The Death of Teoh Beng Hock and Human Rights Violations in Malaysia

Introduction

In July 2009, right after 3 months the Barisan Nasional (BN) president Najib Abdul Razak became the new Prime Minister of Malaysia, Malaysian Anti-Corruption Commission (MACC) launched a large scale operation involved 33 MACC officers from various states to investigate 7 Selangor state assembly persons (ADUN) for allegedly misappropriation of their constituency allocations. (Andrew Ong, 2009) All of the 7 ADUN were from Pakatan Rakyat (PR), a coalition of political parties that defeated BN and won Selangor state in 2008 general election. PR ADUNs accused the operation was political motivated because the investigations were only targeted the PR ADUN.

On 15 July 2009, MACC officers raided the office of Ean Yong Hian Wah, State Assemblyman for Seri Kembangan and Selangor Executive Councillor, at the 15^th floor of State Secretariat building of Selangor. Ean Yong and lawyer quarreled over MACC’s right to search office, MACC officers took Teoh Beng Hock back for questioning at the headquarter of Selangor state MACC located at Plaza Masalam, Shah Alam at 6pm. (James Foong et al, 2011:1)

Next day 1:30pm, Teoh’s corpse was found lying at the fifth floor of Plaza Masalam where Selangor MACC located. (Anon, 2009) His death sent a shock wave to whole country. Selangor MACC held a press conference, denied any foul play. The director of investigation of MACC Mohd Shukri Abdull claimed that MACC had released Teoh at 3:45am but Teoh wanted to rest in the office. It was found out later Teoh was not released as claimed by MACC, because Teoh’s Identify card and cell phone were still being kept by MACC when he was found dead.

Few days later, Pakatan Rakyat organized a rally at Kelana Jaya Stadium to protest the mysterious death of Teoh, approximately 3,000 people attended the rally. The opposition leaders condemned the custodial death at MACC and held MACC responsible for Teoh’s death. The Prime Minister Najib Razak announced that the cause of death of Teoh would be probed in an inquest as required by law, the inquest was headed by a magistrate. (S Pathmawathy, 2009)

This paper will study violations of right to lawyer, right to not subject to torture, right to life and right to equality protection of law by MACC that caused Teoh’s tragic death.

Teoh’s Right to lawyer denied

The tragedy could have been avoided if Teoh’s right to lawyer was respected during the interrogation at Selangor MACC. The presence of lawyer can make sure Teoh understand his constitutional rights during interrogation, for instance he has rights to remain silence and to give his statement in the court. The companion of lawyer will also ensure Teoh is not subjected to any physical or mental tortures.

In fact, the supreme law in Malaysia is not only guaranteed citizen’s right to lawyer, it also ensures the detainee’s right to choose their own lawyer. The article of 5(3) of the Federal Constitution of Malaysia says “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.” (Federal constitution,2015:15) It is a common practice of civil society organizations in Malaysia that whenever there is an arrest of NGO activists, human rights lawyers will request to access to his or her clients under this clause.

This right to lawyer is further strengthened by international human rights laws. According to article 9 of International Covenant on Civil and Political Rights (Hereinafter ICCPR) (1966), “No one shall be subjected to arbitrary arrest or detention.” The 58^th session of CCPR General Comment No. 35 (article 9) stipulates “Several safeguards that are essential for the prevention of torture are also necessary for the protection of persons...prompt and regular access should be given to independent medical personnel and lawyers.” (CCPR/C/GC/35)

Moreover, in the United Nations’ Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the principle 11(1) says “A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.” (A/RES/43/173)

Right to Not Subject to Torture

A concluding remark on Teoh’s cause of death was given by Mah Weng Kwai, one of the three court of appeal judges who reviewed the inquest, that “Death of Teoh Beng Hock was caused by multiple injuries from a fall from the 14th Floor of Plaza Masalam as a result of, or which was accelerated by, an unlawful act or acts of persons unknown, inclusive of MACC officers who were involved in the arrest and investigation of the deceased”. (Teoh Meng Kee vs PP[Mah], 2014) The pre-fall injury refers to a bruise measured 4cmx3cm on Teoh’s neck. Prominent Thai pathologist Dr Pornthip Rojanasunand observed the second autopsy at the invitation of Selangor government, she said the injury could have due to manual strangulation.  It is a pivotal evidence to prove that Teoh was subjected to torture during interrogation.

There are three facts support the argument that MACC tortured Teoh during the detention. First, during the inquest, a former MACC detainee T. Sivanesan testified that he was “slapped, kicked, punched, beaten with a metal bar and hit on his genitals with a cane by MACC officers” during his detention in 2008. (Anon, 2009) Second, Member of Parliament for Puchong Gobind Singh, who was also Teoh family’s lawyer, revealed in Parliament in 2011 that there were 59 police reports alleging use of force by MACC officers between 2005 and 2010. The statistics showed that there were average 10 complaints of violent conduct against MACC every year but not actions had been taken by the government.

