Degrading Searches and Illegally Obtained Evidence in the Malaysian Criminal Justice System
4 UNLIKE MANY MODERN common law jurisdictions, the law of criminal evidence in Malaysia has no constitutional foundations, nor is it influenced directly by human rights concepts, no matter how fundamental.1 The right not to be subjected to degrading treatment found in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and Article 3 of the European Convention on Human Rights (ECHR), along with the obligation to take active steps to prevent violations of that right in Article 16 of the UN Convention Against Torture (UNCAT), are legally irrelevant as far as Malaysian law is concerned because Malaysia has not signed these treaties. Moreover, the values underpinning Malaysian evidence law generally reflect the rationalist colonial tradition of James Fitzjames Stephen, the original architect of Malaysia’s Evidence Act 1950, more than the libertarian notions and human rights considerations influencing much of the common law world today. Respect for human rights values in Malaysia is a recent political phenomenon. It has emerged as a focus for national unity and a key part of the government’s strategy for managing tensions between competing ethnicities whose sectarian affiliations might otherwise split the country. The politics of human rights have manifested themselves in different ways across the government’s legislative agenda and internationally,2 with particular salience for criminal justice reform. Section 1 describes the historical and political background to the reforms, emphasising the deference traditionally extended to the Royal Malaysian Police Force, the Polis Di Raja Malaysia (PDRM), and the almost entrenched ‘law and order’ orientation of the courts. Section 2 sets out the reforms themselves and explains how they purported to address the problems and scandals that had lately enveloped the PDRM. Of particular interest is the restricted role afforded to the courts, as we shall see. Section 3 summarises the findings of an empirical study of body searches covering a period of one year after the reforms came into effect. In conclusion, this essay questions the wisdom of the government’s lack of faith in judicial supervision of police investigations. Since Independence in 1957, the PDRM have enjoyed almost unfettered de facto powers to implement their policing mandate. In formal legal terms, police investigations are subject to the Federal Constitution and regulated by the Criminal Procedure Code, various Dangerous Drugs enactments, the Evidence Act 1950, and the Police Act 1967. There is additional administrative guidance in the Lock-up Rules 1953 and Standard Operating Procedures (official police protocols). But in practice, police officers have largely been left to police themselves unhindered by judicial or other impartial external scrutiny. They have not been bothered, harried or kept in check by that normal irritant in the adversarial process, the defence lawyer, because suspects can rarely afford legal representation. There is no legal aid available for pre-trial proceedings or on a plea of not guilty.5 Moreover, even if the accused can afford to hire his own lawyer or is lucky enough to have the voluntary assistance of a barrister,6 lawyers have been generally excluded from police interview rooms, with the explicit sanction of the Federal Court.7 In the absence of effective independent scrutiny, the PDRM has been free to adopt practices more readily associated with a military rather than a civilian police force. A Malaysian Royal Commission on the operation and management of the police, set up in 2005, found that PDRM officers were engaged in de facto torture and frequent physical abuse of suspects.8 Emblematic of these degrading practices was the procedure known as ketuk ketampi, which made national and international headlines. Ketuk ketampi was applied to detainees arrested on suspicion of drugs or immigration offences, and involved the suspect being stripped naked, placed against a wall, and ordered to squat and stand repeatedly—in the dubious expectation that drugs secreted anally or vaginally would simply drop out. The frequency and prevalence of its occurrence was disputed in a subsequent commission of enquiry, before whom the police actually defended the practice.9 However, the commission concluded that ketuk ketampi had been used ‘indiscriminately’ and without any legal authority.10 Yet this conclusion begs a vital question: accepting that no law explicitly authorised ketuk ketampi, were the police therefore acting beyond their legal authority or could they claim that their conduct was implicitly authorised? The Police Act 1967 conferred upon the police a power to take ‘such lawful measures and do such lawful acts as may be necessary’.11 This would seemingly cover the conduct of body searches and road-side frisks and pat-downs,12 but could a generic power to do what is ‘necessary’ extend as far as ketuk ketampi? The Police Act’s references to ‘lawful measures’ and ‘lawful acts’ suggested that supplementary legislation and regulations might clarify the scope of this power in specific operational contexts. Prior to its reform, the Criminal Procedure Code (CPC) gave further direction on the scope of lawful searches, but not without ambiguity. Section 17 permitted a body search for concealed articles incidental to a lawful search of premises. Section 20 authorised a police officer to search a person placed under arrest if the officer had any reason to believe that he might discover the fruits of crime or other relevant evidence. The only further stipulation was that a female detainee could be searched only by a female police officer ‘with strict regard to decency’.13 Did this imply that there were no further restrictions in relation to male suspects? How ‘strict’ or ‘decent’ must searches of female detainees be? And what were the female officer’s particular responsibilities when carrying out such a search? Most importantly, what were the legal consequences, if any, of non-compliance? Unfortunately, the CPC provided no further clarification. The Dangerous Drugs Act 1952 and the Dangerous Drugs (Forfeiture of Property) Act 1988 are also potentially relevant, given that the ketuk ketampi seems to have often been incidental to drugs-related crime. The former, however, does not specify any power to conduct body searches. Filling this