LIVE: Missing pastor’s lawyers to argue why inquiry must continue
6th Mar 2018
THE Malaysian Human Rights Commission (Suhakam) will today hear oral submissions on why the public inquiry into Pastor Raymond Koh’s abduction more than a year ago should continue after it was suspended on January 16.
The inquiry was suspended after police said they had charged part-time Uber driver Lam Chang Nam with kidnapping the pastor.
Police used Section 12(3) of the Suhakam Act 1999, which states that if the subject of an inquiry is heard in the courts, the commission shall immediately cease the inquiry.
Koh’s family, however, want the inquiry to proceed, and their lawyer, Gurdial Singh Nijar, has said the subject matter before the court is different from what is before the inquiry.
While the court is to hear a case of alleged kidnapping, the inquiry is to determine whether Koh’s disappearance was due to state-enforced actions.
Gurdial is to present to the commission today why the inquiry should continue.
Koh was abducted in Petaling Jaya on February 13 last year by some 15 men in three black SUVs.
His family members are wife Susanna Liew, son Jonathan, 33, and daughters Esther, 32, and Elizabeth, 22.
Suhakam commissioner Mah Weng Kwai chairs the panel, which includes two other commissioners – Aishah Bidin and Dr Nik Salida Suhaila Nik Saleha.
The Malaysian Insight brings you updates from today’s proceedings.
1.15pm: Bar Council lawyers said the role of Suhakam is that, it is a body that is given the authority to look into the infringement of human rights and make recommendations to the government.
The lawyers said it is incumbent on Suhakam to guard its turf, and it should resists attempts by police (to derail the inquiry).
“Suhakam has to decide how they want to interpret Section 12 of the act.
“It should be defined, and Suhakam must carry on with the inquiry.”
Enforcement Agency Integrity Commission observers said, in their oral submission, that they are of the view that the inquiry should cease.
They said it was the view of the commission to cease the inquiry, and that the Attorney-General’s Chambers is the right body to interpret Section 12.
Mah ask all the lawyers to prepare statutory implications, constitutional questions and proposed areas of questioning (for the remaining witnesses).
He then gave the lawyers one week to hand over the supplementary submissions, and if required, Suhakam might request them to be present.
“We will make a decision shortly after, as we don’t want to drag this further.”
The inquiry ends, and will resume on March 19.
12.45pm: Bar Council lawyers said the interpretation of the inquiry is because the subject matter is in court, and ask whether this infringes on human rights.
The lawyers said it is when there is an allegation of infringement that Suhakam’s competence is not more than what the court (in Lam’s case) can decide.
“In this case, the inquiry has the competence to continue.
“Is there an allegation of human rights (infringement) in the court (Lam’s case)? If there is not, then Suhakam can proceed (with the inquiry).”
12.05pm: Koh family lawyers ask the panel if it wants to conclude the inquiry and accept their submission (to proceed with Koh’s case).
The lawyers ask the panel what would happen if the witnesses do not attend, to which Mah replied there is no provision to issue an arrest warrant for them.
Koh family lawyers said if police have a change of evidence or a eureka moment, they should present it at the inquiry.
“They (police) have disappeared (from the hearing). It’s not enforced disappearance, but voluntary disappearance.
“Is there an attempt to stonewall the inquiry?”
The inquiry takes a short break.
11.45am: Koh family lawyers said the IGP’s letter stated that the inquiry should not proceed in view of Section 12 of the Suhakam Act.
It states that during an inquiry into the infringement of the human rights of a person, if the allegation becomes the subject matter of any proceeding in any court, the commission shall immediately cease the inquiry.
The question to be determined is whether the allegation being inquired into is the same as the subject matter of the proceedings in the court under the criminal charge.
“What the inquiry is about is to see if the state was involved. Whereas in a criminal case (Lam), the charge is totally different.”
11.15am: Koh family lawyers said police have an obligation to attend the inquiry and explain the evidence they have on part-time Uber driver Lam Chang Nam.
“Their absence makes it look as though the state or police are trying to stifle this inquiry.”
10.55am: Koh family lawyers said the three police officers’ failure to attend the inquiry would be in violation of Section 174 of the Penal Code.
The lawyers said if there was no attendance and objection by a public servant to attend, it is in direct violation of the section.
The lawyers suggested that the commission lodge a police report against the three if they do not attend the inquiry.
“An investigation report must be opened, and police must do what they do (investigate).”
Mah asked, shouldn’t the matter be brought to the Enforcement Agency Integrity Commission?
10.30am: Koh family lawyers said the inquiry has the power to summon any person in the country to give their testimony.
They said according to the Penal Code, if the person fails to attend, they are liable to a fine or imprisonment.
10.15am: Suhakam officers said there are still four more witnesses to testify in Koh’s case.
They said three police officers have been subpoenaed, and should attend the inquiry.
“But, the officers might challenged the summons to attend the inquiry.
“If we summon them and they challenge and put a stop to it, then it will delay the inquiry.
“(But) if we are to continue, should the panel come to a conclusion based on what the inquiry has gathered so far (on Koh’s case)?”
10.05am: Suhakam officers said based on the proceedings of the public inquiry conducted from October 19 to November 23 last year, there is evidence that directly or indirectly relates to allegations that Koh had been abducted.
In addition, the terms of reference state that the inquiry is to determine whether Koh’s case is one of enforced disappearance, as defined by international laws.
Therefore, matters spoken about the pastor’s abduction will inevitability be part of court proceedings.
So, the charge under Section 365 of the Penal Code deals with kidnapping or abduction, which falls under the term “involuntary disappearances”, in breach of criminal law.
9.50am: Suhakam commissioner Mah Weng Kwai said for the record, police have stated through a letter dated February 6 that they will not file their written submissions (on the suspension of the inquiry) on the advice of the Attorney-General’s Chambers.
He said Suhakam sent them the letter to present their submissions on January 25.
9.45am: The public inquiry into Pastor Raymond Koh’s abduction resumes with lawyers presenting their oral submissions on the inquiry’s suspension. – March 6, 2018.