June 30, 2009
EFFECTIVELY ELIMINATING MISCONDUCT AMONG ENFORCEMENT OFFICERS
By Datuk Dr Denison Jayasooria*
The Federal Government is finally tabling a bill in parliament in response to the recommendation of the Royal Commission to enhance the operation and management of the Royal Malaysian Police (RC) to establish an Independent Police Complaints and Misconduct Commission (IPCMC).
This has been a long journey as the RC completed its report and presented it to the Yang di-Pertuan Agong on April 29, 2005. While the government tabled a bill in 2008 to replace the the IPCMC called the Special Complaints Commission (SCC), it did not secure the support of a majority of Malaysians and fell extremely short of the standards set in the IPCMC. Then the government withdrew the SCC and on March 11th, 2009 introduced the Enforcement Agency Integrity Commission bill (EAIC) for the first reading and on June 25, 2009 it was tabled for second reading.
The EAIC bill is comprehensive and has incorporated many of the major points of the IPCMC. It is a much stronger bill in contrast to SCC. The new bill has also taken into consideration many of the criticism leveled at the SCC It can even be regarded as a much stronger bill in contrast to the Human Rights Commission of Malaysia Act (SUHAKAM) especially in terms of the investigative powers.
In this article I will attempt a comparative study of the EAIC in the backdrop of the IPCMC proposal, noting some of the major points incorporated or excluded in EAIC. There are five major aspects that are important for our reflection and analysis.
Not just the Police but twenty one enforcement agencies
The first is that the IPCMC was proposed to specifically target the Police force and not other agencies. In one sense the RC could not recommend other enforcement agencies as its terms of reference were confined only to the Police.
The proposed EAIC is an external oversight body for twenty-one Federal enforcement agencies. The criticism is whether the scope for the EAIC is too wide. Public concern is largely on the misconduct of the Police force in terms of corrupt practices, excessive use of force or inaction as indicated through the findings of the RC as well as documented in the SUHAKAM Annual reports and inquiry findings.
However there have also been many complaints of the misconduct of RELA officials and therefore the enlargement might be better to set a more conducive culture for good governance, ethical and professional conduct of all the federal enforcement agencies.
The federal government must make available adequate funds and personnel necessary for EAIC to effectively carry out its task as an external oversight body which plays a complementary role alongside internal disciplinary authorities such as the Police Service Commission and the Public Service Commission.
EAIC composition of Commissioners similar to IPMC
The second aspect of review is the composition of the EAIC commission members described in Section 5 of the proposed bill. Here there are some similarities but there are also differences from the IPMC and SCC composition.
As recommended by RC, EAIC will have seven commissioners including a Chairman and Deputy Chairman. They will all be appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister for a three year term and a maximum of two terms consecutively.
In addition, EAIC indicates that no person who is or was an enforcement officer will be appointed as members of the Commission, although they could be employed as a staff of the commission. This is in contrast to the earlier SCC bill tabled which proposed that among the members would be the Inspector General of Police. The neutrality and impartiality of the commissioners is integral to the integrity of EAIC.
However the EAIC does not provide any indication of who should be appointed. In the case of the IPCMC it was indicated that the Chairman and Deputy Chairman should have at least ten years of service as advocate and solicitor of the courts or in the judicial and legal service of the Federation or the State. In addition the RC indicated that three (Chair and two deputy chair) of the seven commissioners should be full time. In the EAIC the provision for full time or part-time commissioners is not indicated.
It is of utmost importance that the selection process and appointment is done in an open and transparent manner. The RC did not make any recommendations for any consultative process in the appointment of commissioners. However this has now become a critical aspect in restoring public confidence in the light of the establishment of the Judicial Appointments Commission, as well as the criticisms raised on the appointment of SUHAKAM commissioners.
It might be necessary to add in the Schedule Section of the EAIC some indicators and guidelines on the selection of EAIC commissioners and some process of consultation among major stakeholders including civil society before the Prime Minister make his recommendations to the Yang di-Pertuan Agong. This is a very important dimension of ensuring that the EAIC commissioners will fulfill their duties without fear or favor. The credibility of EAIC is largely dependent on who is appointed as commissioners.
There is a need for some serious thinking on the background and expertise of Commissioners especially with EAIC having a very strong investigative role. Therefore as the IPCMC had indicated that at least three of the seven commissioners should have at least ten years of legal expertise. This should be provided as one of the guidelines in the Schedules. Furthermore EAIC commissioners should be full-time similar to that of the members of the Election Commission and members of the Public Service Commission. Holding office in a part-time arrangement would not be suitable for such a heavy task.
In the case of SUHAKAM which has a provision for the appointment of twenty commissioners however only sixteen have been currently appointed. All of whom serve in a part-time capacity. Critics of SUHAKAM have indicated that in a number of cases involvement of certain commissioners in their other capacities might be regarded as a conflict of interest.
On this score the EAIC has a provision in Section 11 of the proposed bill for its commissioners to disclose interest and not take part in any discussion, proceedings or hearings or in any decision making pertaining to that case.
IPMC & EAIC are very similar in the description of functions of the Commission
The third aspect of comparison is in the functions of the commission (Section 4). The description in the EAIC is almost identical to that of the IPMC. This is commendable and therefore the recommendations of the RC are intact on this matter.
While the emphasis is upon receiving complaints on misconduct and to investigate them, there are seven other functions. In this context dealing with complaints (Part IV) seems to be the major task of EAIC. Section 21 explains the scope of misconduct. The major difference here is that IPCMC had a very strong emphasis on corruption which is not the focus of EAIC as it comes under the purview of the Malaysian Anti-Corruption Commission (MACC).
