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SUHAKAM: EMPOWERED TO INQUIRE INTO CUSTODIAL DEATH CASES?

Background


My first taste of a death inquiry case was in early 2001 or thereabouts. I represented two brothers in a murder trial[1] involving 4 accused persons. Since it was a murder trial, all four were remanded in the Sungai Buloh prison pending the outcome of the trial. Sometime before the conclusion of the trial in the High Court, the younger of the 2 brothers was admitted to the Selayang Hospital for some mysterious illness. He later died and there was an inquest into his death at the Selayang Magistrate’s court. I participated in the inquest.


Next came the infamous Teoh Beng Hock case of 2009[2]. I remember getting a call from Mr Edmund Bon who had wanted the Bar to be involved in the impending inquest at the Shah Alam Magistrate’s court. He was seeking volunteer lawyers to be on the Bar Council’s watching brief team. Later I got involved in the case of Gunasegaran a/l Rajasundaram[3] who, in a remarkable coincidence, also met his untimely demise on the 16.7.2009, the very same day the body of the late Mr Teoh Beng Hock was discovered. Since then, I have been involved in at least 18 other coroners court inquiries, mostly involving cases of custodial death[4].


Subsequently, I pursued several of these cases in the civil courts for damages, i.e compensation claims for wrongful deaths, dependency and breach of the right to life under the Federal Constitution. I write the following based on my experience and my understanding of the relevant laws applicable in Malaysia to custodial death inquiries. I do not hold myself out to be an expert in the subject matter. I fully appreciate and am cognisant of the fact that the law is constantly evolving at a rapid pace in Malaysia, especially in the area of human rights.


Reasons for writing my thoughts


I am writing this article in response to the recent SUHAKAM (Human Rights Commission of Malaysia) press conference called by one of its commissioners to announce the commission’s findings in the Jestus Kevin a/l Ganaprakasam death in custody case on the 21.1.2021[5]. Jestus died in the Bentong police lock up on 5.4.2020. For the record, I act as solicitor for the family of the deceased and was not in the know as to the inquiry conducted by SUHAKAM. The findings and remarks of the Commission reported in the media came as a surprise to me with respect to the law which calls for inquiries into cases of custodial death. Since the view expressed by SUHAKAM is contrary to mine,[6] I feel compelled to explain the basis of my view.


SUHAKAM


1) SUHAKAM is a Human Rights Commission established pursuant to the Human Rights Commission of Malaysia Act 1999[7] (hereinafter referred to as “the Act”). The Act provides that SUHAKAM is established primarily for the purposes of protection and promotion of human rights in Malaysia and sets out the commission’s powers and functions. In the interpretation section of the Act, Section 2 defines “human rights” to mean the fundamental liberties enshrined in Part II of the Federal Constitution[8]. This would therefore necessarily mean that SUHAKAM generally would be able to inquire into any human rights issues, especially those involving the right to life, liberty, speech and even religion.


2) Sections 4 and 12 of the Act spell out the functions and powers of the Commission which inter alia includes the holding of inquiries on complaints of human rights infringements. For this, the Act further provides that SUHAKAM may inquire into such human rights infringements on its own motion or on complaints lodged by persons aggrieved.


a. Section 4 of the Act provides as follows:-


Functions and Powers of the Commission


(1) In furtherance of the protection and promotion of human rights in Malaysia, the functions of the commission shall be-

(a) to promote awareness of and provide education in relation to human rights;

(b) to advise and assist the Government in formulating legislation and administrative directives and procedures and recommend the necessary measures to be taken;

(c) to recommend to the Government with regard to the subscription or accession of treaties and other international instruments in the field of human rights; and

(d) to inquire into complaints regarding infringements of human rights referred to in section 12.


(2) For the purpose of discharging its functions, the commission may exercise any or all of the following powers:

(a) to promote awareness of human rights and to undertake research by conducting programmes, seminars and workshops and to disseminate and distribute the results of such research;

(b) to advise the Government and/or the relevant authorities of complaints against such authorities and recommend to the Government and/or such authorities appropriate measures to be taken;

(c) to study and verify any infringement of human rights in accordance with the provisions of this Act;

(d) to visit places of detention in accordance with procedures as prescribed by the laws relating to the places of detention and to make necessary recommendations;

(e) to issue public statements on human rights as and when necessary; and

(f) to undertake any other appropriate activities as are necessary in accordance with the written laws in force, if any, in relation to such activities.


