Why Malaysia should ratify the UN Convention Against Torture

eric-paulsanBy Eric Paulsen

On 10 December 1984, the same day Anglican bishop Desmond Tutu was honoured with the Nobel Peace Prize for his non-violent struggle against the apartheid regime in South Africa, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted by the UN General Assembly. Following ratification by 20 State Parties, CAT entered into force on 26 June 1987. Since then, an overwhelming majority of 161 State Parties have joined the Convention. As you might have guessed, Malaysia is not one of the State parties.

CAT is one of the first international treaties to globally address the issue of prevention of torture. The Convention prohibits torture – defined as the intentional infliction of severe mental or physical suffering for a specific purpose by a public official, who is directly or indirectly involved.

The objective of the Convention is to compel State Parties to emphatically prevent and criminalise acts of torture, and build instead a framework to cultivate respect for human rights. It compels State Parties to take ‘effective’ measures to prevent acts of torture in its territories and jurisdiction. It prohibits absolutely torture under any circumstances including during a state of war, internal political instability or any other public emergency. Further, ‘an order from a superior officer or a public authority’ cannot be used as a justification for torture.

We may be accustomed to think that only particular classes of individuals, such as those affiliated with the lower or criminal class are more vulnerable to the risk of torture. However, the truth is anyone could be victims of torture. No one should be considered insusceptible to the risk of torture, and the act of torture may be found in many guises. For example, who would have thought Anwar Ibrahim, then Deputy Prime Minister could be handcuffed, blindfolded and viciously beaten by then Inspector-General of Police Rahim Noor? More recently, Maria Chin, Chairperson of Bersih was detained without trial under the Securities Offences (Special Measures) Act and kept under solitary confinement, an act which can amount to torture.

The recent deaths of S. Balamurugan and M. Thanaseelan

On 8 February 2017, S. Balamurugan was found dead in police custody at the North Klang police district headquarters. The 44-year-old suspect had been taken to the Magistrate’s Court the day before for a remand order, where he was seen to be badly bruised, in a weakened state, and unable to walk. When offered a sip of water by his lawyer, he had blood flowing out of his mouth and nose. Upon seeing this, the Magistrate denied the police’s application for remand and Balamurugan was ordered to be released. The Magistrate also instructed the investigating officer to take Balamurugan to the hospital. However, instead of complying with the Magistrate’s order, the police ‘rearrested’ Balamurugan and took him back to the police station, where he later died. On the next day, the pathologist from the Tengku Ampuan Rahimah Hospital in Klang who conducted the post-mortem, concluded rather incredibly, the deceased had died from ‘heart problems’.

On 18 February 2017, after much public uproar and protest, and an application by the deceased’s family to the Shah Alam High Court, a second post-mortem was done at the Kuala Lumpur General Hospital which concluded the cause of death was ‘coronary artery disease with multiple blunt force trauma’.

This different conclusion – an additional line that fundamentally alters Balamurugan’s cause of death is crucial in understanding why so many people have died in custody and will continue to do so unless the Ministry of Health, the hospitals and pathologists start taking custodial deaths seriously, and not downplay evidence of torture, mistreatment and neglect.

Less than three weeks later on 25 February 2017, another detainee was found dead at the Bukit Sentosa Police Station in Bukit Beruntung. Although no assault was detected and preliminary findings indicated M. Thanaseelan, aged 43, had died from blood poisoning due to “perforated gastric ulcer”, his death was entirely preventable. According to the pathologist who conducted the post-mortem, the deceased would have been in chronic pain for at least a week due to his serious condition. Thanaseelan was in fact brought to the Kuala Kubu Hospital for gastric treatment several hours before his death but he was only prescribed with antacid instead of being properly diagnosed and admitted into hospital.

Institutional failures

All police lock-up facilities are subjected to the Lock-Up Rules 1953 that guarantee a minimum standard of treatment for detainees. Unless the authorities can show otherwise, they are in serious breach of multiple rules in both of these cases.

If a matter ever comes to court, it is not uncommon to find police officers resorting to the culture of covering up to form “a blue wall of silence”, whereby the police would claim they did not know what happened to the deceased. This was noted in the case of Teoh Beng Hock, where the Royal Commission of Inquiry observed during proceedings that ‘there are inherent and harsh realities of meeting “a blue wall of silence” based on brotherhood ties among officers of the organizations involved.’

In the few recent court inquests into the deaths of C. Sugumar, P. Chandran, and Karuna Nithi – that found the police culpable, these verdicts have not translated into any criminal prosecution or disciplinary action being taken against any of the policemen involved (based on publicly available information).

The frequency of custodial death cases should not come as a shock as according to police statistics, the number of detainees who died while under their custody from 2000 to 2014 were 255 deaths.

Sadly, these statistics are a grim reminder of our institutional failures, from the police force, hospitals, Public Prosecutor’s office and even the judiciary in tackling custodial deaths. Note that the number of deaths in prisons and immigration detention centres are higher – with 1654 deaths in prisons between 2010 and February 2017 and for immigration detention centres, 82 deaths in 2015 and 35 deaths in 2016.

A call for Malaysia to ratify the Convention Against Torture

Over the years, many have voiced concern over the persistence of custodial deaths in Malaysia. Since 2015, the Human Rights Commission of Malaysia (Suhakam), Amnesty International Malaysia, the Bar Council, Suara Rakyat Malaysia (Suaram) and Lawyers for Liberty have formed a coalition named “ACT4CAT” in order to campaign for the government to ratify the Convention.

Torture is an inhumane and barbaric practice, and justifiably banned under international law. Torture corrodes the rule of law and undermines the criminal justice system as any information or conviction derived from torture is inherently unreliable. By ratifying CAT, the government will be making a commitment to eradicate torture and other cruel, inhuman or degrading treatment or punishment in Malaysia. Like all State parties, Malaysia would be expected to take all necessary steps – legislative, administrative and judicial measures to prevent acts of torture.

The Convention would also introduce a new mechanism of accountability as, among others, the UN Committee against Torture (independent experts that monitor implementation of the Convention) will be empowered to make inquiries on torture in State parties. The signatory State would also have to submit periodic reports for review to the Committee on how CAT provisions are being complied with.

Although one may hold valid concerns about the actual degree of compliance even if Malaysia was to ratify CAT, our government actually possesses a noteworthy track record in meeting some of its international convention obligations. This may be illustrated by Malaysia’s ratification of the Convention on the Rights of the Child (CRC) where a key outcome is the Child Act 2001 which has provided a legal framework to better protect children from violence, abuse, neglect, and exploitation.

Granted, no swift end would come to cases of death, mistreatment and neglect of detainees in custody, but Malaysia’s ratification of CAT would certainly mark a new beginning, as we join the international community in eradicating torture from all state authorities and facilities.

Eric Paulsen is the Executive Director of Lawyers for Liberty

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