Third, the report of royal commission of inquiry into the death of Teoh Beng Hock (Hereinafter RCI-TBH) revealed that Tan Boon Wah, a Kajang municipal councilor, was verbally abused and threatened by MACC officers during the interrogation on the same day and same building as Teoh. Tan was allegedly involved in misappropriation of Ean Yong’s constituency fund. The report stated,  "Bulkini and his team employed various methods to intimidate him (Tan Boon Wah) and to try and make him admit that he did not supply the goods but had received and pocketed the money instead...belittling him for producing one child only after five years of marriage, threatening to bring his child into the office so she would cry....threatening to strike him with a pouch, forcing him to stand straight without moving.....calling him stupid Chinese, threatening to hit him if he refused to cooperate..." (James Foong et al, 2011 :24-25)

Both physical and circumstantial evidence show that Teoh was being tortured while under MACC custody. Hence the Malaysian government breached the article 2(1) of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)(Hereinafter CAT), which says “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

Nonetheless, Malaysian government neither sign nor ratify the CAT. The Universal Periodic Review (Hereinafter UPR) report submitted by Malaysian government in 2013 did not commit itself to ratification of CAT. Similarly, the Human Rights Commission of Malaysia’s (Hereinafter SUHAKAM) UPR submission in 2016 did not recommend the government to ratify CAT, despite the commission admitted that “Average 17 cases of death in custody yearly for the past 15 years shows that the problem is serius and consequently caused dissatisfaction among public.” (SUHAKAM, 2016)

We should not overlook the national legal mechanism that prohibits torture. The session 330 of Malaysia penal code (2015), “Voluntarily causing hurt to extort confession or to compel restoration of property” or session 331 “Voluntarily causing grievous hurt to extort confession or to compel restoration of property” criminalize tortures. But the government never invoke these laws to charge officers who abused detainees.

Violation of Right to Life

As mentioned earlier, the court of appeal verdict also rejected the suicide theory, instead the judges identified MACC officers were one of the parties that responsible for causing the death of Teoh. There is no doubt that the death of Teoh while under MACC’s custody is a violation of Teoh’s right to life. Should the MACC respect its witness’s fundamental human rights, Teoh could have continued his good life and work and completed his planned marriage. As a dignified human being, Teoh should have enjoyed his human rights stated in the article 3 of Universal Declaration of Human Rights (1948), “Everyone has the right to life, liberty and security of person.” And article 6(1) of ICCPR, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

Till today, Malaysia government has yet to ratify the ICCPR and hence not binding to the International Bill of Rights. However, the article 5(1) of the Federal Constitution of Malaysia states that “No person shall be deprived of his life or personal liberty save in accordance with law”. The local laws also stipulate that violation of right to life is criminally punishable. In its submission to the royal commission of inquiry on Teoh Beng Hock, the Bar Council had recommended the government to investigate 5 MACC officers under session 304 of the Penal Code, namely for culpable homicide not amounting to murder. (Malaysian Bar, 2011)

Right to Equal Protection of Law

Referring to the well written court of appeal verdict, Judge Hamid Sultan stated that “in ordinary circumstances…the oppressors would have been charged by the police and/or Attorney General’s Chamber for murder or culpable homicide not amounting to murder”, he deemed the failure of public institutions “has resulted in a public outcry and violated…the article 8(1) of federal constitution : ‘All persons are equal before the law and entitled to the equal protection of the law’” (Teoh Meng Kee vs PP[Hamid], 2014)

This clearly show that Malaysia government has breached the article 26 of ICCPR that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

Reacted to the court verdict, the police announced setting up of a special investigation team to restart the probe on the death of Teoh. 20 months later, Minister in the Prime Minister's Department Nancy Shukri said in the parliament that the Attorney General Chamber “found no criminal element involved in the death of political aide Teoh Beng Hock” This again disappointed the public.  (Anon, 2016)

After 7 years, none of MACC officers involved in investigating Teoh was punished, two officers even being promoted to more senior positions. The pervasive culture of impunity has caused general public lost confidence on the public institutions, the check and balance mechanism which supposes to prevent abuse of power is paralyzed. This can only be explained that the political motivated MACC operation have a blessing from those from corridor of power. Therefore even there is untoward accidents or casualties, the wrongdoers are fully immune from criminal responsibility through the coordinated effort of the powerful politicians.

Similar observations can also be discovered at other political fiasco such as the murder of Mongolian Altantuya (Ramakrishnan, 2015), the 1 Malaysia Development Berhad financial scandal (BCC, 2016), the Port Klang Free Zone fiasco (Chan, 2016) and VK Lingam judicial scandal (Anon, 2015). There is no even one politician, civil servants or involved persons being prosecuted, some charged but acquitted after several years.

Conclusion

The death of Teoh Beng Hock exposed tremendous violations of human rights under the custody of Malaysian Anti-Corruption Commission. Teoh’s right to life, right to not subject to torture, right to equal protection of law and right to lawyer were all violated. From an angle of human rights, the antidote to the problem is crystal clear – the government must prosecute and punish the suspect according to law, as well as enforce human rights practice and rule of law to prevent the re-occurrence of the tragedy.

However, given that the case is political motivated, the deeper problem is the authoritarian politics that does not accept democracy is the only rule in the house, the federal BN government always use the powerful government apparatus to harass and persecute the opposition politicians. Teoh would have alive if the BN government did not employ undemocratic means and attempt to destabilize the opposition-ruled state government. The Malaysia democracy must be fixed first by having regime change at federal level, the democratization will dismantle repressive laws and put human rights practice in place as the opposition parties have been victims for the past 6 decades.

 

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