A JOURNEY of a thousand miles begins with a single step – Lao Tzu.
The Independent Police Conduct Commission (IPCC) bill was tabled in Parliament in 2019 by the then Pakatan Harapan government and according to Home Minister Datuk Seri Saifuddin Nasution Ismail, it is expected to come into force in June 2023.
With the IPCC coming into force, Malaysia will be on a similar footing with other countries which have enacted a similar law for civilian oversight of law enforcement agencies. This includes Austria, Hong Kong, Canada, New Zealand and the United Kingdom.
The inception of this commission emanated after a Royal Commission of Inquiry (RCI) 18 years ago recommended that a specific commission be established to strengthen and augment the operation and management of the Royal Malaysia Police (PDRM).
The RCI had made this recommendation following a myriad of issues, amongst others, allegations of abuse of remand order applications, corruption, inaction on reports filed by complainants, and custodial deaths.
The government should be commended for establishing the IPCC in that it would bring about increased professionalism and enhance impartiality, accountability, and integrity on the part of PDRM.
Furthermore, it is believed that the government’s long-term commitment will improve and bring about an all-inclusive mechanism and ensure comprehensive accountability of the police. The IPCC will provide an efficacious check-and-balance and further seek to bridge any omission or aperture between the public and police.
Before it was passed, the IPCC bill did, like other bills previously, encounter its fair share of support, opposition and criticisms.
Some were not in favour of the IPCC and had argued that the bill would not be effective and would not bring about accountability as it does not give the commission power to act directly against members of the police force.
Critics, therefore, held that IPCC’s predecessor, the Independent Police Complaints and Misconduct Commission (IPCMC) bill that was initially presented, ought to be implemented.
While PDRM supports the IPCC, it opposes the IPCMC as the latter had the power to initiate and impose disciplinary action against members of the force, including dismissal.
The arguments and justifications put forth by both sides have their merits and justification, and they ought to be taken into consideration for future refinement and improvement.
Fundamentally, the motivation, rationale and purpose of having any oversight commission on law enforcement agencies are to address grievances faced by the public and to ameliorate the citizens’ trust and confidence in the police.
The establishment of the IPCC provides a complaints system for the public in respect of accountability and regulatory mechanisms, which would translate to fact-finding and public awareness to hold members of the force accountable for any misconduct or criminal offences, or alternatively, to dispel unwarranted criticisms against PDRM.
This elemental feature, which is a rudimentary stage, should not be overlooked by those who oppose the IPCC. Moreover, the commission’s role while investigating complaints may prove to be an important feature to analyse any shortcomings, provide lessons to be learnt from previous mistakes, and avoid repetition.
So what does the IPCC look like?
A preliminary review of the IPCC bill reveals that the commission could be an effective oversight body and not necessarily a toothless tiger. Additionally, there are provisions made for accountability on the part of the commission and its members.
In this sense, it is pertinent to note that the IPCC bill, which will come into force, states that the act shall provide for the establishment of an independent oversight body and has powers in relation to investigating complaints of misconduct.
Section 3(3) states that the commission is a corporate body; therefore, it may sue and be sued in its name. This means the commission is just like a corporate entity with its own legal rights and continues in perpetual succession until it is dissolved.
Therefore, the commission can be held liable for its acts if they are inconsistent, not only with the commission’s functions as stipulated in the bill but also may extend to other forms of breaches provided for under any law.
Therefore, in this regard, it is axiomatic that members appointed to the commission have a very high and onerous duty in discharging their duties effectively and in good faith.
However, Section 36(1) does provide some solace in that no action, suit, prosecution or proceeding can be instituted against the commission, its members or its officers so long as the acts carried out were done in good faith.
This would seem to suggest that the onus of showing good faith would lie on the commission thereby ensuring accountability and transparency on the part of the members and officers of the commission.
Some have said that there might be interference by the executive in that the home minister is empowered to appoint the secretary of the commission, who shall be the chief executive officer of the commission. This seems to suggest that the principles of impartiality and independence may be subverted.