apparent gap in the legislative framework, section 16 of the 1988 Act legislation states: (1) Whenever it appears to any senior police officer that there is reasonable cause to suspect that in or on any premises there is concealed or deposited any property liable to forfeiture … he may, at any time, by day or by night— (a) enter such premises… (b) search any person who is in or on such premises, and for the purposes of such search, detain such person and remove him to such place as may be necessary to facilitate such search. Section 17 further provided: (1) A senior police officer may search, or cause to be searched, any person whom he has reason to believe has on his person any property liable to seizure or forfeiture under this Act, or any article whatsoever necessary for the purpose of any investigation under this Act … and may remove him in custody to such place as may be necessary to facilitate such search. (2) A search of a person under this section or under section 16 may extend to a medical examination of his body, both externally and internally, by a medical officer. (3) No female person shall be searched under this section or under section 16 except by another female. The Dangerous Drugs Acts and CPC are also silent in relation to any evidential sanction for breach,14 and the Evidence Act 1950 is equally unilluminating. Sections 24–26 of the Evidence Act exclude statements amounting to confessions procured by threats, promises or inducements, etc, but say nothing about the admissibility of evidence obtained illegally. As in England and Wales before the Police and Criminal Evidence Act (PACE) 1984, these matters are left to be determined by the judges at common law.15 Malaysian courts have followed the Privy Council ruling in Kuruma v R16 declaring that relevant evidence is admissible irrespective of the manner by which it is obtained. The notion that the civil liberties of the citizen could be protected and the police disciplined through application of an exclusionary rule, akin to the US Supreme Court’s ‘fruit of the poison tree’ doctrine,17 or through exercise of a common law discretion to exclude in instances of serious impropriety or unfairness, has never been seriously entertained. Although the Malaysian Government abolished criminal appeals to the Privy Council in 1978,18 Malaysian courts appear unable or unwilling to modify colonial precedent by adopting the more liberal approaches being developed in other Commonwealth jurisdictions,19 including those which, like Malaysia, have neither a constitutional document entrenching a Bill of Rights nor any well-developed tradition of rights discourse in criminal procedure.20 In Seridaran,21 the Public Prosecutor appealed to the Criminal Appeal Court of Seremban against a decision of a magistrate acquitting the accused on the ground that the police had failed to obtain an order to investigate from the Public Prosecutor, contrary to section 108(ii) of the CPC. The question for the court, notwithstanding the patent illegality of the investigation, was whether it still had jurisdiction to hear the case and evidence on which to base its verdict. Setting aside the acquittal, Peh Swee Chin J stated: I am bound by, and I do certainly subscribe to the view that if such illegally obtained evidence is relevant to the matters in issue it is admissible in evidence on the authority of the judgment of the Privy Council in Kuruma… I am unable to accede to counsel’s argument that it would cause a miscarriage of justice, not only because the decision of Kuruma is against it but also that the court would have to consider the broader interest of the public to prevent such evidence on crimes or for doing justice, from being withheld.22 The illegality in Seridaran arose from police negligence rather than deliberate impropriety. It is difficult to say whether the court would have decided differently had the police behaved as they did in some of the more notorious confession cases,23 but Peh Swee Chin J’s expressed preference for ‘doing justice’ to secure convictions suggests a negative answer. Similarly, in Kah Wai Video,24 another case concerning magisterial supervision, Kuruma was applied to validate the seizure and admissibility of items not listed on a search warrant. The seizure was found to be lawful by virtue of an implied common law power, but the court added that, even if their seizure had been unlawful, the items would still have been admissible under the authority of Kuruma—a decision which was by now part of Malaysian legal heritage.25 The more recent and factually similar case of Public Prosecutor v Then Mee Kom,26 in which the court had invalidated an arrest and all subsequent proceedings following an illegal seizure of items subject to Malaysian copyright law, was rejected on the basis that it would ‘drain the principle in Kuruma’s case of all its vitality’.27 To press home the importance of supporting the police, the court also cited pre-PACE English authorities28 and endorsed Lord Denning’s admonition to keep in check ‘the ever-increasing wickedness there is about’ whilst urging ‘honest citizens’ to help the police and ‘not hinder them in their efforts to track down criminals’.29 Clearly, the need to deter police impropriety and illegality through the exclusion of apparently reliable evidence was not uppermost in the judges’ minds. It is notable that the High Court of Singapore in SM Summit Holdings,30 having carefully reviewed relevant authorities across the common law world and the policy considerations underpinning them, subsequently followed the House of Lords’ decision in Sang31 in recognising that police impropriety could render evidence inadmissible, especially if there had been a violation of the suspect’s privilege against self-incrimination. However, SM Summit Holdings has never been applied directly in a Malaysian court and remains merely a persuasive authority. Moreover, the fact that there are no reported appellate decisions since in which defence lawyers have successfully challenged the admissibility of evidence based upon police illegality32 indicates that relevance, irrespective of the propriety of investigative methods, remains the only test of admissibility. Just as in England and Wales prior to PACE,33
Degrading Searches and Illegally Obtained Evidence in the Malaysian Criminal Justice System
INTRODUCTION
1. ABUSE OF POLICE POWER IN A CLIMATE OF LEGAL UNCERTAINTY