The independent Coroner must tell us the cause of death - and not the police, politician or anyone else. 13 reported cases of death in police custody in 2022, and the Coroner has not yet told us about the death. Police investigating deaths in police premises, and deaths that may have been caused by police officer/s is simply dangerous - that is why the Coroner must tell us the cause of death....
The Coroner is responsible for looking into ALL deaths(about 100,000 annually). For deaths caused by sickness/old age, it may be that the Coroner is satisfied with the 'cause of death' including that no one is criminally liable for the death, and thus the Coroner will decide not to have an INQUEST. That decision will be sent to the Public Prosecutor, who will review that conclusion. Mind you, a death that seems natural MAY not be - it could maybe be medical negligence, or even caused by family members that failed to provide proper care.
The Coroner also has a role with regards to the registration of deaths. This is mentioned in several section in the Births and Deaths Regisitration Act. One example is section 24 below..
Section 24 Duty of Coroner or Magistrate holding inquiry to forward copy of finding BIRTHS AND DEATHS REGISTRATION ACT 1957When an inquest or inquiry is held into the death of any person, the Coroner or Magistrate holding such inquest or inquiry shall, within seven days after the conclusion thereof, forward to the Superintendent Registrar a certificate setting forth the cause of death as ascertained at such inquiry, and such other particulars as are required for the purpose of registration, and the cause of death disclosed in such certificate shall be entered in the register.
The Malaysian reality is that we certainly need more Coroners(now Session Court Judges), and they do need staff and resources to carry out their work. To inquire into 'causes of death', reasonably the Coroner need to be informed fast - that gives the opportunity to even visit the site, view the body, even secure needed witness/evidence fast.
The Malaysian Bar adopted a Resolution at its recent AGM - Read it, and educate yourself..
Resolution Adopted at the 76th Annual General Meeting of the Malaysian Bar (Held Virtually on 19 Mar 2022)
Resolution on the Coroner and Inquests
1. About 109,000 persons died in Malaysia in 2020.
5. Section 339 states,
9. In a Parliamentary Reply dated 16/12/2021, the Home Minister said,
10. The Home Minister was wrong in several aspects:-
12. As reported in The Star, 12 Feb 2022:
JUDICIARY, Inquest and Coroner
THEREFORE, IT IS HEREBY RESOLVED
Source: Malaysian Bar Website
13th custodial death reported, this time in Penang
FMT Reporters
-March 23, 2022 5:11 PM
The man was detained yesterday at the Seberang Perai district police headquarters.
PETALING JAYA: Police have reported another death in custody case, this time in Penang. It was the 13th case recorded in the country this year.
Integrity and standards compliance department (JIPS) deputy director Allaudeen Abdul Majid said this involved a 59-year-old Chinese man, who was arrested over an alleged drug offence.
The deceased was detained yesterday at the Seberang Perai district police headquarters (IPD). He died this morning at 7.30am.
JIPS will carry out a detailed investigation into the death, Allaudeen said in a statement today.
The last custodial death involved an Indonesian national, who died at Bintulu Hospital in Sarawak on March 6. He had been detained at the Bintulu IPD for drugs and immigration-related offences.
Many groups, especially civil society organisations and MPs, have raised the alarm over the high number of custodial deaths that have been recorded so far this year. - FMT, 23/3/2022
Resolution on the Coroner and Inquests
1. About 109,000 persons died in Malaysia in 2020.
2. All deaths, including deaths in custody, must be referred to the Coroner who then decides whether to hold a public inquiry into the death(inquests) or not. If the Coroner decides not to hold an inquest, Section 333(1) Criminal Procedure Code (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.
3. The Coroners duty is to establish the "cause of death" 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.
4. With regard to death in custody, the law in Section 334 states that ‘...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….’
5. Section 339 states,
‘(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:...’
6. Hence, the Public Prosecutor serves a check and balance to determine whether an inquest ought to be held when the Coroner decides not to, OR whether further inquiry is needed after the Coroner completes the inquest.
7. It is sad that even Cabinet Ministers and the police seem to be confused about the law. Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar said that ALL deaths in custody must be referred to the Attorney-General’s Chambers (AGC) first…’ (Malaysian Insight, 11/2/2022).
8. The Minister was wrong on 2 counts. First, the death in custody must be referred the Coroner - not to the Attorney General. Second, the Attorney General has no role to play, when it comes to inquests of death or deaths in custody, it is the Public Prosecutor, and he comes into the picture after the Coroner submits his report.
