Police Oversight: How do we police the police?

 

 

Nicholas Chan, fz.com 

 

THE police force is sometimes looked upon by the people with respect and veneration, but other times with fear and scepticism. 

 

This is because as law enforcers, they are imbued with considerable power; power that are open for abuse. 

 

As cases of police brutality and death in custodies has begun to pile up (Suaram recorded 12 custodial deaths as of July 18), calls for police oversight in the form of Independent Police Complaints and Misconduct (IPCMC) has been reinvigorated as its current replacement, the Enforcement Agency Integrity Commission (EAIC) was largely criticised as a toothless tiger.

 

 

Although our state of police oversight, or rather the lack of it, has been the crux of the movement for politicians and human rights activists alike in recent years, it is worth noting that police oversight was never a new concept. Article 140 (1) of the Constitution clearly stipulates that,

 

 

This looks pretty legit of the fact that the ultimate binding document for the nation of Malaysia has recognised the need of having civilian oversight over the police force. The Police Force Commission as mentioned, interestingly has a clause that says if subsequent establishments for police oversight was formed, it should rightfully delegate its powers to such bodies. 

However, the Constitution does not specifically mentioned how the Commission should exercise its power, especially in terms of investigative powers.

 

The lack of clarity in this sense about dealing with police misconduct followed by the fact that the Commission is chaired the Home Minister with another eight Commissioners1 whom are all current and former civil servants (including the Inspector General of Police (IGP) and former policemen) would perhaps explains the lack of observed vigour and gravity from the Commission in tackling issues of police efficiency, integrity and professionalism. 

 

The Commission simply lack a clear legal mandate and more importantly, the independence from the Executive to do so.

 

 

Nevertheless, it was not until 2005 that a concrete idea on revamped police oversight was mooted in the form of the IPCMC proposed by Tun Mohamed Dzaiddin Abdullah’s Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police. 

 

Although the idea was principally agreed by then Prime Minister Tun Abdullah Ahmad Badawi, the government finally backed off from its establishment following vehement opposition from the force. 

 

One instance even involved then IGP Tan Sri Mohd Bakri Omar, voicing out his opposition to the idea in the presence of Pak Lah at a public ceremony celebrating the 199th Police Day. 

 

A watered down version of the IPCMC named the Special Complaints Commission (SCC) Bill was instead tabled at the Parliament but later also withdrawn from debate. 

 

The hopeful legacy of Pak Lah in reforming the police was finally cemented during the passing of the EAIC Bill in July 2009, three months after his resignation.

 

 

Like the SCC, the EAIC suffered from criticisms as being a washed down version of the IPCMC, which admittedly is a more powerful organisation in writing.

 

However, it is worth exploring such differences (as can be seen in Table 1) before assessing the cited failures of the body impartially, like how it should have rightfully done on the police.

 

 

 

A study of the two Commissions would reveal that the EAIC was nowhere near the toothless tiger it was claimed to be, at least not legislatively. 

 

In truth, the EAIC Act 2009 is actually a more concise but structured version of the IPCMC as it lays down in better details the framework and methodologies in the handling of complaints as compared to the IPCMC. 

 

In terms of investigative powers, the EAIC and IPCMC can be said to have almost the same mandate. 

 

Major differences between both Commissions lies in their extent of power (EAIC handles complaints of more than 21 enforcement agencies) and the mandate to punish (IPCMC can exert direct punitive actions on police officers).

 

In short, the IPCMC, with its far reaching powers, is designed as an ad hoc and pressing solution to address the plight of human rights infringement and corruption, while the more composed EAIC is a slightly watered down but still powerful oversight body for all enforcement agencies.

 

 

To say that the EAIC is a powerful body is not an arbitrary but a relative fact. This can be seen in comparison with the United Kingdom’s Independent Police Complaints Commission3 (IPCC), Hong Kong’s Independent Police Complaints Council (IPCC HK) and the Crime and Misconduct Commission (CMC) of Queensland, Australia4.

 

It could be observed that in international practice, most the misconduct complaints on the police are to be investigated by the police themselves while the oversight bodies only monitor and sometimes supervise the investigation.

 

Only when serious cases of misconduct happened, the IPCC and CMC would conduct investigations on its own (the IPCC HK does not have such powers). 

 

Being the investigative body, all three oversight bodies do not act as the arbitrating bodies in dispensing punishments. They will only take on an advisory capacity when it comes to punitive action. 

 

Furthermore, unlike the IPCMC, none of them seem to have peremptory power in initiating investigations against the police unless a report is lodged.

 

 

Given such comparisons it would appear that there is no case of the EAIC being under-armed to deal with police misconduct, as its counterparts overseas could do more with less.

 

A comparison of the available resources and manpower to the various oversight bodies can be seen in Table 2.

 

 

It could be reasonably postulated that this is another case of first class legislation followed with third class implementation, something not unfamiliar for Malaysia. 

 

For instance, out of the 124 cases opened for investigation (as of May) by the EAIC, none of them are related to the police custodial deaths. 

 

Surely the body wouldn’t be so insensitive to the point that death in custody does not qualify as cases of public interest for investigations to be initiated even if no complaints are lodged.

 

The body is not devoid of its own scandals too. The only investigation officer that remained at the Commission was one of the last MACC officers to have interrogated Teoh Beng Hock before the latter plunged to his death mysteriously. 

 

Later on, one of its Commissioners has been accused of conflict-of-interest when his lawyer firm was found to be representing a police officer charged in the murder of a detainee. 

 

Unlike the three oversight bodies mentioned previously, the EAIC perplexingly did not release any information to the public in the forms of annual reports to account for its spending and investigations conducted. 

 

It is in irony to see a body that was established to introduce values of integrity and accountability was operating without them.

 

 

The author is also of the opinion that it is more efficient to have a separate police oversight body rather than lumping it up together with the oversight duties of twenty other enforcement agencies seeing that it would strain the Commission financially and logistically.

 

In support of the doctrine that nobody should act as both the police and judge, it would not be appropriate to have an oversight commission with indisputable punitive powers. 

 

The body should instead, be imbued with the powers to monitor the execution of its recommendations. 

 

Powers which the EAIC has, but does not exercise when a news report has quoted the then CEO of the Commission saying she did not know what happened to its recommendation of demoting a police officer. 

 

No matter what, a body seem to be persecuting the police would only be counter-productive to the greater goat of reforming our police force.

 

Apart from that, the Human Factor is very important in complementing good laws; hence staffing the Commission with the correct people should be made first priority. 

Commissioner’s appointment, instead of being the Prime Minister’s prerogative should have undergone a parliamentary approval. 

 

Investigations on serious cases of police misconduct (e.g. police linked violence and death, major abuse of powers and discriminatory practises) should be made mandatory (like the IPCC) as well as public disclosure of information, something an independent and transparent body ought to be doing.

 

In short, the police oversight body Malaysians deserve should be one of size, integrity and professionalism. 

Qualities that has been evading the Royal Malaysia Police certainly has to be found in those hoping to reform it, right?