Independent coroners and inquests needed for all deaths in custody

File photo: themalaymailonline

Malaysians Against Death Penalty and Torture (Madpet) is perturbed about the lack of inquests and the lack in transparency of data concerning deaths, especially deaths in custody.

Malaysia needs more independent trained coroners to look into the about 150,000 deaths that happen yearly in Malaysia and determine whether criminal liability existed or not in these deaths. Decisions of coroners must be made available.

Three people died within about 15 days

Lorry driver Umar Faruq Abdullah died on 3 June 2021 at the South Klang Police headquarters. Allegedly, he fell to his death from the second floor of the police station.

On 27 May, Surendran Shanker died at the Kluang hospital after being held at the Simpang Renggam prison in Johor.

On 20 May, S Sivabalan’s died at the Gombak police station.

These are just the media reported cases, and there can be more, and it is best that the Malaysian government discloses full statistics of deaths in government places of custody or detention.

All deaths must be reported to the coroner

In Malaysia, the law stipulates that ALL deaths ought to be inquired into by the coroner (usually a magistrate). Further, there is a specific section that imposes inquest requirement for deaths in custody.

Section 334 of the Criminal Procedure Code (CPC) provides specifically for deaths in custody. It states:

… when any person dies while in the custody of the police or in a psychiatric hospital or prison, the officer who had the custody of that person or was in charge of that psychiatric hospital or prison, as the case may be, shall immediately give intimation of such death to the nearest Magistrate, and the Magistrate or some other Magistrate shall, in the case of a death in the custody of the police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death….

If the magistrate (coroner) decides that there is no need for an inquest, he must transmit his decision and reasons to the public prosecutor, pursuant to Section 339 of the CPC, who has the power to “at any time direct a Magistrate to hold an inquiry”.

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Therefore, it is clear that whether inquests into deaths happen, including these three recent deaths in custody, the power lies lies with the magistrate (coroner) and the public prosecutor. And the blame for not holding an inquest, especially when the police or public servants may be criminally liable, falls on the public prosecutor and magistrates.

Magistrates now are directly under the Judicial and Legal Services Commission, chaired by the chairman of the Public Services Commission, Zainal Rahim Seman.

Coroners must be independent

It is time for all members of the judicial service – which will also include coroners, who usually are magistrates – to be directly under the judiciary and no more under the Judicial and Legal Services Commission, so that there will be greater independence and less avoidance of an inquest in death-in-custody cases, death in industrial accidents and other deaths.

Alternatively, it may be time for Malaysia to establish an independent body of coroners, as in the UK, which also has a Coroners and Justice Act 2009. Magistrates already burdened with their case load may simply have insufficient time to focus on coroners’ responsibilities.

An inquest is important, especially so when the police or other government officers may be criminally liable. Simply having an investigation by the police or the relevant government authorities is just not enough, as it is not uncommon for public servants or fellow employees to act wrongly to ‘protect’ their fellow officer(s) who may be implicated.

The Enforcement Agency Integrity Commission (EAIC) in the inquiry into the death in custody of Syed Mohd Azlan Syed Mohamed Nur found that there was tampering of evidence by fellow police officers – “terdapat perlakuan gangguan bahan bukti yang material oleh anggota PDRM” (there was tampering of material evidence by the members of the Royal Malaysian Police).

Public inquests quell possibility of ‘cover ups’

As such, a public inquest by an independent coroner is needed to dispel suspicion that the police or other enforcement officers may have caused the death.

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Section 337 of the CPC states:

A Magistrate holding an inquiry shall inquire 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.

A public inquest that allows the participation of other interested parties, including family members of the deceased ensures that the coroner will be less likely to make an erroneous decision.

Suhakam and EAIC

Whilst the national human rights commission (Suhakam), the EAIC and similar bodies have the power to investigate and conduct inquiries, the primary role still lies with the coroner and the public prosecutor.

The EAIC, according to information on its website, has to date conducted several inquiries into deaths in custody – Syed Mohd Azlan, S Balamurugan, Soh Kai Chiok, N Dharmendran and James Ramesh.

Both the EAIC and Suhakam have in the past made various recommendation for actions that need to be taken, including the prosecution of certain officers. But sadly, the reality seems to be that, many times, these fall on the deaf ears of authorities and government.

The absence of prosecution of the wrongdoings of police and enforcement officers not just for the killings, but also acts of concealing and destroying evidence and related matters, even after the Suhakam and EAIC recommendations, fails to deter future torture, abuse of power and killings by the police or other relevant public servants.

Too many deaths – insufficient coroners and inquests

In Malaysia, in 2019, there were about 170,000 deaths, but the question is, how many inquests were actually done?

Remember, that inquests should be for all deaths. Even when a person dies of old age or sickness in a hospital, there could be persons who could be criminally liable, maybe due to medical negligence or the acts of others. A death in a road traffic incident or workplace accident, may also make a person criminally liable. Failure to ensure a safe work environment makes an employer criminally liable for deaths caused.

In UK, in 2020 alone, there were some 32,000 inquests with about 30,900 concluded that year. All in, 205,400 deaths were reported to coroners in 2020, including 562 deaths in state detention.

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Inquests must be the norm, apart from exceptional situations and as such, we need more coroners or magistrates trained as coroners. Coroners decide whether there will be an inquest. How many deaths were reported to the coroner in Malaysia, and how many did the coroner decide that there was no need to have an inquest?. How many deaths in custody or deaths by police shootings had an inquest? There is a concern that not all deaths are being reported to coroners in Malaysia, and the lack of an annual coroners’ report makes it difficult to ascertain how many deaths were even reported to the coroners.

The media have a role to report on these inquests and their findings and to educate Malaysians and encourage the public to report suspected any wrongdoings of the police and enforcement officers. The belief that reporting wrongs is useless as the authorities simply do not bother and act is something that must be extinguished in Malaysia.

  • Madpet calls for inquests to be carried out for all deaths in custody in Malaysia and that post-mortems be done for all deaths in custody or deaths resulting from the actions (or involvement) of the police, enforcement officers and/or public servants
  • Madpet calls for coroners to be independent and, in the interim, to be placed under the judiciary
  • Madpet calls for coroners to look into each and every death to determine whether an inquest should be carried out and for annual reports to be provided
  • Madpet calls for the establishment of an independent coroner system, where coroners appointed can focus on the about 150,000 deaths that happen in Malaysia annually and conduct the needed inquests speedily
  • Madpet reiterates the calls for the installation of CCTV with recording capacity at all police stations, enforcement offices and detention facilities, which would have provided much-needed evidence to facilitate the investigation of death-in-custody cases and even helped dispel suspicion of police or public servant involvement in causing these deaths – Madpet

 

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