AS of March 2019, all death in custody inquests has to be completed within six months.
In January 2022, 4 persons have already died in police custody, and Madpet (Malaysians Against Death Penalty and Torture) is most concerned as to whether the coroner is doing its job, including the conducting of speedy inquests (inquiries) as required by existing laws.
The special coroner’s courts came into being in 2014, and are now pursuant to Practice Direction No. 2 of 2019 by then Chief Justice Richard Malanjum, that came into force on March 8, 2019, amongst others, state 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 with the current law, including court directions may amount to not just an offence, but also a contempt of court.
In January 2022, the reported deaths in police custody are as follows:
a) 13/1/2022 – a 63-year-old man, who would probably be alive, died in a police lock-up at the Taiping district police headquarters (IPD), Perak
b) 16/1/2022 – a 37-year-old man died at the Pengkalan Chepa police station at 4.35pm
c) 28/1/2022 – a 38-year-old detainee died at the Marang police station lock-up in Terengganu on Friday (January 28), and
d) 29/1/2022 – a 38-year-old man died while in police custody in Kuala Kangsar, Perak
In compliance with the court’s directions, the inquest must be completed within six months. After March 8, 2019, Practice Direction No. 2 of 2019 states, amongst others, that all deaths in custody inquests must be completed within six months. Other inquests/investigations of sudden death cases must be done in nine months.
On December 16 last year, the home minister disclosed in Parliament that the total number of death in police custody cases for the period beginning January 2015 until September 2021 was 79, and that inquests were conducted only for 20 cases. After the court’s direction, inquest not yet commenced should have started and ended within six months.
The special coroner’s court has been established since April 15, 2014, which provides also for the registration of deaths in court, and for duties and procedures for inquests. Has the minister, police and the prosecutors complied with these directions?
If not, then the home minister and also 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 death in police custody until September 2021, following the minister’s admission that inquests were only done for 20 cases.
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 coroner’s court – with a sessions courts judge as coroner since 2014
Malaysia, through the judiciary, had established a special coroner’s court in every state capital since 2014, and determined that the coroner shall be a sessions court judge, and no longer a magistrate.
This coroner’s court will also deal with all deaths, not just deaths in custody, but even sudden deaths (natural deaths arising by reason no fault, be it action or omission, of another) and even deaths in workplaces, commonly referred to 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, which the coroner also needs to evaluate each of these allegedly “deaths by natural causes” and determine whether an inquest is needed or not.
Duties of the coroner
The practice directions state clear duties for the coroner, including the need to examine bodies at the place where death happens, participate in post-mortems, obligation to notify next of kin of the death, and also give notice to the next of kin when inquests are done. If the coroner cannot attend to view the body and the site where the death occurs, then the state director can instruct the nearest magistrate and/or sessions court judge to do the needful.
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.” (s.337 Criminal Procedure Code).
Further, there is always the real possibility that the police may contaminate the crime scene, having reference to the 2018 findings of the inquiry by the Enforcement Agency Integrity Commission (EAIC) into the death in custody of Syed Mohd Azlan which found police officer/s criminally liable, and also found that 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 inquest – 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 be commenced.
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 prosecutor is 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 the insufficiency of evidence leads to fact that a suspect may not be charged in court, and our hope is always that in such cases, investigations be continued until justice is served.
The coroner and the inquest procedure are 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 be done without fail by an independent coroner speedily. This special treatment of death in custody was emphasised by Parliament in the Criminal Procedure Code, and even the judiciary by the assignment of death in custody with a different code, requiring an inquest.
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 pursuant to Registration Of Births And Deaths Act 1957. As such, the sufficiency of the special coroner’s court with one sessions court judge as coroner per state needs to be re-evaluated. It may be best for the enactment of a Coroners Court Act, and provision of required staff to assist the coroner in carrying out its duties. It is best that the coroner is freed from other duties of a sessions court judge. It is best that the coroner’s 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 in six months;
- contempt of court actions against the minister of home affairs, inspector-general of police and other law enforcement officers including prosecutors that caused the failure of ensuring inquests into death in police custody cases, as required by the chief justice’s Practice Direction No. 2 of 2019, to be completed within six months be seriously considered;
- For the consideration of criminal prosecution of police and/or others that failed to comply with the requirement of the Criminal Procedure Code with regards to inquests (inquiries into death);
- Call for action also against sessions court judges appointed as coroners, who failed to comply with the requirement of Practice Directions by the chief justice of the Federal Court;
- Call for the enactment of a Coroners Court Act, that will also provide for the employment of paid staff to assist the coroner in carrying out his/her duties, noting that the coroner has the responsibility of looking into not just deaths in police custody, but all deaths including deaths at workplaces, when on average, there is about 150,000 or more deaths annually in Malaysia; and
- Calls on the chief justice of the Federal Court to forthwith disclose the number of sudden deaths, number of inquests, number of inquests into death in custody cases that have been registered and considered by the coroner and their outcomes. – The Vibes, February 3, 2022
Charles Hector is spokesman for Malaysians Against Death Penalty and Torture
