without fear or favour.
(10)	And whereas Article 1 of the Universal Declaration on Human Rights stipulates that “All human beings are born free and equal in dignity and rights”. The Universal Declaration of Human Rights is the most widely subscribed body of principles that establishes Universal Human Rights norms and standards.
(11)	And whereas the Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect Universally Recognised Human Rights and fundamental freedoms, adopted by consensus by the United Nations General Assembly on the 9th of December 1998 recognises the legitimacy of the activities of human rights defenders their rights to freedom of association and to carry out their activities without fear of reprisals.
(12)	In the Harare Commonwealth Declaration 1991, the Heads of Government of the countries of the Commonwealth had reaffirmed the pledge that were set out in a Declaration of Commonwealth Principles agreed to by their predecessors at their meeting in Singapore in 1971 among them being that, they believe in the liberty of the individual under the law in equal rights for all citizens regardless of gender, race, colour, creed or political belief and in the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives. They recognize racial prejudice and intolerance as a dangerous sickness and a threat to health development and racial discrimination as an unmitigated evil. They oppose all forms of racial oppression and they are committed to the principles of human dignity and equality.
(13)	And whereas the United Nations International Covenant on Economic, Social and Cultural Rights states in it’s preamble that it developed out of recognition of the fact that “in accordance with the Universal Declaration of Human Rights the ideals of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone especially the minority may enjoy his economic, social and cultural rights as well as his civil and political rights”.
(14)	And whereas Articles 3, 10 and 11(1) of the Universal Declaration of Human Rights 1948 provides for no detention without trial, right to personal liberty and a fair trial and the presumption of innocence until proven guilty.
(15)	And whereas the United Nations Convention on the elimination of all forms of racial discrimination, the term racial discrimination shall mean any on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental and any other field or public life.
(16)	At the world conference on human rights held in Vienna, Austria in June 1993, Malaysia along with 170 other countries reiterated the universality, indivisibility and interdependence of human rights and commitment to the Universal Declaration of Human Rights.
(17)	And whereas the preamble to the Internal Security Act 1960 starts of by stating “An act to provide for the Internal Security of Malaysia preventive detention, the prevention of subversion, the suppression of organized violence against persons and property in specified areas of Malaysia, and for matters incidental thereto. “Whereas action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia:-
	(a)	To cause and to cause a substantial number of citizens to fear organized violence against persons and properly; and
	(b)	To procure the alteration otherwise than by lawful means the lawful Government of Malaysia by law established.
(18)	And whereas even the drafter of the ISA, the late Professor R.H. Hickling had said that the Internal Security Act (ISA) was only intended against communist insurgents and those bent on armed struggle. In an interview with the New Straits Times (on the 30th day of July 2006) Hickling said the ISA was being used against people for whom it was not intended “it was designed to be more limited in its scope than it is at the moment”. Organised violence is the key to this preamble but a lot of people who had nothing to do with organized violence at all were arrested (and detained under the ISA). “I would want Judicial review at all times”.
(19)	And whereas Advocates and Solicitors P. Uthayakumar, M. Manoharan, R.Kengatharan and V.Ganabatirau had at all material times been discharging their duties pursuant to Section 42 of the Legal Profession Act and further to the aforesaid Malaysian Constitution, Laws of Malaysia Commonwealth, United Nations and International laws and obligations in particular in championing the minority, human rights and dignity of the Malaysian Indian community who are suffering from about the worst forms of violations of minority and human rights.
(20)	And whereas when P.Uthayakumar had filed a RM100 Million Civil Suit against the aforesaid parties, they had speedily and without even filing their statement of defence filed an application to strike out the Writ of Summons and Statement of claim now denying that they were referring the said terrorist link to P.Uthayakumar. They had further stated that they were merely referring to Hindraf leaders knowing fully well that P.Uthayakumar was the main Hindraf leader.
(21)	And whereas these Advocates and Solicitors are still languishing in Malaysia’s very own “Guantanamo Bay” the Kemta Prison without trial and against the rules of natural justice and the rule of law for about one year and three months as at the date hereof despite having pursued their struggle only through legal and peaceful means.
(22)	And it is now hereby resolved by the Malaysian Bar that :-
	(a)	Advocates and Solicitors and activists P. Uthayakumar, M. Manoharan, R.Kengatharan and V.Ganabatirau were at all material times acting without fear or favour through peaceful legal and legitimate means further to the Federal Constitution, Laws of Malaysia, the Commonwealth, United Nations and the International laws, conventions and obligations as aforesaid.
	(b)	The arrest and detention of Advocates and Socilitors P.Uthayakumar,M.Manoharan, R.Kengatharan and V.Ganabatirau is against the letter and spirit of Article 5 of the Federal Constitution the Internal Security Act 1960, Laws of Malaysia, the Commonwealth, United Nations the International Laws, Conventious and Obligations, rules of natural justice and the rule of law.
	(c)	Justice has not been done for Advocates and Solicitors P.Uthayakumar, M.Manoharan, R.Kengatharan and V.Ganabatirau who have now been detained and imprisoned without trial for one year and three months now since the 13th day of December 2007 and for an indefinite period of time thereafter.
	(d)	The Malaysian Bar hereby calls upon the Prime Minister, Deputy Prime Minister, Home Minister and the Government of Malaysia to forthwith set free and release from ISA detention the aforesaid P. Uthayakumar, M. Manoharan, R.Kengatharan and V.Ganabatirau.
	(e)	That all the remaining 43 detainees currently detained under the Internal Security Act 1960 also be forthwith released.
	(f)	The Malaysian Bar calls for the abolishment of the Internal Security Act 1960 which provides for detention without trial and all other such laws providing for detention without trial with immediate effect.
The amended motion was unanimously carried.

