Tarmizi Anuwar looks at the mechanisms being used in these two countries and suggests that both should ratify the relevant UN convention to protect their people.
Many human rights issues are prevalent in Nepal and Malaysia – but the scope of this comparative study focuses on the most recent and relevant rights issue for both countries ie enforced disappearances.
Both countries haven not ratified the International Convention for the Protection of All Persons from Enforced Disappearance. This study will explore the domestic mechanisms established by the states to address the issue of enforced disappearances.
Article 2 of the international convention determines enforced disappearances as:
… 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.
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Enforced disappearances violate the personal liberty, right to life, right to a free trial, right not to be tortured and freedom of movement of the victims – and the right to information for the families of the victims.
Two commissions set up in Nepal
The history of enforced disappearances by the state of Nepal can be traced back to 1951 in the case of Ram Prasad Rai (Insec). Several other cases followed – but the worst period was during the conflict, not only by the state but also by the Maoists.
Data produced by the Nepal-Informal Sector Service Centre or Insec shows that the total number of people missing is 935.
Source: Details of victims of enforced disappearances 1996-2006
Under Article 33(s) of the Interim Constitution of Nepal 2063 (2007), the state is obligated and shall establish a high-level truth and reconciliation commission to investigate human rights violations during the armed conflict.
The government of Nepal has established two commissions under the Commission on Investigation into Disappeared Persons, Truth and Reconciliation Act 2014:
- the Commission of Investigation on Enforced Disappeared Persons and
- the Truth and Reconciliation Commission in 2015 (Bisset, 2014, p5)
In general, the purpose of these commissions is to address issues related to the armed conflict from 13 February 1996 to 26 November 2006. The mandates of the two commissions overlap somewhat.
The scope of the former is confined to issues of enforced disappearances. This commission received more than 3,000 reports and recommended over 2,500 of these for further investigation. It managed to carry out investigations for 2,149 reports, which came in from 64 districts up to January 2019 (The Himalayan Times, 2019).
The Truth and Reconciliation Commission, on the other hand, covers a range of human rights violations (eg murder, rape, enforced disappearance, abductions, the infliction of mutilation and disability, torture, looting of public and private property, forced evictions from homes and land, and inhuman acts inconsistent with international and humanitarian laws).
New phenomenon in Malaysia
In Malaysia, enforced disappearances are a new phenomenon compared to Nepal. This is one of the reasons why the series of missing persons – Amri Che Mat in 2016, Joshua Hilmi and his wife Ruth Hilmi in 2016, and Raymond Koh in 2017 – were not at the forefront of the concerns of Malaysian citizens relative to other human rights cases.
Another reason is the wide disparity in the number of cases of missing people in Malaysia and Nepal. In Malaysia the number of cases is 233 times fewer or just 0.43% of the total number in Nepal.
The Human Rights Commission of Malaysia (Suhakam) conducted a public hearing for the disappearances of Amri Che Mat and Raymond Koh from 19 October 2017 to 6 March 2019. Its finding came as a surprise for some: both of them were abducted by state agents, namely, the Special Branch Bukit Aman, Kuala Lumpur.
There is no specific provision in the Federal Constitution to cover enforced disappearances in Malaysia, though Article 5 does cover the right to liberty.
The Suhakam report pointed out the distinction between enforced disappearances, missing persons, kidnappings and abductions by referring to Section 3 of the Kidnapping Act 1961 and Section 362 of the Penal Code of Malaysia (Suhakam 2019, p18-19).
Section 3 of the Kidnapping Act 1996 has a provision for abductions, wrongful restraint or wrongful confinement for ransom.
Section 362 of the Penal Code of Malaysia on abductions says: “Whoever by force compels or by any deceitful means induces any person to go from any place, is said to abduct that person”.
Suhakam also declared:
There is no express definition for missing person but generally speaking when someone has not been seen or heard from a period of time without any news of his/her whereabouts or whether he/she is still alive, he/she is said to be a missing person.
Based on this, Suhakam in its final decision did not use the term “enforced disappearances” but used “abducted” to refer to the events.
The final decision also did not say the Special Branch or a state agency was involved directly, but instead referred to persons or groups of persons acting with the authorisation, support or acquiescence of the state (Suhakam, 2019, p16) – which is so important in distinguishing who was involved in these cases.
The state is still obligated to address the cases referred to under Article 5 of the Federal Constitution, which is aligned with Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance.
Ratify the international convention
The cases of enforced disappearances in Nepal and Malaysia are still under the respective investigation processes.
In Nepal, the investigation is carried out by the two commissions set up by the state. The first phase of investigation is almost over, and the commission on enforced disappearances is preparing for the next phase of the investigation.
Meanwhile, in Malaysia, the investigation was carried out by Suhakam. But there is still a procedure for further investigation as the Suhakam report cannot be used for prosecution in court. The Malaysian prime minister has already made a statement agreeing to create a royal commission for further investigation, but said it should wait until after the appointment of the new national police chief as the Suhakam report had been questioned by the previous police chief.
Even though there is a domestic instrument in Nepal and a process with very little progress in Malaysia, both nations have not yet reached international standards – especially as both still do not have a bill for criminalising enforced disappearances. Both nations should therefore consider ratifying the international convention to upgrade the standard of their domestic mechanisms.
Besides that, the Malaysian government should quickly establish the independent police complaints and misconduct commission (IPCMC), which would have the authority to investigate and prosecute any police officers responsible.
With the existence of the IPCMC, such issues as investigating any serving police chief would not be a problem as the country would have a free, fair and clear mechanism to investigate and prosecute every police officer, irrespective of rank, who commits an offence.
Tarmizi Anuwar is the research manager at the Institute for Leadership and Development Studies (Lead). He is currently studying for a master’s in human rights and democratisation under a dual-programme with Mahidol University and the Kathmandu School of Law.
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