Tuesday, July 28, 2009

MEDIA STATEMENT : Sivarasa Rasiah, Vice President, KEADILAN - 28 July 2009

Date: 28 July 2009



The AG’s argument for setting up an inquest to look into Teoh’s death is simply that as there is a specific provision under the Criminal Procedure Code for such an inquiry, “it is only proper that a court of law determines the cause of death”.

We have known at all times that there are such provisions for setting up inquests. That is NOT the issue. The point that is being missed completely by the AG is that all such inquests in the recent past inquiring into deaths in custody have failed to identify the perpetrators and achieve any semblance of a just outcome. No one has been held responsible for any of the 104 deaths in custody since 2003!

These inquests failed for a variety of reasons including the fact junior judicial officers ( i.e magistrates ) were investigating in circumstances where they were entirely dependent on the evidence placed before them through police witnesses when it was often the case when police misconduct itself was the core issue in the inquest. The DPP’s from the AG’s Chambers who were assigned the responsibility of presenting the evidence were also responsible for the failure. Rules of evidence were technical and the participation of lawyers also limited. The failure of the inquests had underlined the call for the IPCMC in the 2005 Report of the Royal Commission to Enhance the Operation and Management of the Police so that an independent body would investigate such misconduct, and also for a proper and independent Coroner’s Court.

The failure of all our key institutions i.e the AG’s Chambers, the Judiciary and the police to hold anyone responsible for these custodial deaths has created a culture of impunity amongst some of our enforcement officers.

It is this reality that fuelled the strong public outcry for a Royal Commission into the cause of Teoh’s death.

The announcement in the media today that a Deputy Registrar of the Shah Alam High Court has been appointed as the coroner also goes to reinforce the point we are making. With no disrespect to En.Azmil Muntapha Abas ( of 8 years standing in service including 4 as a Magistrate ), his standing is simply not comparable to the personalities who are appointed to prior Royal Commissions. For example, the Royal Commission in 1999 to investigate the assault on Datuk Seri Anwar Ibrahim and identify the assailant/s included persons such as Tan Sri Anuar Zainal Abidin ( former Chief Judge Malaya ) and Datuk Mahadev Shankar ( retired Court of Appeal judge ). The Royal Commission on the Police was chaired by Tun Dzaiddin ( retired Chief Justice ).

The AG also misled us by referring to the Commissions of Enquiry Act 1950 to imply that Royal Commissions were only for the purpose of inquiring into “conduct and management of government officers and departments or for the public welfare”. Such inquiries can clearly also be made crimes committed by government officers or departments. The best example is that already cited when the Royal Commission was set up in January 1999 to investigate the serious assault on Anwar Ibrahim and to identity his assailant/s.

The reasons for setting up for such Royal Commissions in the past is quite clear. For some reason, they seem to have escaped the understanding of the AG. I quote from a news portal called the Malaysian Mirror ( www.malaysianmirror.com) which frequently presents news favourable to the Barisan Nasonal as well:

“An independent Royal Commission is a powerful instrument to provide checks and balances within a democratic system of government. The setting up of a Royal Commission is usually a last political resort by a government to probe into a highly controversial issue.

But it does allow the government to show that it has nothing to hide, and that it will absolve itself from any accusation that a government probe will only allow different government investigative agencies to practise mutual back-scratching.

A Royal Commission also has wide coercive powers, to summon witnesses and documents, seize documents and evidences, hold public hearings, research into cases, consult with experts from both within and outside the government, hold hearings in cameras, offering indemnities, summon classified information even, and coerce all public officials to aid in the execution of the Commission.

The Cabinet decision is puzzling. The mystery behind Teoh’s death and the MACC method of investigative procedures are intimately inter-related, and should be probed by the Royal Commission in one go.”

It is interesting that what is obvious to a group of experienced journalists seems to be beyond the capacity of our legally trained AG.

There is nothing mandatory about the setting up of this particular inquest – this is obvious in the statement issued by the AG himself where he confirms that he directed the setting up of the inquest by the Magistrate. This inquest in not the case of the magistrate invoking his own powers to conduct a mandatory inquest in the circumstances provided under the Criminal Procedure Code.

It would have been far more appropriate if, as the legal advisor to the government, he had instead advised the Cabinet to broaden the terms of reference of the Royal Commission to include investigating the circumstances of Teoh’s death and indentifying those responsible.

What we see now is a hastily set up inquest by a junior judicial officer which has been directed to start tomorrow as a fait accompli. It will only confirm further to all Malaysians that the Government does not intend the Royal Commission to touch on the question of the circumstances of Teoh’s death at all. This regrettable situation will continue to raise questions about whether the Barisan Nasional sincerely intends to find out the truth behind the mysterious circumstances of Teoh’s death or to perpetuate a cover-up.

Vice- President, Parti Keadilan Rakyat.

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