(3) The visit by the commission to any place of detention under paragraph (2)(d) shall not be refused by the person in charge of such place of detention if the procedures provided in the laws regulating such places of detention are complied with.


(4) For the purpose of this Act, regard shall be had to the Universal Declaration of human rights 1948 to the extent that it is not inconsistent with the Federal Constitution.


Whereas Section 12 of the Act provides as follows:-


1) The commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, inquire into an allegation of the infringement of the human rights of such person or group of persons.


(2) The commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which-


(a) is the subject matter of any proceedings pending in any court, including any appeals; or

(b) has been finally determined by any court.


(3) If the commission inquires into an allegation under subsection 12(1) and during the pendency of such inquiry the allegation becomes the subject matter of any proceedings in any court, the commission shall immediately cease to do the inquiry.


Do the powers conferred by sections 4 and 12 of the ACT empower SUHAKAM to inquire into custodial death matters?


3) I am of the considered view that SUHAKAM is not empowered by the Act to inquire into any custodial deaths as this is solely within the purview and function of the Coroners Court pursuant to Section 334 of Chapter XXXII (Inquiries of Death) of the Criminal Procedure Code[9]. (please see sections 328 – 341A of the said Code).


4) It would appear very clear from a reading of sections 4 and 12 of the Act that the functions and powers of the Commission to hold inquiries on complaints of human rights infringements are very broad and general in their terms. The Act makes no mention of any inquiries into custodial deaths, unlike the very obvious provisions contained in the Criminal Procedure Code.


5) Unlike the Act, Section 328 of the Criminal Procedure Code defines the words “cause of death” as follows :


“In this Chapter the words "cause of death" include not only the apparent cause of death as ascertainable by inspection or post-mortem examination of the body of the deceased, but also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death and as to whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person.


6) Section 334 of the CPC mandates that whenever any person dies while in the custody of the police, mental hospital or prison, information of such deaths must be immediately intimated to the nearest Magistrate. It also mandates that the Magistrate (now Coroners in the Coroners Court/Sessions Court Judge)[10] must hold a mandatory inquiry into the cause of death, especially if such death had occurred whilst in police custody.


Section 334 provides:-

When any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death.


7) It is important to note that Section 335 of the CPC gives the presiding Coroner when inquiring into any death the powers he or she would have in holding an inquiry into a criminal offence. The powers contained herein are very wide, including the power to exhume any dead body, unlike the limited powers under the provisions contained in the Act.


Section 335 of the Criminal Procedure Code provides:-

A Magistrate holding an inquiry under this Chapter shall have all the powers which he would have in holding an inquiry into an offence.


(2) A Magistrate holding an inquiry under this Chapter it he considers it expedient that the body of the deceased person should be examined by a Medical Officer in order to discover the cause of death may, whether a post-mortem examination has been made under section 331 or not, issue his order to a Medical Officer to make a post-mortem examination of the body, and may for that purpose order the body to be exhumed.


8) The Criminal Procedure Code in section 337 further provides that the inquiry held by the Magistrate shall inquire as to when, where, how and after what circumstances or manner the deceased had met his demise and whether any person is criminally concerned in the said death.


Section 337 of the Criminal Procedure Code provides:-

A Magistrate holding an inquiry shall inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death.


9) Justice Sulong Matjeraie in the celebrated case of Re Anthony Chang Kim Fook (deceased)[11] held inter alia as follows


….The function of a Magistrate in holding an inquiry under s. 337 is only to inquire when, where, how and after what manner the deceased came to his death and also whether any person is criminally concerned in the cause of death …..

eLaw Citation: [2007] 1 MLRH 549


10) In the circumstances it is my considered view, therefore, that any attempt by the Commission to justify its powers of inquiry to include custodial death inquiries as one of its functions pursuant to the Act is flawed, usurps the powers and functions of the Coroners Court and arrogates the powers mandated to the Coroners court by the Criminal Procedure Code. The general powers of inquiry into any human rights infringements as per the Act must surely yield to the specific provisions contained in the Criminal Procedure Code when it comes to custodial death inquiries.


