About the Author – Amy Lyons
Amy is a 3L JD/MA student at American University Washington College of Law where she is also receiving her Master’s in International Peace & Conflict Resolution. She hopes to pursue meaningful legal work in atrocity and genocide prevention. Amy was born in Borneo, Malaysia, but has family in Maine. This article was particularly important to her as she seeks to reconnect to her Asian roots and be an advocate for the AAPI community.
Introduction
The death of Sivabalan Subramaniam, an hour after the Malaysian police arrested him, has sparked national outrage.1 The police report indicates that Subramaniam died in the custody of police at 12:25 P.M., but the police did not notify Sivabalan’s sister that her brother was in “critical condition” at a hospital until 3:00 P.M.2 This story is one of many, all too-familiar civilian encounters with the Malaysian police. The Malaysian government’s lack of checks or balances on the Royal Malaysia Police (RMP) has allowed the force to commit numerous acts of torture against persons in their custody, and in some cases, that torture has led to death.3
A report by Amnesty International states that there were 140 civilian deaths in police custody from 2008 to 2018 in Malaysia.4 Since early 2021, multiple news sources have written articles detailing these atrocious acts, as well as the discrepancy in the accurate number of cases reported, suggesting that these numbers are actually much higher.5 The unhampered police powers of the Royal Malaysian Police force, and the plethora of incidents they have committed against persons in custody, constitute torture under international law.
I. Background
Unchecked police brutality continues to be an underlying problem of racism in Malaysia, just as it is in the United States.6 Police brutality, as defined by Amnesty International, includes torturous acts such as physical and mental violence to coerce or persuade someone who is detained.7 Such acts may include rape, sexual harassment, and other similar acts of violence.8 Reports demonstrate that police violence include acts such as beatings, racial abuse, and unlawful killings at the hands of police.9
Recently, through the early months of 2021, there has been a cumulation of several suspicious deaths of those while in police custody. In less than six months, six ethnic Indian men died under suspicious circumstances while detained by police.10 At present, evidence shows that police are disproportionality targeting specific ethnic minority groups in Malaysia, such as Indian men, who have endured long-standing institutionalized racism and discrimination in Malaysia.11 Immigrants also face discrimination and police brutality in Malaysia.12
In May 2021, as previously detailed, Subramaniam, a security guard, died after being held in police custody.13 Reports stated that Subramaniam had difficulty breathing after his arrest and was taken to the Selayang Hospital where he passed away.14 Subramaniam’s death occurred less than a month after police detained A. Ganapathy, a cow milk trader, who also died in a hospital as a result of police treatment while in custody.15 Subramaniam’s case of police brutality led to social media hashtag trends including “#JusticeForGanapathy” and “#BrutalityinMalaysia.”16 The Malaysian Bar, an independent bar association that upholds the law and protects the interest of the legal profession and public,17 issued a press release in reaction to these instances of police brutality.18 The Malaysian Bar called for an immediate and independent investigation into Subramaniam’s passing because the “spate of unabated deaths in custody have caused an erosion of confidence in the enforcement authorities.”19
Instances of police brutality in Malaysia are frequent.20 The Royal Malaysia Police has allegedly received several reports regarding accusations of rape,21 sexual abuse and harassment,22 and other methods of torture.23 Reports of the use of chili powders and beatings are also prevalent.24 These recent deaths are spurring demands for independent investigation and oversight by the Malaysian government.25 As a further result of police brutality in Malaysia, civil society and political organizations in the country have also demanded the creation of an Independent Police Complaints and Misconduct Commission (IPCMC), as well as a new-and-improved process to select the Inspector General of Police (IGP) and the Deputy IGP.26
II. Legal Analysis of Torture as Jus Cogens
The severity and frequency of police brutality against civilians in Malaysia violates the international jus cogens norm against torture.27 Jus cogens norms are internationally recognized as legal rules that States cannot ignore.28 While there is no exact definition or limit as to what constitutes jus cogens, most States agree that examples of jus cogens norms include torture, genocide, the prohibition of the use of force between States, the prohibition of slavery, and racial discrimination.29
Malaysia is one of the only twenty-one countries in the world that is not a signatory to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).30 Further, Malaysia has taken no action whatsoever to affiliate with the Convention.31 The CAT defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . .punishing him for an act . . . committed or is suspected of having committed, or intimidating or coercing him. . . or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. . .32
Under the CAT definition of torture, the Royal Malaysia Police has committed torture against its citizens. Numerous reports state that the police have engaged in brutality that rises to the level of torture, including acts of physical and mental suffering.33 Furthermore, specific accounts, such as those of Sivabalan Subramaniam and A. Ganapathy, demonstrate police acts of severe pain and suffering based on discriminatory reasons.34 These acts committed by the Royal Malaysia Police rise to the level of torture under the CAT because they meet the standard required of a violation of the internationally accepted jus cogens norm prohibiting torture.
