Many have asked why civil society is objecting to the “cause of death” question being carved out of the Royal Commission of Enquiry (RCE)’s terms to be left to a Magistrate in an Inquiry of Death (IOD) held under Chapter XXXII of the Criminal Procedure Code. Here’s why.
The context first. My learned friend, Fahri Azzat, has argued in customary fashion that a RCE would bear no fruit. That’s pessimism at peak. But Fahri should not be faulted for taking this position.
However, what is the alternative? Our law enforcement and investigation agencies have so thoroughly been smeared that each time a serious incident occurs e.g. custodial death, there is no place for the rakyat to seek refuge and no institution the rakyat trusts to give refuge. The RCE must always be the last resort, but is now the first, popular port of call. RCE proceedings, which ought to be extraordinary, is now normative in our society. Why so?
Because, we have reached a point where there is little, if any, public faith in our public services and the institutions established to protect us. Hoping beyond hope that independent-minded Commissioners will be appointed to the RCE, calls are made across the board for a fairer shot at “real” justice through a RCE. The nude-squat and VK Lingam video clip enquiries are good examples.
Having said that, once a RCE is established, it cannot operate in a vacuum. Should one consider the previous Commissions cited by my learned friend, Lam Wai Loon, one would note that the Commissions were established to conduct comprehensive investigations into cases of tragedies (e.g. collapse of a ferry terminal, and fires at a factory and school), incidents of physical abuse (e.g. black-eye incident involving DSAI, and nude-squat incident involving a police detainee) and allegations of judicial corruption (e.g. VK Lingam video clip). None of these Commissions proceeded devoid of any factual matter, nor without seeking an outcome as to the causes of the tragedies, abuse and corruption. It was in any event impossible to so proceed.
The establishment of this RCE was precipitated by Teoh’s interrogation and subsequent death. How was the interrogation carried out, how did the death occur, and why, are questions the RCE cannot run away from. It is utterly impracticable to sieve investigation/interrogation methods from Teoh’s death. To exclude the cause of death from the scope of the RCE’s work is to give the RCE an impossible assignment. And it would be the first time a RCE is asked to operate in this manner.
Imagine the RCE hearing. Those who interrogated and monitored Teoh, and had contact with him will be called to give evidence.
Imagine the IOD hearing. The same witnesses will surely be called to give evidence to establish his movements and what occurred on that fateful day.
Parallel proceedings will be in session – the RCE and the IOD. Same witnesses, and same testimonies (hopefully) to establish the fact pattern. It will be repetitive and duplicitous. Cost, time, expenses, resources will double. Do we really need this when the RCE may deal with issues which will be before the IOD? And what happens when there are legal issues or facts which overlap, and the findings of the RCE and the IOD conflict? Which holds sway?
It would be a terrible waste to have the RCE only look into MACC’s investigation/interrogation procedures, and leave the burning question of the cause of death to the IOD. Why?
First, there is in existence 5 collectives to advise the MACC – Anti-Corruption Advisory Board, Special Committee on Corruption, Complaints Committee, Operations Review Panel, and Corruption Consultation and Prevention Panel. These bodies should have, and could now review MACC’s investigation methods. No need to wait for a RCE.
Second, police investigation/interrogation methods have already been examined by no less than two Commissions – one, on wide-ranging issues which pertain to the police force, and the other on police handling of the nude-squat fiasco. It is very clear that under the MACC Act, MACC officers are treated in law as having the same functions and powers of police officers. Consistent with how the police force is to investigate/interrogate suspects, MACC officers should be held to the same standards and adopt the same practices. No need for another time-consuming and resource-sapping enquiry merely on investigation/interrogation methods. A review of these methods could, and should only be ancillary to the question how Teoh met his death.
Depending on who is appointed to the RCE and how proceedings are conducted, the RCE process has much to commend to it based on previous experience. The problem lies post-process in the non-implementation of RCE recommendations by Government. That is the fault of the Executive.
