Fruit Of The Poisonous Tree

Fruit of the poisonous tree

In much of the commentary thus far on the sudden death of Kugan Ananthan while in police custody, the focus has been on the need for greater control and supervision of the police to ensure the accountability and transparency so crucial to the curbing of abuses of power. I too have written elsewhere that the Government’s refusal to establish the proposed Independent Police Complaints and Misconduct Commission (IPCMC) is impeding its ability to deal with the attitudes and practices that have resulted in a discomforting prevalence of sudden deaths in custody.

That this is an important aspect of any meaningful and coherent effort to curb abuses of power by the police cannot be emphasised enough. The issue is really a systemic one; it is the system that is failing Malaysians and allowing for the kind of horrific events that we have been made to bear witness to far too often this last decade.

Having said that, other more immediate solutions or deterrents are no less important. A transparent investigation into the death and due prosecution of all those involved to the fullest extent of the law would serve the interest of Kugan’s family and the wider public by ensuring that justice is not only done but is also seen to be done. This would go far in helping staunch the hemorrhage of public confidence in the institution. Immediate disciplinary action would reinforce the gains.

In the same vein, there is much value in seeking to understand what it is that drives those abuses that lead to injuries or even deaths in custody.

It is readily apparent that there is no legal basis for the use of force by police officers during interrogation. If a police officer uses force he is in fact assaulting and battering an individual. In doing so, he is committing a range of crimes as well as acting wrongfully in a way that would justify a claim for damages. The question of necessary and proportional force does not arise in this sort of situation unlike in situations where police officers are confronted with the risk of injury to themselves unless appropriate defensive action is taken such as may be necessary during efforts to quell riots for instance.

Notwithstanding the foregoing being a cardinal principle of policing beatings happen; sometimes to within an inch of the suspect’s life, sometimes at the cost of that life. The question is, sadism aside, why would the police officers concerned expose themselves to potential prosecutions and damages claims.

A belief in their immunity goes some way to explaining the mindset. If police officers get away with such conduct over a period of time without reproach or reprisal, they will over time form the view that their behaviour is not only acceptable it is expected. This does not however explain what it is that prompts such conduct in the first place.

I believe the answer lies in the desire of the police officer to secure a conviction. We cannot discount the fact that in constantly being confronted by criminal acts and their consequences and having to deal with a justice system that may seem to more concerned with rules and procedures rather than justice, the police officer will over time develop a single-minded approach to getting his man. He does not care about how he gets the evidence as much as he does about getting the evidence and the conviction it will lead to. In the mind of the police officer, in doing so he is putting away a bad person, making the world a safer place for it and paving the way for promotion.

While noble in intention the approach leaves much to be desired, particularly when the end result is a custodial death. The fault may however lie in part on a system of evidence that defines itself by relevancy. All evidence is admissible to trial as long as it is relevant. As long as it is not a confession that is in issue (the law requires that to be voluntary) it does not matter that the evidence was the by-product of brutalizing that may in itself be the subject of criminal prosecution.

A solution may as such lie in a rethinking of those principles pertaining to the admissibility of evidence. The exclusionary rule implemented in the courts of the United States is a model worth considering. That rule renders evidence inadmissible if the means by which it was obtained is illegal, such evidence being the “fruit of the poisonous tree”. It goes a long way to remove the incentive to commit the kind of conduct under discussion.

Though in many ways, the refashioning of admissibility principles is really a matter for Parliament, the Malaysian courts have a limited discretion that can be wielded in such a way so as to compel respect for those constitutional guarantees that such conduct violates. This most recent tragedy is reason enough for the courts to start considering the possibilities.

(Malay Mail; 3rd February 2009)

MIS

Is The Die Cast?

Though it is not yet possible to conclude what it is that occurred during the last hours of the life of Kugan Ananthan, those few facts with which the public has been acquainted with strongly suggest some measure of culpability on the part of those police offers involved in his interrogation. It is a fact that Kugan died in police custody during an interrogation in which he had been severely beaten. It is also a fact that the Public Prosecutor has classified the death as having been caused by murder for the purposes of investigations and the police officers concerned suspended.

It must however be emphasized that until and unless the police officers concerned are convicted, they are innocent of any crime. Their guilt should not be prejudged. We should also not rush to any conclusions on the racial dimensions of the incident as there is insufficient material available on which we can form any conclusion.

Having said that, questions must be asked. There is an urgent need for Malaysians to understand what it is that occurred and why it happened. We must also be made to understand why it is the police force responded as it did when news of the death surfaced. Questionable reactions on the part of the ranking police officer in charge have regrettably resulted in an uneasy belief that the truth is somehow being avoided.

The context of this latest tragedy cannot be overlooked. The prevalence of sudden deaths in police custody have been a source of concern for some time now. They were one of the main focus areas of the Dzaiddin Commission established in 2003 to look into the operation and management of the Royal Malaysia Police.

