Thursday, June 6, 2013

Do we really need the IPCMC? ― Nicholas Chan

Do we really need the IPCMC? ― Nicholas Chan

June 05, 2013
Malaysian Insider--Side Views
JUNE 5 ― The Enforcement Agency Integrity Commission (EAIC) recently rose to infamy due to the occurrence of a slew of death in custody cases in Malaysia, once again rallying public outcry for the setting up of the Independent Police Complaints and Misconduct Commission (IPCMC). Minister in charge of Integrity and Corruption Paul Low was quick to tout the EAIC as if it were the IPCMC we never had, reportedly saying we don’t need another independent police oversight body because the EAIC is actually the IPCMC.

This is a gross mistruth as the powers of the EAIC and the IPCMC as mooted by the Royal Commission chaired by former Chief Justice Tun Mohamed Dzaiddin Abdullah are different. The truth is, the EAIC is more of a watered down version of the IPCMC, a “reform” legacy that is kindly attributed to the retired Tun Abdullah Ahmad Badawi, although by the time the legislation that enables the Commission to be form is gazetted, he had already stepped down.

No doubt both Commissions are mooted for the same vision of curbing police misconduct and upholding their accountability towards the public, Dzaiddin’s version of it speaks more drastically of the need to keep our police force in check as the Royal Commission report had described the force as “brutal, inept and the most corrupt among the government departments”.

As such, the Royal Commission deemed it necessary for the IPCMC to have wider investigation powers, whereby it could initiate or instruct the police to initiate investigations over reports of misconduct by the police regardless of whether a public complaint was made. The EAIC does not enjoy this privilege as it is could only investigate cases of misconduct by law enforcement bodies only after a public complaint was filed. Hence giving rise to the ironic situation that until the recent case of Dhamendran whom was allegedly beaten to death in custody, the EAIC had actually never investigated any case of death in custody nor police shootings, both known to be hallmarks of police brutality in Malaysia.

But before we jump on this and dance wildly to the all familiar old tune that “the IPCMC must be established to redeem our once highly acclaimed police force!”, we must realised that Commissions by itself are rarely the panacea towards the misfits of a law enforcement body.

The Malaysia Anti-Corruption Commission (MACC) was monitored by five oversight committees, and yet any palpable changes to the force remained as elusive as ever. Like the MACC, the IPCMC was routinely cited to be modelled upon a Hong Kong counterpart, the Independent Police Complaints Council (IPCC), largely due to the city state’s success in combating corruption and setting up a modern and professional police force.

Here comes the fun fact: The EAIC is actually more similar to the IPCC rather than the IPCMC. The IPCC’s major function is to investigate the reportable complaints and monitor the action taken against the officers and/or force with respect to such complaints. However, the reportable complaints towards the Hong Kong police force is first investigated by a branch within the police force, named the Complaints against Police Force (CAPO). The IPCC will then review all the investigation reports of the CAPO and is empowered to seek clarification from CAPO or order a re-investigation of the case if necessary.

Therefore, unlike the IPCMC, the IPCC actually does not contain arbitrary powers to initiate investigations against police conduct nor the legal prerogative to pursue action. It serves more as an oversight and advisory council to the police rather than a disciplinary body. Even the EAIC has wider powers of investigation as it could summon witnesses and seize evidences relevant to its investigation.

So why are we envious of the Hong Kong’s IPCC when in fact we have a more pervasive and powerful one? Or rather the question should be, how can we have an oversight body with more executive powers but still failed to achieve the police reforms everybody endears?

Like police brutality, it all boils down to the working culture. A quick research of the Hong Kong’s IPCC would have revealed their fantastic housekeeping and a culture of accountability. Annual reports, breakdown of number of cases investigated, nature of cases and the follow up actions taken on the cases are all available for the public’s scrutiny.

It would appear that the Commission is not just at work but is also proud of the work they do. This is what integrity, transparency and most importantly, competency is about.

As for our home-grown contender, the EAIC, the name does not even ring a bell until we have three deaths in custody cases in a short sprint of 11 days. There are no annual reports available at the commission’s website despite it is already the second year of the Commission’s inception and until a recent report by The Malaysian Insider, we would have no idea what the EAIC has been doing all along. How can a body that is established with the purpose of holding the police accountable to the public be effective if it itself is not accountable to the public?

So, in the end, the primary ineptness of the EAIC is not about its lacking of investigation officers (it used to have six, until recently there is only one left) or a bigger operating budget, as claimed by EAIC CEO Nor Afizah Hanum Mokhtar. A RM7 million annual budget should be enough for a body of 22 employees (as counted through the directories of its official website) and six Commissioners. Using a rather generous estimate, putting RM1.5 million per annum each for wages and emoluments for the staff and Commissioners, another RM1 million for the amenities/rental would still leave another RM3 million operating budget per annum for the Commission.

And by using this estimate, the officers of the Commission are already pretty well paid; it is only fair that we ask for results.  Out of the 124 complaint cases investigated by the EAIC, only one resulted in the recommendation of disciplinary action towards a police officer, albeit with no follow-up information available on that recommendation. Based on these results, one would have assumed a stellar performance for our police force but the Malaysian public would have known better. Detachment from reality is a dish constantly served in Malaysia.

There is no point of inflating the body in terms of manpower and budget if after two years of operation; tangible results of any signs are still in the air. More does not mean more in efficiency, sometimes less is more. Our working and management culture in the civil service does not seem to get that.

If the same complacency and incompetence is transposed to the IPCMC , if we ever have one, there is no guarantee that the police watchdog we clamoured for will be a viscous and biting Rottweiler. It will be a Chihuahua instead.

And by that time, somebody could proudly claim this, that the IPCMC is actually the EAIC.

This addendum was requested by the writer after the article was published.
Although not stated in the description of its primary roles, the EAIC as according to Section 28 of the EAIC Act 2009 does have powers to initiate investigations without having any complaints as long as the matter is of public interest or that it is in the police interest to do so. This section makes the EAIC more similar to the IPCMC in terms of power to investigate, but it also makes an even more aghast finding because despite having the power to do so, the EAIC have not initiate any investigations over any of the eight cases of death in custody that has been happened for the previous five months. Apparently what they recognised as matters of public interest is of a different league to the rakyat.

The Hong Kong’s IPCC is only one of the police oversight agencies that the mooting of the IPCMC is modelled upon. The other major one is the UK’s Independent Police Complaints Commission, also known as the IPCC. As compared to the Hong Kong’s IPCC, the UK’s IPCC has a larger role in investigation as it investigates the most serious allegations against police misconduct and abuse, like cases whereby death and serious injuries are involved, accusations of racism, organised corruptions and allegations against senior police officers. The majority of complaints against police still go back to a task force within the police, like in Hong Kong, but the UK IPCC is also empowered to serve as a guardian to that complaint system, to promote public confidence and ensure accessibility of the system. The UK’s IPCC also dealt with appeals from the public if they are not satisfied with the way the police force has acted upon their complaints.

All in all, the proposed IPCMC and EAIC in Malaysia actually has more power for policing check and balance than the countries we are supposed to emulate. It still remains a mystery why such power to oversee and discipline does not translate into a more professional and dignified police force. Perhaps it’s the Commissions that are at fault, or our obsession of setting up Commissions or Committees just for the sake of it.

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