Ensuring ethnic and racial justice

Published : 04 May 2021 09:31 PM | Updated : 04 May 2021 11:37 PM

The world continues to watch carefully the trial being carried out pertaining to the death last year of African-American man George Floyd, whose death triggered global protests against racism and policing in the US in 2020. They have been monitoring the judicial process and also the testimony based on medical reports submitted by doctors and police officials. This entire judicial process is becoming a symbol of good governance for similarly affected populations in the rest of the world.

The situation has gained a wider dimension over the last few days particularly in Australia. Civil society and the media in that country have underlined that indigenous deaths in custody have been taking place at regular intervals and raised questions as to whether inquests can be sites of justice or administrative violence. Renewed attention has been drawn in this regard because five aboriginal people have apparently died in custody in March this year in that country

After this, the media, including the BBC have referred to the 1991 Royal Commission into Aboriginal Deaths which, 30 years ago, had examined 99 deaths between 1980 and 1989 and made over 30 recommendations into how deaths in custody should be investigated. It would be interesting to note that a government-commissioned review of the Royal Commission’s recommendations had taken place and this attempt had declared that many of the Commission’s views had been implemented.

In every democratic country all over the world, where good governance 

is considered the key for identifying accountability, inquests play a very 

important role within the dimension of the Criminal Procedure Code and 

the Penal Code. The principles related to the Law of Evidence also have

 important dimensions

This has however been rejected by the critics who have claimed that such a characterization was “misleadingly positive”. It has also been pointed out that on the ground, little has changed since the report had been handed down. It has also been observed that 474 indigenous people have died in custody since then.

It would be important to recall in general what had been recommended by the Royal Commission with regard to situations arising out of deaths in custody and any subsequent inquiries that would follow such an incident. The royal commission report issued 339 total recommendations aimed at preventing and addressing Aboriginal deaths in custody. This included that families be involved at every stage of the inquest into a family member’s death.

Aboriginal families have tried to continue moving forward based on such advocacy. There has also been in the recent past the launching of the Dhadjowa Foundation which provides support to families whose loved ones have died in custody. The effort is now on towards every death in custody being properly investigated through a coroner to determine how and why it occurred.

In this context some inquests have taken place over the past year. This took place after:

(a) two young Aboriginal men died in the Swan River in 2018 during a police chase; (b) a 36-year-old Aboriginal man named Nathan Reynolds died in 2018 on a prison floor from an asthma attack due to “unreasonably delayed” response from prison and health staff, and (c) a Yorta woman-Tanya Day died in a prison cell. The inquest into her death was the first to take into consideration the possibility of this being a case of systemic racism.

The Australian civil society is now raising questions as to how effective these inquests have been in not only preventing subsequent deaths in custody but also getting justice for those who have since died.

In this context it would be relevant to point out that since 1991, at least 474 Aboriginal people have died in custody. It has also been noted that while indigenous people do not die at a greater rate than non-indigenous prisoners, they are much more likely to be in prison or police lock-up to begin with. That was the finding of the 1991 inquiry, and has continued to this day.

Aboriginal people apparently have the highest rate of incarceration of any group in the world. Roughly half of all juvenile prisoners are indigenous. A recent statistical survey (carried out by Corrective Services Australia in this regard) has indicated that in 2021, indigenous Australians constitute 3% of the population but make up 29% of the2021 prison population. In 1989 it was much less- 1.1% of the population and 14.3%  of the prison population. It has also been found that currently many are in custody without having been sentenced as they may not have money to post bail.

After the death of George Floyd and the Black Lives Matter movement many have started asking questions about another interesting dimension within the criminal justice process. Some have also started asking questions as to whether the inquest process is always fair and whether the judicial platform facilitates the enabling of proper justice. In this context, some have also started referring to observations by the Royal Commission that inquests merely reflected the inadequacies of perfunctory police investigations and did little more than formalize the conclusions of police investigators.

In inquests, coroners are apparently also unable to suggest civil or criminal liability. There is also the drawback whereby coroners are also expected to rely on police and corrections personnel for their evidentiary briefs, while overseeing matters where police and corrections staff are parties with a stake in the case.

It appears that while families can be closely involved in inquests, in many circumstances they cannot directly represent the legal interests of a person in the same way a custodial officer’s lawyer might. This is because they are represented as next of kin, not as representatives of legal interests outside the inquest. Family statements at the end of an inquest are consequently not considered as evidence, but as commentary or personal information about the deceased. They are not given standing for some of the most critical parts of accountability-seeking. This has led to some affected families observing that they were sidelined by court procedures when they wanted more than a memorializing role.

Some of this is also being noticed in the trial that has been taking place associated with the killing of Floyd.

Many critics in Australia have been observing that despite the Royal Commission’s recommendation to investigate deaths in custody as potential homicides, the predominant narratives that now surround such deaths mostly vary from possible suicides to ill-health created from not clear causes.  It would be correct to point out here that such excuses have been noticed also in other countries where there have been unacceptable deaths in custody.

In every democratic country all over the world, where good governance is considered the key for identifying accountability, inquests play a very important role within the dimension of the Criminal Procedure Code and the Penal Code. The principles related to the Law of Evidence also have important dimensions.

As a result, legal analysts underline that the inquest is an important element of any judicial process and is required to establish the obvious fact of how a death in custody could have taken place. It is also true that getting an inquest in the first place is a sizable barrier that no family should have to face. In this regard, long-standing practice of mandatory referral risks are however quite often undermined by emboldened state agencies in many countries- also in the Middle East, South and South-east Asia.

New tensions are also emerging within this paradigm over the role of coroners and when matters can be referred to prosecutors. At the time of the Royal Commission, coroners in some jurisdictions were able to directly set prosecutions in motion. However, now, complex procedures and evidentiary thresholds tend to govern when matters are referred to prosecutors to make that decision.

Another common aspect has also been drawing the attention of jurists involved with human rights. It revolves around the growing surge in judicial and administrative orders related to suppression and non-publication that prevents evidence and names linked to an inquest or death in custody from being published.

There is also another dimension that is creating uncertainty and controversy in establishing culpability and accountability. This matrix includes authorities refusing to publicly release CCTV footage, audios or photos that might be linked to how a person passed away while in custody. This, as we have noted in 2020 has led to people seeking alternative paths to justice not only in the USA and the Middle East but also in certain Eastern European countries. 

Aboriginal lawmakers, according to the BBC have called for leadership, including crisis talks between federal and state governments in Australia. They also want a formal reporting system on Aboriginal deaths in custody. This dynamics has created its own connotations. It is understood that efforts will now be made to reduce the rate of indigenous incarceration by 15% by 2031. However, analysts believe that this will be possible only if drastic action is taken. It also needs to be mentioned that the opposition Labor party in Australia has pledged Australian Dollar 90 million to reduce indigenous incarceration.

These are good propositions. One only hopes that necessary political will can be created within the Australian Administration to overcome this cycle of violent crisis. This could then become an example for the rest of the world including the Commonwealth to follow.

Muhammad Zamir, a former Ambassador, is an analyst specialized in foreign affairs, right to information and good governance