Press statement by Kua Kia Soong, SUARAM Adviser, 5 April 2019
It is no longer just an opinion that thus far Royal Commissions of Inquiry (RCI) in Malaysia are regarded as a mere stalling device by the ruling coalition in the face of citizens’ outrage over gross injustice and government indifference. The suggestion by the Pakatan government that yet another RCI will be set up to look into the enforced disappearance of several Malaysian activists has strengthened the suspicion that RCIs in our country have been reduced to “Royal Cosmetic Institutions”.
Any leader of a genuine democratic country founded on the defence of human rights would have responded to such a finding by its National Human Rights Commission by demanding answers from the Police Chief and Home Minister and seeking the immediate release of these “disappeared” Malaysians.
Similarly, the setting up of an RCI over the Wang Kelian mass graves appears to be another case of stalling, especially after the release of the Suhakam report on the issue. To really get to the bottom of the atrocities committed by human traffickers and their local accomplices it is vital that police and the MACC carry out an operation of the type which our security forces used to be proud of during the Emergency. In contrast to the Malaysian approach, the Thai authorities at least launched investigations into the mass graves which led to the largest ever human-trafficking trial in Thailand with 103 defendants being tried for trafficking-related crimes, including several high-level government officials.
The Suhakam report on Wang Kelian already points out the time wasted and the questionable actions by our security forces when the mass graves were first uncovered in 2015 when they destroyed the traffickers’ camp and exhumed the bodies only months later. It also points to “potential corruption among Malaysian border control members that encourages human-trafficking activities when these border agents demand money from vehicles moving back and forth across the border without conducting proper inspections.”
“Sins” of commissions by the Malaysian government
An RCI under the British Parliamentary system on which our parliamentary system is modelled, is an important device utilized by an executive commission to investigate questions of public policy. Thus, in Britain, nearly every important measure of reform has been preceded by an RCI.
In contrast, the sad chronicle of RCIs in our country has seen rather, “sins of commissions” by the government of the day, namely the Barisan Nasional and now Pakatan Rakyat, by ignoring recommendations by the respective RCIs since the Sixties.
For example: the BN (including its predecessor Alliance) government ignored the salient recommendations of the Athi Nayappan RCI on Local Government which had recommended the reintroduction of elected local government after their suspension in 1965. Following this RCI recommendation would have restored Malaysian democracy to what it was at Independence but up to the present day local council elections remain a dream.
The RCI on the Police in 2005 had a most important recommendation which has a direct bearing on so many deaths in custody, namely, the setting up of an Independent Police Complaints and Misconduct Committee (IPCMC). Up until today, the government of the day has been dragging its feet on this.
Then the rather presumptuous conclusion by the RCI on Teoh Beng Hock’s death that he had committed suicide is a view that countered the evidence and conclusions presented by experts. Such blatantly contrary findings by the RCI calls into question the independence and neutrality of Commissions of Inquiries set up by the government all these years.
No public consultation over the composition of Commissions
In Britain, before setting up a commission of inquiry the Prime Minister consults the leader of the opposition and they then discuss the composition of the commission. The first condition for the composition of any Commission must be broad public consultation. This is the expectation of the public and the media. Shockingly, the Malaysian government – and Pakatan is no different from the BN on this – has time and again ignored this requirement whenever it appoints commissions in this country.
To ensure the composition of any Commission is credible, certain procedures must be in place that verify the independence, impartiality and competence of the commissioners. Such conditions can only hold if the government consults the Parliamentary Opposition and respected members of civil society. Membership of the RCI must include representation from appropriate groups to ensure plurality and fairness. The RCI could be headed by a judge but the members do not necessarily have to be entirely made up of judges. The setting up of the Teoh Beng Hock RCI was a rushed job by the BN government due to public pressure and only after having dragged its feet for so long after Beng Hock’s death. The RCI over the Wang Kelian mass graves was no different.
Competence must include expertise in human rights and humanitarian law. On this point, former High Court and Court of Appeal judge Datuk N. H. Chan has commented that the Teoh Beng Hock commission had no business forming the opinion that Teoh Beng Hock had committed suicide as none of the experts it called upon had given such an opinion.
Independent Police Complaints Committee
Now, if the IPCMC had existed prior to TBH’s death, it could have stepped in and investigated his death from the moment his body was found. The same applies to the enforced disappearance of these Malaysian activists the moment Suhakam released its report. The MACC and the police would have been obliged to step aside for the IPCMC to complete its full investigation and bring the culprits to justice.
The longer the BN government puts off the establishment of the IPCMC, the more it must be held responsible for other deaths and torture under the police or enforcement agencies’ custody. The IPCMC covers not only the police but also enforcement agencies including the customs and Inland Revenue as well as the armed forces. And as we know too well, torture under detention without trial continues under Pakatan rule and that is all the more reason for an IPCMC. The government must also ratify the Convention against Torture. This will ensure international scrutiny to stop torture in Malaysia.
Thus, history shows us that Malaysian RCIs have either failed to deliver justice and democracy to aggrieved parties or the government of the day has repeatedly chosen to ignore recommendations by the respective RCIs. The proposal by the Government to form yet another RCI over the enforced disappearance of several Malaysian activists is a mere stalling device by the ruling coalition in the face of citizens’ outrage over the despicable affair. After the finding by the national Human Rights Commission, the Prime Minister himself should have demanded answers from the Police Chief and Home Minister and sought the immediate release of these “disappeared” Malaysians. This merely strengthens the view among sceptical Malaysians that RCIs in our country have been reduced to “Royal Cosmetic Institutions”.