• EDICT Malaysia

Four Reasons For Not Sending MCO Offenders To Lockups

1. EDICT is startled by a news report that yesterday, Inspector General of Police IGP Tan Sri Hamid Bador said he supports the decision to detain Movement Control Order (MCO) offenders in lockups in lieu of issuing them with compounds.

2. As we have said repeatedly since the pandemic began, putting offenders in detention centres violates the principle of social distancing which is key to defeating COVID-19 and underlies the MCO. It seems barbers and judges understand this better than the NSC (National Security Council).

3. As we have also said before, introducing new people to lockups puts prior detainees and all lockup staff at risk of contracting COVID-19. This is because prior detainees, due to illnesses, often have low immunity to disease. They are more likely to contract COVID-19.

4. We remind the IGP, the NSC, lockup staff and others about lockup data revealed by Home Minister Datuk Seri Hamid Zahidi in a parliamentary answer in March 2017. He released data for 7 years ending in 2016.

5. First, on average, 16 people died every year in lockups. The figure should be zero, because laws require lockups to admit only people who are well enough to be detained, whether for 1 night or 28 nights. The figures signal that something is awfully wrong in our lockups.

6. Second, the “reasons” the Home Minister gave signal the failure of policemen to view themselves as responsible for the lives of detainees. The reasons given for the deaths are medical conditions such as HIV-AIDS, heart conditions, hypertension. They should have been admitted to hospitals, not lockups!

7. Underlying those reasons for deaths in custody are (1) failure of lockup staff to give emergency medical assistance, (2) Standing Orders (Operating Procedures) which, according to police witnesses, require Investigation Officers to arrange for escorts to take detainees to hospitals, and (3) lack of provisions for assuring that detainees have effective access to prescription medicines. We give four examples from cases we have handled.

8. Chandran Perumal died in Dang Wangi lockup in September 2012 because he was denied medication for severe hypertension. Despite a magistrate telling lockup officers to get him medical attention, the police did not comply. In fact, they let him lie dead in his cell for 11 hours before they reported him dead. Also, two others arrested together with him were denied kidney dialysis.

9. Benedict Thanilas died in Jinjang lockup in July 2017. At the inquest into his death, it was revealed that he died because he was detained despite having just undergone heart surgery - a senior officer overruled the protest of the officer in charge of the lockup. There is also strong evidence that he was denied the eight medicines which, taken at set intervals, together with suitable diet, should have kept him alive.

10. Thanabalan Subramaniam died in Shah Alam lockup in April 2018. At the inquest into his death, two doctors said he would not have died if he had been brought promptly to a hospital for treatment.

11. Jestus Kevin died in Bentong lockup a week ago. He died before he was brought to a hospital, in the middle of the night, for treatment.

12. Third, 18 percent of those who died in lockups were foreigners. Sadly, in our society, migrant workers are regarded as second-class persons. Therefore, they are routinely abused. Many accept such abuse as fate. And, our government wilfully ignores section 334 of the Criminal Procedure Code and fails to conduct inquests into their deaths.

13. Fourth, is the fact that anyone held in a lockup and subjected to a remand hearing or trial is entitled to and will want legal representation – especially against the background of data and cases we have presented above. But for detainees to have legal representation, lawyers must travel to meet their clients and prepare their cases. They must also attend hearings. This is NOT GOOD, because such movement is contrary to the intent of the MCO. We are astonished that the Bar Council appears not to have raised this concern: detention of MCO offenders may lead to lawyers becoming the next cluster of COVID-19 victims!

14. We conclude with a final observation: the IGP and the NSC seem to think that lockups can be used for punishment rather than detention. This is an overturning of established law. Only members of the judiciary can mete out punishment. Even in a pandemic, the IGP and the NSC must operate within the law – just as the public must obey the law.

15. We call upon the IGP and NSC – and the still silent Attorney General – to avoid decisions which unwittingly promote lawlessness. We call upon them to revert to compounding offenders and trying them later, if necessary. We call upon them to act as persons under law, not persons above the law.

EDICT 15 April 2020

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