SUHAKAM’s decision to cancel Batu Burok inquiry is flawed and encourages impunity

BERSIH (Coalition for Clean and Fair Elections) condemns the prosecution of Suwandi Ghani and Muhammad Azlan who were shot with live bullets and severely wounded by the police in Batu Burok, Kuala Trengganu, on charges of attempting to cause grievous bodily harm to a police officer. The Attorney-General has created an oppressive precedent and acted mala fide in then using these charges to ask the court to deny bail to the accused.

This is clearly a gross injustice of the highest degree as the police officer that shot live bullets into an unarmed crowd is let off scot-free whilst the two victims not only almost lost their lives during the shooting, but now face prosecution and possible long-term imprisonment.
The prosecution for allegedly attempting to cause grievous bodily harm was clearly also a ploy to undermine the earlier announcement by the National Human Rights Commission (Suhakam) to conduct a public inquiry into the abuse of powers and the excessive force used by the police in the Batu Burok incident and influence it into cancelling the inquiry.
Needless to say, after the prosecution of Suwandi and Azlan and denial of bail for them, Suhakam proceeded to inflict another blow to human rights. On 14th December 2007, it announced the cancellation of the inquiry.
BERSIH is deeply disturbed by this decision of Suhakam in succumbing to the ploy of the police and Attorney-General’s chambers and cancelling its public inquiry on the police shooting incident.
We appreciate that Section 12(2) and (3) of the Suhakam Act 1999 states that the Commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which is the subject matter of any proceedings pending in any court, or which has been finally determined by any court including pending appeals.
However, the interpretation of Suhakam’s open inquiry panel chairperson Muhammad Shafee Abdullah on Section 12(2) and (3) of the Suhakam Act 1999 is flawed and goes completely against the spirit of the Act in protecting and promoting human rights.
This is clear from the express words used which is “the complaint relating to any allegation of infringement of human rights” must not be the subject matter any proceedings pending in court. Therefore, when properly understood from the explicit words used and the obvious intent of the provision, common sense would dictate that the intent and purpose of Section 12 is clearly to avoid a victim of human rights taking his complaint to court and then coming to Suhakam and asking it to do an inquiry. It was never meant to create the result where the alleged violator of a human right could prosecute the victim in a court resulting in Suhakam then saying that it could now no longer conduct an inquiry. This would be so for the obvious reason that a prosecution pending in a court of law for some alleged offence is NOT the same as a “complaint relating an allegation of the infringement of human rights”. It would only be the same subject matter if a VICTIM takes his complaint both to a court and to Suhakam.
We now have the absurd result that where, for example, the police used violence on a peaceful gathering, all they have to then do is to charge a few of the participants for an offence of unlawful assembly and Suhakam will dutifully say it cannot conduct an inquiry into whether there was a violation of the right to assemble peacefully. If a policeman slips and grazes himself, a participant/s could be charged for causing hurt and Suhakam could say it cannot even inquire into whether excessive force was used.
In the Batu Burok incident which is one of the worst cases of police violence to date where live bullets were shot directly at an unarmed crowd, the key issues for an inquiry are whether the police violated the right of peaceful assembly when they started using water cannon and teargas on a peaceful crowd and also the shooting of unarmed protestors. To its disgrace, Suhakam has washed its hands off both these vital questions.
The implications of the decision of Suhakam are disastrous for the protection of human rights in Malaysia. By calling off the public inquiry on the grounds that police prosecuted the victims, it is sending a wrong message to the police and other law enforcement institutions in future to abuse their victims and then prosecute them in court. This will encourage more violations and a culture of impunity and is certainly not the original intention of the establishment of Suhakam or the Act itself.
BERSIH calls on Suhakam to reverse its decision and continue with the public inquiry. Otherwise, Suhakam will tarnish its own credibility locally and internationally as an institution to protect and promote human rights.
Sivarasa Rasiah
Spokesperson for BERSIH

For further enquiries, please contact him at +6012 213 8613.