It is not insignificant that the Commission found there to have been a worrying level of abuses of power on the part of police officers coupled with a lack of due regard to the civil liberties in the discharge of their duties. It is equally compelling that the Commission implicitly concluded that the self-regulating the current Police Force Commission in effect allows for had allowed this very worrying state of affairs to have come into existence when it strongly recommended the urgent establishment of an Independent Police Complaints and Misconduct Commission (IPCMC).

The stark reality is that sudden deaths such as Kugan’s are unnecessary and could in all probability be avoided if there are sufficient controls in place. The prevalence of abuses of power regrettably points to safeguards being inadequate despite the obvious need for them. It could as such be said that Kugan died at the hands of a system that, through studied indifference, has nurtured an environment in which police officers seemingly feel justified in taking the law into their own hands.

The consistent refusal on the part of the Government to establish the IPCMC despite the obvious need for the external, and life saving, control it would allow for is mystifying. As has been stressed for many years, the number of deaths associated with the police force is uncommonly high. Allowing this state of affairs to perpetuate is only going to foster the impression that extra-judicial killings of the kind more commonly associated with banana republics is a defining feature of this nation. Public confidence will not be shored by yet another high profile case in which police officers are accused of murder.

It is sad to note that the Government’s reluctance seems to be prompted more by a desire to appease the police force rather than a rejection of the merits of the IPCMC recommendation. This appears to be motivated by a need on the part of the Barisan Nasional, and in particular UMNO, to enlist the police force to further its political causes, a process which suits the convenience of the police force as long as it serves its interests. This quid pro quo is to an extent reflected in the Government’s willingness to implement measures recommended by the Dzaiddin Commission, including legislative amendments aimed at protecting due process rights of arrested persons, that have not put it on a collision course with those who control the police force.

In this, it is impossible to ignore the fact that the only real opposition to the IPCMC has come from the police force itself. That this opposition is manifestly self-serving, and such of little credibility, is demonstrated by the conclusions of the Dzaiddin Commission that abuses of power were systemic and took place under a shroud of pervasive corruption that engendered a lack of transparency and accountability. It is for primarily this reason that the IPCMC was recommended.

This is not to say that the Government or the police force condones extra-judicial killing or torture. I do not believe that either institution does. The high incidence of such deaths however gives rise to the question of whether such deaths are perceived as sometimes being necessary incidents of the kind of tough policing efforts that the country is said to require.

Viewed from the perspective defined above, the issue at the heart of the Kugan tragedy is really one of control and regulation. There is absolutely no justification for the abuse or killings of any person by the police. If there are those who think that such conduct is justifiable, then they must be shown otherwise and terminated from service.

That the Government and the police forces itself are respectively incapable of curbing abuses of power, and the incidents of such abuses including sudden deaths in custody, is now beyond doubt. It if were so this latest controversy would not have erupted and we would have seen more decisive action taken over the past five years. External control is as such clearly essential to efforts aimed at reforming the police force. The Government is however opposed to external control for reasons that appear to be primarily shaped by its political perspective, It would not be unreasonable to conclude to that end that the Government views itself as not being in any position to reign in the police.

If so, as shocking as it may be, it would seem that the die is cast and until a new Government is formed Malaysians should accept sudden deaths and other forms of abuses as a part of the Malaysian way of life.

I may have overstated the concern. There is after all one question that remains to be answered by the Government, the one that everything really boils down to all things said and done: Has the Government accepted the risk of such abuses reoccurring as the necessary consequence of a political balance it wishes to maintain? The only way it can show that it has not is to establish the IPCMC; it has every justification to do so now.

(Malaysian Insider; 2nd Feb 2009)

MIS

Did The Boy Cry "Wolf"?

I am not partial to conspiracy theories; they tend to blur the lines between fact and fiction even as they obscure the paths to the truth.

It is for that reason that I have veered away from claiming that the events leading to the proclaiming by the Government, through its agents, that Anwar Ibrahim had committed sodomy and the events since have been aspects of a conspiracy aimed at undermining Anwar Ibrahim politically and removing him as a threat.

Until now, that is. The events of the last two days have made it impossible to preclude the possibility.

The revelation that a doctor had examined Saiful Bukhari prior to his having lodged the police report and found there to have been no indications of his having been sodomized are in themselves sufficient to put into question the validity of actions taken by the police to date. Any possible doubt as to this conclusion was put to rest by the manner in which the police dealt with the revelation of the medical report.

The New Straits Times, reported yesterday that:

“Police have dismissed reports on the Internet that a private hospital doctor had not found any medical evidence of sodomy by Datuk Seri Anwar Ibrahim’s accuser as another attempt to sabotage police investigations.

“Deputy Inspector-General of Police Tan Sri Ismail Omar said the reports were also aimed at confusing the people. Police, he said, were considering investigating the news website and a blog over their reports, which referred to a medical report allegedly issued by Pusrawi Hospital on Jalan Tun Razak.

