These excerpts are from the report of the Commission to Inquire into the Standard Operating Procedure, Rules and Regulations in Relation to the Conduct of Body Search in Respect of an Arrest and Detention by the Police.
The Commissioners' Finding
Having considered the evidence adduced in the enquiry in its entirety and looking at the Syariah principles as well as human rights perspective, we find that the manner W4 (the woman in the video clip) was subjected to perform the ketuk ketampi (ear-squats) was improper, haram under the Syariah principles and a violation of the human rights provisions. Our reasons are as follows:
1. There are no provisions in the IGSO, Perintah Tetap Ketua Polis Daerah , Lock-up Rules and any legislation permitting a detainee to be stripped of all clothing and to do the ketuk ketampi in the nude;
2. The ketuk ketampi in the nude is not a standard police practice;
3. The manner of removing all clothing and asking a female detainee to do the ketuk ketampi in the nude has been indiscriminately practised by PDRM (Royal Malaysia Police Force).
4. In our view, despite the IGSO and Perintah Tetap Ketua Polis Daerah Petaling Jaya which provide that searches must be conducted with due respect to decency so as to safeguard his or her dignity, the conduct of asking detainees to strip naked and do the ketuk ketampi in the nude is an affront to these provisions. Further by asking someone to strip naked and to perform the ketuk ketampi violates the very essence of human conscience;
5. Although evidence was adduced by W10 and W11 (police officers) on how drugs were recovered as a result of the ketuk ketampi, we are also of the view that a few incidents do not justify every detainee to be subjected to such treatment;
6. The conduct of the body search whereby W4 was made to perform the ketuk ketampi in total nudity is haram because of the unnecessary revealing of the aurah (parts of the body not to be exposed as decreed in Islam) and a violation of one's dignity ( maruah );
7. The medical opinion of W14 (gynaecologist) confirms that ketuk ketampi is not an effective method of recovering foreign object as the act of standing after squatting nullifies the effect of squatting;
8. We are of the view that the act of stripping a detainee and subjecting him or her to do the ketuk ketampi in the nude is a violation of Article 5 of the Universal Declaration of Human Rights as it tantamount to inhuman or degrading treatment;
9. Further, subjecting the detainee to such treatment is also a breach of Principle 1 and 6 of the Body Principles for the Protection of All Persons under any Form of Detention of Imprisonment. To subject W4 to such a body search is inhumane and undignified. She felt humiliated and angry. It is like stripping away one's dignity. Human dignity is inviolable. Hence it must be respected and protected; and
10. Finally, in our view by virtue of Article 2 and Article 5 of the Code of Conduct for Law Enforcement Officials, W7 (policewoman in video clip) cannot justify her action by ordering W4 to do the ketuk ketampi ten times in the nude by saying that it was pursuant to the order of her superior.
For the above reasons, we recommend that the practice of the police ordering detainees to do the ketuk ketampi in the nude while in detention be discontinued immediately. Needless to say, it is indeed a degrading and humiliating experience for female detainees especially to be subjected to such practice.
Recommendations
Having considered the evidence, relevant provisions of the IGSO, the Syariah principles, human rights perspective and in light of our comparative studies on best practices in other Commonwealth jurisdictions, we make the following recommendations:
1. A Code of Practice On Body Search be passed as a subsidiary legislation under the Criminal Procedure Code.
2. Chapter IV and VI of the Criminal Procedure Code dealing with searches be amended to incorporate the following:
I) Decency to be defined to include prohibition of total exposure of a person's body at any one time as most jurisdictions provide for partial clothing when such a search is conducted; and
ii) To adopt different categories of searches beginning from the least intrusive to most intrusive i.e. pat down search, strip search, and intimate search.
3. Whole body scanners be installed in police stations.
4. Polis Di Raja Malaysia (PDRM) shall make the Code of Practice on Body Search accessible to the public through their website.
