IPCMC – so close yet so far

09 Oct 2019 / 18:37 H.

PARLIAMENTARIANS debated the much awaited Independent Police Complaints and Misconduct Commission (IPCMC) Bill on Monday. At its second reading, Minister in the Prime Minister’s Department, Datuk Liew Vui Keong presented an additional 24 amendments to the original bill which was first read on July 18. Parliament has now reverted the bill to a special select committee for discussion and the bill will subsequently be presented to the Cabinet and Parliament for its final fate.

What surprised me were the strong objections raised during the debate by some members of Parliament, who felt that the IPCMC should not be established. They have forgotten that a mandate was given in 2004 to set up the Royal Commission on Inquiry to Enhance the Operations and Management of the Royal Malaysia Police. Overall, the IPCMC aims to develop the police force to be top class in service and security delivery.

It is for the first time that Malaysia is introducing an external and independent body to monitor a government agency. Its membership does not include any police officer or public servant to avoid conflict of interest. However, officers can be consulted. This is a good step forward.

However, some concerns need to be addressed. It has been pointed out that under Article 140 of the Federal Constitution, a Police Force Commission exists to deal with the “appointment, confirmation, emplacement on the permanent or pensionable establishment, promotion, transfer and exercise of disciplinary control over members of the police force”. True we have a commission that looks into employment and disciplinary conduct of the police but what the critics failed to highlight is that there is also a proviso in Article 140, which was introduced in 1976, that expressly empowers the establishment of any independent body that can act and handle disciplinary issues, if so needed. This proviso clarifies any inconsistency under Part 10 of the constitution. And, it is perfectly constitutional to form the IPCMC.

The original IPCMC Bill 2019 provided for a broad definition of misconduct that could be investigated by the IPCMC but included in it an exception to the scope that it could render the commission toothless. The bill essentially allowed the police to determine which complaints would be heard by IPCMC and which would be investigated by them.

After consultations with civil society, the revised bill removed the exception and created a new category of “minor misconduct” that could be investigated directly by the police. This means that the police could still enforce discipline among their ranks for minor infractions – administrative matters such as tardiness, for instance – and at the same time free up IPCMC’s resources to carry out independent investigations into more severe complaints such as deaths in custody or shootings by the police. This is a workable compromise between the status quo and our aspiration for independent oversight of the police.

The revised bill also intends to institute a Minor Misconduct Disciplinary Appeal Board, a three-member board with two members of the IPCMC and one police representative. This board would enable parties aggrieved by initial decisions of police investigations of minor misconduct to appeal.

The implications are two-fold: first, this is a marked shift from previous practices of allowing the police to investigate grievous misconduct in the force; and second, it allows the IPCMC to play audit/ appellate roles over the police investigations of minor misconduct. This mirrors the practice of the Independent Office of the Police Conduct for England and Wales.

However, the revised bill falls short of preventing the concentration of powers with the prime minister. Civil society has suggested the appointment of chairperson of the IPCMC be made on the advice of the Parliament instead of the executive. To mitigate arbitrariness, the bill introduces a qualification requirement for the commission member which is a welcome change

To increase transparency, the government should publicly advertise the positions via a selection committee before presenting the recommendations to the Yang di-Pertuan Agong. Suhakam’s process of appointing its commission members is a good example.

The powers of the IPCMC are not on par with Enforcement Agency Integrity Commission (EAIC). Powers such as being able to search and seize without warrant are missing. These powers are needed especially in high profile cases. In addition, the EAIC Act has a provision for public hearings, with discretion given to the commission to hold closed hearings if certain conditions are met. There is no such provision in the IPCMC Bill. Public hearings may discourage whistleblowers. There is also the possibility of adverse reactions from the police as they perceive it as shaming the force.

MPs, civil society, the police, and interested parties now have a window to ensure the IPCMC Bill is fair and just.

Comments: letters@thesundaily.com

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