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The Malaysian Bar takes note of the recent statements made by the Minister of Home Affairs, Datuk Seri Saifuddin Nasution Ismail, that there have been no custodial deaths in immigration and police detention centres that were attributed to the authorities since he took over office. In response to his statements, we wish to express our grave concerns, and emphasise several critical points that need immediate attention and action.
It is paramount to underscore that the determination of the cause of deaths in custody lies exclusively with the Coroner, as stipulated in section 334 of the Criminal Procedure Code. This mandates an inquest into deaths occurring in police custody. Any assertions regarding the causes of these deaths must be made following a thorough and independent investigation by the Coroner to ensure transparency and accountability.
The Minister stated that the recent deaths in custody were all attributed to health reasons, including COVID-19, tuberculosis (“TB”), and heart problems. This raises several critical concerns that need to be addressed promptly. Firstly, it is essential to determine whether these detainees passed away within the detention facilities or in a hospital setting. The location of their deaths is significant in understanding the conditions and care provided within the detention environment.
Furthermore, we must scrutinise the adequacy and timeliness of the medical attention these individuals received. Were they promptly attended to by qualified medical professionals, and was the necessary treatment administered without delay? The health and safety of detainees should be a priority, and any lapses in medical care must be identified and rectified.
It is crucial to investigate whether these deaths could have been prevented. Was there any negligence on the part of the authorities in providing the necessary medical care? The failure to prevent deaths that result from treatable health conditions points to a serious breach of duty and highlights the urgent need for systemic reforms to ensure the well-being of all detainees.
The Malaysian Bar adopted a resolution at its 76th Annual General Meeting in 2022, which highlighted the need for stringent measures to address custodial deaths. The resolution states that the immediate reporting of deaths in custody must be made to the Coroner, who should then visit the site, view the body, and commence independent preliminary inquiries. The resolution asserts that the Coroner shall be the sole determiner of the cause of death, with the police and other public officers refraining from making public announcements regarding the cause of death. The resolution also calls for the enactment of a Coroners’ Court Act, with Sessions Court Judges presiding as Coroners; and the establishment of a Coroners Department to ensure independent and effective operations. Additionally, the resolution recommends amending the Criminal Procedure Code to reflect judicial improvements and clarifications, educating public officers about the legal requirements for reporting and inquiring into custodial deaths, and referring the remaining unresolved cases of custodial deaths to the Coroner for inquests. The resolution further calls for the Malaysian Government to annually disclose the number of suspicious deaths, deaths in custody, and the findings of the Coroner.
The authorities and the Government have a duty and responsibility to provide a safe environment for all detainees. This includes not only preventing physical harm but also ensuring access to appropriate medical care. The current state of custodial deaths indicates a failure in fulfilling this fundamental responsibility.
No one should take pride in the absence of suicides or assaults when deaths in custody continue to occur due to health issues. The goal must be to achieve zero deaths in custody. We call upon the authorities to take immediate and effective measures to ensure the safety and well-being of all detainees and to prevent any further loss of life.
The Malaysian Bar asserts that one death in custody is one too many. It is imperative that thorough investigations are conducted, and accountability is established to prevent further tragedies. We urge the Malaysian Government and the relevant authorities — including the Independent Police Conduct Commission (“IPCC”) and Enforcement Agency Integrity Commission (“EAIC”) — to take decisive action to safeguard the lives and rights of all individuals in custody.
Mohamad Ezri b Abdul Wahab
President
Malaysian Bar
10 July 2024