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Release five Mongolian women – victims and witnesses of rape – as laws allow for it

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Malaysians Against Death Penalty and Torture (Madpet) is appalled to hear that five Mongolian women – two alleged victims of rape and/or kidnapping by a police officer, and three other potential witnesses – are all now being detained under interim protection orders as the police believe they are victims of human trafficking.

These five women must be immediately released with the right to stay and work in Malaysia until the rape trial is completed. Too many perpetrators of crime escape simply because the victims and/or witnesses who are foreign nationals are no more in Malaysia.

It was reported that “a police inspector has been arrested for allegedly raping two Mongolian women aged 20 and 37 years old after he stopped them at a movement control order (MCO) roadblock here” (12 April 2020).

The “women were stopped at the roadblock at 8pm on Friday and held in the hotel room for more than 24 hours before the police team rescued them”, based on a tip-off.

The police said that the case may also be possibly investigated for kidnap and extortion.

It was then reported that three “other Mongolian women have been detained after they lodged a police report in relation to the alleged rape of two fellow female nationals by a police inspector” (Malaysiakini, 14 April 2020). They were allegedly “the ones who raised the alarm over the alleged rape”.

It was alleged that “on April 10, the police arrived at the scene and asked the three women to go to a police station to lodge a police report over the incident, which they did and returned home afterwards”. Then, on 11 April, the police went to the three women’s house and arrested them.

Interim protection orders (21 days) and protection orders (three months), then deportation?

The two alleged victims and the three witnesses, allegedly undocumented foreigners, have now been arrested under the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 on the basis that they may be human trafficking victims.

They are currently being detained under an interim protection order, which can last up to 21 days.

If a magistrate is then satisfied that they are trafficked persons and in need of care and protection, a protection order for a period not exceeding three months can be made.

After that, for foreign victims of human trafficking, they are handed over to the Immigration Department, who will then process and usually deport them, just like any other undocumented migrants.

Law provides option to release and allow them to stay and work legally in Malaysia

However, there is an option under this anti-trafficking law that will allow them their freedom to live and to work legally until the end of the trial.

The Anti-Trafficking In Persons And Anti-Smuggling Of Migrants (Permission To Move Freely And To Work) (Foreign National) Regulations 2016 allows them to not only be released immediately and to be able to move around freely but to make it possible for them to work in Malaysia for at least three years.

This would be a the best and just solution, as this will ensure that these victims and witnesses will all be available here in Malaysia for the trial of the police officer – hence giving the authorities no reason for not charging and/or trying the perpetrator in court.

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Often, the unavailability of witnesses is one of the reasons why some perpetrators are never even charged, or if already charged, the case is discontinued and the alleged perpetrator is freed.

Best for victims and witnesses to be present at trials to ensure fair trial

There is a provision for the recording of evidence of trafficked person, whereby such evidence recorded is admissible in court, and the “weight to be attached to such evidence shall be the same as that of a witness who appears and gives evidence in the course of a proceeding” (Section 52 of the Anti-Trafficking Act).

One wonders whether this will also apply to rape cases and not just for anti-trafficking crimes.

However, such use of pre-recorded statements undermines the accused persons’ right to a fair trial, as they would be denied the right to question the witnesses in court. The court will also be denied the opportunity of seeing and accessing the credibility of the witness.

To ensure justice is done, it is always important and best for the alleged victims and witnesses to be present personally in court to give evidence in court during trial.

No reason to delay charging and trial

In this case, there is really no reason to not speedily charge the suspect police officer, and conduct the trial speedily when all the Mongolian victim and witnesses are still in Malaysia.

The arresting of the alleged victims and taking them not to the police station, but some other place during the movement control period period may be a crime.

Evidence of rape and the crime scene should have already all been collected, as reported in the media.

The witnesses are available, and what they saw and heard are still fresh in their mind. The trial could be expedited, and it could be over even in a couple of weeks.

On 16 April 2020, it was reported that the “police have applied to extend a remand order against an inspector over rape allegations”.

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Madpet fails to see the reason or justification for the procrastination. He should be charged and the trial ought to be commenced and ended speedily, when the victims and relevant witnesses are still here in Malaysia.

This would be just when it comes to a situation when the victims and witnesses are foreign nationals, who may want to return home as soon as possible.

Poor track record of charging and trying police in court

Malaysia sadly has a poor track record of prosecuting and charging police officers and other enforcement officers in court – even in cases after royal commissions of inquiry, inquiries by the Malaysian national human rights commission Suhakam and the Enforcement Agency Integrity Commission have found wrongdoings and/or even recommended prosecution.

This happened, amongst others, in the Bright Sparklers case, the enforced disappearance cases of Pastor Raymond Koh and Amri Che Mat, and the deaths in police custody cases of Syed Mohd Azlan Syed Mohamed Nur and N Dharmendran.

Reform needed for cases where victims are foreign nationals

In Hong Kong, migrant worker victims who have a claim or a case, are provided housing and board until the end of their cases to ensure justice be done.

Malaysia should also have a similar law to ensure that perpetrators of crime against and violators of rights of migrants do not escape unpunished simply because these migrants have been deported or are no longer in Malaysia.

Victims, be they Malaysians or foreign nationals, deserve justice.

Madpet calls for the speedy prosecution, charging and trial of the suspected police officer in court;

Madpet calls for the immediate release of the two Mongolian women victims and the three Mongolian women witnesses from detention and for them to be immediately released and allowed to stay and work legally in Malaysia until the speedy completion of the rape/kidnapping trial.

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Madpet calls for no special treatment to be accorded to police officers and/or other enforcement officers who broke the law; they should all be charged and tried in open court and not simply through some internal disciplinary procedure.

Madpet also calls for speedy trials or adjudication when the victims and/or witnesses are foreign nationals, while facilitating and supporting their stay in Malaysia pending completion of trials, to ensure that perpetrators of crime and violators of rights do not escape justice due to the unavailability of witnesses and victims in Malaysia;

Charles Hector issued this statement n 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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