On the other hand, the IOD process in its present form is a perfectly discredited and archaic procedure in Malaysia, and little or no heed is paid to it by reasonable laypersons. Remember the number of custodial death cases which have gone through or are still pending the IOD process – e.g. Francis Udayappan, Tharma Rajen, M. Ragubathy – and which process has been heavily criticised. IOD proceedings are usually seen as a way for law enforcement agencies especially the police to provide innocent reasons and “explain away” the deaths. There has arguably been judicial acknowledgment of this albeit made within the context of the facts of a case. See PP v Shanmugam & 5 Others  1 LNS 160 where 6 men were killed in a shoot-out with the police and the learned High Court Judge remarked:
With so many questions left unanswered as illustrated above, and no confirmatory or established facts available for the consideration of the learned magistrate, the finding of the latter as regards culpability and the overall order generally, apart from the dearth of conclusion on the cause of death, was certainly difficult to appreciate.
Expanding from there, I was quite stunned by the format of the magistrate’s decision as it bordered on the preparation of the defense of the police over zealousness. In fact it was not a decision that could be construed as a verdict but a ground of decision, based on a non-verdict. At worst he could have merely recorded that the deaths were caused by misadventure, as a result of multiple shot wounds on the heads and bodies, but unfortunately had failed to do so. It must be borne in mind that if there were to be uncertainty on certain parts of the inquiry, like when or where he died etc. but with there being sufficient evidence to record how he died, a verdict of misadventure must be handed down. If in the case of Re Davies (dcd)  1 All ER 688 death caused by sleep-walking hence an accident, could justify a verdict of misadventure, surely in this case it was more than qualified to be categorized as such. Even the very basis of the finding, that no criminal act had been committed seemed to be founded on shaky grounds, as that conclusion went against the grain of the evidence. As dissected earlier, there was no cogent proof to confirm of any shots having been fired from the van vis-a-vis the accurate shots of the police.
At the end of the day even though there were many ifs and questions badgering me, but as there was sufficient evidence to conclude as to how the deceased persons met their deaths I had no hesitation in quashing the verdict of the learned magistrate, and substituting it with a verdict of misadventure with the deceased persons being shot by person or persons unknown. Due to the insufficiency of evidence before the court to convict any person or persons in the Shootout, the conclusion of “being shot by person or persons unknown” (as insufficient evidence were made available to court to decide whose bullets killed them), – must be alluded to. These two ingredients in the verdict are included as under section 328 of the Criminal Procedure Code “cause of death” includes not only the apparent cause of death ascertainable by inspection or post-mortem examination of the body of the deceased, but also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death, and as to whether his death resulted in any way, or was accelerated by, any act or omission of any other person. Regretfully I was unable to conclude whether there was any outright criminality committed by any identifiable police personnel, as there was also insufficient evidence before me for consideration.
Further, IOD proceedings are presided only by a Magistrate. A Magistrate is legally-trained, not instructed in science or medicine. Although doctors and pathologists will give evidence, it would logically be more reliable and better for a medical expert to also decide on the cause of death together with the Magistrate.
IOD proceedings are comparatively less inclusive, and wider active participation by civil society, interested parties and the Bar have previously on occasions been blocked. As the Magistrate relies heavily on the DPP presenting the evidence, there are times when important witnesses are not called and key questions not asked. Public scrutiny and attention to IOD proceedings is far less than during the RCE process.
These reasons, among others, led the Parliamentary Select Committee which examined the Criminal Procedure Code and the Penal Code chaired by Dato’ Seri Radzi Ahmad to say in its report in 2006:
155. Berdasarkan syor-syor dalam Laporan Jawatankuasa ini, beberapa pindaan berbangkit perlu dikaji. Di antaranya adalah seperti yang berikut:
(a) Akta Koroner yang baru bagi membolehkan penubuhan Mahkamah Koroner, pelantikan Koroner dan prosedur-prosedur inkues; …
The Bar Council I believe has called for a revamp of the present IOD system, and supports the proposal for specialised Coroners Courts to be set-up presided by a panel of medical experts and legally-trained personnel.
What should Government do?
It is not too late for Cabinet to include that Teoh’s cause of death be investigated as part of the RCE’s terms of reference, and to scrap the IOD idea. Then we are in business again.