Home Civil Society Voices Enforced disappearance cases should be referred to attorney general

Enforced disappearance cases should be referred to attorney general

Family members of Raymond Koh and Amri Che Mat

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There is no need for a taskforce with no power of prosecution, says Malaysians Against Death Penalty and Torture (Madpet). Justice should not be delayed for the families of Pastor Koh and Amri.

Madpet is disappointed in the course being taken by the Malaysian government to appoint yet another taskforce, after the Human Rights Commission of Malaysia (Suhakam) 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 commissioner and also chair of both inquiry panels, Mah Weng Kwai was reported as saying, “It has to be an investigation, not another inquiry.”

“When the police investigate, they would have to trace and dig further to see who are the relevant witnesses that can give credible evidence”(Free Malaysia Today, 2 July 2019). Mah added there is no need for another inquiry to speak to the same witnesses who spoke to the Suahakam panel.

Madpet agrees that there is no need for yet another inquiry to be conducted by the new taskforce, but what is needed now is an investigation with the objective of prosecution, or some other legal suit to ensure that 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.

Suhakam inquiry was comprehensive

Amri – missing since 24 November 2016

The hearing of the public inquiry started on 22 January 2018 and ended on 15 November 2018. There were 27 days of hearing and the panel heard evidence from 24 witnesses.

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Counsel for the family, officers for the police, officers for Suhakam and counsels from the Bar Council participated in the inquiry and submitted before the panel before the final decision – and 101-page report dated 3 April 2019 – was handed down.

Koh – missing since 13 February 2017

The hearing of the public inquiry started on 19 October 2017. It had to be stopped because on 15 January 2018, when the police sent a letter stating that one Lam Chang Nam was arrested and charged in relation to Koh’s disappearance and, as such, the Suhakam inquiry should not proceed as the law stated it could not continue if the subject matter became 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. On 16 May 2018, it decided that the criminal case was not the same subject matter of the inquiry and the inquiry would proceed.

On 7 December 2018, the hearings concluded. There were 20 days of hearing, and evidence from 16 witnesses was taken. The 95-page inquiry report and decision was dated 3 April 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.

As such, there is no need for any other taskforce (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.

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The time has come to refer the matter to the attorney general/public prosecutor to act.

Justice delayed is justice denied

It must be pointed out that Suhakam commissioners are appointed by the king and authorised by an act of Parliament to conduct public inquiries.

The government’s response to set up yet another taskforce (as now formed) or another commission of inquiry to look again at the disappearance of Koh and Amri 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 Suhakam decided that these were cases of enforced disappearance that implicate the government and the police – and this new task force may be an attempt to neutralise or overturn Suhakam’s earlier decision.

Article 2 of the 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 taskforce now is simply an attempt to delay justice. At the end of the day, if this new task force proceeds, that inquiry may take 10-15 months and we may again get recommendations. The power to prosecute is with the attorney general/public prosecutor.

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Best that attorney general investigates and prosecutes fast

The proper cause of action would have been for the attorney general/public [rosecutor to take the relevant action of conducting further investigation, if needed, with a view to prosecuting the guilty -,or maybe even commencing 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 gathering evidence for the purpose of prosecuting possibly suspected police officers or others.

It is best that the attorney general/public prosecutor be tasked to do this. They could also get 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 Koh, Amri 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 to prosecuting the guilty;
  • the government to abandon the idea of another inquiry by the taskforce into the disappearance of Koh and Amri and to hand the matter to the relevant authority to prosecute;
  • Suhakam, which now 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
  • Malaysia to immediately to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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