KUALA
LUMPUR (29 MARCH 2017) - The Human Rights Commission of Malaysia
(SUHAKAM) concluded its independent investigation into the death of
Balamurugan M Suppiah (S.Balamurugan) who died at the North Klang
District Police Headquarters on 7 February 2017. According to the
police, he was found unconscious in a temporary holding area for
detainees at about 11.30pm. SUHAKAM begun its investigation in
accordance with sections 4(1) and 12 of the Human Rights Commission of
Malaysia Act 1999 on 10 February 2017, and in the interest of public
truth. Through interviews and statements recorded from 43 witnesses,
SUHAKAM identified several areas of concern that continue to arise in
relation to deaths in police custody.
At
the outset, SUHAKAM reiterates that the right to life is the most
fundamental human right, within which no derogation is permissible. As
guaranteed in Article 5(1) of the Federal Constitution and recognised in
Article 3 of the Universal Declaration of Human Rights and Article 6 of
the International Covenant on Civil and Political Rights, the right to
life is a prerequisite to the realisation of all other human rights.
The
deceased was arrested with two other suspects at around 6.30pm on 6
February 2017 and taken to the Bandar Baru Klang Police Station. During
its investigation, SUHAKAM was informed of alleged ill-treatment and
beatings of all suspects by the police between 7.30pm to 9.30pm at the
police station. Before he were taken to the North Klang District Police
Headquarters, the deceased was allegedly hit on the ears, beaten on his
feet and legs and punched and kicked in his chest. SUHAKAM was informed
that the deceased was shivering and not able to walk when he was sent to
the Shah Alam Centralised Lock Up at approximately 4.10am the next
morning. The suspects were produced before the Klang Magistrate’s Court
at around 10.00am on 7 February 2017 for an application for further
remand. The remand for the deceased was refused and the Magistrate
directed the police to take him for immediate medical treatment.
SUHAKAM
interviewed the Magistrate on 23 February 2017 and was informed that
the deceased had a swollen face and eyes and was unable to sit up, stand
or even hold his head up when his name was called in her Court.
Although the police had the opportunity to take the deceased to the
hospital, they failed to do so and took him back to the North Klang
District Police Headquarters at about 1.15pm. SUHAKAM was informed that
the deceased was shivering again at this point but he was not given any
medical attention. By approximately 6.30pm by which time his detention
became unlawful, S.Balamurugan’s condition had deteriorated severely to
the extent that he had no control from urinating. At approximately
11.30pm, the deceased was found unconscious or presumably dead by the
Investigating Officer. SUHAKAM notes with concern that from
approximately 7.00pm to 11.30pm, the deceased was not monitored or
checked on by the policemen on duty. SUHAKAM considers it to be the duty
of the Investigating Officer to be responsible for the acceptance,
safety, security, health condition and welfare of any person arrested
and detained by the police.
SUHAKAM
wishes to point out that although the police had 24 hours to detain the
deceased, they may have deliberately flouted the Court Order or
wilfully abused their powers when the deceased was taken back to the
North Klang Disctrict Police Headquarters, purportedly for his statement
to be recorded. Evidence show that this was not done and the deceased
was instead held without a reasonable and credible justification.
The
post mortems conducted by Hospital Tuanku Ampuan Rahimah Klang (HTAR)
and Hospital Kuala Lumpur (HKL) both revealed that the cause of death of
S.Balamurugan was coronary artery disease. Of note, the second
pathologist from HKL concluded that the cause of death was coronary
artery disease with blunt force trauma, and the time of death could have
been as early as 9.00pm or 10.00pm.
It
is SUHAKAM’s view that the allegations of ill treatment and torture
corroborate the statements by both pathologists, in that the deceased
had, among others, bruises and swelling on his eyes, a large bruise on
his chest below his right nipple, swelling on his right ear, lacerations
on his ears, injuries on his right chest muscle, blood clots on his
right temple, back injuries and severe muscular injuries to his feet and
ankles. The second pathologist indicated that he also found that the
deceased had obvious bruises on his knees, fingers, back of his left
lower leg, lower back and the back of his thighs.
