MALAYSIANS against Death Penalty and Torture (Madpet) is concerned about the coroner’s silence on the recent deaths of Rohingya detainees, including one that allegedly died of Covid-19.

The coroner must state whether he or she has decided to have an inquest or otherwise. Death due to Covid-19 in a detention facility may place criminal liability on the government, commandant of the detention facility, minister and other relevant public officers.

At about 4am on Wednesday, 528 Rohingya detainees broke out from the Sungai Bakap Immigration Depot in Penang. Seven, including three children, were killed when they were hit by a car while crossing the North-South Expressway at Km168.

The seventh – a 14-year-old girl – succumbed to her injuries yesterday. And another died allegedly of Covid-19.

Kedah police chief Wan Hassan Wan Ahmad reportedly said “police have ruled out foul play behind the death of a Rohingya detainee at the immigration depot near Bandar Baharu, Kedah, last Wednesday”.

“The detainee’s death is a separate matter. We have classified the case as sudden death. He had died from virus infection after contracting Covid-19,” he told reporters, according to the New Straits Times.

It looks like the detainee died at the depot, not at hospital. When a person in a government detention facility dies by reason of Covid-19, the government, including the home minister, immigration director-general and depot commandant 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 (SOP) to prevent Covid-19 infection, which include self-tests and seeking healthcare – a person under detention is denied many freedoms, and the duty to keep a detainee healthy falls on the detaining authority.

It has been more than two years since Covid-19 arrived in Malaysia, and the question is whether the authorities are ensuring detainees in government facilities are complying with SOP to detect and prevent coronavirus infections, as well as provided the necessary healthcare if infected.

Are there regular temperature checks, Covid-19 testing and medical check-ups at the Sungai Bakap Immigration Depot? The fact that the detainee died in detention, not in hospital while receiving treatment raises questions.

The coroner is also supposed to determine “whether any person is criminally concerned in the cause of the death” (section 337 of the Criminal Procedure Code, or CPC).

Criminal liability arises not simply by reasons of action, but also omissions. The failure to ensure detainees in a detention facility are not infected with Covid-19, detect any infection and/or provide healthcare are possible reasons why the government and/or other responsible party may be found criminally liable and/or concerned with the death.

The coroner must have an inquest into this death in custody allegedly by reason of Covid-19, and the seven other deaths that resulted by reason of allegedly a vehicular incident.

The practice direction issued by then chief justice Richard Malanjum emphasises that “sudden deaths” cases must be investigated by the coroner and reclassified as a case requiring inquest or death in custody, if need be. The coroner ought to not simply or blindly accept police classification of “sudden deaths”.

Madpet views all the eight deaths as custodial deaths.

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 of the CPC re-emphasises the need for an inquest for custodial deaths, including deaths of detainees at the Sungai Bakap Immigration Depot.

Did the relevant authorities adhere to the law and immediately informed 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 the 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’ jail for reckless or dangerous driving, resulting in the death of eight teenage cyclists.

The High Court allowed the appeal overturning the magistrates’ court decision to acquit and discharge the woman in October. Will the driver/s of the car/s that caused the death of the seven escapees be similarly charged?

What was the protest or grievance of the detainees that led them to run away from detention? Was it simply a “riot” or an exercise of the right to peaceful assembly that led the more than 500 people to escape?

Madpet calls for an independent public inquiry into the incident at the Sungai Bakap Immigration Depot that, to date, has resulted in at least eight deaths.

Madpet also calls for a report by the coroner as to his or her findings, including as to whether a public inquest will be done. If the government and/or relevant authorities 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 enacting a law that clearly recognises an asylum seeker and/or refugee, as the current law only recognises foreigners with proper documentation and those without.

As such, an asylum seeker and/or refugee may be treated the same as any foreigner in Malaysia without proper documentation, and this is unjust. – April 29, 2022.

* Charles Hector is founding coordinator of Malaysians against Death Penalty and Torture.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.