“JUSTICE should not only be done, but should manifestly and undoubtedly be seen to be done.”
The oft-quoted words of Lord Hewart CJ in his 1924 judgment in R v Sussex Justices may seem frayed around the edges after much use over the last century, but it is still relevant today, especially with reference to the need to scrupulously avoid any appearance of conflict of interest in matters of law and order.
This dictum is also my immediate reply to the Malaysian government’s defence of the task force it set up to address the findings of the Suhakam (Human Rights Commission of Malaysia) inquiry into the disappearances of Pastor Raymond Koh and Perlis activist Amri Che Mat.
Going by the reactions from the victims’ families, civil society, and legal commentators since the June 26 announcement, it is obvious that this task force’s ability to deliver justice does not meet even the appearance standard.
For the families, it has been a long wait for justice to be done … or to be seen to be done.
It has been 31 months since Amri Che Mat’s disappearance and 28 months since Koh’s.
Also, it is coming up to three months since Suhakam declared that both were “abducted by State agents, namely the Special Branch, Bukit Aman”.
The Suhakam decision also referred to breaches in police investigations for both cases, stating that the “apparent lack of cooperation, suppression and concealment of evidence by the police was evident during the course of the hearing of the public inquiry” (Para 201, Suhakam decision: Amri Che Mat; April 3 2019).
Suhakam recommended that the Malaysian government should set up “a special task force … to reopen and re-investigate” both cases. This is in line with the inquiry panel’s belief that “those who have been put in charge so far are withholding the answers to these questions, or are refusing to undertake a diligent exercise to discover them” (Para 212 of the above).
The Home Minister’s downplaying of the presence of (former chief of the police’s legal unit) Datuk Mokhtar Mohd Noor in the six-man task force is as dangerous as it is disingenuous. It does not matter if it is one or three or all six members – conflict of interest does not operate on a sliding scale.
Such a cavalier dismissal of a valid complaint of conflict assaults the principle of natural justice and the rule of law.
For the record, it is not just his physical appearance at the Suhakam inquiry defending the Royal Malaysia Police (PDRM) that disqualifies Mokhtar. It is his position as head of Bukit Aman’s legal division from January 2017 until April 2019 that is the more serious conflict.
Besides heading the team that defended PDRM in both cases throughout the public inquiry over the last three years, Mokhtar also helmed a department named and implicated during the inquiry.
The Amri Che Mat case investigating officer (IO) Inspector Khor from PDRM Perlis testified that at least on two occasions, “Bahagian Perundangan Bukit Aman” inserted itself in the case. The first was in February 2017 when the IO testified that he was instructed to hand over Amri’s case file to this department (Amri Che Mat Inquiry Day 7 Transcript: April 2, 2018; p. 36).
The second time mentioned by the IO was related to the fallout in May 2018 after Amri’s wife lodged a police report following a visit by a Special Branch (SB) sergeant when he allegedly informed her and her daughter that it was Special Branch Bukit Aman that had abducted Amri.
At the Inquiry, Inspector Khor testified that a named senior officer from Bukit Aman’s legal division had a session with the alleged SB whistleblower one day before the latter lodged a police report to deny he told Amri’s wife that the SB had abducted her husband (Amri Che Mat Inquiry Day 16 Transcript: July 2, 2018; p. 34).
At the inquiry, this sergeant later admitted under oath that he had lodged his police report after being told to do so by senior officers (Amri Che Mat Inquiry Day 21 Transcript: July 24, 2018; p. 121).
This is not speculation. This is not hearsay. This is all recorded in the official transcripts of the inquiry.
Whether or not the involvement of Bukit Aman’s legal division in the investigation was harmless is not the issue here. What is crucial is to recognise that all aspects of the original investigation are on the block for scrutiny, as the inquiry panel put it – for the “apparent lack of cooperation, suppression and concealment of evidence”.
As such, no one from Bukit Aman’s legal division can be accepted as an honest broker in any credible endeavour to investigate the investigators. As for the Home Minister’s claim that one person cannot have that much influence, I would remind him of the Malay proverb about a drop of blue dye in milk.
