The recent incidents of death in police lockups have revived the call for the establishment of an Independent Police Complaints and Misconduct Commission (IPCMC) which was proposed in 2005 by Royal Police Commission.
The IPCMC was proposed as an
external oversight body after studying the systems in the United Kingdom,
Australia and Hong Kong. A draft bill was also prepared by the commission for
the speedy tabling of the IPCMC
In response the federal
government first introduced in 2008, the Special Complaints Commission (SCC), which
did not secure the support of a majority of Malaysians and there were also objections
from the back benchers in Parliament.
In its place a new bill entitled
Enforcement Agency Integrity Commission Bill (EAIC) was tabled in parliament on
March 11, 2009 which finally became law and today is in operations. Public
opinion is against the EAIC as it is perceived to be a weak replacement of the
original IPCMC and because since its establishment it has not been able to win
the confidence of the Malaysian public that it could serve as an effective
external oversight mechanism.
While there are many points
of similarities and difference between the EAIC and the IPCMC, the most
critical and fundamental is that the EAIC have no legal powers to act
independently other than channelling the findings to relevant agencies.
This is similar in the case
of Suhakam which is advisory. While Suhakam has done lots of good work and has
gained much public confidence in Malaysian public, at the end it too is not
effective due to the limitation of powers.
The power to act
independently and implement the findings in terms of directly taking action on
the guilty officer and by-passing the disciplinary authority or the public
prosecutor is the core difference between the EAIC and the proposed
IPCMC.
“IPCMC may, after having decided that a police
officer is guilty of misconduct or other offences defined in the IPCMC Act,
order such actions as it deems fit to be taken including caution and discharge
of the police officer, suspension of allowances and increments, reduction in
rank, fine or dismissal of the police officer. The decision of IPCMC is final
and unappeallable”
Objections
against the IPCMC
Since 2005 civil society and
the general public have been calling for the establishment of an effective
external oversight body. However there were many objections to this provision
in the IPCMC proposal by the Police.
The argument used was no
single institution should be empowered to undertake investigation, prosecution
and finally making a judgment without an appeal process with the IPCMC.
Another objection is that
this direct action will usurp the role of the Police Service Commission which
is a Constitutional provision.
In response it is indicated
that there would be no conflict as the IPCMC is neutral. The recommendations
indicated that the IPMC Chair and Deputy must have 10 years of working
experience as an advocate and solicitor.
On the matter of no appeal
within IPCMC it must be stated that this is similar in the case of the
Industrial court and therefore appeals could be made to the civil court and therefore
not at IPCMC
On the matter of conflict with
other laws, those sections could be amended including the Federal Constitution by
transferring the disciplinary provisions to IPCMC. There will have to be some
by-partisan discussion in Parliament on this matter to secure 2/3 vote in
parliament.
Civil
Society & IPCMC
Civil society criticism and scepticism
on this matter is based on the current provisions in the Suhakam Act that after
conducting an inquiry on human rights violations, Suhakam then makes the
recommendations to the relevant agencies to take appropriate action. In a
majority of cases the relevant agencies ignore the findings and Suhakam is
deemed as powerless. Furthermore Suhakam’s Annual report has never been
discussed in Parliament and therefore accountability to Parliament is neglected.
Another criticism levelled
by civil society on the current practice by enforcement agencies and relevant
institutions is selective prosecution especially in cases pertaining to
corruption or in the exercise of fundamental liberties. Based on this track
record and ineffective action by the State, IPCMC was proposed to act independently.
The current concern over
EAIC is similar to that of Suhakam which has the powers to undertake an inquiry
and make recommendations but ineffective to ensure that the human rights
violators are brought to the books.
Value
of External Oversight Mechanisms
The external mechanisms must
operate in an independent, transparent, accountable, just and fair manner. All
agencies must be held accountable to respond in a credible and professional
manner. Senior ranking public officials must be accountable to how they respond
to the independent findings of inquiry and investigations undertaken by
external oversight mechanisms.
In order to strengthen the
internal mechanisms, capacity building within each of the enforcement agencies
is important through effective training, supervision and monitoring mechanisms.
Each of the enforcement agencies must establish a high standard of professional
conduct for its officers.
There must be zero tolerance
for indiscipline and misconduct. This must become an agency culture. Internal
cover-up and in house protections must be eliminated. The role of the senior
officers and civil servants are imperative to foster professional and ethical
conduct.
In the best interest of the
nation, the IPCMC must be established as proposed in 2005. This will enhance
professionalism, good governance by checking on corruption and abuse of power
is more effective way as compared to the current measures. We must push
ourselves to a higher standard of check and balance. Modern Malaysians are
demanding for this and it is the role of political leadership to do the right thing
for the good of the nation.----------------
Datuk Dr Denison Jayasooria was a former member of the Royal Police Commission (2004-2005), the Human Rights Commission (2006- 2010) and currently serves as the Secretary General of Proham (Society for the promotion of human rights established by former members of the Police and Human Rights commission
Published in Malaya Mail on June 10, 2013
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