Coroners Act needed to empower judges in custodial death cases, lawyers tell Putrajaya

Putrajaya must introduce a Coroners Act to arm judicial officers with the power to investigate suspicious deaths in custody, say criminal lawyers, after a top court ordered a controversial case to be reopened.

They said existing provisions in the Criminal Procedure Code (CPC) did not give them sufficient authority to pinpoint the exact cause of deaths as investigations were conducted by the police, even in cases where the cops were the suspects.

The lawyers further said the existing Coroner's Court which only upgraded Sessions Court judges as judicial officers to preside over death inquiries was a mere window dressing exercise.

They also reminded the government that it was taxpayers' money that was used to pay damages each time the court makes an award to the next of kin in civil suits.

Eric Paulsen (pic, right), executive director of Lawyers for Liberty, said deaths in custody had been a long and prevalent issue in Malaysia and inquests held were usually failures which end in an open verdict.

"No one is held culpable, giving the family of victims no closure," he said.

Paulsen said 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 over the extra judicial killings.

"We call upon the government, in consultation with the Malaysian Bar and civil society, to set up a proper Coroners’ Court with comprehensive legislation detailing the powers of the coroner," he added.

Paulsen said this in reponse to the unanimous decison of the Court of Appeal which substituted the open veridict of a coroner to that of an unlawful act of person/s unknown against Teoh Beng Hock, the late aide to a DAP state assemblyman who was found dead outside the Malaysian Anti-Corruption Commission (MACC) office, hours after being questioned.

A three-man bench also ruled that that only a lower standard of proof, which is the balance of probabilities, is required in an inquest to find out the cause of death.

While Datuk Mohamad Arif Md Yusof and Datuk Mah Weng Kwai held that coroners could arrive at an open verdict, Datuk Hamid Sultan Abu Backer said the CPC provided no room for such counclusion.

However, the judges were unanimous that the coroner in Teoh's case was wrong in his finding, as there were overwhelming evidence against MACC officers.

They also ruled out suicide.

Teoh who was held for questioning, was found dead on the 5th floor annexe corridor if Plaza Masalam in Shah Alam, which housed the MACC office, on July 16, 2009.

Lawyer N. Surendran said while Teoh's case served as a wake-up call, there were limitations for superior court judges to give directions to coroners on the law and procedures in conducting death inquiries.

"The CPC is incomplete and we need an exhaustive Coroners Act to give judges more bite to perform their functions effectively," he added.

Surendran, who is also Padang Serai MP, said it was also time for the government to implement the recommendation of a Royal Commission in 2005 to set up an Independent Police Complaints and Misconduct Commission (IPCMC) to function as an independent and external oversight body to investigate complaints about police personnel.

"Policemen will follow the law and respect the rights of detainees as they will fear disciplinary action and criminal prosecution," he said.

Surendran (pic, right) said if there was respect for the rule of law, there would be less civil suits filed and damages ordered against enforcement agencies such as the police, immigration, prison department and MACC.

Lawyer Ravi Nekko said the court had dissected the evidence in Teoh's case to make a conclusion that there was no suicide but homicide.

"Though it is a bit too late now as evidence may have been compromised, I hope those responsible are made to face justice and restore Teoh's integrity," he said.

He said this ruling revealed that enforcement agencies must ensure the safety and well being of witnesses or suspects under their custody.

Ravi, who co-chairs the Bar Council's criminal law committte, said any Coroner's Act must equip the judges to be assisted by forensic pathologists and other experts to investigate suspicious deaths.

"Now coroners play the role of judges when they should be investigators," he said, adding that coroners should also be given powers to order a second post-mortem if the need arose.

He also said the Coroner's Court worked well in Australia, Britain and New Zealand. – September 10, 2014.