International precedent supports accountability for perpetrators of jus cogens in the international legal space. Past examples demonstrate that public officials, such as police forces, have exacted torture while in power.35 A notable example of a public official exacting torture includes the former president of Chile, Augusto Pinochet Ugarte.36 Pinochet “reaffirmed the principles of international law that a state can judge the crimes of torture no matter where the acts are committed, and that not even a former head of state has immunity from prosecution.”37 Pinochet was arrested in London on October 16, 1998, on an international arrest warrant that was issued by a Spanish judge.38 Pinochet was ultimately charged with killing at least 4,000 people and overseeing Operation Condor, a secret police organization.39 The decision to exercise universal jurisdiction and charge Pinochet outside of Chile demonstrates how jus cogens norm violations, which are encompassed within universal jurisdiction, are also applicable to public officials.40
In Malaysia’s case, the Royal Malaysia Police’s brutality against its citizens, such as repeated accusations and reports of torture,41 accusations of rape, and sexual harassment, are violations of jus cogens norms. These acts of brutality are committed by public officials and with the level of physical and mental punishment to rise to the status of torture under jus cogens. Another example is the case of Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others. In this case, Mr. Jones, the respondent, argued that the prohibition of torture, as a jus cogens norm, supersedes other international law rules, including the rules of State immunity.42 This case is also largely important because it reiterated that under the principles of international law, States are required to condemn and criminalize the practice of torture and that States are further required to suppress the practice and provide trial and punishment for those found guilty of torture.43 This case calls attention to States’ responsibilities to not only condemn torture but to also actively prohibit and punish those who practice it.
III. Recommendations
Given Malaysia’s current systemic abuses by police violating internationally recognized jus cogens norms, the country must implement protections for persons against police brutality within its domestic legal framework. These human rights protections may arise from engagement with international bodies of law and through the enactment of domestic legislation.
To do so, Malaysia must (A) ratify the CAT; (B) strengthen its commitment to the Universal Declaration of Human Rights (UDHR); and (C) pass and commit to a national police oversight bill. These recommendations must be implemented so that the Malaysian Royal Police can begin to work towards recognizing and preventing violations of jus cogens norms. These recommendations would not immediately eliminate all police brutality in Malaysia, but rather these recommendations would help to provide protections to persons and instill a legal framework within Malaysian domestic laws to protect persons from torture.
A . Ratification of the United Nations Convetion against Torture (CAT)
These recommendations provide protection to persons against torture. Torture is a violation of jus cogens norms, and the most important recommendation is for Malaysia to ratify the CAT. There are many components of CAT that would be beneficial for Malaysia, such as the duty to effectively investigate allegations.44 In 2018, the World Organisation Against Torture (OMCT) and Suara Rakyat Malaysia (SUARAM) released a statement in support of Malaysian ratification of the CAT.45 This joint statement explicitly discussed the “long-standing issue of torture in police custody and inhuman treatment in prisons” and how these areas should be “prioritized as critical areas.”46 Ratification of the CAT would protect persons against jus cogens violations of torture because it would hold Malaysia accountable for its actions and broadcast to the world that these actions are impermissible.
Furthermore, an opening address at the Regional Dialogue on Malaysia’s Accession to the CAT in 2019 demonstrates the need for Malaysia’s ratification of the CAT. The current Malaysian Deputy Minister, Yb Mohamed Hanipa Maidin, explicitly called for Malaysia to improve and join the other 172 States Parties and signatories to the CAT.47 The Deputy Minister further stated that “Malaysia should no longer be among the 25 minority [countries] that has yet to make progress on combating torture and other cruel inhuman or degrading treatment or punishment.”48 Within Malaysia, there is a push for ratification of the CAT, and these suggestions must turn into action, to protect all citizens. Ratification of the CAT would be one critical step toward adequately addressing police brutality in Malaysia.