The scope of oversight to twenty one agencies and functions stretching from direct in-depth investigations to a whole range of role must be a real tall order for one commission. They might be over stretched and become ineffective in the numerous functions. However, the seven functions could also been seen as inter-related functions and therefore not in conflict with one another.
Furthermore, the EAIC would establish two committees, namely the Complaints Committee (Section 16) and Task Force (Section 17). The EAIC is empowered to appoint consultants including retired or former members of enforcement agencies (Section 15). If the right people are recruited with the technical competencies and commitment, the EAIC will definitely make an impact in uplifting professional standards and reduced misconduct among enforcement agencies.
However what is of utmost importance is whether parliament will make available adequate funds for EAIC to employ highly experienced and qualified consultants and staff.
EAIC Powers of investigation similar to that of IPCMC
The fourth aspect for reflection is the investigation powers of EAIC as described in Part V of the proposed bill and the legal obligations to give information and cooperate with EAIC. EAIC has powers to conduct a hearing, receive evidence, summon any person and issue a warrant of arrest. It also has powers to search with warrant (Section 40) and without warrant (Section 41).
In addition the EAIC Task Force members shall have all the powers of investigation as contained in the Criminal Procedure Code ( Part V, Chapter 13, section 107 till 120) which provides wide powers. These will enhance the investigative role of EAIC. However one area which IPCMC proposed namely the power to intercept communications whether postal, other communication tools or to intercept conversations is not provided for in EAIC.
In addition if someone does not give information to the EAIC, the person is said to have contravened the law and could be fined up to RM10, 000 or jailed for two years (Section 33). Another strong power is the protection of witnesses from threats as described in Section 44, where the offender could be fined up to RM100, 000 and imprisoned not exceeding two years.
These are strong compelling powers and therefore EAIC has much bite and could not be labeled as a toothless tiger. There is one other matter with regards to scope and cases for investigation, the demarcation between the EAIC and MACC on corruption related matters are clear. However the EAIC complaints and investigation will overlap with that of SUHAKAM which are related to human rights violations. A large number of SUHAKAM cases and public inquiries were matters pertaining to human rights violations by the Police and Rela. These will be now handled by EAIC. In addition EAIC is also expected to visit police stations and lockups which is also one of SUHAKAM’s function as stated by the SUHAKAM Act.
There is a need for SUHAKAM to review its roles and functions. Government should also review the SUHAKAM Act to address the current criticism of appointment of commissioners, and their term of office in order to ensure that it complies with the Paris Principles on independence which was one major subject for consideration at the UN Universal Periodical Review process and SUHAKAM’s accreditation to the International coordination Committee. In addition the Act could be strengthened to incorporate many of the provisions for enhancing the investigative role of SUHAKAM in addressing the human rights violation. In addition there could be new provisions which will ensure that all relevant agencies respond to the findings and recommendations of SUHAKAM within a reasonable time frame.
EAIC has no powers to act independently, the major difference to IPCMC
The fifth aspect of comparison between the proposed EAIC and the IPCMC is 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. This was the recommendation of the RC in the case of the IPCMC.
There were many objections to this provision in the IPCMC proposals 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. In addition another objection was that this action will usurp the role of the Police Service Commission which is a Constitutional provision. There is a need to also amend the Federal Constitution on transferring the disciplinary provisions to EAIC.
Civil society criticism and skepticism 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. However 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 non-existent.
Another criticism leveled 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, would its fate be 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.
While the EAIC in this context falls short of the IPCMC, however there is one redeeming grace in the EAIC. The proposed bill in Section 30 indicates that when a misconduct constitutes a disciplinary offence, then EAIC will refer their recommendations to the appropriate Disciplinary Authority. In the case of a criminal offence then it is referred to the Public prosecutor.
The redeeming case factor is that the relevant institutions must within 14 days provide information to EAIC of their action and reasons for it. This the EAIC will make public. Therefore it would revert back to public opinion and public pressure on this matter. However in practical terms can any agency make a decision within 14 days, is this too short a period? Would they just say in writing that they have received the report and are in the process of reviewing the findings?
Would the Disciplinary Authority on receiving the EAIC findings and recommendations reconvene another internal investigative process or would they accept the recommendations of the EAIC. The proposed bill is silent on this. Furthermore what happens if one of the twenty one agencies ignores the recommendations of EAIC, the proposed bill does not make any provisions for compelling a agency to take the recommended action or some specific action.
To further strengthen public accountability on this matter it is proposed that a Parliamentary Select Committee be established to review all the information and data on the investigations, its findings and the appropriate action undertaken by the relevant bodies. This could be in the form of the Public Accounts Committee comprising both government backbenchers and opposition members of parliament.
Strengthening the parliamentary mechanism is essential for democracy to flourish in Malaysia. These avenues will enable members of parliament to play a more constructive role in public policy and delivery matters as demanded by the citizenry of Malaysia. This parliamentary accountability process will compel the Ministers responsible for the twenty one agencies to be answerable to parliament on how they recommended to the EAIC findings and recommendations.
It is also important to recognize that both internal disciplinary mechanisms such as the Disciplinary Authorities and external oversight mechanisms such as SUHAKAM, MACC and the proposed EAIC are necessary.
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.
We all now recognize the need for external oversight mechanisms. EAIC is one avenue to restore public confidence and check on misconduct among enforcement agencies.
*Datuk Dr Denison Jayasooria is currently Principal Fellow at the Institute of Ethnic Studies, Universiti Kebangsaan Malaysia and member of the Human Rights Commission of Malaysia (SUHAKAM). He was a member of the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police. The views expressed in this article are the personal views of the writer and do not necessarily reflect the views of these institutions.