The Attorney-General’s Chambers’ (AGC) move to immediately file an appeal against a High Court’s judgment on the disappearances of Pastor Raymond Koh and social activist Amri Che Mat demonstrates a lack of accountability from the government.
Addressing a forum in Kuala Lumpur today, lawyer Gurdial Singh Nijar, who represented Koh’s family in the lawsuit, said the appeal is akin to the government refusing to acknowledge that they have a responsibility in the matter at hand.
“After we won the case in the civil suit, they (the AGC) immediately filed an appeal, (which) means they refuse to acknowledge there is a responsibility that rests in them in trying to find a solution to what has been so obviously decided by a series of institutions and bodies.
“This so-called Madani tagline that (the government) stands for compassion, justice, and truth sounds very good - when it first came out, we were all very excited - but now we know the reality is completely different,” the senior counsel said.
He argued that even prior to the appeal from the AGC, government forces had blocked any kind of justice for victims of enforced disappearances.
“At every step of the way, the government has impeded the search for the truth - such justice was blocked by the state itself (as) the police and the AGC, which are supposed to act in the interests of the public, subverted the whole process (of justice),” the senior counsel said.
“The government itself tore up all the protections that we have in the Federal Constitution - they tore the Constitution to pieces, and they tore up all the processes for protections under the Criminal Procedure Code,” Gurdial added.
He cautioned that for as long as the government and its enforcement agencies refuse to acknowledge their role in the issue, disappearances linked with such forces will continue to occur in a “more sophisticated" manner.
“While it is good to know that we have case laws and Suhakam inquiries against enforced disappearances, as long as the government and its agencies are not brought to task, I'm afraid abductions will continue.
“Until the government acknowledges (its duty) and takes responsibility, I’m afraid all these valiant efforts by the families and the courts will just remain a dead letter,” he said.
The lawyer was speaking at a public forum titled “Justice for the Disappeared”, held at the Bar Council’s auditorium today and organised by the National Human Rights Society (Hakam).
Liable for disappearances
Amri, an alleged Shia follower and proselytiser, vanished on Nov 24, 2016, in Kangar, Perlis. His wife had testified that on May 12, 2018, a Special Branch officer from Perlis, Shamzaini Daud, told her the division was responsible for the abduction.
The next year, Koh was abducted in broad daylight along Jalan SS4B/10 in Petaling Jaya while driving to a friend’s house. CCTV footage believed to have captured the incident showed at least 15 men and three black SUVs involved in the operation.
In 2019, Suhakam concluded that both Koh and Amri were victims of enforced disappearance carried out by Special Branch members from Bukit Aman.
On Nov 5, Kuala Lumpur High Court judge Su Tiang Joo found the government and police liable for Koh and Amri’s disappearances.
The following day, Attorney-General (AG) Dusuki Mokhtar confirmed that the AGC would be filing an appeal against the rulings, asserting that the decision was not based on established judicial principles since the judge “erred in his findings” regarding the facts and the law applicable.
Home Minister Saifuddin Nasution Ismail later told the Dewan Rakyat that the appeal should not be viewed as the government taking issues of lives, rights, or freedoms lightly.
Instead, the minister asserted that the issue at hand lies with the “nature” of the court’s order, referencing Su’s order for the government to pay RM10,000 into a trust account for Koh until the pastor is found.
The payment is calculated from Feb 13, 2017, the date of Koh’s abduction, amounting to about RM32 million to date.
Besides the RM10,000 per day payment, Su additionally awarded RM4 million in damages to Koh, alongside RM1 million in aggravated damages for the prolonged delay in locating him and another RM1 million for unconstitutional acts by the defendants.
Koh’s wife, Susanna Liew, the second plaintiff in the suit, was granted RM2 million in general and aggravated damages for mental distress, plus RM1 million in exemplary damages.
Amri’s wife, Norhayati Ariffin, was awarded RM3 million in damages, comprising RM2 million in general damages and RM1 million in exemplary damages. The court also ordered RM14,457.52 in special damages and RM250,000 in costs to the plaintiff.
Contrast in damages
Commenting on the difference in compensation awarded in both cases, Gurdial’s co-counsel, Jerald Gomez, highlighted that there were distinctions in the presentations of the cases, which led to the contrast in damages.
He noted that in the lawsuit brought by Norhayati, Amri was not named as a plaintiff - contrary to Liew’s legal action, where Koh was listed as the first plaintiff.
“The law recognises individuals as separate entities. Liew was suing (the defendants) on a separate cause of action, which is her distress and emotional trauma, for which is what the court awarded her damages.
“Koh was suing over the deprivation of liberty and breaches to his life, which is why a substantial amount of damages was given to Koh to be held in a trust,” Jerald said.
Echoing similar sentiments, Norhayati’s counsel, Surendra Ananth, advised against vilifying Su’s verdict, noting that the judge had detailed in his broad grounds of judgment that he is bound by how parties present their case.
“The judge cannot change the case we have presented. The difference in the sums awarded has nothing to do with the race of individuals - please don’t cast aspersions on the judge,” Surendra said.
Previously, Putra president Ibrahim Ali had criticised what he described as a “disgraceful disparity” in compensation awarded to Koh and Amri’s families, especially since both cases of enforced disappearance were ruled as failures of state protection.
He also warned that leaving the decision unchallenged would send “a dangerous message” that the value of Malaysian lives could differ according to religion or profile.
‘Chance to do the right thing’
Surendra also said today that public frustration over the government’s response to enforced disappearances and other pressing issues reflects a broader crisis of political will.
“For me, it ultimately comes down to political will. We all know who the culprits are - the question is whether they want to act or not in doing the right thing,” he said.
He noted that while he had backed Pakatan Harapan at previous general elections based on the coalition’s promise of reform, such assurances now ring hollow when the government appears to be taking a lackadaisical approach in addressing human rights matters.
“You now have a High Court judgment which confirms everything - now is the chance to do the right thing, but unfortunately, with this government, it’s the same as all previous ones,” he lamented.
“The only way to teach them is through the ballot box. A clear signal should be sent to this government that they will be punished if they don’t do something.” - Mkini
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