Each day the ex-judge stays on in the taskforce is another day of growth in public doubt over the government’s commitment to establish truth and justice, say the Citizens Against Enforced Disappearances (Caged).
The home minister appointed Rahim Uda, an ex-judge of the High Court, as chair of the “taskforce” to “probe Suhakam’s conclusion” that social activist Amri Che Mat and Pastor Raymond Koh were victims of the Malaysian police.
Many have objected to Rahim’s appointment because Suhakam’s decision is founded upon a judicial reversal of a decision by Rahim. We call this the first reason.
Rahim upheld the “open verdict” of a lower court about the cause of Teoh Beng Hock’s death.
Rahim said the coroner – who decided that Teoh’s death was not suicide, not homicide and not misadventure – was correct.
Rahim said he too could not evaluate the evidence and make a decision.
The Court of Appeal decided that Rahim applied a standard of proof which was higher than he knew he should apply.
The Court of Appeal coram who set aside Rahim’s decision included Mah Weng Kwai – the chairman of the Suhakam panel whose decision, it seems, is to be investigated by the “taskforce”.
The Court of Appeal decided, on the basis of public interest, that indecision was not warranted. The court decided there was sufficient evidence to conclude Teoh’s death was a homicide. The three judges were unanimous in their opinion that Rahim failed to take into account public interest.
They wrote that their concern over public interest caused them to take the unusual step of each issuing his own judgement. They, in effect, shouted aloud that a serious miscarriage of justice had occurred.
The Suhakam panel quoted extensively from the Court of Appeal decision, which extensively discussed standards of proof and which one to apply.
Rahim’s failure – judges use restrained, polite language like “the learned High Court judge misdirected himself” – is most clearly laid out in the judgment written by Justice Mohamad Ariff Md Yusof (now Speaker of Parliament).
In non-judicial language, we may say that Ariff accused Rahim of cakap tak serupa bikin (“said one thing, did another”).
The Court of Appeal decided that Rahim wrongly adopted the “beyond reasonable doubt” standard though, in his written jugment, he showed awareness that the standard to be used was “balance of probabilities”.
Ariff also wrote:
… the failure by the magistrate and the learned High Court Judge to properly evaluate the conduct of the MACC officers concerned and the evidence of the conduct to allegedly “cover up”, according to the appellant’s arguments, leads to a serious miscarriage of justice. (Paragraph 72)
Rahim’s failure to properly evaluate “the conduct of … officers” and evidence of “cover up” shows he was biased towards the powerful. That is the second reason why Rahim should not be in the task force.
The force of the Court of Appeal judgments perhaps explain why Rahim was never elevated to the Court of Appeal. He retired early, well before the statutory age.
There is a third reason why Rahim’s membership of the “taskforce” is odious. Suhakam’s evidence-based conclusion has rightly caused severe damage to the reputation of the police.
Only the inclusion of a senior judge who retired with honour – for example ex-Federal Court judge Mohd Noor – will satisfy honourable policemen that the inspector general of police and the government are serious about eliminating bad elements in the force.
Caged thinks Rahim will not quit without a nudge from Home Minister Muhyiddin Yassin. We urge Muhyiddin to issue the nudge.
Caged notes that Zamri Yahya remains in the “taskforce” despite being an interested party – for the five reasons we elaborated in our recent statement. We urge Inspector General Hamid Bador to nudge Zamri.
Caged will continue to be the advocate for honourable policemen.
Caged will consider the “taskforce” bogus until Rahim and Zamri are removed, until the terms of reference are published and shown to match Suhakam’s recommendations and until the “taskforce” has the statutory powers to do the investigative work which the police didn’t do, to act against officers who engaged in misconduct and to find Amri and Raymond.
Each day Rahim and Zamri stay on is another day of growth in public doubt over the government’s commitment to establish truth and justice.
If Rahim and Zamri are serious about getting closure for the victims’ families, the police force and the nation, they should immediately resign from the taskforce. They should act honourably, as Mokhtar Mohd Noor did, on 2 July 2018.