Imagine my surprise when I read Minister in the Prime Minister’s Department Nancy Shukri’s sudden announcement of the commencement of the Coroner’s Court to replace the inquest system (New Straits Times, 3 April 2014 – “Nancy: Coroner’s Court starts April 15”) when there was no consultation with the Malaysian Bar or civil society on a much needed reform and controversial issue.
The primary function of any inquiries of deaths irrespective of what they are called – whether Coroner’s Court or Inquest is to independently inquire into how, when and where the person died and deliver the finding and verdict.
Despite the obvious seriousness of any extra-judicial killings especially death in police custody or fatal shooting, there is rarely any accountability, transparency or real investigations by the authorities responsible, namely the courts, police, Attorney-General’s Chambers and government hospitals which provide medical assistance or conduct post-mortems.
Although under the Criminal Procedure Code, inquest into deaths in custody is mandatory, in reality, very few inquests are conducted. The Royal Commission to Enhance the Operation and Management of the Police (May 2005) revealed that inquests were done in only 6 out of the 80 deaths in police custody in the four-year period.
Even when inquests are conducted, the whole process is extremely slow, cumbersome and highly unsatisfactory with the AG’s Chambers officers downplaying evidence, medical authorities typically attributing “heart attack”, “natural causes” or other unacceptable reasons for the cause of death. Such unholy alliance leads to “open verdicts” in many inquiries which simply meant that the cause of death was unclear and therefore no one can be held responsible.
Despite the long list of custodial deaths and fatal shootings, very few policemen are found culpable, much less criminally charged for any offences. The statistics from the police are staggering – between 2000 and February 2010, 64 Malays died while in police custody, with 30 deaths among Chinese detainees, 28 Indians, 8 other races, and 14 foreigners. Some of the reasons given for the cause of the deaths: 63 from “other diseases” such as ulcers, yellow fever (jaundice) and intestine, lung and throat infections, 23 were listed as “suicide” in the cells, 12 deaths from brain hemorrhage, and 66 were termed as “no further action”.
Further, a total of 298 alleged criminals were shot dead by the police from 2007 to August 2012. In 2007, a total of 13 people were shot dead, while in 2008 (85), 2009 (88), 2010 (45), 2011 (30) and up to August 2012 (37). Indonesians accounted for 151 persons who were shot dead, 134 Malaysians, 5 Vietnamese, 3 Burmese, 2 Thais, 1 Nigerian, 1 Liberian and another person of unknown nationality.
In almost all cases, the police claimed that the suspects were wanted criminals who attempted to attack them. The police in self-defence, opened fire, killing all instantly. Subsequent to the shooting, the police claimed to have discovered weapons especially parang, and accused the dead of being involved in all sorts of crime.
However, in a few cases, some have survived and witnesses had come forward to describe what had actually happened, which is a far cry from that described by the police. Many have been shot for merely attempting to flee from the police or road blocks even though they were not suspected for any serious crimes or posed any threat to the public or the police.
Coming back to Nancy Shukri’s sudden announcement, when the finer details came through via the Chief Justice’s Practice Direction on the Coroner’s Court, I was surprised that the only real improvement is the appointment of a more senior Sessions Court judge to act as coroner rather than a Magistrate.
This is shocking to say the least as without the enactment of a comprehensive Coroner’s Act or making fundamental structural reforms to the inquiring process that has frustrated so many inquests by returning “open verdicts”, it is hard to see how by merely appointing a more senior judge to act as coroner, all the serious concerns will disappear.
The Practice Direction on the Coroner’s Court even had the gall to state that the previous Practice Direction on Inquest was cancelled only to reproduce it verbatim as an attachment to the new Practice Direction – a clear case of old wine in new bottle.
The new Practice Direction did however clarify that an inquest must be held for all detention deaths whether in police custody, prisons, detention centres or hospitals and suspicious deaths falling under section 329(1) of the Criminal Procedure Code – although it is unlikely to be followed as there are just too many custodial deaths especially in immigration detention centres. In December 2008, Suhakam revealed that 1,300 foreigners died in detention during the past six years due to lack of medical treatment and neglect.
In order for any inquiries of deaths to be effective, the “blue wall of silence” (the brotherhood among officers involved that prevent any meaningful investigation) highlighted in the Royal Commission of the Inquiry into the Death of Teoh Beng Hock, must be broken.
Without any amendments to the Criminal Procedure Code and the Chief Justice’s Practice Direction, the status quo remains as the new regime still does not mandate the coroner to undertake a more investigative or supervisory role from the moment the death was discovered – which needless to say is the most crucial part in any real reforms. Therefore, the coroner is still wholly dependent on the police to investigate their own personnel – which is just not going to happen.
Rather than set up the Coroner’s Court in a half-hearted manner and with no substantive improvement over the inquest, the government should set up a genuine Coroner’s Court with comprehensive legislation detailing the powers of the coroner including supervision of all police investigations to ensure that all relevant evidence is collected so as to prevent collusion and lackadaisical investigation.
More importantly, if the government is sincere in addressing the lawless and undisciplined police force, it must implement the recommendation of the Royal Commission in setting up an Independent Police Complaints and Misconduct Commission (IPCMC) to function as an independent and external oversight body to investigate complaints about police personnel.
The Coroner’s Court will not resolve the unabated deaths in custody or those caused by trigger happy policemen. In order to restore public faith in the administration of justice, the culture of impunity, cover-up and silence must be replaced by independent and competent police investigation, an AG’s Chambers and judiciary that are genuinely committed to inquire into all extra-judicial killings. There is no shortcut.
Eric Paulsen is Executive Director of Lawyers for Liberty. Follow us on Twitter @lawyers4liberty