Thursday, July 28, 2011

RCI + inquest = ‘big, big mess’

Teoh El Sen | July 28, 2011-FMT

The two decisions from a coroner and inquest have led to uncertainty, says lawyer Malik Imtiaz Sarwar.

PETALING JAYA: The Royal Commission of Inquiry (RCI) into Teoh Beng Hock’s death, which released its findings in a report last Thursday, has created a “big legal mess” by generating more questions than answers, said prominent human rights lawyer Malik Imtiaz Sarwar.

Malik, who represented the Selangor government during the inquest and RCI, said rather than serving its original function to bring a closure to the issue, there are now different conclusions by the RCI and inquest.

“What has resulted is a big, big, mess. We have now a coroner’s decision and a RCI’s, which are saying different things. In law, the coroner’s findings is the determinative one,” the National Human Rights Society president told FMT.

Malik said the three Malaysian Anti-Corruption Commission (MACC) officers – Negri Sembilan MACC director (then Selangor MACC deputy director) Hishamuddin Hashim and two enforcement officers Mohd Anuar Ismail (then the investigating officer) and Mohd Ashraf Mohd Yunus, who are being internally investigated for allegedly driving Teoh to suicide – would most probably make the same argument (that the RCI finding is inferior to a court finding) if they were brought to court.

“Both findings (RCI and inquest) are inconsistent. The inquest ruled out a suicide and said there were insufficient evidence to come to a finding of homicide. It also accepted that there were pre-fall injuries on Teoh, but the RCI totally ignored all that,” said Malik.

Malik said before the Selangor government and lawyers of Teoh’s family decided to pull out of the RCI, they suggested and raised concerns over the “dual” findings that would eventually emerge but their arguments fell on deaf ears.

“The RCI then should have stood down until the outcome of the revision (on the inquest) had been done away with. Or, the Attorney-General should have withdrawn his application to revise the inquest decision to push for a suicide finding and all parties to start off on a clean slate. But that was never decided on,” he said.

“At the end of the day, the A-G, who recommended for both a revision and most probably also advised the government to hold the RCI, was asking for two different sides,” he said.

“Also, the RCI decided to ignore all the evidence in the inquest and reboot the whole case… and it seems that somehow everyone got a second chance to restate their case. They (the commissioners) should not have done that; (RCI chairman) James ( Foong) could have found a way to include the coroner’s findings,” he added.

‘There’s no certainty’

Malik expressed his disappointment that the RCI now gave rise to more uncertainty than definitive answers.

“Where do things stand right now? There’s no certainty. What we have now is a whole mess of uncertainty,” he said.

“Has the RCI served its function? From the very beginning, the decision not to hold a RCI before an inquest was ill-conceived, and having a RCI as a knee-jerk reaction to public anger was also not well-thought out,” he said, adding that the original intention of having a RCI was because of public anger and lack of confidence in the inquest’s findings.

“The RCI was more of a political resolution rather than a legal one,” he said.

Meanwhile, Malik also said that a judicial review being planned by DAP veteran lawyer Karpal Singh for the Teoh family would not likely result in the Federal Court overturning the decision of suicide.

“Usually judicial reviews are not so concerned over the correctness of the result, but the process taken to achieve it. It won’t say the RCI is wrong. It may say the RCI did not take certain facts as factors and came to an unreasonable conclusion; or that the RCI was biased and was in contrast with natural justice… But no judicial review would substitute the decision,” he said.

He cited an example in Australia where a parliamentary commission decision was challenged in court and relief was granted only because the reputation of persons mentioned was damaged.

Asked what would happen if the government failed to implement the recommendations of the RCI, Malik said the government was not legally bound to do so but would suffer political implications if it did not.

On whether a RCI result should be questioned, Malik said if it impacts a person then there should be a judicial process to address it.

‘Making a mockery’

However, Umno legal adviser Mohd Hafarizam Harun told FMT that pursuing a judicial review would be “making a mockery of its (RCI) inception since it is commissioned by the Yang di-Pertuan Agong himself”.

He said that questioning the RCI would be defeating the whole purpose of having a finality to the issue, adding that the RCI was different from the court process of going as far as the Court of Appeal and having exceptional cause to reach the Federal Court.

“What’s appalling to me is the consistently inconsistent position taken by certain quarters when all that has been done is what they initially wanted. I see it as none other than politically motivated,” he said.

“We must have faith in our system, be it whether it’s the best system we have (or not) and if we are not happy, we deliberate for the betterment. There must be acceptance in order for us to move on,” he added.

Harafizam said that “no one wants that dreadful incident to happen; it could happen to us, but it has happened and there is nothing much we can do to undo it’.

His view was echoed by former Bar Council president K Ragunath, who said that it was fine to question the findings, but a RCI’s stand should not be reviewed again by the courts.

“These are merely recommendations and not a decision and it should not be reviewed. Let’s say the report says ABC is guilty of murder; it does not mean the person can be prosecuted immediately, the police still have to investigate, A-G still has to order prosecution and we go to court,” he said.

No faith in judicial system

However, Associate Prof Azmi Sharom said at the end of the day, even if a review is granted, the problem is that the general population’s faith in the judicial system is at a “low ebb”

“Since 1988, there’s been very little faith in the system; (I am not) saying all judges are biased. This government has systematically destroyed the public system and the RCI has shown that the people have already decided that they will not trust the court’s findings.

“But it would take years to revamp and rebuild the institutions to make sure that there is impartiality,” said the Universiti Malaya law lecturer.

Former DAP political aide Teoh, 30, was found dead on July 16, 2009, on the fifth floor of the then Selangor MACC office in Shah Alam, after undergoing an overnight interrogation as a witness in the case of alleged abuse of state funds by his boss Selangor exco Ean Yong Hian Wah.

A coroner’s court held an inquest to investigate the cause of Teoh’s death but delivered an open verdict, ruling out both suicide and homicide.

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