9. In a Parliamentary Reply dated 16/12/2021, the Home Minister said,
‘...Bagi tempoh Januari 2015 hingga September 2021, pihak Polis Diraja Malaysia (PDRM) telah merekodkan sejumlah 606,664 tahanan yang ditahan di lokap-lokap PDRM seluruh Malaysia. Daripada jumlah tersebut, sebanyak 79 laporan atau 0.09 peratus kes kematian tahanan dalam lokap PDRM direkodkan. Untuk makluman Yang Berhormat, Mahkamah telah memerintahkan 20 kes dalam prosiding inkues; 17 kes dalam tindakan Timbalan Pendakwa Raya; 12 kes masih dalam siasatan; dan 30 kes berstatus ‘no further action’...’(Parliamentary Questions 16/12/2021 - MESYUARAT KEDUA, PENGGAL KEEMPAT PARLIMEN KEEMPAT BELAS 2021, Soalan 402)
a) An inquest do not require any Court Order, the Act already is clear that all deaths must be referred to the Coroner, who decides to hold an inquest or not,b) Why is the vases with the Deputy Public Prosecutor, he should only be reviewing the Coroner’s decision not to have an inquest or the report of the Coroner after an inquest,c) Cases under investigation are different from the requirement of referring to the Coroner, and the decision to hold an inquest. In any death cases, 2 things happen - one, the Coroner determines the Cause of Death, and second, the police continue the criminal investigation with a view of identifying and prosecuting the perpetrator. The question was about inquiries - but the Minister seems to have been confused between police investigation for the purpose of prosecution, and the duty of Coroner and death inquiries.d) ‘No Further Action’ is a conclusion made by police and prosecutors in a criminal investigation, it has nothing to do with the Coroner and inquest whereby the Coroner still needs to inquire and determine the causes of death, and whether anyone is criminally liable for the death.
11. This earlier 2 examples demonstrate an ignorance or lack of comprehension of the existing laws in Malaysia by Ministers concerning the Coroner and Inquiries into death. There is a need for the Attorney General, together with maybe the Malaysian Bar to educate Cabinet Members, MPs, Senators and State Assembly Persons of the law of the land. Statements of Ministers and elected representatives can seriously confuse and/or deceive members of the public about the law and their rights.
12. As reported in The Star, 12 Feb 2022:
Bukit Aman Integrity and Standards Compliance Department (JIPS) director Datuk Azri Ahmad was reported saying, ‘....He said the police would submit investigation papers to the Deputy Public Prosecutor’s office to ensure all aspects of the investigation were conducted by complying with all investigation procedures relating to cases of death in police custody under the Criminal Procedure Code and Practice Direction 2/2019.
“In this context, the practice of referring investigation papers to the Deputy Public Prosecutor is to obtain further advice and views on investigation procedures. This practice is to ensure that all legal provisions have been complied with and the investigation is complete,” he said in a statement Friday night (Feb 11).
He said a complete investigation paper would be forwarded immediately to the Coroner’s Court for further action.
On Wednesday, police confirmed that there had been seven cases of death in police custody this year and investigations found that only one of them involved criminal elements….’
13. The police are wrong here, for as soon as the police become aware of the death, the Coroner must be informed - not after investigation is completed. The Coroner, in some cases, may want to visit the site, view the body and even commence investigation, if need be, as he/she needs to determine the cause of death. It is the Coroner, not for the police to determine the cause of death, and whether anyone was criminally liable. Who was criminally liable is for the police to determine, not whether anyone was criminally liable in a death. Remember, the Coroner considers all evidence, not just the evidence submitted by the police - more so, when it is a case of death in police custody.
14. The setting up of the Bukit Aman Integrity and Standards Compliance Department (JIPS) to investigate death in custody is better than when the police in the station or district investigates death in police custody and deaths as a result of police shootings. But, the concern remains when police investigates a death which happens in a police premise, or a police officer maybe the cause of the death.
15. To supplement and to clarify the role and duties of the Coroner regarding deaths, the Judiciary came out with Practice Directions
a) PRACTICE DIRECTION NO. 1 OF 2007 - Guidelines on Inquest was issued by TAN SRI DATO' SITI NORMA YAAKOB), the then Chief Judge of Malaya.b) ARAHAN AMALAN BIL. 2 TAHUN 2014 issued by AZIMAH OMAR) Ketua Pendaftar Mahkamah Persekutuan Malaysia entitled ‘PENGENDALIAN SIASATAN KEMATIAN (DEATH INQUIRY) SELARAS DENGAN PENUBUHAN MAHKAMAH KHAS KORONER’ The coroner was now a Sessions Court Judge - no more a Magistrate, an indication of how the Judiciary felt about the Coroner and Inquests. The Coroner was specifically reminded that they have to deal with deaths classified as sudden death (death by natural causes where apparently no one is criminally liable)c) ARAHAN AMALAN BIL 2 TAHUN 2019, PENGENDALIAN LAPORAN MATI MENGEJUT DAN SIASATAN KEMATIAN OLEH MAHKAMAH SESYEN KORONER was issued by YAA TAN SRI DATUK SERI PANGLIMA RICHARD MALANJUM Ketua Hakim Negara Mahkamah Persekutuan Malaysia. Here again, it was stressed that ‘2. Semua kes Laporan Mati Mengejut(LMM) dan Siasatan Kematian hendaklah dikendalikan oleh Hakim Mahkamah Sesyen yang digelar Koroner. It stressed that Sudden Death cases must be investigated by the Coroner, and, if need be, it should be reclassified as a case requiring inquest, or a death in custody case. The Judiciary stated that the Coroner and Inquest is required not just by the reason of the Criminal Procedure Code, but also to provide the needed particulars as required by the BIRTHS AND DEATHS REGISTRATION ACT 1957.
