Extrajudicial killings must be criminalised in Malaysia, says Malaysians Against Death Penalty and Torture (Madpet).
Madpet calls for inquests for all deaths caused by police shootings to determine that it was in compliance with the law and that there was no person who is “criminally concerned in the cause of the death”.
The law is clear about the powers of the police, and there is a need to establish that the police did not break the laws – and certainly did not murder anyone.
Of late, we have come across two media reports of police shootings that resulted in deaths of all the alleged suspects.
In a Star report (15 September 2019), it was stated that the police after a 7km chase fired six shots and killed three suspects. The police later found two pistols and a machete. In this case, the police were reported as saying, “We are now trying to identify the suspects but we believe they might have been responsible for a high number of house break-ins…”
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The Malay Mail (27 August 2019 reported that police shot dead three persons after they allegedly shot twice at the police. In this case, only one gun was found. The police were reported as saying that the suspects had not yet been identified, but they were believed to be remnants of a gang “responsible for 15 factories break-ins and robbery cases involving about RM620,000”,
Shooting someone shooting at you with a gun may be justified, but shooting dead those without a gun raises questions. The duty of the police is to arrest and not shoot a person dead.
The media may report some but not all incidents. As such, one wonders about the number of people shot dead by the Malaysian police, as these are also extrajudicial killings. Were there any inquests conducted for all these deaths caused by police shootings?
When the police shoot dead alleged suspects, the media report the police version of what happened. It is often noted that the police are quick to make suggestions that link the dead to other past crimes. This itself raises concerns about the killings. An independent inquiry into these shootings and deaths is needed.
If they were ‘suspects’, why were they not previously arrested and investigated? Were there even arrest warrants out for their arrests?
Unfortunately, we also do not have follow-up media reports that tell people that the police have positively identified the dead and have secured evidence linking them to the alleged past crimes, if at all.
Other questions that arise include whether the police even followed arrest procedures. Did they even try to arrest? Or did they merely shoot to kill?
The police may be telling us the truth – but this really is not enough. We need independent inquiries into these deaths by a magistrate/judge, and this procedure is provided by law.
In the Criminal Procedure Code, Section 337 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.”
As such, the Magistrate can inquire and make a finding whether the death was caused by the police acting in accordance to law. Was there no possibility of arrest?
Remember that our law gives the police the power to arrest and not to kill. Force could be used in certain cases but the object must always be “to effect the arrest”.
Section 15(2) of the Criminal Procedure Code about arrest states:
(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest such officer or other person may use all means necessary to effect the arrest.
This section also states in subsection (3): Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
Clearly many, if not all, of these persons who have been shot dead by the police are at most merely suspects and are not yet accused – for they only become the ‘accused’ after they have been charged in court.
Hence, those shot dead can only be unavoidable ‘accidents’, at best, when the police tried to effect the arrest of these persons/suspects. It would also be good for the police if the findings of the inquest come to a similar conclusion.
Inquests, after all, must be conducted in all cases, except in the limited exceptions provided for in law.
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.
It must be pointed out that the words “cause of death” in the law are defined to “include not only the apparent cause of death as ascertainable by inspection or post-mortem examination of the body of the deceased, but also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death and as to whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person”.
The only other situation where a magistrate need not hold an inquiry is when “if any criminal proceedings have been instituted against any person in respect of any act connected with the death of the deceased or such hurt as caused the death”.
Therefore, except for cases of clear death by natural causes like old age and sickness, the magistrate needs to conduct an inquiry into the deaths, and that certainly should include deaths caused by police shootings and deaths in police custody.
The Criminal Procedure Code provides specific provisions covering the inquiry into the cause of death of a person in custody of police or in any asylum (Section 334).
[the then] Chief Judge of Malaya Tan Sri Siti Norma Yaakob said yesterday the law governing deaths of persons in police custody was clearly set out in Section 334 of the Criminal Procedure Code.
“From my reading of it, it is mandatory to hold inquests to ascertain the cause of death.
“And if that is the law, how is it possible that in 22 death cases, officers of the court have seen it fit to make decisions that no inquests were necessary?” Siti Norma asked… (The Star, 2 April 2006).
It is important that the Malaysian government now reassures us that inquests are being carried out in all deaths in custody cases.
It is also important that the government informs us that inquests are being conducted in all cases where death occurred by alleged reason of being shot dead by police and/or some other enforcement officers.
In 2014, the then government announced the creation of the permanent Coroner’s Court, which was to begin operations from 15 April 2014. The then Minister in the Prime Minister’s Department, Nancy Shukri also announced that with “the appointment of a senior judge acting as a coroner, Nancy hoped this would improve the public’s perception over the handling of such cases” (New Straits Times, 3 April 2014).
It is time to review these coroners’ courts, with a realistic objective of increasing the number of such coroners’ courts.
There is also a need to consider again whether we need to enact a Coroners Act like what they have in many jurisdictions like the Coroners and Justice Act 2009 in UK.
The UKs in cases where the death was caused by police, or in cases of a death in custody.
- calls for inquests into all cases of deaths caused by police shootings
- calls for the findings of all inquests (including deaths by police shootings) to be made public
- calls for the investigations of cases of police shootings to be conducted by an independent unit (not by the police), who will then also assist the magistrate in the inquest
- calls for the criminalisation of extrajudicial killings in Malaysia
- calls on the government to disclose statistics and information about deaths caused by police shootings and the steps taken to confirm that these were not extrajudicial killings
- calls on the Malaysian police to stop ‘defaming’ the dead, by making known their unverified beliefs that the dead – sometimes not yet identified – may have been responsible for past crimes
- calls on Malaysia to consider enacting a Coroners and Justice Act, with the possibility of the involvement of a civilian jury, especially in cases where the police are involved in the deaths, whether through police shooting or through deaths in police custody
Charles Hector released this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).