Striking balance between rights and evidence

By G Selvakumar, NST

THE death of Teoh Beng Hock has prompted the setting up of yet another Royal Commission of Inquiry. Its main scope will be on the procedures of interrogation adopted by the Malaysian Anti-Corruption Commission, which will have far-reaching consequences for all investigating agencies.

This sudden-death case within the premises of the MACC has put the agency in a bad light, especially regarding its methods of investigation.

The police, who by law are investigating this incident according to sudden-death procedures, will focus on the cause of death and whether there were any indications of foul play.

But the police have had similar problems with the deaths of detainees in their custody. Many of these cases have seen no clear finality, either in terms of administrative accountability or criminal responsibility.

Certainly, the police's findings in Teoh's death will leave much to be desired in terms of public confidence. The formation of this RCI is, therefore, appropriate and timely.

The proposed Independent Police Complaints and Misconduct Commission (IPCMC) would not have the terms of reference to hold such an inquiry, as it is meant solely for the police. This incident might explain the police force's reluctance to accept the IPCMC — other enforcement agencies with similar investigative powers are untouched.

Lawmakers should ensure that the Enforcement Agencies Integrity Commission Bill is all-encompassing. The police and the MACC, as the two most prominent and powerful enforcement agencies, must be subject to a more effective watchdog system. The delay in implementing the IPCMC may be a blessing in disguise for a more comprehensive and effective remedy for all enforcement agencies.

Witnesses are integral to any case. Once investigators ascertain that a person is acquainted with the facts of a case, the law allows them to summon that person for interview. In normal circumstances, the witness cooperates. There are provisions in the law to force witnesses to be present if they refuse.

All these tools are available to investigators seeking admissible evidence with the objective of finding the truth. The law allows this wide discretion to balance the heavy obligation of proving a case beyond reasonable doubt.

Investigators sometimes take time to decide whether a witness should be upgraded to a "suspect", when they believe the person's involvement extends beyond a simple acquaintance with facts. This can vary from a hunch to hard evidence.

It is a call made from time-consuming investigation methods complemented by experience, instinct and knowledge. Most important, of course, is the close supervision of senior officers against overzealous methods and procedures. Long interviews are normal in high-profile cases, especially when witnesses are bordering on becoming suspects.

Teoh's case has shaken confidence in the criminal justice system simply because he was summoned as a witness and had made himself available willingly, only to end up dead within the premises of the MACC.

The agency contends that he was not in its custody, but he was obviously within its domain of control. This will inevitably be addressed by either the RCI or the inquest into Teoh's death.

There are no set rules and procedures as to how long a witness can be questioned, unlike when a person is arrested and detained. In this case, the deceased was questioned into the small hours, which should not be generalised as the norm for all investigations.

The investigator will have to explain why he saw fit to carry out such extensive and exhaustive questioning. This should be one of the main considerations of the RCI, and will play an important role in how such procedures are conducted henceforth.

But the outcome of any inquiry, or the establishment of any watchdog organisation, should not make it difficult for investigators to procure evidence, as their job at the pre-evidence stage requires them to use all the investigative tools stipulated by law.

It should, however, make investigators and their superiors more accountable for their acts and their effects on all categories of witness — including suspects. The balance of justice must not tilt too much in favour of those who believe crime pays.

Investigators must be given every opportunity to gather evidence for the prosecution to make its case. A genuine understanding of these pressures, and of how investigations are conducted, is crucial to any inquiry or watchdog organisation.

A careful balance must be struck between human rights and the need to collect evidence. Detention itself is not illegal and against human rights, as it is allowed by law. Ensuring that a detained person's human rights in custody are not violated, however, should be studied and enhanced.

Cases of custodial abuse and death are cause for concern to society. This inquiry must come up with concrete recommendations that have a sound procedural finality. Inclining too much towards the rights of detained persons, and making it difficult for investigators to gather evidence, would lead to a further escalation of criminal boldness.

On the other hand, giving too much power to enforcement agencies can lead to abuse.

The writer is a retired police officer