APRIL 5 — It is very troubling that the prime minister has casually dismissed Suhakam’s finding that the Special Branch (SB) was involved in the abduction of Pastor Raymond Koh (Raymond) and Amri Che Mat (Amri). This portrays a lack of understanding not just of the law, but most importantly, the duty of the government.
What is a Suhakam inquiry all about?
Suhakam is empowered to conduct inquiries on any allegation concerning the violation of human rights. Such inquiries are NOT civil or criminal proceedings. It is an inquiry to investigate human rights allegations. It is essentially a fact-finding exercise with a view to express a non-binding opinion.
If they are not court proceedings, then who has to establish a human rights violation?
This is where the confusion happens. The general rule when it comes tocourt proceedings is simply this: If you make the allegation then you prove it. However, this is not a court proceeding. More importantly, this is an allegation of enforced disappearance.
Wait, what is an enforced disappearance?
This is where a person is abducted or deprived of his liberty by agents of the state or by persons acting with the authorisation, support or acquiescence of the state. The last part is important. It includes a scenario where the state knew and could have done something, but remained silent.
In such a case, the state is still liable for being indirectly involved in the abduction.
And why is it unique when it comes to proving the allegations?
When it comes to enforced disappearances, the burden of proof is on the state and not the complainant. Suhakam merely has to be satisfied that there is some evidence of the State’s involvement. The burden then immediately shifts to the state.
This means that Suhakam is entitled to pin liability on the State if the State fails to provide satisfactory evidence that it was not involved. The logic of this is simple. One cannot expect the family of the victim to adduce direct evidence of the State’s involvement.
It is the state that would have the means and access to crucial evidence that is relevant. The point is this, it is not enough for the police to merely say that there is no direct evidence of its involvement.
How does Suhakam examine all the evidence that was given in the inquiry?
Basically, the determination of: First, whether on first impression, there is some basis to say that the state was involved; and second, whether the State has provided satisfactory evidence that it was not involved, is done on what is called a “balance of probabilities” test. This basically means that the panel has to say “we think it more probable than not.”
So how does this hearsay thing come into the picture?
In simple words hearsay evidence is basically the witness giving testimony on something she/he has no direct knowledge about. If the witness says that, “I was told by Cersei that Jamie was abducted by Robb,” that is hearsay evidence.
The witness has no direct knowledge on Robb’s abduction. It is based on the knowledge of Cersei. In court proceedings, such evidence is usually inadmissible. However, in public inquiries on human rights violations, such evidence is admissible. This is more so for enforced disappearance cases.
More often than not, the only evidence that can be given by the family of the victim are circumstantial and hearsay evidence.
This is for the simple logical reason that the only person known to the family who is directly involved in the abduction is not there!
So what happens now?
This is a very serious finding against the government. It is now on the government to take the necessary steps to ensure the truth behind the abduction of Raymond and Amri is revealed. That is the purpose of the Suhakam inquiry.
It has now made a finding and provided for recommendations to address the situation. The government must act on them. To say that it is for Suhakam to provide evidence to prove what happened is, with respect, illogical.
Is it not the duty of the government to ensure that its citizens are protected and when a crime is committed, to ensure that the matter is properly investigated so that the perpetrators are brought to justice?
* Surendra Ananth is an advocate and solicitor in the High Court of Malaya.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.