11) The issue of general law and specific law came up for discussion recently in the Federal Court in the case of Abdullah Atan v PP & Other Appeals [2020] 6 MLRA 28[12]. The Federal Court had decided inter alia as follows :-


[55] The former Federal Court had the occasion to consider the operation of the CPC and the DDA in Public Prosecutor v. Chew Siew Luan [1982] 1 MLRA 134; [1982] 2 MLJ 119; [1982] CLJ (Rep) 285. In Chew Siew Luan, the question was whether the provisions relating to bail in the CPC were applicable to a trafficking charge preferred under the DDA. The Federal Court unanimously held that the provisions of the DDA will apply to the exclusion of the CPC. This is what Raja Azlan Shah CJM (as His Majesty then was) said: "Now, the Criminal Procedure Code (FMS Cap 6) which came into force on 1 January 1927 is an enactment regulating criminal proceedings in general in the former Federated Malay States. It was amended and extended throughout Malaysia by the Criminal Procedure Code (Amendment and Extension) Act, 1976 on 10 January 1976. It cannot be gainsaid that it is a written law within the meaning assigned in s 2 of the Interpretation Act, 1967.The Dangerous Drugs Act 1952 (Revised - 1980) is an Act specifically designed to regulate the importation, exportation, manufacture, sale and use of, inter alia, dangerous drugs, and "to make special provisions relating to the jurisdiction of courts in respect of offences thereunder and their trial, and for purposes connected therewith". In other words, the Act is in substance a special law passed by Parliament in derogation of the rights of a person concerning the granting of bail in an otherwise ordinary case. We further note in particular that s 41B of the Act is an entirely new section introduced by the Dangerous Drugs (Amendment) Act, 1978 (A A426) and became operative on 10 March 1978. Generalibus specialia derogant is a cardinal principle of interpretation. It means that where a special provision is made in a special statute, that special provision excludes the operation of a general provision in the general law” ... eLaw Citation: [2020] 6 MLRA 28


12) In addition, the very Act itself in my view bars the Commission against inquiring into custodial death cases that are mandated by law to the Coroners Court to inquire into. Section 12 (2) of the Human Rights Commission of Malaysia Act 1999 clearly states that the Commission shall not inquire into any complaint when the said matter is the subject of any proceeding in court.


Commission may inquire on own motion or on complaint


(1) The commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, inquire into an allegation of the infringement of the human rights of such person or group of persons.


(2) The commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which-

(a) is the subject matter of any proceedings pending in any court, including any appeals; or

(b) has been finally determined by any court.


(3) If the commission inquires into an allegation under subsection 12(1) and during the pendency of such inquiry the allegation becomes the subject matter of any proceedings in any court, the commission shall immediately cease to do the inquiry.



13) In the circumstances, at this juncture I would like to state that the custodial death inquiry into the death of Jestus Kevin a/l Ganaprakasam is an inquiry that should only be held and decided at the Kuantan Coroner’s Court and not at SUHAKAM.


Possible problems caused by the SUHAKAM inquiry

14) I would like to state for the record that we had been representing the family of the late Jestus Kevin a/l A Ganaprakasam since the very beginning. We took steps to initiate the inquest via letter and telephone calls to the Coroners Court in Kuantan to open its investigations into the death. As a result of the said efforts the Kuantan Coroners Court issued a letter dated 5.11.2020 agreeing to open its investigations into the death vide case no. 65B-3-10/2020. The fact that we were involved in this case had been highlighted via EDICT (Eliminating Deaths and Abuses in Custody Together) in its regular public statements carried by news agencies including social media[13]. Be that as it may, we were never informed, as Solicitors for the deceased’s family, that an inquiry had been opened by SUHAKAM into the case. Had we known so, we would have gladly assisted SUHAKAM and alerted it to some of the problems the SUHAKAM inquiry would have caused the present case.

15) I am of the view that the findings of SUHAKAM are of little and/or of no use to the ends of obtaining justice in the courts for the families of deceased persons. I say so after having experienced difficulties in the Syed Azlan civil case in the Johor Baru High Court when the report produced by the EAIC (Enforcement Agency Integrity Agency)[14] was strenuously objected to in court by the Attorney General’s Chambers. This case involved the death of a young Malay youth while in the custody of the police for a matter of hours. No inquest was conducted. In the circumstances, we were left with no choice but to rely on the EAIC report as the foundation of the case against the tortfeasors. We were

fortunate that her Ladyship See Mee Chun J agreed with us that the report ought to be marked as a Plaintiff’s document in proving the case against the Defendants. This decision in the said civil suit was never appealed and therefore stands untested in the appellate courts.