While this concern is valid, nevertheless, section 14(3) of the bill states that the commission will determine the secretary’s functions and actions and not the home minister.
It is, therefore, for this reason, that members of the commission must not only have the necessary knowledge and the requisite expertise to perform the functions they are entrusted with but also must consist of persons who are not only independent and impartial but also seen to be independent, impartial and unconnected in any way to the government. This would instill greater confidence in the commission and amplify its legitimacy in the eyes of the public.
It is germane to note that the commission’s powers are not restricted to complaints of misconduct but also extend to elements of corruption and any criminal offence. Additionally, Section 32 clothes the commission with the power to commence an investigation on its own initiative if it is satisfied it is in the public interest, irrespective of whether a formal complaint has been lodged.
It is pertinent to note that this power does not exist in some countries with a similar commission, and this shows a commitment by the government to allow the commission to act freely and independently.
However, the commission is not vested with the power to institute and conduct any prosecution, as this would be against Article 145(3) of the federal constitution, which states that this power of instituting, conducting and discontinuing any prosecution of an offence solely rests with the attorney-general.
Previously there were concerns and doubts in relation to the scope and authority of the commission to carry out its duties effectively and to achieve its purpose of formation.
In this context, concerns were raised that the commission’s establishment would be futile and its decisions may be rendered impotent as the IPCC does not give the power to the commission to punish for misconduct but only to refer the findings of misconduct to PDRM with recommendations for disciplinary action. Likewise, to refer any criminal offences to the relevant authority and matters involving corruption to the Malaysian Anti-Corruption Commission (MACC).
In respect of misconduct involving members of the police force, the reason for this could be because Article 140(1) of the federal constitution stipulates that the Police Force Commission shall be responsible for disciplinary control over its members. Therefore any provision made in the IPCC bill that is inconsistent with the supreme law may be struck down and rendered unenforceable.
Nevertheless, it would be incumbent on the police, the MACC or any relevant authority to consider the findings and recommendations of the commission and to take the appropriate action, as Section 39 of the bill requires the commission to submit and table in Parliament all its activities including a list of all matters referred to the commission and the action taken.
Therefore any inaction by the relevant enforcement authorities would be subject to visibility and scrutiny, and could be raised and debated by MPs.
The commission is also vested with the power to summon any person, including police officers, to be examined orally, and they are legally bound to assist and answer all questions, failing which they could be prosecuted and be liable to a fine not exceeding RM10,000 or to imprisonment for a term not exceeding two years or both.
However, there is a proviso that a person may refuse to answer on the grounds of self-incrimination or if it is prejudicial to national security or interest.
However, the issue of self-incrimination does not forbid the commission’s complaints committee from making any adverse inference from the refusal to answer or to investigate further. Additionally, the issue of sensitive information prejudicial to national security or interest must first be certified by the head of the department, albeit such certification could still be inquired into or challenged by the commission on its authenticity and applicability.
The commission is also empowered to obtain documents from any person, including police officers, government bodies and heads of departments, and again any failure to produce them would expose a person to a fine not exceeding RM10,000 or to imprisonment for a term not exceeding two years or both.
A salient feature of the bill, which is somewhat unique compared to other jurisdictions, is Section 17, which allows the commission to appoint any person from amongst the public servants, including retirees, as consultants to assist the commission in carrying out its functions and duties.
This would most certainly enhance the effectiveness and standards of the commission in arriving at any findings or recommendations to be made to the government to promote the integrity of the police force, to protect the interest of the public, to formulate and implement mechanisms for effectual and constructive forms of receiving and investigating complaints.
The operation of the IPCC as a civilian oversight body should be given an opportunity to move forward. Only then can any weaknesses in its mechanisms that may arise, be detected and addressed by way of reforms and, if deemed fit, by way of amendments. – The Vibes, April 15, 2023
Datuk Seri Rajan Navaratnam is a senior lawyer who frequently writes on law issues for the public's overall benefit