16. The existing Acts need to be amended, including to state clearly that the Coroner today is a Sessions Court Judge - no more a Magistrate.
17. Considering the fact that the Coroner needs to look into about 109,000 deaths annually, all of which requires a Coroner’s report as to why there would not be an inquest, or an inquest.There is a need for the appointment of more Session Court judges as Coroners. There is a need to consider whether some of these Coroners need to be freed from other court work. There is a need for the provision of more staff for Coroners, as their duties also will include investigation, verification of police investigation, presence at site to view site and bodies, and maybe even the speedy procurement of needed evidence that risk being tampered with more so in cases of death in police custody, where the person/s criminally liable may also be police officers.
18. The Coroner should not rely only on police investigations, more so when it is a death in police custody or a death by result of a police shooting incident.
19. Criminal liability is not simply the use of physical force, but also include the failure to provide needed speedy healthcare and required medication, the failure to have occupational safety measures in place in cases of death by ‘industrial accidents’. The government plan to provide
20. Custodial Medical Unit (CMU) for all lockups whereby the arrested shall be subject to health checks by a medical professional before detention must be expedited. Working CCTVs in all places including body cams will provide a record that the police were not criminally liable. In Hong Kong, it has been more than 3 decades, since lawyers and/or suspects are provided with CDs on request to show that the police acted in accordance to law in the dealings of suspects at all times from the point of arrest.
21. The 12th case of death in police custody for 2022 was reported(FMT, 6/3/2022). What is not being reported are the other deaths in custody in Immigration detention places, and other government facilities. Death caused by police whilst affecting arrests also not reported.
22. In UK today, there is the Coroners and Justice Act 2009. In Malaysia, we have one part in CPC, made clearer by Practice Directions of the Judiciary. It may be best for us to have a comprehensive Act of Parliament. Remember, the Coroner decides on the cause of death in all deaths, not just “suspicious deaths”. Whether a death is “suspicious” and warrants an inquest is also a decision by the Coroner — not the police or some other party.
THEREFORE, IT IS HEREBY RESOLVED
(A) When any person has died either a violent or an unnatural death; or died in custody, or on Government premises, or in a death caused by public officers, such death must be immediately reported to the Coroner, who then will have the opportunity to visit the site of death, view the body and even start his/own independent preliminary inquiries;
(B) That the Coroner be the determiner of the causes of death, and the police and other public officers, respecting the law, shall refrain from publicly announcing causes of death.
(C) That a Coroner’s Court Act be enacted, with Session Court Judges as Coroner. The Act should also provide for the setting up of a Coroners Department, staffed with the needed human and other resources needed for a Coroner to carry out his/duties speedily, effectively and independently, more so when it involves death in police custody and/or death in any other government facility.
(D) That the Criminal Procedure Code be amended to insert the improvements and clarifications as determined by the Judiciary vide Practice Directions, and to also more clarify the process.
(E) That the Malaysian Ministers, MPs and public officers responsible for arrest and detention of suspects be educated about the law about Coroner and Inquiries into Death, including the need to inform the Coroner as soon as the Death occurs.
(F) That the remaining 59 cases of death in police lock-ups from 2015 to 2021, and the 12 cases in 2022, be speedily referred to the Coroner, as to date only 20 inquests of the 79 deaths in police lock-ups have been or are being conducted.
(G) That the Malaysian government annually disclose the number of all suspicious deaths and deaths in custody, deaths in Government premises, and deaths caused by public officers, and the findings of the Coroner. This should include not just deaths in lock-ups but all deaths in police custody, and deaths caused by police shootings when trying to affect arrests.
** The Motion was proposed by Charles Hector
13th custodial death reported, this time in Penang
FMT Reporters
-March 23, 2022 5:11 PM
The man was detained yesterday at the Seberang Perai district police headquarters.PETALING JAYA: Police have reported another death in custody case, this time in Penang. It was the 13th case recorded in the country this year.
Integrity and standards compliance department (JIPS) deputy director Allaudeen Abdul Majid said this involved a 59-year-old Chinese man, who was arrested over an alleged drug offence.
The deceased was detained yesterday at the Seberang Perai district police headquarters (IPD). He died this morning at 7.30am.
JIPS will carry out a detailed investigation into the death, Allaudeen said in a statement today.
The last custodial death involved an Indonesian national, who died at Bintulu Hospital in Sarawak on March 6. He had been detained at the Bintulu IPD for drugs and immigration-related offences.
Many groups, especially civil society organisations and MPs, have raised the alarm over the high number of custodial deaths that have been recorded so far this year. - FMT, 23/3/2022
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