Time for formalised, detailed police standards

The news of A. Ganapathy has flooded the news of late. The public has asked many questions surrounding his death – how were the injuries sustained? How were investigations conducted? Are we sure that there is no proof that A. Ganapathy was abused in custody? Shockingly, the police have instead responded by asking the public to stop commenting.

The Bar Council has reiterated its stand in calling for the tabling of an Independent Police Complaints and Misconduct Commission (“IPCMC”) and Coroner’s Act. Whilst this will ensure transparency in investigation (as we cannot have the police investigating misconduct of themselves) what I am interested in are the legal standards by which we hold our police to. This too, would ultimately form the bedrock of how the IPCMC’s investigation, assuming its formation does see the light of day.

In my view, this standard would mitigate, to a large extent, the problems of misconduct, corruption and abuse of power that have tarnished the police force. The implementation of these standards should be by way of an Act of Parliament, similar to the United Kingdom’s Police and Criminal Evidence Act 1984 (“PACE Act”).

The Act should be crafted in a way so that it can be used both in criminal and civil suits. Whilst the downside is that this legislation has to be used in Court, the upside is that if investigations are not conducted according to those standards, it will affect the admissibility of evidence. The practical terms are these: with police performance currently tied, to a certain extent, with successful prosecution – this standard should go some ways in forcing clean investigation and good behaviour.

Let me highlight three provisions from the UK’s PACE Act as an example, so that readers can have a flavour of the standards I am referring to. Please keep in mind that the PACE Act is a very extensive document.

First, when someone is detained in the UK, the PACE Act requires the investigating police to provide them notice of their rights, which includes access to legal advice, keeping a copy of custody records, the right to have access to material to challenge the lawfulness of their detention, the maximum period of their detention and reviews, the right to medical assistance, the right to have access to evidence before the trial.

Second, the conditions of a detainee’s cell. The cell must be adequately lit, but dimmed to allow overnight sleep. It must be adequately cleaned and ventilated. Blankets, mattresses and pillows must be supplied and in sanitary conditions. Access to toilets and washing facilities must be provided. For any 24-hour period, the person detained must be allowed 8 hours of continuous rest.

Third, with regards to clinical attention, the onus is on the custody officer to call for medical attention, even if the detainee does not request for it. If the detainee so requests, medical attention must be provided as soon as reasonably practicable. With regards to a detainee who is suffering from mental illness, they must be visited at least every hour.

These conditions must be tailored to the Malaysian context. In light of deaths in custody, what might be necessary on our shores is 24-hour CCTV and audio recording. Standards must specify the type of device acceptable, how frequent must checks take place to ensure such devices are in working order, what to do when there is a failure of device, that such recording should be done on a secure network, storage of recordings and its duration – the list goes on.

Part of the reason why these standards exist in the UK is to uphold the integrity of evidence, to ensure that they are obtained without coercion. Needless to say, every detail must be recorded to protect both the police and detainees. These are tough standards to meet – but they are nevertheless important, as this upholds the principle that one is innocent until proven guilty.

In ending this piece, I would like to offer my sincere condolences to A Ganapathy’s family.

SA FOR SUBANG JAYA
Media statement by Michelle Ng Mei Sze in Kuala Lumpur on Sunday, 2nd May 2021