We do not want to simply know what the police, the minister or the detaining authorities concluded regarding any death in custody.
We want to know what the coroner decided after an inquest on the cause of death and whether anyone is criminally liable for the death. Even coroners can get it wrong.
Section 334 of the Criminal Procedure Code emphasises the need for an inquiry into the death in cases of custodial death. 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.’
In the inquiry by the coroner, he or she also decides on criminal liability “whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person”.
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No torture – but police may still be criminally liable for the death
The police may not beat or torture a person to death, but they may still be held criminally liable for the death. The failure to monitor the person in detention and the failure to ensure the healthcare of the person in custody makes the police officer criminally liable for the death of the detainee.
On 20 May, the High Court ruled that the death of a detainee at a Penang Police cell five years ago was due to negligence by the police, who failed to prevent his suicide. The failure was not doing the needed patrol and monitoring of the detainee.
High Court Judge Anand Ponnudurai said: “The argument that the detainee was not a ‘suicide risk’ was shot down “The defendants owed a duty of care and it is wrong to say Fadzrin was not a suicide risk. Under the lock-up rules, that risk should have been assessed through a mandatory health check”.
The judge also said the timestamps of the CCTV footage were highly suspicious, with a discrepancy of 25 to 30 minutes. The coroner had previously ruled the cause of death was “consistent with hanging”.
In another case at the Kuantan Coroner’s Court, Coroner Ahmad Zamzani said that the death of a detainee (Hidayat) could have been prevented if the police had taken him for medical treatment. During proceedings, the court heard that Hidayat had complained to the officers on duty he was not well and had vomited. The officers gave him a Panadol to ease his pain. Hidayat died the following day.
In both the above cases, the police officer at the very least could have been charged with the criminal offence of causing death by negligence (Section 304 of the Penal Code). If convicted, he “shall be punished with imprisonment for a term which may extend to two years or with fine or with both”.
Home minister should not prematurely tell Parliament police not criminally liable
Hence, Malaysians Against Death Penalty and Torture (Madpet) is appalled at the audacity of Home Minister Saifuddin Nasution Ismail reportedly ‘proudly’ saying in Parliament that there has been no death in police custody that was inflicted by the authorities since he took over the office in December 2022 until May 2024.
Is he relying on police or detaining authorities’ investigations, when at the very least he should be saying such things after the coroners makes known their findings.
The minister said 24 deaths were recorded at police cells between 2022 and May this year, while 40 inmates had died in prisons. “The deaths in police lockups were due to health issues such as Covid-19, tuberculosis, heart attack and pneumonia. There were no cases of suicide or death due to injuries inflicted by the police”.
He added that 20 deaths were recorded at immigration detention depots between 1 January and 18 January 2024. However, the media report provided no details about deaths in prison or other places of detention.
Covid, tuberculosis, etc – Quarantine and breach of duty to other detainees?
Were the detainees who died of Covid and tuberculosis quarantined? If not, the police would have failed in their duty of care to other detainees?
Did those who died due to illness die in the police cell or in hospital? If they died in the place of detention, then a crime may have been committed by the police officers. Why were they not sent to hospital?
It is time for a mandatory health check-up in detention so that any disease can be speedily detected, and hopefully no one will even die in custody from Covid, tuberculosis or even pneumonia in the future.
Time for full-time coroners, coroners department and coroners’ courts
In Malaysia, all deaths have to go to the coroner, who will independently make a finding on the cause of death.
Section 333 of the Criminal Procedure Code states:
(1) If the Magistrate shall be satisfied as to the cause of death without holding an inquiry under this Chapter, he shall report to the Public Prosecutor the cause of death as ascertained to his satisfaction with his reasons for being so satisfied and shall at the same time transmit to the Public Prosecutor all reports and documents in his possession connected with the matter.
(2) In all other cases the Magistrate shall proceed as soon as may be to hold an inquiry under this Chapter…
Thus, the coroner has a lot of work just dealing with all these deaths. Even if the coroner ultimately decides not to have an inquest, a public inquiry, he or she still has to consider and inquire into various reports and then report to the public prosecutor explaining why he or she will not be holding an inquest.
As it is, magistrates have a lot of work with their court matters. As such, Madpet calls for Malaysia to have full-time coroners and the support staff needed.
The idea of establishing a coroners department should be considered, and probably coroners’ courts. A new law may need to be enacted for this.
Madpet calls for immediate mandatory health check-ups for all detainees in police cells and other detention facilities when they first get detained. Not only is it a question of determining the health of the detainees fast, but it is also to protect other detainees from infectious diseases.
Madpet urges that police, who are not doctors, not to make a decision on the health condition of any detainee who complains of symptoms or is observed as being sick. Send them to hospital.
Madpet reiterates the call for full-time coroners, a coroners department and coroners’ courts. In 2019, for example, the total number of deaths in Malaysia was 173,746. Full-time coroners would be able to expedite inquests; at present, it simply takes too long.
When it involves deaths in police custody or in the custody of other law enforcement bodies, it is best that inquests be held by independent coroners. Likewise for cases of extrajudicial killings by the police and other law enforcement officers.
The recent Kuantan Coroner’s Court ruled that the police were responsible for the death of a detainee at the Pekan Police station three years ago.
Hence, how can the Home Minister Saifuddin even say that no police officers have been responsible for deaths in custody since he came into office?
Have even all the coroners’ inquests into these deaths in custody been completed?
Madpet urges the minister to just state the facts about the number of deaths in custody and not prematurely conclude whether the police were criminally responsible or not.
Madpet calls for the ratification of the UN Convention against Torture. The excuse for not doing so by the home minister given in Parliament on 1 July is unacceptable. Remember, Malaysia has the ability to place conditions or reservations when ratifying or signing a UN convention, like maybe excluding the Sharia courts.
We must ratify the convention now, amendments to the law can always come later. It is time to end torture in the penal system, in schools and in Malaysia. – Madpet
Charles Hector issues this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).
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