5. Educate the public of their personal rights during investigations through public campaigns and other means including through their website.
6. To emphasise on the importance of human rights in accordance with the Universal Declaration of Human Rights, the International Instruments and Syariah principles through an increase in training and awareness programmes within PDRM.
7. To expedite the establishment of an Independent Police Complaints and Misconduct Commission as recommended in the Royal Commission Report, (to) be implemented without further delay.
Recommendations on the Procedure for Body Search
1. The police officer conducting body searches must strictly follow the procedure herein stated.
2. The Officer-in-Charge of the Police Station must assess the type of body search before authorising a strip or intimate search to be conducted. A strip or intimate search form must be duly filled in and signed by the authorising officer.
3. A covering officer should also be present for strip/intimate search.
4. Only a male office shall conduct a pat down/strip search of a male detainee and only a female officer shall conduct a pat down/strip search of a female detainee. The covering office shall also be of the same sex of the detainee.
5. An officer who is to conduct a strip/intimate search shall conduct the search in an enclosed space. The detainee shall be brought into the room and an officer shall explain in a language that the detainee understands that the detainee shall be asked to take off his/her clothes.
6. Two officers, the searching and covering officers, must be present to conduct the search. They shall introduce themselves to the detainee. The searching officer shall be unarmed while the covering officer may be armed in case of any attack while the search is being carried out.
Pat Down Search
7. The searching officer shall ask the detainee if the detainee has any item on his/her body or clothing that might injure the searching officer while conducting the search.
8. The searching officer shall ask the detainee to remove personal items from pockets and other parts of their clothing, to turn pocket linings out and to place the personal items in a place where they can be seen by the searching officer.
9. The searching officer shall ask the detainee to remove jewelry, watches, footwear, socks, belts, headwear and prosthetic device and place the items where they can be seen by the searching officer. Body rings attached to any other place other than the body should not be removed in public area. No force should be used to remove an item connected to the body such as rings.
10. If any dangerous metal is detected, the searching office shall proceed to conduct strip search on the detainee.
11. The searching officer shall either run their fingers through the detainee's hair or squeeze the detainee's hair, without pulling the hair, or ask the detainee to run their fingers vigorously through their own hair.
12. The searching officer shall position himself/herself slightly to one side at the rear of the detainee.
13. The searching office shall start with that side of the detainee, carefully checking the neck and collar or the neck seams in the detainee's clothing.
14. The searching office shall proceed to search from top to bottom running the hands over the shoulder and down the arm to the hand. Running the hand under the armpit and down the trunk of the body, checking pockets, seams and hems and other recesses in the clothing ending at the waistline. For female detainees, passing the hand over and under the breast.
15. The searching officer shall search the detainee's back in the same manner and asking the detainee to loosen waistbands, if any, and checking the bands or waistlines seams and belt loops.
16. The searching office shall run the hands around the detainee's waist and proceed down the buttocks and legs. Use both hands when searching the legs, paying particular attention to seams and cuffs.
17. When searching the trunk and legs of the detainee, the searching officer must not pass the hands over the detainee's genital area.
Note: These guidelines require officers to respect apparent cultural sensitiveness and physical, psychological, medical or intellectual characteristics of a detainee. For example, alternatives for standing should be made for older people and people with certain disabilities; if the removal of a Muslim woman's scarf or Sikh's headdress is required, the significance of that act to that person should be respected and a culturally sensitive approach adopted.
Strip Search
18. There shall only be the searching officer and the covering officer in the room when the detainee is asked to take off any item of his/her clothing and other personal items such as bandages, prosthetics, devices, wigs or hairpieces.
19. The searching officer shall put on a pair of disposable rubber gloves before the search commences.
20. When conducting searches, searching officer shall have proper regard to the sensitivity and vulnerability of the detainee and shall secure the detainee's co-operation to prevent any embarrassment.