KUGAN ANANTHAN: 2 post-mortem reports, 8 major differences..

After discovering vast discrepancies in the two post-mortem reports, the family of dead detainee A Kugan did the next sensible thing - lodge a police report and hope to see justice done.

MCPX

This morning, M Indra did just that. She lodged a police report against Serdang Hospital and the pathologist who conducted the first post-mortem on her son’s body.

Accompanying her to the Petaling Jaya police district headquarters to lodge the report were her lawyer, two MPs and several family members.

Dr Abdul Karim Tajudin of Serdang Hospital performed the first post-mortem while Dr Prashant N Samberkar of Universiti Malaya Medical Centre conducted the second one. The Prashant post-mortem report was submitted to the Attorney-General’s Chambers by Indra on Thursday.

The Prashant report revealed that the 22-year-old deceased endured severe beatings and was also starved during his incarceration while the Karim report said the cause of death was inconclusive.

According to the family's lawyer N Surendran, there were eight major differences in the two reports:

1) The Karim report said that Kugan's back had V-shaped abrasions. The Prashant report stated that the V-shaped marks were burn wounds inflicted with a heated object.

2) The Karim report listed down 22 marks of external injuries. The Prashant report listed down almost 40 marks of external injuries.

3) The Karim report said the brain was normal while the Prashant report stated that the brain had congested blood vessels.

4) The Karim report said the neck muscles were normal. The Prashant report indicated hemorrhage of the right neck muscle.

5) The Karim report said the heart was normal. The Prashant report revealed hemorrhage of the heart.

6) The Karim report said the spleen was normal. The Prashant report revealed large area of hemorrhage in the spleen.

7) The Karim report said other organs in the abdomen were examined and were normal. The Prashant report said that in the first post-mortem, organs in the abdomen were not removed for dissection.

8) The Karim report gave the cause of death as pulmonary oedema which cause was unknown. The Prashant report clearly stated that the cause of death was kidney failure due to beatings.

"We are shocked and surprised to see the differences - it is puzzling for a pathologist to miss a burn mark or a large area of hemorrhage in the spleen," said Surendran.

Serdang Hospital’s ridiculous statement

Disappointed and shocked by the significant differences, Kugan's mother today demanded an investigation on whether it was an attempt to cover up the truth by the hospital and the pathologist Dr Abdul Karim.

"Were they trying to protect the police? Was police involved in any cover-up? How could Dr Abdul Karim say the other organs in the abdomen were examined when the second report showed he did not remove those organs for dissection?" Indra asked.

She also questioned why the cause of death in the first report was inconclusive while the second one was able to identify the cause of death. She asked for action to be taken against both Dr Abdul Karim and the Serdang Hospital.

Kugan had died on Jan 20 at the Taipan police station in Subang Jaya, five days after he was arrested in connection with the theft of luxury cars.

On Serdang Hospital director Dr Mohd Norzi Ghazali’s statement yesterday that Kugan's body could have been tampered with, Surendran said it was ridiculous as video evidence clearly indicated that the body was not.

"If what he said was true, the first post-mortem should have stated it as any pathologist can identify cuts and injuries that have been inflicted after the death of a person. Both the post-mortem reports have not indicated such injuries on the body," said the lawyer.

"The statement made by the Serdang Hospital is so ridiculous that I think I don't even need to produce scientific evidence," he said.

Surendran also felt that it was improper for a hospital director to come out with such a statement.

Syed Hamid, want to offer your office?

Meanwhile, Kapar MP S Manickavasagam who was also present, responded to Home Minister Syed Hamid Albar’s statement questioning why the Kugan case was politicised.

"The minister asked why we used the PKR headquarters to hold the press conference. Well, if Syed Hamid can offer his office to us, we are willing to use it to meet the press. Kugan's family cannot afford to book a hotel ballroom, so we offered our party office."

Manickavasagam also said that the issue of Kugan's brutal death not only concerned a particular race, but every one in the country.

Teluk Intan MP M Manogaran, who was also present, called for the Malaysian Medical Council (MMC) to take action against Dr Abdul Karim.

"The MMC should be pro-active and call the mother if she wants to lodge a report against Dr Karim," he said.

He also questioned Dr Karim's qualifications and asked if he was influenced by the police.

"How can a pathologist not be able to conduct a complete post-mortem?" he asked.

