Prosecute for causing injury, death not just non-compliance of workers’ safety requirements

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We, the 49 undersigned groups, organisations and trade unions, demand that inquests (inquiries into death) be conducted for all deaths at workplace, to ensure justice is done and those responsible for the deaths of workers are also charged and tried for killing crimes.

Mere fines for non-compliance of occupational safety and health legal requirements, and no prosecution and penalising of those responsible for the crimes of causing deaths or injuries to workers is simply inadequate and unjust.

Inquests (inquiries into the death) should be carried out by an independent coroner in open court to determine not simply the cause of death but, more importantly, whether anyone is criminally liable for the death.

Criminal liability will determine also whether employers, owners, contractors and/or their officers ought to be prosecuted for murder, homicide or causing death by negligence, which are all criminal offences under the Malaysian Penal Code. If the risk of death is known and there is a failure to do what is needed to keep workers safe, which resulted in the death of a worker, then it could be a murder or homicide.

Criminal liability for those responsible for workers’ deaths at workplaces

On 8 August, Zaid Berahim, 33, died in a factory in Bayan Lepas, Penang (Bernama, 8 August 2020). In mid-March 2020, Malaysians Azarul Ashraf Nor Akmal Zorkalnain, Che Huzaydy Che Harun, Norfazly Mad Nor, Faidhi Akmal Fadzil and Hadi Syafiq Jamil were reportedly killed in an accident at a refinery owned by PRefChem, a joint venture between Petronas and Saudi Aramco (The Star, 17 March 2020).

At least 61 workers died at the workplace from January to March 2020, according to the Department of Occupational Safety and Health’s data of reported cases. In 2017, the department recorded 711 deaths at the workplace (Malay Mail, 9 July 2018), but no one seems to have been charged for murder or homicide, let alone causing death by negligence for any of these many deaths.

The current practice seems to be simply fining guilty employers or others for non-compliance of workplace requirements and/or obligations to ensure workplace safety. Sadly, offences carry the same sentences, irrespective of whether a worker died or was injured, in many workplace legislations including the Occupational Safety and Health Act 1994. Reasonably, when injury or death is caused by lawbreakers, there must be a higher deterrent sentence.

Worker’s lives matter, and all these deaths must be comprehensively investigated beyond merely looking at permit/licensing laws and/or compliance with occupational safety and health legal obligations, but also whether any person may be criminally liable for the crimes of causing death and/or injury.

Workers’ deaths at workplace may be murder or homicide

Malaysian law, as it is now, states if there is “knowledge that he is likely by such act [or omission] to cause death”, a person commits the offence of culpable homicide (Section 299, Penal Code).

It would be the more serious crime of murder “if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid” (Section 300(d), Penal Code). The fact that one did not know that someone will be killed by their actions/omissions is irrelevant under this particular definition of murder.

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Temerloh fatal accident case could be murder – predictable and preventable death?

In Temerloh, in early March 2020, Md Shoriful, 43, and Julhas Rahman, 27, died when they were buried alive in a trench while working at a housing development construction site. This could be classified as murder.

The Malaysian Construction Industry Development Board (CIDB)’s Construction Industry Standard CIS 25:2018, as an example, categorises this kind of work as high risk, with the risk of death by being buried alive. As such, it is a known “imminently dangerous” work, which can cause death, and any contractor or corporation involved in construction work ought to know this.

To prevent such high-risk death, there are clear legal obligations. For trenches or pits, for example, the CIDB requires proper shoring; the shoring design must also be approved by a professional engineer and periodically inspected. The dug-out soil is also required to be placed a certain distance away from the edge of the pit or trench, beyond the ‘zone of influence’. Reasonably, any machinery that causes vibrations that could cause stacked-up soil beside a trench or pit to fall back, burying alive workers, should not be operating nearby when workers are working in such deep trenches.

Media reports about the Temerloh incident, amongst others, said: “Both victims and the third worker are believed to have been inside a six metre-deep pit, while two machines were excavating earth on the ground above the pit.

“Heaps of soil which had collected at the edge of the pit then began falling during the excavation works, burying the two workers,” said Temerloh district police chief Assistant Commissioner Mohd Yusri Othman (New Straits Times, 6 March 2020).

From just these known facts itself, the legal requirements for it to be classified as a murder or homicide case, would have been fulfilled. However, there has been no subsequent news whatsoever whether the police are even conducting a murder investigation.

