Malaysians missing in Nepal — families in Catch-22 situation

When news of the Aug 26 Nepal glacial and flood disaster broke, Dr Manivannan Rethinam’s first thoughts went out to his sister Komathi who was on a pilgrimage to Mount Kailash.

Together with her husband, he tried but failed to reach her. She is among 54 Malaysians still listed as missing. No one knows if they are still alive, and that is the problem.

Since then, Manivannan, who heads the Malaysian Solidarity Families in Hope support group dealing with the authorities, has learned a brutal truth: there is no sympathy in bureaucracy or the law.

Without a death certificate, spouses and children have no access to joint bank accounts or the victim’s EPF savings. They cannot sell family homes nor cancel hire purchase contracts.

All the banks can do is express sympathy for their loss. Without a death certificate, they cannot act, and without a body identified through DNA, a death certificate cannot be issued.

The DNA dilemma

And herein lies the cruellest of ironies: the bodies may never be found.

Nepalese rescue teams have spent weeks searching, but the terrain is treacherous and inaccessible. Officials have privately admitted that finding all 54 bodies is “unlikely”.

Insurance companies, meanwhile, cannot pay out on life policies. Their position is legally defensible: without a death certificate, there is no confirmation of death. DNA identification requires a body. No body means no DNA. No DNA, no death certificate. No death certificate, no payout.

This Catch-22 situation is driving the affected families to despair.

Compounding the agony is the legal inconsistency between Malaysia and Nepal. Under Malaysian law, a person can legally be declared dead only after being missing for seven years. In Nepal, it takes only three years.

The question is which jurisdiction takes precedence. The answer, according to Malaysian legal experts, is murky.

Those missing are Malaysian citizens, so Malaysian law governs their estates. But the deaths occurred on Nepalese soil. The question of jurisdiction may take years to resolve in courts.

According to Manivannan the Malaysian embassy in Kathmandu has agreed to accept Nepal’s jurisdiction over this, but that is only a verbal assurance.

For one person, the pain has taken a particularly bitter form.

His wife had bought a new car just months before she left for Nepal. Now the husband faces an impossible choice.

He cannot afford the monthly instalments on his own, along with the mortgage and his children’s expenses. He decided to return the car to the bank, surrendering it to stop the bleeding.

But the bank’s response was clinical. They asked him to stop payments for three months, and they will repossess the vehicle.

But that raises another problem — he will be liable for the default penalty, the repossession charges, and any shortfall between the auction price and the outstanding loan balance.

Information blackout

Perhaps most agonising of all is the silence.

The missing person’s next-of-kin cannot obtain any information about their loved one’s financial accounts. Bank Negara has strict confidentiality laws that prevent banks from disclosing account details to family members without a power of attorney or a court order.

But how do you get a power of attorney from a person who is missing?

Manivannan says the families are unable to get the August salary of their breadwinners who are missing because employers can only deposit the money in the missing person’s bank account. “Employers cannot release it to the next-of-kin,” he pointed out.

For some families, the tragedy is almost too vast to comprehend.

The credit cards of those missing are still active, and utility bills must still be paid. Worse than that insurance companies may kickstart automatic premium loan to keep policies alive although the insured may eventually be declared dead.

It is a technicality that the Life Insurance Association of Malaysia and Bank Negara must quickly resolve to prevent more financial losses.

Calls for Bank Negara to step in

Families and advocates now want Bank Negara to intervene.

“We need Bank Negara to issue a directive to all financial institutions: freeze all payments, waive all penalties, suspend all repossessions, and allow next-of-kin access to accounts based on a police report of the disappearance — not a death certificate,” says Manivannan.

More needs to be done. The government must consider emergency legislative measures to address the seven-year rule in exceptional disaster situations.

There must also be mechanisms for insurance companies and financial institutions to provide appropriate interim assistance to affected families while the legal status of their loved ones remains unresolved.

Behind every legal argument, every bureaucratic hurdle, every frozen account, there is a human being — a wife who cannot sleep, a child who cannot concentrate at school, a parent who cannot stop crying.

The views expressed are those of the writer and do not necessarily reflect those of FMT.