Ferreting out the facts

  • Letters
  • Saturday, 08 Jan 2011

This article was first published on July 29, 2009 – a week after the decision to have a coroner’s inquiry into the Teoh Beng Hock case. It remains one of the best explanations of what a Royal Commission of Inquiry entails.

THERE is a public outcry against the Government’s decision to appoint a Royal Commission of Inquiry with limited jurisdiction to investigate the procedures of the Malaysian Anti-Corruption Commission but no power to track down the truth about the tragic death of political aide Teoh Beng Hock.

Most of the views reflect public exasperation that weeks after Teoh’s demise, nothing definite seems to have been unearthed to throw light on the case. This is despite full-fledged investigations by the police and the Malaysian Anti-Corruption Commission.

Attorney-General Tan Sri Abdul Gani Patail’s statement on the need for an inquest rather than a Royal Commission of Inquiry has not met much support.

This is partly due to lack of knowledge of the Criminal Procedure Code.

It is true that under the Code police officers have a duty to investigate a death (Section 329). Such officers have a duty to arrange for a post-mortem in certain cases (Section 330). Bodies may be exhumed (Section 335).

Once the Public Prosecutor directs a magistrate to hold an inquiry into the cause of, and the circumstances connected with, any death, the magistrate is obliged to hold an inquiry and to record his findings.

The A-G is also right that a Royal Commission of Inquiry is not the most appropriate instrument for investigating a violent crime. The Commission is more suitable for administrative, civil and tort matters.

Under section 2 of the Commissions of Enquiry Act 1950, the Commission can enquire into the conduct of any federal officer; any public service department or institution; or into any matter, enquiry into which would be for the public welfare.

The findings of a Commission are not binding on the Government. The Commission’s report may be kept under wraps and may not be made public.

The Commission can discover facts, draw conclusions and make recommendations.

But it has no power to prosecute the wrongdoers. That discretion remains with the A-G under Article 145(3) of the Federal Constitution.

The usefulness of a Royal Commission of Inquiry into a criminal matter is, therefore, open to question.

However, despite weaknesses in the law relating to a Royal Commission, the refusal to appoint it on the ground that enquiry by it into Teoh’s death will lead to duplication of proceedings is not convincing.

Multiplicity of proceedings in this case cannot be avoided because one type of enquiry cannot shut out many other procedures required or permitted by the law. In this case, four types of proceedings are unavoidable.

First, by the police under the Penal Code and the Criminal Procedure Code. Second, by the Malaysian Anti-Corruption Commission under its own law. Third, by the Magistrate under Section 339 of the CPC.

Fourth, by the Royal Commission.

It must also be pointed out that despite all other types of enquiries, there is no bar in the law to permitting a Royal Commission to ferret out the truth. Act 119 confers on the Commission vast powers to search for what actually happened. The Commission can:

> Summon any person to give evidence or produce any document or other thing in his possession.

> Issue a warrant of arrest to compel the attendance of any person who defies the Commission’s summons and to order him to pay costs.

> Procure and receive evidence, whether written or oral, and require it to be on oath. False evidence could be the subject of a criminal prosecution.

> Impose a fine of not more than RM50 on any person who fails to give evidence or produce a document or other thing.

> Admit evidence otherwise inadmissible in civil or criminal proceedings.

> Request the Yang di-Pertuan Agong to direct the IGP to detail police officers to attend upon the Commissioners; to preserve order; and to serve summons issued by the Commission.

> Punish contemnors with a fine not exceeding RM100 or imprisonment not exceeding three months. This power is to be exercised after giving the accused a proper hearing.

> Require the Public Prosecutor to cause any matter relevant to the enquiry to be investigated.

The Commission’s work is akin to judicial proceedings, and Commissioners have the powers of a first class magistrate.

On the peculiar facts of this case, a Commission would have been most appropriate because of the legitimate expectations of the people created by assurances and proposals from many top politicians.

Commission personnel are generally of very high ranking and may arouse greater confidence than a junior judicial officer whether a magistrate or a Sessions judge.

This is not to imply, however, that magistrates cannot do justice or act impartially. There are many excellent subordinate court judges and their judicial conduct is often of higher quality than that of many superior court judges.

What is crucial is that justice must not only be done but must be seen to be done. Public scepticism is acute because despite considerable passage of time, no decisive evidence seems to have emerged.

After Teoh was released, did he make any telephone calls which could give some pointers to the time of his death? Was his handphone seized? Was his handphone tampered with? Were the injuries on his body the result of the fall or of prior abuse by himself or by others?

Did he die because of the fall or was he already dead when his body plunged to the floor below? Did no one hear the sickening thud of his body falling nearly 10 floors?

Some of what we have heard requires a willing suspension of disbelief. Of course truth is often stranger than fiction. Unless some convincing answers come out quickly, imagination will continue to run wild and fancy will continue to trump facts.

That is not good for our legal system’s reputation. Perceptions are crucial and right now besides ferreting out the truth, perceptions need to be managed.

Professor Emeritus Datuk Dr Shad Faruqi is a Professor of Law at the Faculty of Law, UiTM.

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