Custodial deaths: Institute contempt proceedings for failure to complete inquests

From March 2019, all inquests into deaths in custody inquests have to be completed within six months, as directed by the judiciary

What is the status of coroners' inquests? - FILE PHOTO: MALAY MAIL ONLINE

In January 2022, four persons have already died in police custody, and Malaysians Against Death Penalty and Torture (Madpet) is most concerned about whether the coroner is doing its job, including conducting speedy inquests (inquiries), as required by existing laws.

The special coroners courts came into being in 2014, and now Practice Direction No. 2 of 2019 by then Chief Justice Richard Malanjum, which came into force on 8 March 2019, states that all deaths in custody inquests must be completed within six months.

The law also now stipulates the need for registration in court, and the duties of the coroner, who today is a Sessions Court judge. A non-compliance of the current law, including court directions, may amount to not just an offence, but also contempt of court.

In January 2022, the reported deaths in police custody were as follows:

  • 13 January: a 63-year-old man, who would probably be alive, died in a police cell at the Taiping Police headquarters in Perak
  • 16 January: a 37-year-old man died at the Pengkalan Chepa Police station at 4.35pm
  • 28 January: a 38-year-old detainee died at the Marang Police station cell in Terengganu
  • 29 January: a 38-year-old man died while in police custody in Kuala Kangsar in Perak

In compliance with the court’s directions, the inquests must be completed within six months. After 8 March 2019, Practice Direction No. 2 of 2019 states that all inquests for deaths in custody must be completed within six months. Other inquests or investigations into sudden death cases must be done within nine months.

On 16 December 2021, the home minister disclosed in Parliament that the total number of cases of deaths in police custody for the period beginning January 2015 until September 2021 was 79, and that inquests were conducted for only 20 cases. After the court’s direction, inquests not yet commenced should have started and ended within six months.

The special coroners court has been established since 15 April 2014, which provides also for the registration of deaths in court and for duties and procedures for inquests. Have the minister, the police and the prosecutors complied with this direction?

If not, then the home minister, the police, other law enforcers and even prosecutors may be guilty of contempt of court, over and above possibly a violation of existing applicable law for failing to commence and complete inquests in the remaining about 59 cases of deaths in police custody until September 2021, following the minister’s admission that inquests were only done for 20 cases.

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All deaths, even sudden deaths – meaning deaths on the face of it not caused or expedited by actions and/or omissions of another – are required to be registered in court. All inquests need to be registered in court.

Special coroners court – with a Sessions Courts judge as coroner since 2014

Malaysia, through the judiciary, had established a special coroners court in every state capital since 2014, and determined that the coroner shall be a Sessions Court judge, and no longer a magistrate.

This coroners court will also deal with all deaths, not just deaths in custody, but even sudden deaths (natural deaths arising by reason of no fault, be it action or omission, of another) and even deaths in workplaces, commonly referred to as deaths by industrial accidents.

All deaths need to be registered in court, where a different registration code is provided for inquests (code 65A) and for deaths in custody (code 65B).

Other sudden deaths come under code 65: the coroner also needs to evaluate each of these alleged ‘deaths by natural causes’ and determine whether an inquest is needed or not.

Duties of the coroner

The practice direction states clear the duties of the coroner, including the need to examine bodies at the place where the death occurred, the need to participate in post-mortem examinations, the obligation to notify the next of kin of the death, and the need to give notice to the next of kin of when the inquests will be done.

If the coroner cannot attend to view the body and the site where the death occurred, then the state director can instruct the nearest magistrate or Sessions Court judge to do what is needed.

Speedy action crucial to prevent tampering with evidence

Madpet stresses the importance of speedy action by the coroner, who later is duty bound to determine “when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death” (Section 337 of the Criminal Procedure Code).

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Further, there is always the real possibility that the police may contaminate the crime scene. The 2018 findings of an inquiry by the Enforcement Agency Integrity Commission into the death in custody of Syed Mohd Azlan found police officer/s criminally liable and found that the police had tampered with evidence – even causing a rubber mat and/or carpet possibly stained with blood to vanish.

Prosecution of accused no longer a total bar on inquests – just a delay

When someone is charged in court in connection with the death, the coroner cannot commence or continue with the inquest, until that case and related appeals are disposed of. This means that thereafter, the inquest can commence.

Police, besides assisting the coroner, have another different obligation

The other legal obligation of the police and the public prosecutors is the investigation to identify and prosecute the perpetrator of the crime that resulted in the death.

To be able to charge anyone for a crime, the public prosecutors are duty bound to find sufficient evidence that, in their belief, will be sufficient to show that the accused is guilty beyond a reasonable doubt.

It is not uncommon that insufficient evidence leads to the fact that a suspect may not be charged in court, and our hope is always that, in such cases, investigations should be continued until justice is served.

The coroner and the inquest procedure is there also to prevent mistakes by police and/or prosecutors – like making a wrong conclusion of a death as being simply a ‘sudden death’ or natural death for which no one is criminally liable.

Naturally, when it is a death in custody of the police or any other state bodies, it is all the more important that an inquest is done without fail by an independent coroner speedily. This special treatment of deaths in custody was emphasised by Parliament in the Criminal Procedure Code, and even the judiciary by the assignment of deaths in custody with a different code, thus requiring an inquest.

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There were 166,507 deaths recorded in 2020, and Practice Direction No. 2 of 2019 points out the added duty of the coroner to ascertain the details needed for the registration of deaths under the Registration of Births and Deaths Act 1957.

As such, the sufficiency of the special coroners court with one Sessions Court judge as coroner per state needs to be re-evaluated. It may be best to enact a coroners court act and provide the required staff to assist coroners in carrying out their duties. It is best that coroners are freed from other duties of a Sessions Court judge. It is best that the coroners court be placed under the jurisdiction of the judiciary.

As such, Madpet calls for:

  • Inquests into the recent four deaths in police custody in January 2022 to be completed within six months
  • Contempt of court action against the home minister, the inspector general of police and other law enforcement officers including prosecutors – for their failure to ensure inquests into cases of deaths in police custody, as required by the chief justice’s Practice Direction No. 2 of 2019, to be completed within six months – to be seriously considered
  • The consideration of criminal prosecution of the police and/or others who failed to comply with the requirement of the Criminal Procedure Code regarding inquests (inquiries into deaths)
  • Action against Session Court judges appointed as coroners who failed to comply with the requirement of practice directions by the chief justice of the Federal Court
  • The enactment of a coroners court act, which will also provide for the employment of paid staff to assist coroners in carrying out their duties, noting that the coroners have the responsibility of looking into not just deaths in police custody, but all deaths including deaths at workplaces
  • The chief justice of the Federal Court to promptly disclose the number of sudden deaths, number of inquests, the number of inquests into deaths in custody cases that have been registered and considered by the coroner and their outcomes

Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)



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