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 IPCMCIn 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 IPCMCSince 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