B. Implementing a National Police Oversight Bill
Finally, Malaysia should also implement a police oversight bill to ensure police accountability. Implementing a police oversight bill would bring Malaysia more in line with the CAT because Article 2 of the Convention specifically denotes that each State must take effective legislative, administrative, and judicial measures to prevent acts of torture in any territory under its jurisdiction.49
There is also strong support in Malaysia to implement a national police oversight bill. Since 2019, there has been considerable discussion within the Malaysian government regarding the Independent Police Complaints of Misconduct Commission (IPCMC) Bill,50 but these discussions have yet to advance fundamental policy changes. There are many benefits to implementing a national police oversight bill, as it would: (1) promote integrity within the police force; (2) protect public interest by dealing with police misconduct; (3) formulate and put in place mechanisms for the detection, investigation, and prevention of police misconduct; (4) to advise the Malaysian government and make recommendations on appropriate measures to promote police integrity; and (5) “exercise disciplinary control” over the police.51 This bill would be a tangible step in promoting police integrity and utilizing independent sources to make certain that integrity is implemented.
However, it is important to note that some potential challenges include the appointment of members to the IPCMC, in addition to establishing a rigorous process of background screening to ensure that the members can carry out their duties without falling into any corrupt practices such as tainted investigative and enforcement authority and lack of transparency.
C. Strengthening the Universal Declaration of Human Rights (UDHR)
Currently, Malaysia has affirmed the acceptance of the Universal Declaration of Human Rights (UDHR).52 The UDHR’s provisions are broadly accepted to reflect customary international law,53 and under the Declaration, there are thirty rights and freedoms detailed, including the right to be free from torture.54 While Malaysia has agreed to follow the UDHR, the actions exhibited by the Royal Malaysia Police demonstrate otherwise. As a member of the United Nations, Malaysia has agreed to uphold the UDHR’s principles, as well as to investigate and prosecute illegal police abuse, which the country has continually failed to exercise and affirm promptly and thoroughly.55
However, it is important to note that the UDHR is only a General Assembly resolution, so it is not binding on States but rather can help better align a State with human rights principles. Importantly to note, though, is that in conjunction with ratifying the CAT, strengthening commitment to the UDHR could result in less police brutality because it establishes firmer accountability in preventing torture while also reprimanding and prosecuting those who violate such rules and standards.
Conclusion
The Royal Malaysia Police continues to violate the internationally recognized jus cogens norm on the prohibition of torture. These actions must be seriously considered by the Malaysian government and police force, and the police force must also be independently investigated and reviewed, otherwise conditions will only continue to worsen.
The Malaysian government should ratify the CAT, implement a national police oversight bill, and strengthen their commitment to the UDHR, in order to prevent further jus cogens violations. Implementing all of these recommendations will help to protect the Malaysian citizens because combined, these three recommendations will create sustainable solutions, such as accountability for the Royal Malaysia Police.
Footnotes
1. Minderjeet Kaur, Man Dies Less than an Hour After Arrest by
Gombak Cops, Free Malaysia Today (May 20, 2021), https://www.freemalaysiatoday.com/category/nation/2021/05/20/man-dies-less-than-an-hour-after-arrest-by-gombak-cops/?__cf_chl_jschl_tk__=pmd_NbDkXVuvfrYyayZ4QVdzcN27IuPi-jQ4VNF2bDnE9tpk-1635539515-0gqNtZGzNArujcnBszQol.
2. Id.
3. See Matthew Bugher, Malaysia: Critics Are Suppressed While Police Brutality Goes Unaddressed, Article19 (July 2, 2021), https://www.article19.org/resources/malaysia-critics-sup pressed-police-brutality-unaddressed/ (detailing the criminal proceedings against individuals who have spoken out against police misconduct); see also Ramisa Nuzhat, Police Brutality in Malaysia; Block in the Road of Humanity, Medium (July 9, 2021), https://medium.com/tlmun-herald/police-brutality in-malaysia-block-in-the-road-of-humanity-90249006a079 (detailing accounts of those held in police custody who were assaulted and tortured with chili paste and ice cubes); see also “No Answers, No Apology”: Police Abuses and Accountability in Malaysia, Hum. Rts. Watch (Apr. 1, 2014), https://www.hrw. org/report/2014/04/01/no-answers-no-apology/police-abus es-and-accountability-malaysia (recounting stories of unjus tified shootings and mistreatment and deaths while in police custody by the Royal Malaysia Police).
4. Malaysia: A Historic Opportunity: Ensuring an Effective Police Commission in Malaysia, Amnesty Int’l (July 6, 2020), https://www.amnesty.org/en/documents/asa28/2125/2020/en/.
5. Suaram Disputes Home Minister’s Data on Custodial Deaths, Free Malaysia Today (Sep. 21, 2021), https://www.freemalaysiatoday.com/category/nation/2021/09/21/suaram-dis putes-home-ministers-data-on-custodial-deaths/.
6. See Mapping Police Violence, https://mappingpolicevio lence.org/ (last visited Apr. 15, 2022) (identifying the num ber of U.S. deaths from police violence each year, with 1,141 people killed in 2021).
