Attorney-general should handle enforced disappearance cases
COMMENT | Malaysians Against
Death Penalty and Torture (Madpet) is disappointed with the course being
taken by the Malaysian government in appointing yet another task force
to investigate the enforced disappearances of Pastor Raymond Koh and
activist Amri Che Mat.
This comes after the Malaysian National
Human Rights Commission (Suhakam) had concluded public inquiries that
determined that both Pastor Raymond Koh and Amri Che Mat were victims of
enforced disappearance and that the alleged perpetrators are members of
the police force, in particular from the Special Branch.
Suhakam’s commissioner, and also the chairperson of both inquiry panels, Mah Weng Kwai (photo, above), was reported saying that “It has to be an investigation, not another inquiry.”
Mah
added: “When the police investigate, they would have to trace and dig
further to see who are the relevant witnesses that can give credible
evidence.”
He
also said that there was no need for having another inquiry in order to
speak to the same witnesses who spoke to the Suhakam panel.
Madpet
agrees that there is no need for yet another inquiry to be conducted by
the new task force, but what is needed now is an investigation with the
objective of prosecution, or some other legal suit to ensure justice is
done.
As such, the attorney-general/public prosecutor is maybe
the best person to handle the task of further investigating to get more
evidence, with the objective of prosecution.
Amri Che Mat, went missing on Nov 24, 2016.
The
hearing of this public inquiry started on Jan 22, 2018, and ended on
Nov 15, 2018. There were 27 days of hearing and the panel heard evidence
from 24 witnesses.
Counsel for the family, officers for the
police, officers for Suhakam and counsel from the Bar Council took part
in the inquiry and also submitted before the panel before the final
decision and the 101-page report of the panel, dated March 4, 2019, was
handed down.
Pastor Raymond Koh, went missing since Feb 13, 2017
The
hearing of this public inquiry started on Oct 19, 2017, and had to be
stopped because on Jan 15, 2018, the police sent a letter stating that
one Lam Chang Nam was arrested and charged in relation to Koh’s
disappearance and, as such, Suhakam’s inquiry should not proceed as the
law states that it cannot continue if the subject matter becomes a
subject matter of any proceedings in court, in this case a criminal
proceeding.
The
Suhakam panel then heard submissions from all parties, including the
police, and on May 16, 2018, decided that the criminal case was not the
same subject matter of the inquiry, and the inquiry should proceed.
On
Dec 7, 2018, the hearings concluded. There were 20 days of hearing, and
evidence from 16 witnesses were recorded. The 95-page Inquiry Report
and Decision was dated April 3, 2019.
Suhakam inquiry was comprehensive
A
perusal of the Suhakam inquiry report, the number of days of hearing,
the number of witnesses and the documentary evidence shows that the
Suhakam inquiry was comprehensive, and as such there is no need for any
other task force (or Commission of Inquiry) to investigate or inquire
into this matter all over again.
It also helped that the chairperson of the Suhakam inquiries was a lawyer and a former Court of Appeal judge.
The time has come to refer these two cases of enforced disappearance to the attorney-general/public prosecutor to act.
Justice delayed is justice denied
It
must be pointed out that the Suhakam commissioners are appointed by the
Yang di-Pertuan Agong, and authorised by an Act of Parliament to
conduct public inquiries.
The government’s response to set up yet
another task force (as now formed) or another ‘commission of inquiry’ to
look again at the disappearances of Koh and Amri may not only be
unreasonable, but may also be disrespectful to the human rights
commissioners appointed by the Agong.
Some
may wonder whether this government may not be too happy that Suhakam
decided that these were cases of enforced disappearance, that they
implicate the government and the police, and this new task force may be
an attempt to neutralise or overturn Suhakam’s earlier decisions.
Article
2 of International Convention for the Protection of All Persons from
Enforced Disappearance states that "enforced disappearance" is
considered to be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorisation, support or acquiescence of the
State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law.
One
may also wonder whether the setting up of a task force now is just
simply an attempt to delay justice. At the end of the day, if this new
task force proceeds, that inquiry may take 10 to 15 months and at the
end of the day, we may again get recommendations. The power to prosecute
is with the attorney-general/public prosecutor.
Best for the AG to investigate
The
proper cause of action would be for the attorney-general/public
prosecutor to take the relevant action of conducting further
investigation, if needed, with a view of prosecuting the guilty, or
maybe even commencing legal suits to ensure justice is done. The
attorney-general should be free to engage anyone to assist.
Given
the fact that both Suhakam inquiries found that the perpetrators may be
police officers from the Special Branch – it is best that the police do
not take the lead in conducting further investigations or the gathering
of evidence for the purpose of prosecuting police officers and/or
others.
It
is best that the attorney-general/public prosecutor be tasked to do
this. They could also get the relevant assistance for further
investigation and gathering of evidence from the police, or maybe even
from some other enforcement agencies.
The relevant minister in the
government can also direct the police to increase their efforts to find
the missing Koh, Amri and others.
Madpet, therefore, calls upon the Malaysian government to:
- No longer delay justice and to let the attorney-general be tasked with investigating and gathering evidence with a view of prosecuting the guilty;
- Abandon the idea of another inquiry by the task force into the disappearance of Koh and Amri, and hand the matter to the relevant authority to prosecute;
- Get Suhakam, which now again has commissioners after not having any for the past two months, to immediately proceed with the outstanding public inquiry into the disappearance of Joshua Hilmy and Ruth Hilmy; and
- To immediately ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
Justice should not be delayed for the families of Koh and Amri, and all those others who have “disappeared”.
MADPET or Malaysians Against Death Penalty and Torture is a movement for the abolition of the death penalty and torture. - Malaysiakini, 3/7/2019
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