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EAIC can probe misconduct claims in custodial death, says retired judge

9 Jun 2017

gopal-sri-ram-eaic-1

PETALING JAYA: Failure to hold an inquest to determine the cause of the death of S Balamurugan does not stop an inquiry into whether there was misconduct by policemen, a retired judge said.

Gopal Sri Ram said the power to probe into misconduct of law enforcement officers by the Enforcement Agency Integrity Commission (EAIC) must include the authority to determine the circumstances leading to the alleged misconduct.

“The alleged misconduct cannot be inquired in a vacuum,” he told FMT.

The former Federal Court judge, who is now practising law, said this in response to the EAIC carrying out an inquiry into possible misconduct by policemen at the Klang Utara police station where Balamurugan died in custody on Feb 7.

Under Section 334 of the Criminal Procedure Code (CPC), it is mandatory for an inquest to be held when a person dies in a police lock-up, prison or mental hospital.

However, the authorities did not hold an inquest to determine the cause of death of Balamurugan in police custody, and who, if anyone,was criminally responsible for it; nor has anyone been prosecuted.

Sri Ram said the EAIC was perfectly within its powers to conduct the on-going investigation into circumstances leading to the alleged misconduct.

He said the CPC was a general law while the law constituting the EAIC was a specific legislation.

“It is a rule on interpretation that a special law on a subject will prevail over a general law,” he added.

He said the EAIC could not “reach the end” without undertaking an examination of the circumstances regarding the allegation of misconduct.

Sri Ram said evidence and findings in the EAIC inquiry could be referred to, and witnesses cross examined, in a criminal or civil trial.

“The credit of witnesses could be impeached if their statements in the EAIC inquiry and trial are inconsistent,” he added.

Meanwhile, lawyer M Visvanathan said an inquest must be conducted first and the EAIC could complement the findings of the coroner whether there was misconduct by the law enforcement officers or agencies.

“EAIC cannot exist independently and its findings into the cause of death in the process of determining misconduct will cause confusion to the public,” he said,

He said the notion that the EAIC’s inquiry took precedence over an inquest would result in concern that coroners might abdicate their functions.

Visvanathan said a chapter in the CPC on inquest procedures was a specific law and there was also a practice direction by the court on how inquests must be conducted.

He said a verdict arrived by the coroner could be appealed or revised in the High Court, unlike an EAIC finding.

Visvanathan said the EAIC, at the end of its inquiry, could only dismiss a complain of misconduct, suggest disciplinary action be taken against errant officers or propose appropriate criminal prosecution by the Attorney-General.

The lawyer, who is appearing for the family of Syed Mohd Azlan Syed Mohamed Nur, said the EAIC had refused to share documents during its inquiry.

This, he said, revealed the lack of cooperation by EAIC officers and lawyers holding a watching brief for family members of the deceased.

“We will be filing a negligence suit against the government and will have to secure material evidence via discovery procedure,” he added.

The EAIC in 2015 said that the use of physical violence by police during the arrest and questioning in the Sungai Rengit police station in Johor was the cause of Syed Mohd Azlan’s death in custody in 2014.

Its investigations also found attempts to obtain evidence from the 25-year-old during interrogation had resulted in 61 separate injuries on various parts of his body.

Resource : Free Malaysia Today