Manogaran also urged the media not to criminalise Kugan and spare his family from further suffering.

VIDEO l 8 mins

First autopsy report l 5 pages(Dr Abdul Karim Tajudin)
Second autopsy report l 12 pages (Dr Prashant N Samberkar) - Malaysiakini, 6/3/2009, Autopsy reports: 8 glaring differences

Kugan Ananthan: Starved, Beaten, Burnt..to Death in Police Custody?

Well, it has now been shown that Kugan Ananthan, the Malaysian police detainee, was a victim of torture. He died in custody on 20th January 2009.

Kugan, 22, who was detained on Jan 15 at the Taipan police station in Subang Jaya on suspicion of being involved in the theft of luxury cars in Sungai Chua, Kajang, died while being questioned on Jan 20. - Malaysiakini, 27/1/2009 Police warn against Kugan funeral procession

An independent post-mortem report has revealed that deceased 22-year-old police detainee Kugan Ananthan had endured severe beatings and was also starved during his incarceration.

MCPX

The post-mortem conducted by a Universiti Hospital pathologist who was commissioned by the deceased's family found that the car theft suspect had died of kidney failure due to the assault.

The beatings had caused a breakdown in Kugan's muscle cells which then congested the blood flow and resulted in kidney failure.

The findings were revealed by the family's lawyer N Surendran at a press conference held in the PKR headquarters in Tropicana this afternoon.

"As opposed to the past statement given by the police and the first post-mortem report (which stated that Kugan died of fluid accumulation in his lungs), the second report shows that he had died of acute renal failure due to rhabdomyolysis.

"Which is to say that he died due to the muscle cells disintegrating into his bloodstream and absorbed by the kidney which resulted in kidney failure and death," said the lawyer.

'Burnt with extremely heated iron bar'

Showing pictorial evidence to reporters, Surendran said graphic photos taken from the post-mortem report showed that Kugan suffered from massive internal bleeding due to repeated beatings.

"Kugan had hemorrhage in many of his internal organs, his heart, left lung, spleen, kidneys, back of his neck, spine area and the sole of his feet which shows that he took consistent beatings," he added.

Kugan also suffered from internal bleeding in the scalp area following repeated beatings with a blunt object.

The post-mortem report also stated that Kugan sustained more than 10 severe burn wounds on his back "probably as a result of being burnt by an extremely heated V-shaped iron bar."

"Almost the entire part of his back is covered with contusions, beating marks and bruises," said Surendran, adding that the report also indicated that Kugan "was starved during the entire time he was tortured."

"In brief, it appears that Kugan was severely tortured over period of days and the kind of pain he had suffered is unimaginable.

"One could only imagine what was going through this young man's mind (during the torture). Perhaps, he had wanted to die (to escape the torture), we wouldn't know," he said.

Procedural exclusion in first post-mortem

Another baffling point, said Surendran, is the fact that the second post-mortem report indicated that no examination below the heart area of Kugan's body was conducted during the first post-mortem.

Surendran said this was puzzling as it is compulsory for any pathologist to conduct a complete check-up.

The independent post-mortem report was commissioned by Kugan's family after they were dissatisfied with the first report tendered by Serdang Hospital.

Kugan had died on Jan 20 at the Taipan police station in Subang Jaya, five days after he was arrested in connection with the theft of luxury cars.

Meanwhile, Surendran said the second post-mortem conducted by Dr Prashant N Samberkar from the UniversitI Malaya Medical Centre is not just an investigation into the death of an individual.

"This is a damning indictment on the Malaysian police force. I hope the police will hang their heads in shame, institute thorough reforms and stop placing obstacles in the implementation of the Independent Police Complaints and Misconduct Commission (IPCMC)," he stressed.

Report to be submitted to AG tomorrow

Teluk Intan DAP parliamentarian M Manogaran, who was also present at the press conference, said he and other Pakatan Rakyat leaders will submit the post-mortem report to the Attorney-General's Chambers in Putrajaya tomorrow.

"The AG (Abdul Gani Patail) is duty-bound to act on this report and what Malaysians, in particular Kugan's family, want is that whoever is responsible for his death be brought to court and answer charges for murder," he said.

According to Kapar MP S Manickavasagam, from the year 2000 to 2008, there have been more than 80 cases of reported deaths in police custody but nothing has been done to address this.

He also claimed that more than seven police officers are involved in Kugan's case.

Another DAP leader present, Puchong MP Gobind Singh Deo said the report should give the AG sufficient evidence to act swiftly on the matter.

He also said this incident shows the importance of having an independent post-mortem report done for custodial death cases.

The case was initially classified as sudden death but following the emergence of a video clip which revealed severe lacerations on the deceased's body and sparked off public outrage, the AG reclassified the case as murder.

Other leaders present at the press conference were PAS Kota Raja MP Dr Siti Maria Mahmud, PKR secretary general Salahuddin Hashim and watchdog group Police Watch director S Jayathas- Malaysiakini, 4/3/2009,Post-mortem: Kugan 'starved and beaten' to death

Read full autopsy report l 12 pages