16) Unlike the EAIC or even a SUHAKAM inquiry, inquest proceedings in court are invaluable to the families of deceased persons. In an inquest proceeding, families are given the right to participate in the said proceedings and gain valuable access to related documents and evidence not otherwise available to the families. In turn, the evidence obtained in an open court setting is worth its weight in gold when the evidence collected may prove useful when proving the case against the authorities for civil liabilities. The burden in law of proving one’s case lies on the party that seeks to prove it i.e “Affirmanti incumbit probatio”.

17) Section 18(2) of the Act provides:


“(2) Any member, officer or servant of the Commission shall not be required to produce in any court, any document received by, or to disclose to any court, any matter or thing coming to the notice of the Commission in the course of any inquiry conducted by the Commission under this Act.”


It is very clear from the above that the Commission shall not be required to produce in any court any documents nor disclose any information obtained by the Commission in carrying out an inquiry pursuant to the Act. This would necessarily mean that families of the deceased cannot insist on having any information or documents produced at the SUHAKAM inquiry be later adduced in court for the purposes of a civil suit claiming for damages.


18) In addition, there appears to be no legal mechanism built into the Act to provide appellate jurisdiction to review any decision in the event that the family of the deceased should feel aggrieved by the outcome of any inquiry conducted by SUHAKAM. This has happened in the case of Thomas Orhions Ewansiha when the solicitor acting for the deceased’s family publicly chastised SUHAKAM for having conducted an inquiry without the family’s input. He went on record to call SUHAKAM’s inquiry “appalling” and “deplorable” for getting its investigations and findings into the case all muddled[15].


19) This situation is strikingly different in custodial death inquiry cases conducted by Coroners Courts. Section 341A of the Criminal Procedure Code provides that the proceedings in the Sessions Court may be subject to a revision by the High Court. Interestingly, if parties are aggrieved by the outcome, a final appeal may lie in the Court of Appeal as was the case in the Teoh Beng Hock case[16].


Concluding thoughts

20) I sincerely believe that there are many instances where SUHAKAM may be of great assistance in this area of custodial deaths. For starters, SUHAKAM should spend its time and efforts in ensuring that all custodial death cases are investigated and decided promptly at the Coroners Court. SUHAKAM could also lend its support and efforts to lawyers who regularly face difficulties in obtaining information and documents from the relevant authorities in relation to custodial death inquiries at the Coroners Court. Perhaps SUHAKAM can inquire into those matters as infringements of human rights that necessitates proper inquiries and recommendations as opposed to insisting on having its own inquiries that tantamount to duplicity in inquiries. Insisting on having such inquiries may be a waste of valuable public time and resources.


21) For the aforesaid reasons, I would implore SUHAKAM to stop insisting on inquiring custodial death matters and to leave such matters to the Coroners Court.


M. Visvanathan

Advocate & Solicitor

Messrs Saibullah MV. Nathan & Co.

Chairman, Eliminating Deaths and Abuse in Custody Together (EDICT)

26th January 2021




Footnote:

1 PP v Scott Allen Hazlett & Ors [2005] 1 MLRH 506

2 Re Teoh Beng Hock [2009] 3 MLRH 336

3 Mahkamah Majistret Kuala Lumpur Kes Inkues No.: 7-88-126-2009; Ganga Gouri Raja Sundram v Mohd Faizal Mat Taib & Ors (Encl. 79) [2013] MLRHU 1233; Ganga Gouri Raja Sundram v Mohd Faizal Mat Taib & Ors [2014] 2 MLRH 183; Mahkamah Tinggi Malaya di Kuala Lumpur Permohonan Jenayah No: 44-244-2010; Ganga Gouri Raja Sundram v PP [2014] 6 MLRA 115; Mahkamah Rayuan Malaysia Rayuan Sivil No. W-01NCVC-444-12/2013; Mahkamah Persekutuan Permohonan Sivil No.: 08-492-09/2014(W).