Both
post mortems revealed that the deceased was suffering from chronic
liver failure and liver cirrhosis. While this is unlikely to be the
cause of death, in the second pathologist’s medical opinion, this was a
possible explanation for the bleeding from the mouth and nose of the
deceased. Both pathologists also concluded that the deceased had a
blocked left artery and was suffering from a severe heart condition, but
it is their medical opinion that the injuries could have triggered a
heart attack or worsened his heart condition leading to his death, given
the severity of the injuries. The HKL pathologist noted that while the
deceased had serious underlying medical concerns, the injuries on his
body could not be ignored as they appeared to be abusive injuries, and
not self-inflicted or accidental in nature.
The
circumstances under which the deceased was detained after the
application for remand by the police was refused were unacceptable. He
had endured approximately a further 9 hours of detention prior to his
death, after he was released by the Court. This in our view demonstrates
a blatant disregard for respect for human life and dignity and the
conditions in which he was held may be inconsistent with the Federal
Constitution (Article 5(1)).
SUHAKAM
is satisfied that the police knew or ought to have known, even more so
when the Magistrate had made her observations and order, of the
existence of a real and immediate risk to the life of the deceased, and
that the police failed to take adequate measures within the scope of
their powers which, judged reasonably, might have been expected to avoid
such a risk. SUHAKAM is of the view that there appears to be serious
breach or wilful disregard of the duty to protect life by the police due
to cumulative failures on their part to provide medical attention to
the deceased. SUHAKAM underlines that where there is an alleged breach
of this duty of care, there is an obligation on the police to
investigate and to carry out an efficient, independent and reasonable
investigation, which must lead to the perpetrators’ identification and
prosecution.
Evidence
from SUHAKAM’s investigation also identified numerous systemic failures
on the part of the police in regard to the treatment of detainees in
police custody, including but not limited to failures to follow the Lock
up Rules 1953, police standard operating procedures, the Court Order
and relevant international human rights norms and standards.
SUHAKAM
reiterates that in accordance with Principle 1 of the United Nations
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, “all persons under any form of detention or
imprisonment shall be treated in a humane manner and with respect for
the inherent dignity of the human person”. Principle 6 further states
that “no person under any form of detention or imprisonment shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment”. SUHAKAM’s investigation however revealed allegations of
torture, cruel, inhuman and degrading treatment of persons in police
custody. The statements of the other suspects alleged that the police
had during interrogations applied paint thinner and chilli powder on the
body of two of the other suspects including on their genitals. They
claimed to have been beaten with a rubber hose and wooden stick, as well
as with a handcuff chain for their confessions.
Two
suspects arrested in relation to this investigation were below 18.
While the police must observe certain legal rights whenever they arrest
or detain a child suspect, SUHAKAM’s investigation revealed that the
police may have been in breach of section 85 of the Child Act 2001 that
stipulates appropriate arrangements shall be made to prevent a child
while being detained in a police station from associating with an adult
who is charged with an offence. Both suspects who are below 18 were
placed in custody with the deceased who was an adult. According to
section 87 of the same Act, after the arrest of a child, the police
officer or other person making the arrest shall immediately inform a
probation officer and the child’s parent or guardian of the arrest.
SUHAKAM notes that the law in this regard was not complied with.
Despite
a growing awareness of issues concerning the proper treatment of
persons in police custody, the implementation of best practices and
recommendations, particularly from SUHAKAM’s 2016 Death in Custody
Report is seriously lacking. Some recommendations have not been
implemented at all and it is observed that the police are still ignorant
of their duty of care to detainees or the fact that there is a
responsibility on the police to ensure that the individual in their
custody is not deprived of his right to life.
In
accordance with its legal duty, SUHAKAM makes the following
recommendations to the Government of Malaysia and Police Di-Raja
Malaysia (PDRM):
Ahmad
Zahid gave a complete racial breakdown of the deceased: 1,037 were
Malays, 222 ethnic Chinese, 182 ethnic Indians, 28 from other
ethnicities, and 185 foreigners. — AFP pic 
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