Source: The Sun Daily
BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
A LETTER from the IGP triggered the derailing of the Suhakam Inquiry into the abduction of Pastor Koh just when it was about to commence its final three days’ hearing. Two crucial witnesses were required to take the stand: a senior officer from the Special Branch unit of the police; and a technical officer to explain the malfunctioning of the critical CCTV cameras along the alleged abduction route.
The IGP’s letter to Suhakam stated that a person had been charged the day before for the kidnapping and abduction of the pastor. Together with seven others at large. All very well it appeared until it was revealed that the person charged was a young Chinese part-time driver. The same person that the police had charged in an ongoing trial for trying to extort money from the family by alleging (falsely) that he had information on the missing pastor.
The question on everyone’s lips: Can the inquiry proceed?
The IGP’s letter to halt the inquiry relied on Section 12(3) of the Human Rights Commission Act 1999. It says that any inquiry into an allegation of the infringement of human rights must cease immediately if it becomes the subject matter of any court proceedings. This means that the subject matter of the court proceedings should be the same as that of the inquiry.
Now the terms of reference of the inquiry are to see if the state was complicit in the abduction, that is, whether any of its organs or officials were involved in the abduction. Either directly or even by acquiescence.
The subject matter of the court proceedings is different. It is to establish whether the accused abducted the pastor with intent to secretly confine him. It seeks to establish that the criminal act was carried out by someone. It does not answer the crucial questions which are the remit of the inquiry: was the state involved? If so, how was this authorisation accomplished? And who in the state authorised it or allowed it to happen?
These questions implicit in the terms of reference enlarge the scope of the inquiry: to determine whether the abduction is a case of enforced disappearance as defined under an international legal instrument, namely, the International Convention for Protection from Enforced Disappearances.
The convention defines “enforced disappearance” as including the abduction of a person by agents of the state or by persons acting with the authorisation, support or acquiescence of the state. Hence the subject of inquiry of the violation is the state or any of its organs such as the police.
Once this is established then arise the questions as stated in the terms of reference: how did this authorisation/acquiescence occur? By giving instructions, by engaging someone, by implicitly agreeing or condoning such action?
Then the further question of who in the state organ was involved. Who was the architect of this involvement?
Charging a person for abduction does not deal with these questions at all.
The reason to stop an inquiry if a person is charged is to prevent a court and the inquiry from dealing and deciding on the same subject matter and issue arising.
If it is the same subject matter, the court is given exclusive jurisdiction to do so. The inquiry is divested of the jurisdiction to decide the issue. This is to prevent duplicity and incompatible findings by the two bodies.
So once the court is seized of the subject matter, then regardless of the outcome, the inquiry cannot proceed.
But this reason cannot apply where the court is deciding an issue that is different from that of the inquiry.
The court is not concerned with the issue of state complicity. It only deals with whether the accused abducted and his intention to confine the person secretly.
The upshot is that Suhakam should proceed with what it has been entrusted to do: adjudicate on state complicity. Else, as some opine, it may be perceived as abdicating its responsibility.
Especially in the context of this case. The former IGP absolved this accused from any involvement in the abduction in his sworn testimony at the inquiry. That was as recent as November 2017. Confirming the conclusion of the police task force that investigations showed that this accused had nothing to do with the abductions. And only last month, the magistrate’s court ordered witnesses to attend the accused’s extortion case scheduled for Feb 27, 2018.
Further, some are intrigued how this accused could have executed the abduction operation in such “meticulous” (former IGP’s words) precision? All in a matter of swift seconds – by a coterie of black-masked men in a convoy of vehicles. And in a residential area in broad daylight on the morning of Feb 13, 2016?
And what of the police theory linking the abduction to religious extremists.
The accused is charged for abducting the pastor and confining him “secretly and wrongfully”. Where then is the pastor?
The police announced that the new charge (while the old one is continuing) is based on fresh leads. Legal experts question how mere leads can ground a charge.
So many questions. As yet no credible answers: to preserve police integrity and assuage the pastor’s family. And indeed, the doubting public.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.