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WE WON’T FORGET OUR VICTIMS OF ENFORCED DISAPPEARANCE

Last I checked, Malaysia is a country in which the rule of law is prized [1].

We have comprehensive laws on important issues, government officials mandated to enforce them, and courts tasked to uphold them. Head into a bookstore and you’ll find shelves of statute books. Head to Putrajaya and you’ll see a grand Palace of Justice, the Istana Kehakiman. These are badges of legality that we can be proud of. However, for them to continue to truly represent the rule of law, there must not be any force or penalties imposed on individuals apart from the law, with impunity. That would terminate the “rule of law”. It would instead be “rule by individuals in power”.

Pastor Raymond Koh, Amri Che Mat, Joshua Hilmy, and Ruth Sitepu went missing in 2016–17. There was no conviction or charge against them in a court on the basis of law, let alone a sentence. Yet Suruhanjaya Hak Asasi Manusia (SUHAKAM), a statutory body, found that Koh and Che Mat were subjects of enforced disappearance, probably by the Special Branch of police [2]. 

Our legal system is meant to facilitate fines, imprisonment, or other penalties for violations of the law as declared by a court. But out of the two possibilities for what happened to the four individuals on the fateful days they disappeared, whichever is true, the way their disappearances are being handled at present could suggest that those in authority do not believe in the rule of law any more:

• Possibility #1—Enforced disappearance: If, as SUHAKAM suggested, they were abducted by the Special Branch of police, the state agents must be held accountable, either properly defending their actions as lawful or being punished for exceeding their powers.

• Possibility #2—Abduction by private actors: If the Special Branch of police did not abduct these individuals—although SUHAKAM doubts this—then they were probably abducted or attacked by private actors, in which case the government is responsible for finding them and holding them accountable.

The silence is chilling. The details of what exactly Koh, Amri, Hilmy, and Sitepu did wrong are sketchy and unclear: they are either the product of hearsay, or even if the product of more authoritative statements by people who knew them, have not been considered definitively by a court of law. This uncertainty means that all individuals who are not of a majority religion might hesitate to do anything outside of their homes for fear of committing whatever unstated “transgression” that those four individuals supposedly committed. So much for Article 11(1) of the Federal Constitution which guarantees the freedom to profess a religion to every Malaysian.

This chilling effect applies not only in respect of religious minorities, but also in respect of holders of minority political beliefs, those with marginalised ethnic backgrounds and other protected characteristics; perhaps even private contractors who deal with the government. So long as disappearances are not based on law but on the unexplained decisions of the authorities, this is a slippery slope. At a stretch, even the kaki lima cobbler who doesn’t shine a political leader’s shoes with enough shine, or the person at the next table in the mamak who the political leader thought had a face problem, could be at risk. 

Where the legal system is taken seriously as the exclusive means to enforce the rules that our society lives by, the difference between violating the law and not violating the law is a vertical cliff. One slaps a court judgment against you and sentences you to prison (or other penalty); the other leaves you safe at home with your loved ones without fear. But where an extra-legal system is operating with unexplained secret operations, and the legal system is used only when convenient, then we’re on a wretched journey to dystopia. Lock your doors at night and hold your loved ones close, because who knows what secret code of behaviour you’ve accidentally broken today? They might be out to get you this very moment.

What needs to be done? We uphold SUHAKAM’s recommendations in its April 2019 reports. A special task force has already been set up [3]. We understand that investigations must be thorough, and that that would take time. However, we want to remind the task force that we are waiting. 

Whilst accountability for these four individuals is important, we look prospectively ahead too: we hope for more accountable institutions in future. We ask for an Independent Police Complaints and Misconduct Commission—one that “enhance[s] accountability of the police and promote[s] good governance in the country” [4].

To achieve comprehensive institutional and legal reform, we join SUHAKAM’s call for an overarching commitment by the government to ending enforced disappearances [5]. The best way to secure this is for Malaysia to accede to the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), according to which Malaysia would have to implement an effective legal framework.

It is clear that no society can thrive in the chains of lawless force. At the same time, the Malaysian authorities cannot get away by delaying investigations and hoping for the news to fade: for no society can thrive in a vacuum either. It is prohibitively precarious. In such a vacuum, we would live in fear, unable to trust our institutions and our law, since we do not know what happened to our brothers and sister who were taken away. 

We look for light in this bleak state of things. The families of Pastor Raymond, Amri Che Mat, Joshua, and Ruth deserve better. We, the people, deserve better. 

#TidakAkanLupa  

References:

[1] See Public Prosecutor v Mohamed Ismail [1984] 2 MLJ 219; Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265; Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia [1986] 2 MLJ 203.

[2] SUHAKAM, Public Inquiry into the Disappearance of Pastor Raymond Koh, Final Decision (3 April 2019): https://drive.google.com/file/d/1qQ9WAQzizsZDGwHsiYM-mFWnlkg2XJPU/view; SUHAKAM, Public Inquiry into the Disappearance of Amri Che Mat, Final Decision (3 April 2019): https://drive.google.com/file/d/1VB__ZJyop1ZaAYeDQ3KZOR-aqr2IUndg/view, especially [171].

[3] Free Malaysia Today, “Task force on Koh, Amri disappearance wants more time to prepare report” (16 January 2020): https://www.freemalaysiatoday.com/category/nation/2020/01/16/task-force-on-koh-amri-disappearance-wants-more-time-to-prepare-report/. 

[4] Human Rights Commission of Malaysia, Press Statement No.24 of 2020 “SUHAKAM expresses its concerns on the IPCC Bill 2020” (27 August 2020): https://www.suhakam.org.my/press-statement-no-24-of-2020-suhakam-expresses-its-concerns-on-the-ipcc-bill-2020/.

[5] Malay Mail, “Commemorating International Day of the Victims of Enforced Disappearances—Suhakam” (30 August 2020): https://www.malaymail.com/news/what-you-think/2020/08/30/commemorating-international-day-of-the-victims-of-enforced-disappearances-s/1898506.

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