Custodial Deaths And Suppression Of The Media In Malaysia: Is There An End In Sight?

A Ganapathy. S Sivabalan. S Surendran. 

These are the names of the three men who recently died whilst under the custody of the Malaysian authorities. 

A 40-year-old milk trader, A. Ganapathy was first arrested and taken to Gombak police station on 24 February – under a 13-day court remand – to assist police investigations into his brother. He proceeded to spend 12 days in police custody before being admitted to Selayang Hospital’s Intensive Care Unit. After Ganapathy indicated pain in his leg and was cleared of any wrongdoing, he was moved between the magistrates’ court and the hospital on four separate occasions. 

It was on 18 April that he succumbed to sepsis as a result of necrotising fasciitis in the right leg at the hospital, revealed by the post-mortem report. Similarly, S Surendran, the latest victim of death under custody, was described as having died from “septic shock and multiple organ failure,” as reported in Free Malaysia Today

One month prior, on 11 March, Ganapathy’s mother S. Thanaletchumy lodged a police report alleging that her son was beaten with a rubber hose while in custody. She claimed it directly led to the amputation of his leg. Both the hospital and police claim otherwise, attributing the pain and subsequent amputation to kidney problems and a motorcycle incident. Despite A. Ganapathy having a history of diabetes and heart problems, his family claimed he was in good health before the arrest. Notably, his sister had brought medicine to A. Ganapathy while in detention, but was barred from seeing him.

As reported by SAYS, Ganapathy’s lawyer Ganesh indicated that the family is intending to sue the police and Selayang Hospital for alleged negligence, resulting in the death of A. Ganapathy. Gombak police chief Arifai Tarawe refuted claims of abuse, claiming that Ganapathy failed to tell the judge or medical personnel about the supposed beatings. However, Ganesh contended the doctors’ were responsible for intervening and requesting A. Ganapathy’s hospital stay to be extended for monitoring. 

A month later, news of 42-year-old security guard S. Sivabalan’s death rocked the public. Post-mortem reports confirmed he died roughly 70 minutes after he was arrested by Gombak police, due to a heart attack. Following his 2016 arrest for extortion, Sivabalan reportedly had difficulty breathing and could not be revived by the Selayang Hospital emergency team. Though outgoing Gombak district police chief Arifai suggested they would investigate Sivabalan’s death, several Members of Parliament (MPs) have expressed outrage. 

According to Free Malaysia Today, Syed Saddiq, Muar MP and former Youth and Sports Minister, called Sivabalan’s death “intolerable,” especially since it took place in the exact police station as the late Ganapathy’s. However, his earlier comments on police brutality and calls for “justice” have landed him in questioning by the authorities. Though Saddiq pledged full cooperation, his investigation indicates the increasing clampdown on media outlets and government critics, despite the fact that freedom of expression is guaranteed under the Federal Constitution.

Already, outgoing police chief Arifai warned the public against commenting on Ganapathy’s death, threatening prosecution by law should they disregard his words. On 21 May, Arifai threatened to sue news outlet Free Malaysia Today for 10 million Malaysian ringgits (equivalent to $2.4 million U.S.) over their articles, “Under-fire Gombak police chief transferred to Integrity Unit” and a similar report in Bahasa Melayu, which he suggests constitute false reporting and jeopardized his reputation. A group of 12 non government organizations, led by Amnesty International, have signed a joint statement condemning Arifai’s intimidation of Free Malaysia Today, over coverage of Ganapathy’s death. The independent news portal, however, has stood their ground and will not apologize nor retract their reports. 

This follows the 18 May investigations into three Malaysiakini journalists who published three reports probing into the role of the Gombak police in Sivabalan’s death. They were taken into questioning under 505(b) of the Penal Code which penalizes those who make remarks “with intent to cause, or which is likely to cause, fear or alarm to the public […] whereby any person may be induced to commit an offense against the State or against the public tranquility.” 

Despite the threats and ongoing investigations, news of A. Ganapathy, S. Sivabalan, and S. Surendran’s deaths has been met with outrage online. 18 youth group organizations, including Undi18, The Noeo Project, and MISI: Soildariti, for instance, have pushed petitions and signed a joint statement imploring the government to introduce a comprehensive Independent Police Complaints and Misconduct Commission (IPCMC) Bill. 

