Monday, 13 April 2009

Kugan's case: Unsettling questions remain.

David KL Quek | Apr 9, 09 12:33pm
DR DAVID KL QUEK is past editor-in-chief of the MMA (Malaysian Medical
Association) News for 11 years and currently president-elect of the MMA.:

It is laudable that the Ministry of Health had taken the preemptive move to help diffuse the public anger regarding the custodial death of Kugan Ananthan, especially in the light of discrepancies between two separate

Whether an inquiry initiated on its own behalf is the correct avenue to address the public unease about this custodial death, is open to differing interpretation, acceptance or otherwise.

Any inquiry if it should be made at all should be carefully-constituted, thoughtfully empanelled and well-empowered by law. Its terms of reference
must be made absolutely clear. It must uphold the final truth.

It must be based on facts and rational analyses of findings which are consistent, and which should be striving towards the ultimate truth of what actually is the cause of death or its contributing factors.

It should not be simply to water down discrepancies which would need fuller explanation and perhaps further elaboration from the actual forensic pathologists who had performed their respective tasks. These pathologists
should be allowed to defend their findings and interpretations.

Furthermore, more expert and renowned forensic pathologists should have been invited to give their interpretations as to the facts of the findings and their weightage of causes of death, especially since there had been
unmistakable evidence of torture, i.e. undeniable beating marks and
unexplained bruises. These experts should be fiercely independent and thus unimpeachable.

Most importantly, this inquiry held behind closed doors, should not be seen to be papering over any misdeeds of any authority which it may be perceived as trying to defend.

Also, since this is not a public hearing and we know that the second
pathologist declined to take part in the inquiry, this may make the report less than solid or above reproach. Seniority of pathologists is no measure of professional competence. Forensic evidence based on previous precedents and specialist experience, and not conjectures should be the essence of any
meaningful truth-finding exercise.

It is usually disingenuous and pointless to assume another chance event as having taken place to be the cause of death, just because it is possible. Suggesting the unlikely pathologically- unevidenced diagnosis of acute
myocarditis is simply conjecture. Whichever is more probable and plausible is usually the truth, to paraphrase the legendary Shelock Holmes.

Doctors are alarmed by seizure. Unfortunately, because of these glaring slants to the report, questions will continue to linger as to whether this report is truly independent and whether all the inquiry members are in agreement with the findings.

The legal standing of the report is still questionable, and may be
challenged in a proper court. It might be better to have a public inquiry where all queries and representation can be made known to the satisfaction of the public, and especially, the victim's family.

To add salt to injury, doctors are aghast and very alarmed that the police had raided the UMMC pathologist's office and taken the material records of his autopsy findings. We are also shocked about media reports that tissue
samples for toxicology which had meant to be sent to an independent
laboratory in Australia had been intercepted and seized by the police.

Toxicological studies should always be allowed to enable proper and independent discovery of the truth. Denial of such a legitimate avenue for forensic finding would prejudice against the police, and make their action that much more difficult to accept or to tolerate.

Therefore, this arbitrary seizure is reprehensible, unprecedented and
certainly breaches normal procedures of medico-legal discovery. Usually only detailed reports are obtained from court-approved injunctions and demands.

Medical records and details are nominally the property of the physician in charge or the facility where he practices, and should only be made available
under a court order, and are usually never confiscated or seizable by any enforcement authority.

There are clear procedures to be followed, and are well articulated in handbooks for the police and enforcement authorities, clearly established by the UN Center for Human Rights. I'd like to reiterate that: "International
humanitarian law prohibits the following acts in all situations: - murder; - torture; - corporal punishment; - mutilation; -outrages upon personal
dignity; - hostage-taking; - collective punishment; - executions without
regular trial; - cruel or degrading treatment."

Such extrajudicial actions should never be made in a climate of intimidating circumstances just because these events may mar the good name and professionalism of the police force.

It is difficult to comment when the DG of Health decides to come forward and announce this so-called independent inquiry, which incidentally incorporates
two foreign specialists. At best this inquiry had added to the confusion of being a third interpretation into this sad case of custodial death and did
not refute the probability of torture.

Adhere to humanitarian principles

Any custodial death in any instance the world over, is inexcusable, wrong and criminal. The UN Human Rights Committee has defined "Extralegal, arbitrary or summary executions as deprivation of life without full judicial
process, and with the involvement, complicity, tolerance or acquiescence of the government or its agents. This includes death through the use of excessive force by police or security forces."

Torture is further defined by the United Nations Human Rights Committee (UNHRC) and its Committee against Torture (CAT as: "Any act committed with intent to cause severe pain or suffering, whether mental or physical, for
purposes such as: (a) obtaining information or a confession; (b) punishing, intimidating or coercing."

Therefore, torture of any one suspect or detainee or prisoner is never condoned, whether this leads on to death is immaterial (but which only adds to the grievousness of the crime), and is liable for prosecution in any
international court of law.

Kugan's custodial death and other possible past custodial deaths should be given a truly independent investigation by a publicly open Royal Commission
or Inquiry or even by Suhakam.

It is time that we adhere to humanitarian principles as we grapple with our modernisation to become a developed people and nation. Our human development
index as a civilised nation must necessarily rise proportionately.

We call on the police and law enforcement agencies to respect these tenets of modern life and human rights and urge them to abide by these nondiscriminatory rules as a norm. Only then, can we believe and respect their true and usual professionalism again.