On the occasion of the International Day of the Victims of Enforced Disappearances, 30 August, Malaysians Against Death Penalty and Torture (Madpet) calls on Malaysia to take a clear stance against enforced disappearance and commit to criminally prosecuting those who committed these crimes.
Enforced disappearance is an extremely serious crime, which goes against the rule of law, human rights and Malaysia’s administration of justice.
What is enforced disappearance?
Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance states that enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the State. This is followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.
The definition of enforced disappearance in Article 2 of the convention contains various degrees of the state’s culpability regarding the initial disappearance. The degrees of the state’s culpability are listed below in descending order:
- that the victim was arrested or detained by agents of the state
- that the victim was abducted by agents of the state
- that the victim was abducted by persons or groups of persons acting with the authorisation of the state
- that the victim was abducted by persons or groups of persons acting with the support of the state
- that the victim was abducted by persons or groups of persons acting with the acquiescence of the state
If any one of this is satisfied, it makes it a case of enforced disappearance.
Raymond Koh and Amri Che Mat
A public inquiry by the Human Rights Commission of Malaysia (Suhakam) into the disappearances of Pastor Raymond Koh and Amri Che Mat concluded on 3 April 2019 that these were enforced disappearances committed by the officers of the Special Branch of the Malaysian police.
… the Panel is of the unanimous view that Pastor Raymond Koh is a victim of an enforced disappearance as defined in Article 2 of ICPPED that took place on 13 February 2017 at about 10:45 a.m. The disappearance of Pastor Raymond Koh was neither a case of voluntary disappearance nor a case of involuntary disappearance in breach of the ordinary criminal law. The direct and circumstantial evidence in Pastor Raymond Koh’s case proves, on a balance of probabilities, that he was abducted by State agents namely, the Special Branch, Bukit Aman, Kuala Lumpur…
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…the Panel is of the unanimous view that Amri Che Mat is a victim of an enforced disappearance as defined in Article 2 of ICPPED that took place on 24 November 2016 at about 11:30 p.m. The direct and circumstantial evidence in Amri Che Mat’s case proves, on a balance of probabilities, that he was abducted by State agents namely, the Special Branch, Bukit Aman, Kuala Lumpur….”
Joshua Hilmy and Ruth Sitepu
However, in Suhakam’s public inquiry Into the disappearances of Joshua Hilmy and Ruth Sitepu, which was chaired by the newly appointed Suhakam chairman, Hishamudin Yunus, it was the panel’s finding that the highly unsatisfactory conduct and shortcomings of the police in investigating the disappearances of Joshua Hilmy and Ruth Sitepu contributed to the acquiescence of the state in the abduction of the couple.
Suhakam found that there was a lack of urgency in investigating the case, incompetency and lack of seriousness on part of the investigation officers, failure to prioritise the case of a missing person, and a lack of coordination in the police unwillingness to divulge documents and further information.
The disappearances of Joshua Hilmy and Ruth Sitepu are cases of enforced disappearances as defined under Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance. The Government of Malaysia has breached the principle of Article 2 of the ICPPED which has been recognized as having developed and crystalized into customary international law… The enforced disappearances of Joshua Hilmi and Ruth Sitepu were carried out by person or persons unknown with the acquiescence of the Royal Malaysia Police as the agent of the State followed by a refusal on the part of the Royal Malaysia Police to acknowledge the deprivation of their liberty, and such refusal to acknowledge has placed these two persons outside the protection of the law…
The important point here is that if the police do not investigate properly, they may end up being guilty of the crime of enforced disappearance even if the police themselves did not abduct or cause the disappearance of the victim.
Equal protection of the law
Article 8(1) of the Federal Constitution states: “All persons are equal before the law and entitled to the equal protection of the law.”
When a person is disappeared or missing, and the police fail to speedily investigate, find them and determine what happened, can we say that the police failed to ensure ‘equal protection of the law’ to said the victim?
Thuzar Maung and family – possible victims?
We recall also the case of the Thuzar Maung, 46, her husband and three children, who were feared abducted “in a planned operation” on 4 July 4, which Human Rights Watch (HRW) disclosed, citing witnesses and CCTV footage at the activist’s home in Selangor, Malaysia.
It was good that the Malaysian police came out finally on 18 July 2023 stating that they had commenced an investigation into the disappearance of a Myanmar democracy activist and her family, who are UN refugee card holders. It would be good if we got a report on what happened to them.
Secrecy behind taskforce report
In May 2019, the then Pakatan Harapan government decided to established a special taskforce to investigate Suhakam’s conclusion that the police were involved in the enforced disappearances of Raymond Koh and Amri Che Mat.
However, the special taskforce report was then classified as a government secret and not disclosed to the public. The secrecy of the report implies that Suhakam’s findings were accurate. The question then arises: why haven’t the police officers been charged in court be it for kidnapping or murder?
Madpet calls for Prime Minister Anwar Ibrahim to be transparent and reveal the findings of the special taskforce and take criminal action against the police officers and others involved. If the government is seen to be protecting these ‘criminals’, it would paint a negative picture of the government and Malaysia.
Madpet calls on Malaysia to enact a law criminalising enforced disappearance.
Madpet calls on the Malaysian government to “review the Penal Code to incorporate the offence of enforced or involuntary disappearance as a separate category specific to cases involving missing persons.
In other words, the amendments should effectively make it an offence under the Penal Code, in addition to and separate from the offence of abduction and kidnapping.
As also stated in Article 6 of the convention, the Malaysian government should “take the necessary measures to hold criminally responsible at least:
(a) any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance
(b) a superior who:
(i) knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance
(ii) exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance
(iii) failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution
In Thailand, the Act on the Prevention and Suppression of Torture and Enforced Disappearance came into force on 22 February 2023. The Philippines passed the Anti-Enforced or Involuntary Disappearance Act in December 2012.
Closure and justice for family members
The families of victims of enforced disappearance require closure. Just like those in missing flight MH370, they have the right to know whether their loved ones are still alive or dead, and what really happened. They deserve justice in seeing those criminally liable being charged, tried and convicted in court.
Madpet calls on Malaysia to expedite or restart the investigation into the enforced disappearance – of Raymond Koh, Amri Che Mat, Joshua Hilmy and Ruth Sitepu – as concluded by Suhakam until we find out what exactly happened to them and until those criminally liable are prosecuted.
Madpet also calls on Malaysia to ratify the international Convention for the Protection of All Persons from Enforced Disappearance. – Madpet
Charles Hector issued this statement on behalf Malaysians Against Death Penalty and Torture (Madpet).
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
