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MADPET (Malaysians Against Death Penalty and Torture) is concerned about the silence of the coroner on the recent eight deaths, including one that allegedly died by reason of Covid-19.
The coroner must state whether he/she has decided to have an inquest or otherwise.
Death by reason of Covid-19 in a detention facility may place criminal liability on the government, commandant of detention facility, minister and other relevant public officers.
At about 4am last Wednesday, 528 Rohingya detainees, being men, women and children, escaped or broke out from the Sg Bakap Immigration Detention Depot in Penang.
Seven, including three children, were killed when hit by a car while crossing the North-South Expressway at kilometre 168. The seventh – a 14-year-old girl – succumbed to her injuries yesterday.
Another died, allegedly because of Covid-19.
Kedah police chief Wan Hassan Wan Ahmad was reported as saying that police have ruled out foul play behind the death of a Rohingya detainee at the temporary immigration detention depot near Bandar Baharu last Wednesday.
“The detainee’s death was a separate matter. We have classified the case under a sudden death report case. He had died from virus infection after contracting Covid-19,” Wan Hassan told reporters.
It looks like the detainee died at the depot, not at some hospital where he was admitted for treatment.
When a detainee in a government detention facility dies by reason of Covid-19, the government including the home affairs minister, immigration director-general and the commandant of the immigration detention facility may be criminally concerned or liable for the death.
Unlike a person not under detention, who can freely do the needful including compliance with standard operating procedures (SOPs) to prevent being infected by Covid-19, which include doing the needed self-tests and seeking necessary healthcare, a person under detention is denied many of these freedoms, and the duty to keep free a detainee from being infected by Covid-19, and also getting the needed healthcare, reasonably falls on the detaining authority.
It has been more than two years since Malaysia has been affected by Covid-19, and the question is whether the relevant authorities are making sure that detainees in government facilities are complying with the SOPs to prevent infection, detect infections and provision of the necessary speedy healthcare if found to be infected.
Were there regular temperature checks, Covid-19 tests and medical check-ups done at the Sg Bakap Immigration Detention Depot? The fact that the detainee died in detention, not in some hospital while receiving necessary medical attention raises questions.
The coroner is also supposed to determine “whether any person is criminally concerned in the cause of the death” (Section 337 Criminal Procedure Code/CPC).
Criminal liability arises not simply by reason of actions, but also omissions. The failure to ensure detainees in a detention facility are not infected by Covid-19, the failure to detect infection amongst detainees and/or the failure to provide speedy healthcare to the infected are possible reasons why the government and/or other responsible persons may be found criminally liable and/or concerned with the death.
The coroner must forthwith have an inquest into this death in custody allegedly by reason of Covid-19, and also the other seven deaths that resulted by reason of allegedly a vehicular incident.
In the currently applicable practice direction issued by the then chief justice of Malaysia Tan Sri Datuk Seri Panglima Richard Malanjum (Arahan Amalan Bil 2 Tahun 2019, Pengendalian Laporan Mati Mengejut Dan Siasatan Kematian Oleh Mahkamah Sesyen Koroner) it is emphasised that cases classified as “sudden deaths” must be investigated by the coroner, and, if need be, reclassified as a case requiring inquest, or a death in custody case. The coroner ought not simply or blindly accept police classification of “sudden deaths”.
All eight deaths that happened, in Madpet’s view, are deaths in custody.
Noting that while the coroner in Malaysia, now a sessions court judge, is duty bound to determine the cause of death of all deaths in Malaysia, with or without an inquest, Section 334 CPC re-emphasises the need for an inquest for deaths in custody, and this includes deaths of persons who were in custody at the Sg Bakap Immigration Detention Depot.
Did the relevant officers or authorities adhere to the law, and immediately inform the coroner of the deaths? – “…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 police, and in other cases may, if he thinks expedient, hold an inquiry into the cause of death…”. (s.334)
Public attention is now on the case of Sam Ke Ting who was recently sentenced to six years in prison for reckless or dangerous driving, resulting in the death of eight teenagers riding their bicycles on a road. The high court allowed the appeal overturning the magistrates’ court decision to acquit and discharge the 27-year-old woman last October.
Will the drivers of the cars that caused the death of the seven that escaped from the immigration detention facility be similarly charged?
What was the protest or grievance of the detainees the Sg Bakap Immigration Detention Depot that led them to run away from detention? Was it simply a “riot” or an exercise of the right to peaceful assembly that led these 500 plus to escape?
Is there a need for an independent inquiry by a Royal Commission of Inquiry, a parliamentary committee, Suhakam (Malaysia’s Human Rights Commission), EAIC (Enforcement Agency Integrity Commission) or some other independent body?
Madpet calls for an independent public inquiry into the incident at Sg Bakap Immigration Detention Depot that to date has resulted in at least eight deaths.
Madpet calls for a report by the coroner as to his/her findings, including as to whether a public inquest will be done.
If the government or relevant persons are criminally liable for the deaths, action including criminal prosecution must be taken without fear or favour, and indiscriminately as stated in Article 8(1) of the federal constitution – “All persons are equal before the law and entitled to the equal protection of the law”.
Madpet also reiterates the call for the enacting of a law that clearly recognises the asylum seeker or refugees, as current law only recognises foreigners in Malaysia with proper documentation and those without. As such, asylum seekers or refugees may be treated the same as any foreigners found in Malaysia without proper documentation, and this is not just. – The Vibes, April 30, 2022
Charles Hector is a co-founder of Madpet