Tuesday, July 02, 2019
Enforced Disappearance Cases should be referred to Attorney General – No need for Task Force with no power of prosecution Justice should not be delayed for families of Pastor Koh and Amri
Media Statement – 3/7/2019
Enforced Disappearance Cases should be referred to Attorney General – No need for Task Force with no power of prosecution
Justice should not be delayed for families of Pastor Koh and Amri
MADPET (Malaysians Against Death Penalty and Torture) is disappointed in the course being taken by the Malaysian government, being to appoint yet another Task Force, after the Malaysian National Human Rights Commission (SUHAKAM)’s had already concluded the public inquiries that already 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 Chair of both inquiry panel, Mah Weng Kwai was reported saying that “It has to be an investigation, not another inquiry,” said Mah. “When the police investigate, they would have to trace and dig further to see who are the relevant witnesses that can give credible evidence.”(FMT News, 2/7/2019). Mah also said there is no need of 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 investigation with the objective of prosecution, or some other legal suit to ensure justice be 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.
SUHAKAM INQUIRY WAS COMPREHENSIVE
Amri Che Mat - went missing on Nov 24, 2016.
The hearing of the public inquiry started on 22/1/2018 and ended on 15/11/2018. 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 counsels from Bar Council participated in the Inquiry and also submitted before the Panel before the final decision and report of 101 pages dated 3/4/2019 was handed down.
Pastor Raymond Koh -missing since Feb 13, 2017
The hearing of the public inquiry started on 19/10/2017, and had to be stopped because on 15/1/2018 when the police send a letter stating that one Lam Chang Nam was arrested and charged in relation to Pastor 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 it was a criminal proceeding. The SUHAKAM panel then heard submissions from all parties including the police, and on 16/5/2018 decided that the criminal case was not the same subject matter of the inquiry and the inquiry will proceed.
On 7/12/2018, the hearings concluded. There were 20 days of hearing, and evidence of 16 witnesses were taken. The 95 pages Inquiry Report and Decision was dated 3/4/2019.
A perusal of the SUHAKAM inquiry reports, 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 helped also that the Chairman of the SUHAKAM Inquiries was a lawyer and a former Court of Appeal Judge.
The time has come to refer the matter to the Attorney General/Public Prosecutor to act.
JUSTICE DELAYTED IS JUSTICE DENIED
It must be pointed out that SUHAKAM Commissioners are appointed by the King, and authorized 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 disappearance of Pastor Koh and Amri Che Mat may not only be unreasonable but may also be disrespectful to Human Rights Commissioners appointed by the King.
Some may wonder, whether this government may not be too happy that the SUHAKAM’s decided that these were cases of enforced disappearance, that implicates the government and the police, and this new task force may be an attempt to neutralize or overturn SUHAKAM’s earlier decision.
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 authorization, 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 just delay justice. At the end of the day, if this new task force proceeds, that inquiry may take 10 – 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 THAT ATTORNEY GENERAL INVESTIGATES AND PROSECUTES FAST
The proper cause of action would have been 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 of legal suits to ensure justice be 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 not take the lead in conducting further investigations or the gathering of evidence for the purpose of prosecuting possibly suspected 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 some other enforcement agencies.
The Minister could direct the police to increase their efforts to find the missing Pastor Koh, Amri Che Mat and others.
MADPET calls on the Malaysian government to no longer delay justice, and let the Attorney General be tasked with investigating and gathering evidence with a view of prosecution of the guilty;
MADPET calls on the government to abandon the idea of another inquiry by the Task Force into the disappearance of Pastor Koh and Amri, and hand the matter to the relevant authority to prosecute;
MADPET also calls on SUHAKAM, who now again have Commissioners after not having any for the past 2 months, to immediately proceed with the outstanding Public Inquiry into the disappearance of Joshua Hilmy and Ruth Hilmy; and
MADPET calls on Malaysia to immediately to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
PETALING JAYA: The Suhakam commissioner who chaired an inquiry which has blamed the police for the disappearance of Pastor Raymond Koh and Amri Che Mat said the onus is now on the recently announced task force to get to the bottom of the mystery.
“I’ve said this before: the new team has to do a lot of spade work and ground work to go and dig further into what actually happened,” Mah Weng Kwai, who chaired the year-long inquiry told FMT.
He said the task force will now have the opportunity to investigate the cases again, including speaking to witnesses whom the police failed to question in their previous probe.
He said the witnesses would also include those who did not come forward during the inquiry by Suhakam, the Malay acronym for the Human Rights Commission.
But Mah said there is no question of having another inquiry in order to speak to the same witnesses who spoke to the Suhakam panel.
“It has to be an investigation, not another inquiry,” said Mah.
“When the police investigate, they would have to trace and dig further to see who are the relevant witnesses that can give credible evidence.”
Koh has been missing since Feb 13, 2017 while Amri, the founder of charity body Perlis Hope, went missing on Nov 24, 2016.
In April, an inquiry by Suhakam concluded that both were victims of enforced disappearance and blamed Bukit Aman’s Special Branch for it.
The composition of the task force announced by the home ministry last week has been widely criticised, with the families of the missing men questioning the inclusion of a police officer who had represented the force during the Suhakam hearing.
The task force includes former judge Abd Rahim Uda as head, former director of the police’s legal department Mokhtar Mohd Noor; director of the police’s Integrity and Standards Compliance Department Zamri Yahya; director of operations at the Enforcement Agency Integrity Commission (EAIC) Muhammad Bukhari Ab Hamid; legal officer at the public prosecution division of the Attorney-General’s Chambers Mohd Sophian Zakaria; and secretary at the Police Force Commission (SPP) for the home ministry, Mohd Russaini Idrus.
Critics have also raised issues such as the task force members’ diversity as well as the absence of civil society activists and lawyers.
Mah agreed, saying Inspector-General of Police Abdul Hamid Bador had stated that there would be no police officers in the task force.
He echoed concerns over the inclusion of Mokhtar, who made submissions on behalf of the police at the inquiry.
Mah said any conflict of interest would not inspire public confidence.
“The question will always be asked whether there will be conflict of interest arising,” he said.
“In order to avoid all these issues, they should have gotten others to be on the panel.”
He said Suhakam had recommended members of the Bar Council and the Malaysian Anti-Corruption Commission to be made part of the panel.
“It looks as though none of these suggestions were taken up,” he added.
The task force has six months to come up with a report to be submitted to the Cabinet. - FMT News, 2/7/2019