Dark clouds surround the IPCC Bill and its ability to combat police impunity and corruption

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The Center to Combat Corruption and Cronyism (C4 Center) is both wary of the Perikatan Nasional government’s newly refurbished Independent Police Conduct Commission (IPCC) Bill.

The bill, which was presented in Parliament for the first reading on 26 August 2020, after withdrawing last year’s Independent Police Complaints of Misconduct Commission (IPCMC) Act, appears to not only be a watered down version of the IPCMC Act, but an even more lame version of the Enforcement Agency Integrity Commission (EAIC) Act. All the amendments made appear to be frustrating and limiting the powers and independence of the IPCC to the extent it limits their oversight functions, reduces transparency and is a mockery of the word “independent”.

Firstly, as always, the rot starts at the top – the purpose of the IPCMC was to be an independent entity with transparent reporting to Parliament, to prevent any abuse of power or (perception of) interference from the government of the day.

However, the IPCC appears to report to the Ministry of Home Affairs, similar to the police. This also opens the door for the use of secrecy as a reason to prevent public reporting of the outcome of the cases the IPCC investigates and their recommendation, thereby rendering the IPCC as secretive and opaque as the police.

Next, we have observed the rot and rust extends throughout the bill in the following areas:

IPCMC Act 2019IPCC Act 2020Issue
Section 4 The functions of the Commission shall be as follows: (a) to promote integrity within the police force; (b) to protect the interest of the public by dealing with misconduct of any member of the police force (c) to formulate and put in place mechanisms for the detection, investigation and prevention of misconduct of any member of the police force (d) to advise the government and make recommendations on appropriate measures to be taken in the promotion of integrity within the police force (e) to exercise disciplinary control over all members of the police force in such manner as may be provided in this act or any written law  Section 4 The functions of the Commission shall be as follows: (a) to promote integrity within the members of the police force (b) to advise the government and make recommendations on appropriate measures to be taken in the promotion of integrity within the members of the police force (c) to protect the interest of the public by dealing with misconduct of any member of the police force (d) to formulate and put in place a mechanism for receiving complaints and investigation of misconduct of any member of the police force  The IPCC has been modified to narrow the scope of powers of the Commission, in the aspects of: implementing mechanisms to prevent misconduct, and exercising disciplinary control over all members of the police force
Section 6 (2) No person shall be appointed as a member of the commission if he is or was a member of the police force, or if he is a member of the public service.Section 6 (3) The members of the commission shall have knowledge, skill and experience, or shown capacity and professionalism, inc matters relating to law, administration, investigation, finance or any other matter relevant to the functions of the ommission.    The IPCC Act has been specifically amended to allow members and retirees of the police and public service (including the Ministry of Home Affairs) to be members of the IPCC.
Section 22 (1) The commission may receive or deal with complaints against any member of the police force referred to it, on the following misconduct: (a) any act or inaction which is contrary to any written law (b) non-compliance of rules and standard operating procedure of the police (c) any act or inaction which is unreasonable, unjust, oppressive or improperly discriminatory (d) any act or inaction which is committed on improper motives, irrelevant grounds or irrelevant consideration (e) omission to provide grounds in cases where grounds should have been provided (f) the commission of any criminal offence by a member of the police force  Section 22 (1) Any conduct falling under any of the following descriptions shall amount to a misconduct: (a) any act or inaction which is contrary to any written law; (b) any act or inaction which is unreasonable, unjust, oppressive or improperly discriminatory (c) any act or inaction which is committed on improper motives, irrelevant grounds or irrelevant consideration    The IPCC has been modified to narrow the scope of powers and jurisdiction of the commission.
Section 27 (4) Any person who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding RM10,000 or to imprisonment for a term not exceeding two years or to both.Section 27 (4) The member of the police force, officer of a public body or person examined under paragraph (1)(a) shall be legally bound t answer all questions put to him by the officer of the Commission, but the member of the police force, officer of a public body or person examined— (a) may refuse to answer any question the answer to which would have a tendency to expose the member of the police force, officer of a public body or person to a criminal charge or penalty or forfeiture; or (b) may refuse to disclose a sensitive information if certified by the head of department that the production of the sensitive information is prejudicial to national security or national interest.  This addition to the IPCC Act effectively allows any of the witnesses or persons of interest in an investigation of misconduct to refuse to answer any question asked during investigation. Furthermore, it empowers the head of department of the witness to influence and intervene with the investigation by allowing them to classify information as ‘sensitive’. (Note: Any investigation carried out is already confidential and the findings are not publicly available. What is the purpose of withholding ‘sensitive information’ which is relevant to an investigation of misconduct?)  
Section 28 (2) The complaints committee may, upon considering the findings of the officer of the commission, take the following action: (c) where the findings disclosed any misconduct, refer the findings of misconduct to the commission for the purpose of commencing of proceedings to deal with a misconduct under Part VI;  Section 30 (1) After considering the findings and recommendations by the complaints committee under Subsection 29(2), the commission shall take the following action: (c) where the findings disclose any misconduct, refer the findings of misconduct to the Police Force Commission with the recommendation for disciplinary action; and    The amendment in the IPCC Act puts the power to decide on penalties (or whether to take any action at all) in the hands of the Police Force Commission, which is not independent of the police. Hence, regardless how strong the evidence and findings of a comprehensive investigation carried out by the IPCC, the findings cannot be referred to the Attorney General’s Chambers, Parliament or any panel within the IPCC itself to take necessary action. This is as good as allowing the police to review findings and decide penalties for its own members.  
Section 31 Disciplinary authority 31. (1) The commission shall have disciplinary authority over any misconduct committed by any member of the police force (2) The commission may exercise disciplinary jurisdiction over any complaint concerning the misconduct of any member of the police force. (3) The commission shall establish a disciplinary board which shall have the jurisdiction, and consist of members, as specified in the schedule. (4) Notwithstanding subsection (3), where the complaint of misconduct is against the inspector general of police, the chief secretary to the government shall establish a special disciplinary board to hear the complaint, and the proceedings before the special disciplinary board shall be conducted in accordance with regulations made under Article 132 of the Federal Constitution.    Not present anywhere in the IPCC Act 2020  The removal of the entire section significantly reduces the powers and action that the IPCC can exercise over findings of misconduct and abuse in the police.