7. Police Violence, Amnesty Int’l, https://www.amnesty.org/ en/what-we-do/police-brutality/ (last visited Apr. 15, 2022).
8. Id.
9. Id.
10. Heather Chen, Dozens of Malaysian Indians Died in a Police Custody. Not a Single Officer Has Been Charged., Vice News (July 21, 2021), https://www.vice.com/en/article/qj8e95/ma laysia-police-brutality.
11. See id. (highlighting that over 23 percent of custodial deaths in 2018 were ethnic Indians, even though the community comprises only seven percent of the Malaysian population); see also Nuzhat, supra note 3 (noting that reports disagree as to whether police are actually targeting only Indians, but not ing that Indians are disproportionately represented in police custody deaths).
12. See Zulaikha binti Zainal Efendi, Black and White: A Look into Malaysia’s Police Brutality, Malaysian Students’ Glob. All. (Dec. 1, 2020), https://www.msga.my/article-series/ black-and-white-a-look-into-malaysias-police-brutality (not ing police retaliation in response to an Al-Jazeera documenta ry exposing the poor treatment of migrants in Malaysia).
13. Press Release: Firm Action Must Be Taken to End Deaths in Police Custody, Malaysian Bar (May 24, 2021), https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-release-firm-action-must-be-taken-to end-deaths-in-police-custody.
14. Kaur, supra note 1.
15. Id.
16. Id.
17. About Us, Malaysian Bar, https://www.malaysianbar.org. my/article/about-us/malaysian-bar-and-bar-council/about us/facts/about-us (last visited Apr. 19, 2022).
18. Firm Action Must Be Taken, supra note 13.
19. Id.
20. A Historic Opportunity: Ensuring an Effective Police Commission in Malaysia, supra note 4 (highlighting that between 2008 and 2018, there were 140 deaths in police custody).
21. See Amnesty Int’l, Malaysia: Amnesty International Sub mission to the UN Universal Period Review 17th Session of the UPR Working Group, October–November 2013 6 (Mar. 2013), https://www.amnesty.org/en/wp-content/uploads/2021/06/ asa280032013en.pdf; see also Nadirah H. Rodzi, Shocking Rape of Malaysian Teen in Police Lock-up Raises Calls for Independent Inquiry, Strait Times (Jan. 27, 2021), https:// www.straitstimes.com/asia/se-asia/shocking-rape-of-malay sian-teenager-in-police-lock-up-raises-calls-for-independent.
22. KL Traffic Cop Being Probed Over Claims of Sexual Ha rassment, Star (Feb. 13, 2021), https://www.thestar.com.my/news/nationy/2021/02/13/kl-traffic-cop-being-probed-over claims-of-sexual-harassment.
23. Id.
24. Human rights organization SUARAM and Freedom Film Network created a short film exposing torture techniques used by Malaysian police officers, including the application of paint thinner and chili powder on a teenager’s skin. Geraldine Tong, ‘Chili Powder and Thinner’ Depicts Teen Detainee’s Brush with Police Brutality, Malaysiakini (June 13, 2021, 4:48 AM), https://www.malaysiakini.com/news/578769; Malaysia: Critics Are Suppressed While Police Brutality Goes Unaddressed, Article 19 (Nov. 7, 2021), https://www.arti cle19.org/resources/malaysia-critics-suppressed-police-bru tality-unaddressed/.
25. Chen, supra note 10.
26. Police Cartel and Police Independence, All Women’s Action Soc’y (Apr. 30, 2021), https://www.awam.org. my/2021/05/11/police-cartel-and-police-independence/.
27. U.N. Hum. Rts. Off. High Comm’r, UN Experts Call For an End to Police Brutality Worldwide (Aug. 11, 2021), https://www.ohchr.org/en/press-releases/2021/08/un-ex perts-call-end-police-brutality-worldwide.
28. Anne Lagerwall, Jus Cogens, Oxford Bibliographies (May 29, 2015), https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0124. xml (defining jus cogens as a Latin phrase that translates to “compelling law” and includes principles of norms within the international law community that cannot be written out of laws nor set aside).
29. Id.
30. See U.N. Hum. Rts. Off. High Comm’r, Status of Ratifica tion Interactive Dashboard: United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, https://indicators.ohchr.org/ (last visited Apr. 15, 2022) (to view Malaysia’s ratification status, select “Conven tion against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” under “Select a Treaty” or select “Malaysia” under “Countries”).
31. See UN Treaty Body Database, U.N. Hum. Rts. Treaty Bodies, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyEx ternal/Treaty.aspx?CountryID=105&Lang=EN (last visited Apr. 15, 2022) (showing no signature, ratification, accession, or succession from Malaysia to the Convention).
32. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT].
33. 2020 Country Reports on Human Rights Practices: Malaysia (March 30, 2021), U.S. Dept. of State, https://www.state.gov/ reports/2020-country-reports-on-human-rights-practices/ma laysia/ (detailing high levels of lawful killings by the govern ment and its agents, as well as repots of torture and inhuman treatment) [hereinafter 2020 Country Reports].
34. See Chen, supra note 10 (reiterating that both men suc cumbed to their injuries in prison as a result of brutal assault).
35. See Q&A: The Case of Hissène Habré Before the Extraordi nary African Chambers in Senegal , Hum. Rts. Watch (May 3, 2016), https://www.hrw.org/news/2016/05/03/qa-case-hiss ene-habre-extraordinary-african-chambers-senegal (providing background on Habré, who faced multiples charges of crimes against humanity, torture, and war crimes); see also Nurem berg Trials, History (https://www.history.com/topics/world war-ii/nuremberg-trials (last updated Jun. 7, 2019) (detailing the Nuremberg Trials, a series of thirteen trials in which Nazi war criminals were charged with war crimes).
36. See Regina v. Bow Street Metropolitan Stipendiary Magis trate (Ex parte Pinochet Ugarte) (No. 3), [2000] 1 A.C. 147 (H.L.) (appeal taken from Q.B.) (U.K.); see also Tom Gjelten, Augusto Pinochet: Villain to Some, Hero to Others, NPR (Dec. 10, 2006), https://www.npr.org/templates/story/story.php?sto ryId=6606013 (highlighting the acts of torture committed by President Pinochet’s security forces both during their coup to overthrow President Salvador Allende and in Pinochet’s ensuing years in power).
37. The Pinochet Precedent, Hum. Rts. Watch (Nov. 7, 2021), https://www.hrw.org/report/1998/11/01/pinochet-precedent/ how-victims-can-pursue-human-rights-criminals-abroad (quoting Reed Brody, a member of the Human Rights Watch who worked on the Pinochet case).
38. The Pinochet Precedent, Transnational Inst. (Nov. 17, 2005), https://www.tni.org/es/node/6619 (listing Pinochet’s accusations of crimes against humanity, which included genocide, torture, and terrorism).
39. Id.
41. 2020 Country Reports, supra note 33.
42. Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya as Sau diya (the Kingdom of Saudi Arabia) and others, [2004] EWCA (Civ) 1394, [60] (Eng.).
43. Id.
44. CAT, supra note 30, art. 12.
45. Towards a Malaysian Ratification of the Convention against Torture, World Org. against Torture & SUARAM (Sept. 25, 2018), https://www.omct.org/en/resources/statements/to wards-a-malaysian-ratification-of-the-convention-against-torture.
46. Id.
47. Yb Mohamed Hanipa Maiden, Deputy Prime Minister, Prime Minister’s Department, Opening Address at the Re gional Dialogue on Malaysia’s Accession to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) (July 8, 2019), available at https://www.bheuu.gov.my/pdf/ucapan/ TEKS%20UCAPAN%20YBTM/Ucapan%20YBTM%20-%20 UNCAT.pdf.
48. Id.
49. CAT, supra note 30, art. 2.
50. See Independent Police Complaints of Misconduct Com mission Bill 2019 (Malay.), available at https://www.cljlaw. com/files/bills/pdf/2019/MY_FS_BIL_2019_25.pdf; see also Ida Lim, So What Exactly Is the IPCMC Bill All About and Why Is It Important, Malay Mail (July 23, 2019), https:// www.malaymail.com/news/malaysia/2019/07/23/so-what exactly-is-the-ipcmc-bill-all-about-and-why-it-is-import ant/1773903 (outlining essential aspects of the Bill and its implications).
51. Independent Police Complaints of Misconduct Commission Bill, supra note 50, at 7.
52. “I’m Scared to Be a Woman”: Human Rights Abuses Against Transgender People in Malaysia, Hum. Rts. Watch 1, 63 (Nov. 7, 2021), https://www.hrw.org/sites/default/files/reports/ma laysia0914_ForUpload.pdf.
53. Id.
54. See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948); see also Universal Declaration of Human Rights, Amnesty Int’l, https://www.amnesty.my/universal-declaration-of-hu man-rights/ (last visited Apr. 15, 2022).
55. “No Answers, No Apology”: Police Abuses and Accountability in Malaysia, Hum. Rts. Watch (Apr. 1, 2014), https://www. hrw.org/report/2014/04/01/no-answers-no-apology/po lice-abuses-and-accountability-malaysia.