Suhakam made scapegoat for govt failings
In the first place, such a suit may not succeed. The defendants were not perpetrators of these clashes. They did not belong to a class of persons whose duty it was to either prevent such clashes or protect the victims from the brutality of such clashes.
Regarding the argument that they failed in their statutory duty to hold a public enquiry to expose the real culprits behind the clashes, the Suhakam Act gives immunity in that no action, suit, prosecution or proceeding shall be instituted in any court against the Commission or against any member, officer, or servant of the Commission in respect of any act neglect or default done or committed by him in such capacity provided that he at the time had carried out his functions in good faith.
The excuse of "good faith" here is Suhakam's contention that its commissioners had actually visited the site of the clashes but an open inquiry was out of the question as it involved racial sensitivities.
"Racial sensitivities" is, as a matter of public policy, always a good defence in this country in which the architecture of race relations is such that brushing them under the carpet is always held as a higher good than exposure of the truth.
The argument is always that a racial incident (whether May 13 or Kampung Medan) is unfortunate and should have been prevented in the first instance but if it has already occurred, do the amends to ameliorate the sufferings, and as regards the real underlying causes, it is better left unsaid and unknown, and move on.
The trouble with this "let bygones be bygones" attitude, is that the culprits of these pernicious act of racial violence are not held accountable: If there were no investigation, and the truths not known and culprits, exposed and punished, how, it may be asked, would there be justice done, let alone avoidance of similar recurrences in the future?
Suhakam then has failed in its higher moral duty to pursue the matter but as regards its legal or statutory duty (given the constraints of circumstances of the authorities not co-operating) it is doubtful that it has breached it.
It is difficult to show or prove 'bad faith' on Suhakam's part because it implicates in its ordinary grammatical meaning an element of malicious and improper intent without just cause or excuse. And an avoidance of "racial sensitivities" being touched is always held to be a legitimate public policy and good excuse, whatever the truth may otherwise be. Mere cowardice and being lackadaisical, dragging one's feet, giving excuses, etc. may not tantamount to bad faith.
The problem with a suit is that legal process is always protracted, with appeals and counter appeals stretching for years during which time Suhakam could just fold its arms and refuse to look further into the Petaling Jaya Selatan clashes. This alone does not serve public interest especially when the outcome itself may not even ultimately prove favourable to the individual aggrieved party.
But even in the unlikely scenario of "bad faith" being proven, Suhakam is not Petronas; it has not a fraction of the RM50 million claimed for, and the most that can be done is to wind it up.
That's where the government is going to have the last laugh: here it would say that because of complaints of human rights abuses, Suhakam was set up for the ordinary people. It is the ordinary people who wind it up, which shows that they either do not respect the sanctity of the institution or attribute to it no relevance to wind it up!
Theirs is not an enviable position s pro-tem secretary-general P Uthayakumar himself admitted that "We have identified 70 cases where Suhakam has acted appropriately but in the case of Kampung Medan they have done nothing. We have exhausted all our diplomatic avenues."
Without Suhakam and the commissioners — with the success of such a suit — there won't even be these 70 cases of Suhakam's acting appropriately.
One should not make scapegoats out of Suhakam and the commissioners — who were acting under tremendous constraints — for the failure of the entire system in terms of transparency and accountability in respect of incidents as those that happened in Petaling Jaya Selatan. For to do so would also pave the way for every member of minority groups aggrieved with the affirmative programme of the government to take action against Suhakam for failing to enquire and address whether such a programme also infringes human rights by international standards against racial discrimination.
If there are guts, why not take on and sue directly those whose duty it is to prevent such occurrences or to restore order in the chaos so that fewer innocents would be victimised?
