Home Civil Society Voices Government may be liable for Covid death in detention facility

Government may be liable for Covid death in detention facility


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Malaysians Against Death Penalty and Torture (Madpet) is concerned about the silence of the coroner over eight recent deaths, including one who allegedly died from Covid.

The coroner must state whether he or she has decided to have an inquest or otherwise. Death from Covid in a detention facility may place criminal liability on the government, commandant of the detention facility, minister and other relevant public officers.

At about 4am on Wednesday, 20 April, 528 Rohingya detainees – men, women and children – escaped or broke out from the Sungai Bakap immigration detention depot in Penang. Seven, including three children, were killed when hit by a car while crossing the North-South Expressway at the 168th kilometer. The seventh – a 14-year-old girl – succumbed to her injuries on 26 April.

Another died, allegedly because of Covid. Kedah Police chief commissioner Wan Hassan Wan Ahmad was reported as saying that the police have ruled out foul play behind the death of a Rohingya detainee at the temporary immigration detention depot near Bandar Baharu on 20 April. “The detainee’s death was a separate matter. We have classified the case under a sudden death report (SDR) case. He had died from virus infection after contracting Covid-19,” Wan Hassan told reporters.

It looks like the detainee died at the depot, not at some hospital where he was admitted for treatment.

When a detainee in a government detention facility dies from Covid, the government including the home minister, the immigration director general and the commandant of the immigration detention facility may be criminally concerned or liable for the death.

Unlike a person not under detention, who can freely do what is needed, including complying with standard operating procedures to prevent a Covid infection, which includes doing the necessary self-tests and seeking necessary healthcare, a person in detention is denied many of these freedoms. The duty to keep a detainee free from Covid infection and in also getting the needed healthcare reasonably falls on the detaining authority.

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It has been more than two years since Malaysia has been affected by Covid, and the question is whether the relevant authorities are making sure that detainees in government facilities are complying with the standard operating procedures to prevent infection, detect infections and provision of the necessary speedy healthcare if found to be infected.

Were there regular temperature checks, Covid testing and medical check-ups done at the Sungai Bakap immigration detention depot? The fact that the detainee died in detention – not in some hospital whilst receiving necessary medical attention – raises questions.

The coroner is supposed to determine also “whether any person is criminally concerned in the cause of the death” (Section 337 of the Criminal Procedure Code).

Criminal liability arises not simply due to actions, but also omissions. The failure to ensure detainees in a detention facility are not infected by Covid, the failure to detect infections among detainees and/or the failure to provide speedy healthcare to the infected are possible reasons why the government and/or other responsible persons may be found criminally liable and/or concerned with the death.

The coroner must immediately hold an inquest (or inquiry into deaths) into this death in custody allegedly from Covid and the other seven deaths that resulted allegedly from a vehicular incident.

In the currently applicable ‘practice directive’ issued by the then Chief Justice of Malaysia Richard Malanjum [Arahan Amalan Bil 2 Tahun 2019, Pengendalian Laporan Mati Mengejut Dan Siasatan Kematian Oleh Mahkamah Sesyen Koroner], it was emphasised that cases classified as ‘sudden deaths’ must be investigated by the coroner, and, if need be, should be reclassified as a case requiring an inquest or a death-in-custody case. The coroner ought not simply or blindly accept police classification of “sudden deaths’.

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All eight deaths that happened, in Madpet’s view, are deaths in custody.

Noting that whilst the coroner in Malaysia, now a Sessions Court judge, is duty-bound to determine the cause of death of all deaths in Malaysia, with or without an inquest, Section 334 of the Criminal Procedure Code re-emphasises the need for an inquest for deaths in custody – and this includes deaths of persons who were in custody at the Sungai Bakap immigration detention depot.

Did the relevant officers or authorities adhere to the law and immediately informed the coroner of the deaths – “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” (Section 334).

Public attention is now on the case of Sam Ke Ting, who was recently sentenced to six years in prison for reckless or dangerous driving, resulting in the deaths of eight teenagers riding their bicycles on a road. The High Court allowed the appeal overturning the magistrate’s court decision to acquit and discharge the 27-year-old woman last October 2021. Will the driver(s) of the car(s) that caused the deaths of the seven who ‘escaped’ from the immigration detention facility be similarly charged?

What was the protest or grievance of the detainees at the Sungai Bakap immigration detention depot that led them to run away from detention? Was it simply a ‘riot’ or an exercise of the right to peaceful assembly that led these 500-plus to escape?

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Is there a need for an independent inquiry by a royal commission, a parliamentary committee, Suhakam (Malaysia’s human rights commission), the Enforcement Agency Integrity Commission or some other independent body?

Madpet calls for an independent public inquiry into the incident at the Sungai Bakap immigration detention depot, which to date has resulted in at least eight deaths.

Madpet calls for a report by the coroner on his or her findings, including whether a public inquest will be done. If the government and/or relevant persons are criminally liable for the deaths, action including criminal prosecution must be taken, without fear or favour, and indiscriminately as stated in Article 8(1) of the Federal Constitution: “All persons are equal before the law and entitled to the equal protection of the law.”

Madpet also reiterates the call for the enactment of a law that clearly recognises the asylum seeker and/or refugees, as current law only recognises foreigners in Malaysia with the proper documentation and those without. As such, asylum seekers and/or refugees may be treated the same way as any foreigners found in Malaysia without proper documentation, and this is not just.

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

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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