COMMENT | Zara's inquest - better late than never

COMMENT | A relatively good news has finally arrived when the Attorney-General’s Chambers (AGC) agreed for an inquest into the death of the late Zara Qairina Mahathir to be carried out.

In fact, Zara’s mother earlier requested that the inquest be conducted as she believed her daughter’s untimely death was mired in a slew of lingering and unresolved puzzles.

It goes without saying that the earlier investigations by the police into Zara’s death merely exposed a raft of unsettling loopholes. One doesn’t have to be a criminal lawyer to question the failure of the police to ensure that any post-mortem on the deceased is timely conducted before the issuance of a burial certificate.

This is too elementary.

The absence of such a post-mortem merely reflected a shoddy investigation. In fact, there were a plethora of cases in which our courts sternly remarked that sloppy investigation could lead to unsuccessful prosecution.

As of today, the elements of school bullying seem to be present, causing the death of Zara.

Anyway, Malaysians - irrespective of their religions and races - deserve our utmost respect in clamouring for justice for Zara.

After all, they strongly believe that if the menace of school bullying is not immediately and adequately addressed by the government, the same fate may, God forbid, befall their children.

Inquest objectives

Under our present law, an inquest must be held by a magistrate as an official and public inquiry into the cause of a sudden, unnatural, unexplained or violent death.

The primary objective of the inquest is to determine the identity of the deceased (if unknown), how, when, where, and the cause or circumstances the deceased came by his/her death.

And cause of death is specifically defined in section 328 of the Criminal Procedure Code (CPC) to include not only the apparent cause of death as 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 how the deceased came by his/her death and as to whether his/her death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person.

As far as the death inquest is concerned, it is governed by Chapter XXXII (32) of the CPC and also by a Practice Note 2/2019, which seeks to supplement the procedure of inquest in the CPC.

It is germane to note here that an inquest is merely a fact-finding process. Be that as it may, there will be no formal accusation against any person, let alone a conviction, in the event the death is proven to have been caused by others.

Nevertheless, if the family members or interested persons are not satisfied with the inquest finding, they may move to the court for a revision so that the High Court may duly examine the record of the inquiry into the death of the deceased to satisfy the High Court as to the correctness, legality, or propriety of the finding of the Magistrate Court.

Unlike some other jurisdictions, as far as our laws are concerned, they are conspicuously silent on the magistrate/coroner’s power to give a recommendation. In my view, some lawyers have rightly argued that this is one of the major flaws in our present inquest system.

In Singapore, section 27(2) of the Coroners Act implicitly allows coroners to make recommendations when delivering their verdict.

In the same vein, section 44(2) of the Hong Kong’s Coroners Ordinance clearly empowers coroners to make recommendation to prevent similar fatalities, or impede other hazards to life disclosed by the evidence at the inquest and to bring the attention of the relevant person deficiencies in a system or method of work which are disclosed by evidence at the inquest and which is of public concern.

Anyway, let us hope the upcoming inquest will really get to the bottom of what went wrong, which led to the ill-timed death of an innocent adolescent girl.

Hanipa Maidin is a former deputy minister of law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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