Death in Custody - the law is clear that the Coroner must be informed by the police and other law enforcement when there is a DEATH. Even deaths classified as 'sudden deaths' must now be brought to the attention of the Coroner. The Coroner is the person to determine the cause of death.
The Home Minister's suggestion that the deaths must be brought to the notice of the Attorney General's Chambers(AGC) first, who then decide whether the Coroner be informed or an Inquest be carried out raises concerns. Are they doing 'damage control' - and is it an attempt to avoid liability of government? Most likely not - because I believe Malaysian prosecutors and even Federal Counsel will not 'cover up' and will uphold the cause of justice without fear or favour. We must thus avoid anything that may risk the change of public perception of the system.
Noting that there have been cases now, where the courts have made the decisions ordering the government of Malaysia to pay damages/compensation to the families of those who died in police custody. In some of these cases, no police officer and/or others have been criminally prosecuted in courts.
Now, when it comes to deaths, the Coroner and Inquest, the AGC has nothing to do with it, it is only the Public Prosecutor. Note Attorney General and their Federal Counsels are basically 'government lawyers', and they are concerned with protecting the government from civil suits. So, sending death reports to the AGC to decide which case requires an inquest, and which does not is most dangerous.
If the Coroner, for any deaths decide that an INQUEST is not needed, then he has to send the report to the Public Prosecutor - who will then review the decision of the Coroner, and have a right to overrule the Coroner's decision and ask the Coroner to conduct an INQUEST.
333 Duty of Magistrate on receipt of report(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.
After any inquest, the decision also need to be send to the Public Prosecutor, who also have the right to send it back to the Coroner asking for further inquiries into the death(Inquest).
339 Power of Public Prosecutor to require inquiry to be held
(1) The Public Prosecutor may at any time direct a Magistrate to hold an inquiry under this Chapter into the cause of, and the circumstances connected with, any death such as is referred to in sections 329 and 334, and the Magistrate to whom such direction is given shall then proceed to hold an inquiry and shall record his finding as to the cause of death and also as to any of the circumstances connected with it with regard to which the Public Prosecutor may have directed him to make inquiry.
(2) When the proceedings at any inquiry under this Chapter have been closed and it appears to the Public Prosecutor that further investigation is necessary, the Public Prosecutor may direct the Magistrate to reopen the inquiry and to make further investigation, and thereupon the Magistrate shall have full power to reopen the inquiry and make further investigation and thereafter to proceed in the same manner as if the proceedings at the inquiry had not been closed:
Provided that this subsection shall not apply to any inquiry at which a finding of murder or culpable homicide not amounting to murder has been returned against any person.
(3) When giving any direction under this section the Public Prosecutor may also direct whether the body shall or shall not be exhumed.
(4) All directions given under this section shall be complied with by the Magistrate to whom they are addressed without unnecessary delay.
So, it is clear that the Public Prosecutor's duty in law, is to act to ensure NO errors in the Coroner's decision - wonder how many decisions of Coroner not to hold inquests have been 'overuled' by the Public Prosecutor...how many cases of inquest decisions of the Coroner, have the Public Prosecutor asked for further inquiries...
All deaths, reasonably, must be reported FIRST to the CORONER. Only after the Coroner decides, does the Public Prosecutor come in.... so the Minister and others are WRONG to suggest that the deaths need to be reported to the AGC first...
Now, it is KEY that the Coroner is informed of the death immediately - this allows a speedy view of the site, the body, etc - very important for the decision to be made during the inquests, or any other decisions made by the Coroner. TIME is of essence for the determination of the TRUTH.
Remember, it is the CORONER(A Sessions Court Judge) that determines how the death happened, and whether anyone can be criminally liable for the death. Negligence for not providing required medication in time, or failure to provide timely healthcare also can make someone, etc criminally liable.
Besides the INQUEST, the police also has the duty to investigate the crime, identify the suspect, and charge him/her in court > and after police investigation, they inform the Public Prosecutor - here the concern is getting sufficient evidence to charge someone for the crime...Minister may be confused with this other ordinary criminal investigations..
Catching the Perpetrators and INQUEST is a different and separate procedure, for the INDEPENDENT Coroner to make a determination as to the cause of the death, and look into whether anyone may be criminally liable. This is most important for no one want a death criminally brought about by another to go unnoticed, do we? Police officers can also make mistakes - so, the Coroner ensures what is the truth.
Note, sometimes, even the Coroner after an inquest cannot make a DECISION - that happens too.
That's why IMMEDIATE notification of the Death to the Coroner is important - Coroner visit to the site and examination of body, even identification of witnesses, getting evidence like CCTV soon, even knowing who the lock-up mates were and making sure that their whereabouts are known ...until the INQUEST is key. DELAY may result in tampering of evidence, disappearance of key witnesses (which can happen when witnesses are deported or leave the country)...
The law on Inquest, over and above the provisions of the Criminal Procedure Code comes in the form of Practice Directions by the Malaysian Judiciary. I will try to elaborate more the applicable procedure in a later post...
One point that is emphasized by the Judiciary is the treatment of SUDDEN DEATH REPORTS - which also have to be dealt with by the Coroner. Coroner is REMINDED to evaluate this, and even change it from 'sudden death'(natural death arising by no criminal fault of another) to make a different kind of DEATH... Trusting the police assessment is a NO...It is for the Coroner to determine how he died, and whether anyone is criminally responsible for the death.
It is not just physical assault that makes you criminally liable. Not making sure he gets his meds, and he died.. U are criminally liable. NOT sending to doctor in time -criminally liable. He slipped and died... U may be criminally liable. Man arrested, gets infected with covid and dies - u are criminally liable. Being able to prevent death and choosing to do the needful - u are criminally liable.
Death in custody cases go to AGC first, Wan Junaidi says
ALL deaths in custody must be referred to the Attorney-General’s Chambers (AGC) first, Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar said.
Responding to Citizens Against Enforced Disappearances group (CAGED) question why the police are referring deaths in police custody to the AGC and not the Coroner’s Court for directions, the minister said: “the AGC is the ultimate legality of things in Malaysia”.
“It’s the AGC that will decide whether an inquest is necessary. It will normally direct the inquest to be conducted by the Coroner’s Court.”
Yesterday, CAGED queried the procedure.
“Are the police unaware that coroners are bound by law and the Chief Justice’s directives to conduct inquests?”
The group added that the AGC could have “over the years been contravening section 334 of the Criminal Procedure Code”.
However, Wan Junaidi said the “code must be read as a whole, not in isolation”.
The Santubong MP also said it took long for police to prepare their file reports on deaths in custody, because post-mortem and medical reports referred to the Chemistry Department were often held up in the system.
Wan Junaidi, who was the deputy home minister from May 2013 to July 2015, and had chaired the committee tasked with looking into forming the coroner’s court, said when the then law minister made the decision to form the court, she did not take into account revamping the “supporting infrastructure”.
“The Chemistry Department was not revamped.”
He said the extra manpower needed to speed up the investigations was never assigned.
That, he said, was why the post-mortem and medical reports on deaths in custody from the Chemistry Department takes three to four months to complete.
“The department is bogged down with paperwork.”
He said the additional workload without the additional manpower, it was no wonder why the death reports are slow.
“It’s the failure of the system,” Wan Junaidi added. – February 11, 2022.Malaysian Insight
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