As Suhakam and many civil society organisations commented last year during its tabling, the IPCMC was a slight improvement from the EAIC but was still a watered down version from the recommendations made in the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police, headed by former Chief Justice Mohamed Dzaiddin Abdullah in 2005.

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The purpose of the IPCMC was to improve oversight and to allow independent and equal investigation and punishment for errant, abusive and corrupt officers across the rank and file. 

The Barisan Nasional government then short-changed the Rakyat with the watered- down EAIC in 2011.

This was followed by promises made by the Pakatan Harapan government, which relied on a manifesto largely based on accountability, anti-corruption and transparency to install the IPCMC as outlined by the royal commission, in order to improve the police and reduce miscarriages of justice.

However, PH subsequently made a U-turn on its promise and presented a watered- down version to Parliament, which was strongly opposed by the opposition at the time – who are now enacting the further diluted IPCC Bill.

As Inspector General of Police Abdul Hamid Bador once said, the IPCMC “does not diminish the powers of the police”, and it was a step “to improve the image of the police, their welfare and effectiveness”. The main enabler of corruption, abuse of power and misconduct is entrenched impunity, especially for higher-ranked officers.

Furthermore, no other organisations or authority is given the full power to investigate its own allegations and abuse and to subsequently decide on the penalties. The idea that a purportedly independent body (which could be staffed by members of the police) should investigate misconduct and then refer all findings back to the police to review and decide IF they agree with the findings and what punishments to mete out to their colleagues is a far cry from “independence”.

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We must not forget the sheer number of deaths in custody and the recent corruption scandals involving members of the police in the Sungai Buloh gambling protection racket. C4 Center has in the past reported the startling number of businesses that serving and retired members of the police (including an ex-inspector general) are involved in, and the conflict this poses in the objectivity of their job. In all the years of trusting the police to investigate their own misconduct, the number of deaths in custody has piled up and the infamous “settling” of offences has not been deterred.

With such a limited scope of powers and a lack of independence, will such a toothless organisation be of any real benefit in protecting the Rakyat and helping the police? At the rate this new act is going, maintaining the police oversight function under the EAIC would probably be a more prudent expenditure of taxpayer money.

Once again the Rakyat have been taken for a 14-year ride that terminates back at square one, with another bill to pay for. 

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