4 Gareth Huntley, Mahkamah Koroner Kuantan Inkues No.: 65A-03/2015;

M. Syahril Sugumaran bin Abdullah, Mahkamah Koroner Shah Alam Inkues No: 65A-04-05/2017;

Uvarajan a/l Santhanasamy, Mahkamah Koroner Shah Alam Inkues No: 65A-04-05/2017;

Chandran a/l Perumal, Mahkamah Koroner Kuala Lumpur: 65A-02-04/2014;

Benedict a/l Thanilas, Mahkamah Koroner Kuala Lumpur: WA-65B-1-06/2019;

Thanabalan a/l Subramaniam, Mahkamah Koroner Shah Alam: BA-65B-1-07/2019;

Cheah Chin Lee, Mahkamah Koroner Georgetown: Kes Inkues No. 88-4-12/12;

Kamarulnizam bin Ismail, Mahkamah Sesyen Ipoh Kes Inkues No.: 65A-02-10/2015;

Siva a/l Raja Raman, Mahkamah Sesyen Ipoh: AA-65B-2-12/2019;

Thangaraja a/l Ramudu, Mahkamah Koroner Kuala Lumpur: 65A-027-10/2016;

Jestus Kevin a/l Ganaprakasam, Mahkamah Koroner Kuantan: 65B-3-10/2020;

Mohd Fadzrin bin Zaidi, Mahkamah Koroner Georgetown: PA-65B-1-02/2020;

Wan Fadlie Shah bin Wan, WA-65-148-09/2020;

Yen Min Khen, Mahkamah Koroner Shah Alam: BA-65A-3-05/2020;

Balasingham a/l V. Sethu, Mahkamah Koroner Kuala Lumpur Inkues No.: 65A-01-04/2014;

Jayanthi a/p Jeyaraj, Mahkamah Koroner Shah Alam: 65A-03-03/2017;

Sebastian a/l Joseph, Mahkamah Sesyen Alor Setar: 65A-02-02/2017;

Mohammad Adib bin Mohd Kassim’s case (Seafield Mariamman temple), Mahkamah Koroner Shah Alam Kes Inkues No.: BA-65A-2-12/2018

5 SUHAKAM’s findings can be accessed here: https://suhakam.org.my/2021/01/suhakam-cop-bribed-detainees-with-cigarettes-to-beat-up-man-who-died-in-bentong-police-station/

6 https://www.freemalaysiatoday.com/category/nation/2021/01/24/suhakam-insists-it-has-power-to-probe-custodial-deaths/

7 PDF copy of the Act can be accessed here: http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%20597%20-%20Human%20Rights%20Commission%20of%20Malaysia%20Act%201999.pdf

8 http://www.jac.gov.my/spk/images/stories/10_akta/perlembagaan_persekutuan/federal_constitution.pdf

9 https://ccid.rmp.gov.my/Laws/Criminal_Prosedure_Code_Act_593.pdf

10 Pursuant to Arahan Amalan Bil. 2 Tahun 2014, https://www.malaysianbar.org.my/cms/upload_files/document/Circular%20No%20086-2014.pdf

11 Re Anthony Chang Kim Fook (deceased) [2007] 1 MLRH 549

Please also see: Public Prosecutor v Shanmugam & Ors [2002] 6 MLJ 562; Chandran Perumal [2015] MLRSU 8; Selvi Narayan & Anor v Koperal Zainal Mohd Ali & Ors [2017] 5 MLRH 475; Mahkamah Persekutuan Rayuan Sivil No: 01(f)-2-01/2018(W) Koperal Zainal Mohd Ali & 6 Lagi v Selvi Narayan & 1 Lagi (Decision pending in the Federal Court at the time of the writing of this article)

12 Abdullah Atan v PP & Other Appeals [2020] 6 MLRA 28

13 EDICT’s press statement on the death of Jestus Kevin: https://www.edictmalaysia.com/post/jestus-kevin-dies-in-bentong-lockup-on-day-19-of-the-covid-19-pandemic

Malaysiakini’s article reporting on the inquest into the death of Jestus Kevin: https://www.malaysiakini.com/news/554136

14 Report can be accessed here: http://www.eaic.gov.my/sites/default/files/Syed%20Azlan%20with%20Cover%20(Final).pdf

15 “Lawyer slams 'deplorable' revelation by Suhakam commissioner” – Malaysiakini, 20 Dec 2019 https://www.malaysiakini.com/news/504398

16 Teoh Meng Kee v PP. [2014] 5 MLRA 404


EDICT with family of late Jestus Kevin at Coroner Court, Kuantan.

EDICT with family of late Benedict Thanila at KL Coroner Court

M.Visvanathan with the wife of late Thangaraja at KL Coroner Court.





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