21. When conducting searches, detainees should not normally be required to remove all their clothes at the same time, e.g. a male detainee shall be allowed to put on his shirt before removing his trousers and a female detainee shall be allowed to put on her blouse and upper garments before removing her pants or skirts. The detainees are required to stand and have his/her arms over his/her head.
22. All the removed clothes and personal items must be thoroughly inspected to ensure there are no incriminating weapons, objects evidence or contraband in the full view of the detainee.
23. A visual inspection of the detainee shall be conducted either by asking the detainee to turn 360 degrees slowly, or the searching officer may walk around the detainee.
24. The searching officer shall then comb through the detainee's hair. If the hair is dreadlocked or matted, the officer will have to use his/her fingers to squeeze the detainee's hair.
25. The searching officer shall also examine the nasal, ear and mouth cavities of the detainee. He shall also check the crevice behind the ear and have the detainee lift his/her hair away from the neck. When checking the mouth the detainee shall be asked to remove any false teeth or plates for inspection.
26. The searching officer must also inspect the armpits and arms as drugs may be easily taped on this part of the body.
27. If any items are seen in the mouth, ear or nose, the searching officer shall ask the detainee to remove them and to hand them over. If the detainee refuses, the detainee shall be subjected to an intimate search.
Note: Searching office must always ensure that the detainee must remain partly clothed at all times, i.e. replace upper clothes before removing lower ones. The search should be done quickly but thoroughly to allow detainee to dress.
Intimate Search
28. If upon visual inspection pursuant to a strip search and/or there is reasonable suspicion to believe that a detainee is concealing a weapon, object, evidence of contraband within a body cavity, the following procedures shall be followed:
a) A body cavity search may be conducted only by a doctor or a hospital assistant or a registered nurse acting under the direction of a doctor. Police personnel shall not perform intimate searches.
b) A search warrant must be applied for the purpose of conducting intimate search.
c) The Officer-in-Charge of the Police Station shall direct the detainee to be taken to the nearest hospital to conduct an intimate search.
d) The covering officer who is of the same sex as the detainee, shall witness the search. The covering officer shall take custody of any weapon, object, evidence or contraband recovered pursuant to the intimate search.
29. After the completion of the search, the covering officer shall ask the detainee to put on his/her clothing.
30. An intimate search of a child or a mentally disordered or a mentally handicapped person must be conducted in the presence of the legal guardian. In the case of a child, the intimate search may be conducted in the absence of the legal guardian at the child's request and provided the legal guardian also agrees. A record shall be made of the child's decision and signed by the legal guardian.
31. Before the search, a female detainee should be asked whether she is menstruating. If she says yes, she must be given the opportunity to attend to her personal hygiene before the search.
Conclusion
1. In preparing this report, we, the commissioners noted an overall lack of publicly accessible information on Standard Operating Procedures of the PDRM, the precise scope of its power over detainees, its methods of internal governance as well as recourse available to those who wish to make complaints against police officers. This deficiency points towards a lack of transparency and accountability of the PDRM to the Malaysian public, not just in terms of bodily searches carried out on detainees but also in its very function as law enforcer and peace keeper of the nation.
2. Many such grievances have adequately been addressed by the report of the Royal Commission to Enhance the Operations and Management of the Royal Malaysia Police. Suffice to say, the Royal Commission Report made many highly constructive recommendations to inter alia enhance investigative policing, compliance with human rights obligations, the role, functions and organisation of the PDRM. Despite those recommendations having been made and justified criticism that has consistently been raised against not just individual police officers but the PDRM as a whole, the PDRM remains resistant to change and insensitive towards the most fundamental of human rights and dignity.
3. In conclusion, we urge that the recommendations made in this report and also the Royal Commission Report be measured out and implemented. But of even greater importance, we, the commissioners are of the view that there must first be a shift in the mindset of those within the PDRM so that there is an unwavering commitment to work towards a police culture that is more effective, responsibility driven and human rights sensitive.