"The news report claimed that there was no evidence that Anwar’s former aide Mohd Saiful Bukhari Azlan had been sodomised. However, Ismail declined to comment on the medical report itself, saying investigations were ongoing.”

From this, it would seem that the position of the police on this is NOT that the report exonerated Anwar Ibrahim but RATHER that the news portal and the blogger (I presume these to be Malaysiakini and Raja Petra respectively since they broke the story first) conspired to sabotage on-going investigations by fabricating a story about a medical report that makes it evident that Anwar Ibrahim was not sodomized so as to confuse the public.

But wait.

The Deputy IGP declined to comment on the medical report. That and the fact that there has been no denial of the existence of such a report by the hospital concerned, point to such a report having been made. If that were the case, what sabotage could there be? Could the Deputy IGP have been concerned about the image of the force, the possible perception that it had been directed to ends that were not entirely proper? As things stood yesterday, prior to his statement to the New Strait Times, there was no reason to conclude that the police force had acted improperly as it was possible that the police knew nothing about the report and had pursued a line of investigation without having been appraised of all the relevant facts.

But then, the news report also confirms that a statement was taken from the doctor concerned, making it evident that the police knew about the medical report. This is something the Deputy IGP would surely have known.

So, what sabotage was there? This was a strong accusation, suggesting active interference with investigations with a view to derailing them. But if there was a medical report and it says what it does, and this is the truth, would that not facilitate investigations rather than impede them?

Why sabotage? The use of the word is disconcerting. As is the fact that the doctor has not been available for comment. The parallels with the sudden unavailability of Private Investigator Balasubramaniam after his sudden u-turn are worrying. Even if direct pressure has not been brought to bear on these individuals, it is manifest that the individuals concerned are sufficiently fearful of reprisal so as to have disappeared from public life. Above all, this points to things not being as they should be.

As things stand, it would seem there is no basis to form the view that Anwar Ibrahim sodomized Saiful Bukhari. The existence of the medical report puts into doubt the credibility of his accusation. The fact that Anwar Ibrahim has not been charged to date lends credence to this conclusion bearing in mind that the decision to prosecute can only be made if there is sufficient evidence for a court to convict the accused if that evidence was not rebutted by the accused (a prima facie case).

And if it is true that Saiful Bukhari was not sodomized, it is equally important that Malaysians be made aware of what prompted his accusation. The circumstances are ambiguous and suggest a range of possible motivations, range from a desire for attention on the part of Saiful Bukhari to the more sinister possibility of a full fledged conspiracy.

Whatever the case, in view of the possibility that the tremendous resources harnessed for the investigation into Anwar Ibrahim had been wasted on an exercise in futility, it would seem that there is sufficient basis for the police to commence investigation into these motivations, if only to attempt to restore confidence in the integrity of the force.

MIS

(Read also Tommy Thomas' incisive and thoughtful analysis on the impact of a second prosecution of Anwar Ibrahim for sodomy on Malaysiakini here)

Rule By Law

It has become manifest that the Rule of Law has collapsed in Malaysia.

Even if Anwar Ibrahim were to be found guilty of sodomy, the court of public opinion would have acquitted him. Even if the Deputy Prime Minister were shown to be wholly unconnected with the events underlying the Altantuya murder trial, that court would have already found otherwise. It would not matter if all the police officers, prosecutors and judges in the country were to say otherwise or if all the untruths, one way or the other, were undone. Malaysians, or at least a very large number of them, have lost faith in the system.

The Rule of Law does not exist merely for there being present the institutions of the administration of justice. Courts, prosecutors, a legal profession and a police force do not in themselves give rise to the Rule of Law. That can only occur if they collectively function in a manner that allows for the full confidence of the Malaysian public. Without such confidence, these institutions are nothing more than empty shells.

There is no longer a basis for continued public confidence in these institutions. Where the police and the Judiciary are concerned, this is a state of affairs that has for all purposes and intents been formally recognized by two Royal Commissions of Enquiry. The office of the Attorney General is suborned to the Executive and its impartiality has been put in doubt, its decisions and conduct having become increasingly questionable. The legal profession has been largely neutered by self-interest or the need for self-preservation.

Corruption or abuses of power are perceived as permeating throughout.

The intensifying sequence of events that has played out these last few weeks has done little to build confidence in the system. If at all, it has eroded what little faith there was.

The need for reform is widely acknowledged, even by the Government. That little or no real reform has taken place is similarly widely known, as is the politicking that stands in the way. A system that works to vested interest, even if it is a shell propped up by laws that have been beyond challenge, is after all a system with value for those whose interests it serves. In it, existence is a game of chance played out in an arena of fear and unchecked power, and umpired by laws utilized in aid of the arbitrariness of Government.

We should not fear and yet that is what we do. For how can it be otherwise under a Rule By Law. Under it, might is always right.

MIS