Kit Siang: Inquest into TBH's death should be halted to allow Cabinet to review & widen terms of reference of RCI into causes of TBH's death

The 15-day inquest into Teoh Beng Hock’s unusual death at the MACC headquarters on 16th July 2009 which is to begin on Wednesday, 29th July till August 12 should be halted to allow for the Cabinet to review and widen the terms of reference of the Royal Commission of Inquiry into the causes of Teoh’s death to command public confidence in public institutions and the Prime Minister.

The contention by the Attorney-General Tan Sri Abdul Gani Patail that an inquest by the magistrate under the Criminal Procedure Code (CPC) was the right recourse, as the CPC was a specific legislation that made provision for a death inquiry, and that “holding a similar inquiry by the royal commission would be duplicitous in such instance” is totally unpersuasive and unconvincing.

In the first place, the Attorney-General should brush up his command of the English language. “Duplicitous” is derived from “duplicity” described as “double-dealing, deceitfulness” (Oxford Compact English Dictionary) What Gani intends to say is “duplication”.

Gani referred to Section 2 of the Commissions of Enquiry Act 1950 to buttress his contention claiming that it “clearly makes reference to the inquiry into the conduct and management of government officers and departments or for the public welfare”.

Section 2(1) of Commissions of Enquiry Act 1950 reads:

1) The Yang di-Pertuan Agong may, where it appears to him to be expedient so to do, issue a Commission appointing one or more Commissioners and authorizing the Commissioners to enquire into—

(a) the conduct of any federal officer;

(b) the conduct or management of any department of the public service of Malaysia;

(c) the conduct or management of any public institution which is not solely maintained by State funds; or

(d) any other matter in which an enquiry would, in the opinion of the Yang di-Pertuan Agong, be for the public welfare, not being—

(i) a matter involving any question relating to the Islamic religion or the Malay custom; or

(ii) in relation to Sabah or Sarawak, a matter specified in item 10 of the State List.

There is nothing in Section 2 of the Commissions of Enquiry Act 1950 to bar or prohibit the establishment of a Royal Commission of Inquiry into the series of events in the conduct of MACC officers leading to Teoh’s death, how a healthy, vibrant and idealistic young political activist, who is to register his marriage the following day with a two-month child, making active plans for his marriage just before summoned to MACC, should end up as a corpse after going to the MACC headquarters.

There is nothing “duplicitous” in having a Royal Commission of Inquiry although there may be duplication if an inquest is also held. The solution is for the inquest to be held back until after completion of the Royal Commission of Inquiry into all the circumstances and causes of Teoh’s death.
It is illogical and downright irresponsible to artificially chop the circumstances and causes of Teoh’s death into two parts, one to be investigated by an inquest and another by a Royal Commission of Inquiry – with the Royal Commission of Inquiry dealing with the portion of lesser importance, whether Teoh, who has died, had his human rights violated when the paramount question is how and why he died!

The reasons why the Cabinet should establish a Royal Commission of Inquiry are crushingly decisive, and include:

• A Royal Commission of Inquiry is more likely to command public confidence – depending on its terms of reference and composition – than an inquest;

• An inquest is more limited in scope, tied to police investigations while a Royal Commission of Inquiry has wider-ranging powers to go well beyond the confines of police investigations to probe into the causes of Teoh’s death, which includes the MACC’s interrogation of Teoh;

• An inquest will be conducted by a magistrate, the lowliest cog in the judicial system. After two decades of prolonged national and international crisis of confidence in the independence, impartiality and integrity of the judiciary, particularly in high-profile political cases, Malaysian public have no confidence in High Court, Court of Appeal and Federal Court judges. How can the Cabinet expect public confidence to be vested in a magistrate, who will be even more vulnerable to pressures. In contrast, a Royal Commission is headed either by a former judge or former Chief Justice (like former Chief Judge of Malaya, Justice Anwar heading the Royal Commission of Inquiry into Anwar Ibrahim’s black-eye scandal in 1999 and former Chief Justice, Tun Dzaiddin heading the Royal Commission of Inquiry into the 2005 police nude ear-squat scandal). This is because former judges, former Chief Judge or former Chief Justice are perceived as less vulnerable to improper political pressures.

Furthermore, there are Commonwealth precedents of public inquiries into extraordininary deaths.

In 2004, the Ipperwash Inquiry was established by the Government of Ontario under the Public Inquiries Act. Its mandate was to inquire and report on events surrounding the death of Dudley George, who was shot in 1995 during a protest by First Nations representatives at Ipperwash Provincial Park and later died. The Inquiry was also mandated to make recommendations that would avoid violence in similar circumstances in the future.

Section 329 of the Criminal Procedure Code on “Duty of police officers to investigate death” states:

(1) Every officer in charge of a police station on receiving information -

(a) that a person has committed suicide;

(b) that a person has been killed by another, or by an animal, or by machinery, or by an accident;

(c) that a person has died under circumstances raising a reasonable suspicion that some other person has committed an offence;

(d) that the body of a dead person has been found, and it is not known how he came by his death; or

(e) that a person has died a sudden death,

shall with the least practical delay transmit such information to the officer in charge of the police district.

(2) On receipt of the information the officer in charge of the police district or some other police officer acting under his directions and being either the officer in charge of a police station or a police officer not below the rank of sergeant shall immediately proceed to the place where the body of the deceased person is and there shall make an investigation and draw up report of the apparent cause of death, describing the wounds, fractures, bruises and other marks of injury as may be found on the body, and such marks, objects and circumstances as, in his opinion, may relate to the cause of death or the person, if any, who caused the death, and stating in what manner or by what weapon or instrument, if any, the marks appear to have been inflicted.

Can the Police or Attorney-General explain why Teoh’s death was classified as “sudden death” under Section 329(1)(e) when it should more appropriately be classified under Section 329(1)(d) – “that the body of a dead person has been found, and it is not known how he came by his death”.

This question is pertinent and relevant as it raises the question whether the Police had right from the beginning tried to be protective of MACC instead of getting at “the truth, the whole truth and nothing but the truth” over Teoh’s death?

Yesterday, on behalf of the Teoh family, I had faxed an urgent letter to the Prime Minister, Datuk Seri Najib Razak conveying the family’s request for an urgent meeting with the Prime Minister, as their request for a Royal Commission of Inquiry into Teoh’s death had not been properly conveyed to the Cabinet by the MCA and Gerakan Ministers as well as Najib’s political secretary when they visited the Teoh family during Teoh’s wake.

I had not received any reply from Najib to my earlier fax asking for a meeting with him at the first available time when he returned from overseas on Teoh’s death. May be he had not received my earlier fax.

I hope Najib would set a good example to all Ministers and public servants and give a prompt response to my fax yesterday on behalf of the Teoh family.


Lim Kit Siang
DAP Parliamentary Leader and MP for Ipoh Timor
25th July 2009