First proposed in 2005, and again in 2019, the IPCMC would represent an independent body responsible for investigating misconduct at every level of the Royal Malaysian Police (Polis Diraja Malaysia). In 2005, the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police recommended that the IPCMC have the power to prosecute police in criminal court; disciplinary powers lacking in the now-scrapped 2019 IPCMC and proposed 2020 Independent Police Conduct Commission (IPCC) bills.

As politicians renew calls for the IPCMC, they should recall the distinction between the bills proposed in 2005 and 2019. Seputeh MP Teresa Kok, for instance, was reported by South China Morning Post as saying, “Both Muhyiddin (Prime Minister) and Saifuddin (Communications and Multimedia Minister) were in the previous cabinet in the Pakatan Harapan government where establishing IPCMC was one of the key agendas.” The Seputeh MP was previously part of Pakatan Harapan (PH), who defeated the 61-year rule of Barisan Nasional (The National Front) in 2018. PH-affiliated leaders may need to distinguish between party politics and their proposed policies.

Suhakam, the Human Rights Commission of Malaysia takes particular issue with the aforementioned IPCC. They are primarily concerned with the “lack of independence and weakened functions of the IPCC,” not only because of its lack of authority, but the fact that the proposed bill accords appointment of the IPCC’s secretary to the Minister of Home Affairs (Malay Mail). The possibility that members of the police could be afforded responsibility over the IPCC raises serious conflicts of interest.

The alarming rate of reported custodial deaths have caused numerous politicians to demanding greater police accountability. The Home Ministry has vowed to evaluate the standard operating procedures of detention centres and take action against anyone found responsible for the deaths of A Ganapathy and S Sivabalan, following a memorandum from several opposition elected representatives. The Enforcement Agency Integrity Commission (EAIC) also plans to conduct a comprehensive study on custodial deaths. Many, however, are fearful of the continued lack of transparency, favouring the formation of the IPCMC as well as inquests into the victims’ deaths.

Batu MP P. Prabakaran called for the release of closed-circuit television (CCTV) footage where Ganapathy was held, emphasizing the importance of the chronology of events. He further inquired into the supposed RM73 million (USD17.7 million) approved in 2019 for the installation of CCTV in all detention centers, questioning the progress of that project (SAYS).

Since CCTV footage can be difficult to obtain – as was the case during an investigation into Benedict Thanilas’ death – it is vital that inquests into the recent custodial deaths are first carried out. The non-governmental organization Eliminating Deaths and Abuse in Custody Together (EDICT), are particularly strong proponents of inquests. According to them, the Attorney-General’s Chambers are empowered to carry out an inquest under Section 339 of the Criminal Procedure Code, which mandates that a death in custody must be investigated and only a coroner may determine the cause of death. 

Unlike investigations by Suhakam or the EAIC, any methods used or findings from these inquests have to be made public. On top of this, AG Kalidas, President of the Malaysian Bar, highlighted his support for an independent Coroners Act in relation to deaths under suspicious circumstances. This would support inquests by strengthening “the role of Coroners through fundamental structural reforms, including the ability to supervise and direct comprehensive investigations to determine the cause of death.” 

While significant conversations are taking place regarding policy and systematic processes, the socio-economic dimension of custodial deaths needs closer inspection. A Ganapathy, S Sivabalan, and S Surendran were all ethnic Indian men. According to the Home Ministry, there were 257 deaths in police custody from 2002 and 2016. The proportion of Indian deaths is nearly eight times their proportion of the population. 

This is complicated by the fact that only 62 of the 257 deaths were reported in the media, the majority of which feature Indian people. The same analysis found that custodial deaths involving Malay people are majorly underreported. Underreporting is largely due to the victim’s lack of contactable family members, lack of awareness of which organizations to reach out to for help, and NGOs’ inability to monitor all detention centres in the country. 

Even then, families of the victims’ whose deaths that receive media attention and get investigated, may never see justice. Police officers are rarely brought to court, even if an inquest favours the victim; when they are, the federal government provides defense lawyers in support of the police officers. At this point, families may not have the resources for a court battle.

This leads to some root causes of the issue: the intersection of race, class (ethnic income inequality), and poor conditions. While a systematic review of the Royal Malaysian Police is much needed, including greater consequences for those who abuse their power, custodial deaths will only continue to occur if detainees lack the resources for proper legal counsel or if they are subjected to dirty drinking water, unhygienic facilities, and inadequate medical attention. Politicians have a role in allocating budgets toward more humane facilities and providing support (financial, legal, or otherwise) to bodies, organizations, and NGOs that are able to support those detained, or their families.

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