The Home Minister has had many opportunities to step up to do the right thing in these cases. His was the first ministry approached by Amri’s wife a year ago immediately after that shocking visit by the Special Branch sergeant. Nothing was done.
The families and their representatives also communicated their concerns and requests in person when they met him at his Putrajaya office in April this year.
Yet the Malaysian government does not seem to understand what is urgently needed. What we need is a task force to get cracking on a new investigation that is impartial, independent and fully empowered under the authority of law to act quickly and decisively. We need to see people being called in for questioning, we need to see arrests and prosecutions.
In other words, we need to see a task force similar to the 1MDB Special Task Force that was formed in May last year.
To expect the three current and former PDRM officers in the task force to act this decisively against their own is patently unrealistic. The “Blue wall of silence” is a well-documented informal code among police all over the world to protect and acquiesce to misconduct of their fellow officers in order to preserve the “morale” of the unit.
While I am not alleging that these three task force members follow this code, I can just imagine the tremendous conflict they would feel about investigating or taking action against one of their own. It is unfair to expect them to carry out their task force duties impartially when the very subjects of the investigation are their fellow officers.
If not PDRM, then who can step in with the full authority of statutory law and take charge of this task force?
I think it should be the Malaysian Anti-Corruption Commission (MACC). This is not based on my personal admiration for its new chief. Rather, I base this recommendation on what the law allows and on precedent from recent history.
Section 7 of the MACC Act 2009 (PDF) deals with the functions of the Commission’s officers to receive, consider, detect, and investigate a long list of offences, most of which refer to the Penal Code and are linked to corruption and abuse of power.
This section also allows MACC officers “to examine the practices, systems and procedures of public bodies in order to facilitate the discovery of offences under this Act” and to reform such practices and procedures.
MACC’s jurisdiction covers sections 213-214 of the Penal Code under Chapter 11: “False Evidence and Offences Against Public Justice”. These sections deal with offences related to the taking and offering of gratification in consideration for, among others, “concealing an offence”, “screening any person from legal punishment” or “not proceeding against any person for the purpose of bringing him to legal punishment”.
The MACC Act’s extensive definition of “gratification” is not limited to material benefit and includes:
“any other service or favour of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty” (MACC Act 2009, Section 3: Interpretation).
In the Amri Che Mat and Raymond Koh cases, the allegations against the police (a public body under MACC’s jurisdiction) fall within the purview of these offences against public justice.
Further, Sections 161-163 of the Penal Code that deal with offences related to public servants taking gratification in the conduct of their official duties are also relevant in the scrutiny of possible attempts to influence the conduct of PDRM officers involved in the investigations into these disappearances.
It is not that novel an idea that MACC should step in when there is a serious conflict of interest problem with the police. In 2008, Datuk Seri Anwar Ibrahim (who was Opposition leader then) lodged a police report alleging that then Inspector-General of Police Tan Sri Musa Hassan and Attorney-General Tan Sri Abdul Gani Patail were involved in fabricating evidence in Anwar’s 1998 black-eye incident. To mitigate the conflict, the investigation was handled by the MACC, which was called the Anti-Corruption Agency (ACA) then.
It is reasonable for the government to consider this option in order to allay the misgivings the public has about not just the composition of the current task force but also its legal standing.
There is a lack of clarity about this task force’s statutory power because the Home Minister did not reveal any terms of reference. We already have had an extensive inquiry, thanks to Suhakam, which established a credible line of enquiry beyond the reasonable suspicion threshold necessary for investigators to start arresting people, for instance. We do not need another “inquiry” or “committee” to replicate the solid work of the Suhakam inquiry.
It would be an act of good faith to the victims’ families if the government takes this route voluntarily. It would also meet the rule of law’s minimum requirement to constrain the exercise of arbitrary power.
Quoting Lord Hewart again: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”
If this does not happen, then perhaps it is time for reports to be lodged with MACC in order to ensure that justice is not interfered with.
Sheryll Stothard is a member of the informal group of activists and advocates who have worked with the families of Amri Che Mat and Raymond Koh since 2017 in their quest for truth and justice, including assisting them during the Suhakam public inquiry. She is currently reading law at the University of London. The views expressed here are entirely the writer's own.