Inquest prevents ‘cover-ups’ and failings – Muhammad Adib’s case

Even if law enforcement authorities fail to act, an inquest finding certainly can prevent possible cover-ups, corrupt practices and other failings. It will ensure investigations and possible prosecutions of those criminally liable for the deaths.

An inquest was carried out in the case of the death of a fireman who died in Malaysia in November 2018 while carrying out his work. “The death of fireman Muhammad Adib Mohd Kassim was a result of a criminal act by more than two people, an inquest ruled nine months after his death” (New Straits Times, 27 September 2019).

This inquest finding did result in further police investigations, and recently the Malaysian police disclosed even further plans of setting up a review team to probe into all aspects regarding the death (Malay Mail, 10 July 2020). There is still much public pressure for the prosecution of those who were criminally liable for Adib’s death.

Inquests overcome inadequacies of law and practice

An inquest by an independent coroner is a recognised right in Malaysia for all deaths, and it should not only be done for victims who die from stabbings, shootings and beatings, but for all persons who die, including workers killed at workplaces.

The coroner, as a judicial officer, usually a magistrate – a person independent from various law enforcement agencies – can and will do a determination that will cover the failings and mistakes of those responsible for law enforcement.

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Workplace deaths are usually covered by many laws and agencies, and most agencies may act simply in accordance to the particular law they are responsible for.

An inquest will be able to look at every aspect, including the law and legal obligations, including the Penal Code, in their determination of criminal liability.

We reiterate that persons responsible for workplace deaths can be charged and tried for murder or homicide, simply due to their failure to do what is needed to reduce risks or prevent deaths, when their failure causes death.

Inquests for all deaths provided by law

The Malaysian Criminal Procedure Code clearly provides that a magistrate shall hold an inquest for all deaths, during which the coroner (usually a magistrate or judge) shall determine when, where, how and in what manner the deceased came by his or her death and also whether any person is criminally concerned in the cause of the death (Sections 333 and 337, Criminal Procedure Code).

An inquest is open to the public and, as such, any interested party (and/or their lawyers), including trade unions, can be involved in the inquest, with the capacity to even call and examine witnesses and tendering additional evidence to assist an independent coroner to make a determination into the cause of death, which includes also whether any person (including corporations and their officers) could be criminally liable for the death – murder, culpable homicide or causing death by negligence.

Inquest for workplace deaths must consider all relevant laws and facts

For inquests of deaths at workplaces, the coroner needs to consider all relevant legal obligations of employers, owners and controllers of worksites. In Malaysia, there are clear obligations: among others, requirements about permits and licences, qualifications of workers and even standards of materials and equipment used. A failure to get a relevant permit – eg for the storage of a dangerous substance – can result in the failure of relevant enforcement agencies inspecting and ensuring due compliance.

In 2018, we saw a case where the employer or factory owner did not have a permit to store hazardous material, which resulted in ammonia poisoning that killed two workers died and injured 18 others (theSun Daily, 13 August 2018). This case could be classified as murder or homicide.

The coroner must consider whether it is a known risk and whether the employer, owner and contractor did all that was required by law to prevent deaths, especially from predictable and preventable risks. A failure may result in being criminally liable for murder, homicide or even at the very least the crime of causing death through negligence.

For a fatal accident at a construction site, the relevant agencies that ought to assist the coroner during an Inquest may include also the Department of Occupational Safety and Health, the Construction Industry Development Board (CIDB), the local government, all approving authorities and other relevant agencies.

Protecting workers’ lives must be a government priority

Malaysian laws and policies seriously need reforms, with the object of ensuring safe working environments and preventing workers’ deaths and injuries.

Under the Occupational Safety and Health Act 1994, there is still no clear legal obligation to even keep workers safe from Covid-19 or other occupational diseases. There are still no specific workplace regulations – made in accordance with this law that is the primary legislation dealing with workplace safety and health – which impose clear legal obligations on employers or workplace owners to keep workers safe from even Covid-19, where a breach will be an offence with clear penalties. Only regulations by the Ministry of Health of general application currently exist.

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Malaysia also still does not have the offence of industrial manslaughter, which deals with workplace deaths. For example, in Queensland, Australia, industrial manslaughter is committed when a person conducting a business or undertaking, or a senior officer, negligently causes the death of a worker; the maximum penalty is 20 years’ imprisonment for an individual or $10m for a body corporate.

Therefore, we call for:

  • public inquests to be conducted for all workers’ deaths at workplaces by the coroner
  • an inquest to be conducted into the death of Md Shoriful, 43, and Julhas Rahman, 27, who died after being buried alive working in a deep trench to determine whether anyone ought to be charged with murder or homicide
  • the government to enact laws that provide for a higher penalty, if through non-compliance of laws, injury or death of workers happens
  • the government to prioritise workers’ safety and health and make the needed legal, policy and practice reforms.

Charles Hector

Apolinar Tolentino

on behalf of the following 49 groups and trade unions:

  1. Aliran
  2. Building and Wood Workers International (BWI), Asia Pacific region
  3. Clean Clothes Campaign (CCC) South East Asia Coalition
  4. UNI Global Union – Asia and Pacific Regional Organisation (Uni Apro)
  5. Workers Hub For Change (WH4C)
  6. Suaram
  7. Association of Filipino Nationalist Workers in Malaysia (Ammpo-Sentro)
  8. Bangladesh Group Netherlands
  9. Banglar Manabadhikar Suraksha Mancha (Masum), India
  10. Cement Industry Employees Union (CIEU)
  11. Center for Alliance of Labor and Human Rights (Central), Cambodia
  12. Electronic Industry Employees Union Southern Region Peninsular Malaysia (EIEUSRPM)/Kesatuan Sekerja Industri Elektronik Wilayah Selatan, Semenanjung Malaysia (KSIEWSSM)
  13. IMA Research Foundation, Bangladesh
  14. International Black Women for Wages for Housework
  15. Jaringan Solidariti Pekerja (JSP)
  16. Kesatuan Pekerja Atlas Edible Ice Sdn Bhd
  17. Labour Behind the Label (LBL), UK
  18. Malaysians Against Death Penalty and Torture (Madpet)
  19. Malay Forest Officers’ Union (MFOU)
  20. Maruah, Singapore
  21. Marvi Rural Development Organisation (MRDO), Pakistan
  22. Migrant Care
  23. Network of Action for Migrants in Malaysia (NAMM)
  24. National Union of Flight Attendants Malaysia (Nufam)
  25. National Union of Transport Equipment and Allied Industries Workers (NUTEAIW) West Malaysia
  26. North South Initiative (NSI)
  27. Odhikar, Bangladesh
  28. Parti Sosialis Malaysia (PSM)
  29. Payday Men’s Network, UK
  30. Payday Men’s Network, US
  31. Penang Stop Human Trafficking Campaign
  32. Persatuan Komuniti Prihatin Selangor dan KL (Prihatin)
  33. Persatuan Sahabat Wanita Selangor (PSWS)
  34. Philippine Alliance of Human Rights Advocates (Pahra)
  35. PKNS Employees Union
  36. Programme Against Custodial Torture and Impunity (Pacti), India
  37. Sabah Timber Industry Employees Union (STIEU)
  38. Safety and Rights Society (SRS), Bangladesh
  39. Social Awareness and Voluntary Education (Save), India
  40. Singapore Anti-Death Penalty Campaign
  41. Sosialis Alternatif (SA)
  42. Tamkeen for Legal Aid and Human Rights, Jordan
  43. Tenaganita
  44. Timber Employees’ Union Peninsular Malaysia (TEUPM)
  45. Timber Industry Employees’ Union of Sarawak (TIEUS)
  46. Union of Employees in Construction Industry (UECI)
  47. Union of Forest Department Employees Sarawak (UFES)
  48. Women of Color/Global Women’s Strike
  49. Workers Assistance Center, Inc Philippines

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Gursharan Singh
Gursharan Singh
12 Sep 2020 10.51am

UK’s HSE Website provides monthly reports of penalties imposed on those entitites responsible for worksite accidents and penalties are high. Latest examples of fines due to breaching the H&S at Work Act etc 1974 are listed:
[a] Facilities Mgt Co. in UK was fined £200K plus costs of £8,367.36.
[b]Manchester based company fined £120K plus andcosts of £15,192.68.
[c] Scottish Water Authority fined £140K
[d] Borough Council fined £100K and costs of £49,363.
[e] Treanor of Leeds fined £285K and costs of £56,324.97.
WHY DOES NOT MALAYSIA HAVE SIMILARS DETERRENT PENALTIES?
Bless all