LETTER | The Independent Police Complaints of Misconduct (IPCMC) Bill 2019 had its first reading in Parliament on July 18. 

The bill is touted by some as a major piece of legislation tabled by the Pakatan Harapan government. The bill was one of the promises in its manifesto, the set of promises which persuaded the rakyat to sweep Harapan so convincingly into power.

In fact, it would be fair to say that failure to establish an IPCMC was a major failing of the previous BN government. As such, the tabling of this bill in Parliament was anticipated and welcomed by many, especially those who are active in civil society organisations.

The present de facto Law Minister Liew Vui Keong has publicly called for feedback from all and sundry about the bill and how it affects the citizenry. It is in response to his call that I write what follows.

For starters, it would be very good if the minister would inform and clarify to the general public the reasons and causes for the government’s rejection of the 2005 IPCMC Bill prepared by the Royal Police Commission headed by Mohamed Dzaiddin Abdullah.

The 2005 bill was the culmination of the findings of the RCI set up by the Abdullah Ahmad Badawi administration to look into the problems plaguing the police. Great expense was incurred by the RCI to produce its report and recommendations.

The commissioners even flew first class, at taxpayers' expense, to countries such as the United Kingdom, Australia and Hong Kong to study their systems to regulate and discipline the police. 

In light of the austerity drive initiated by the Harapan government and the present economic situation, I think a reasonable explanation is owed to the rakyat for the rejection of the 2005 bill.

Explanation becomes even more imperative when the two bills are compared. Anyone who compares the bills quickly sees that the 2005 bill provides vastly more powers of oversight to discipline and regulate the police force, than the 2019 bill.

The bill has been called the Independent Police Complaints of Misconduct Commission Bill 2019, whereas the 2005 bill was called the Independent Police Complaints and Misconduct Bill 2005. This necessarily means that the commission shall now look only into ‘complaints of misconduct’ as opposed to the much wider scope of ‘complaints and misconduct’ under the 2005 bill.

Another telling sign of a much weaker commission is the different intitulations of the bills.

The bill is intituled:

“An Act to provide for the establishment of the Independent Police Complaints of Misconduct Commission and to provide for its functions and powers, matters relating to complaints of misconduct, investigation of misconduct, proceedings to deal with misconduct, etc., and for related matters.”

That intitulation is distinctly different from that of the 2005 bill which is intituled:

“An Act to establish the Independent Police Complaints and Misconduct Commission, whose principal functions are to receive and investigate into complaints about the Royal Malaysian Police, to detect, investigate and prevent police corruption and other serious police misconduct, to set out the powers and functions of such Commission for improving police integrity, reducing misconduct and building public confidence and to ensure that there is vigilant oversight in Malaysia of the Royal Malaysia police and to provide for matters connected therewith or incidental thereto.”

The differences in the two intitulations are telling. The differences warrant a response from the minister to this question: Why does the intitulation of the bill appear to make it so much weaker than the 2005 bill?

A quick reading shows that there are many flaws and weakness in the bill. An example of this is the use of the word ‘independent.’ 

Use of this word would necessarily mean that the commission would be independent of the police in carrying out its duties and functions. However, this appears not to be the case. 

Clause 13 (c) of the bill provides that the commission may delegate it functions and powers to any member of the police force. Clause 13 (c) runs contrary to the commission being truly independent of the police as its name would suggest.

The 2005 bill states that the commission, in deciding whether to initiate or to discontinue an investigation of police misconduct, shall have regard to public interest in the matter. This important provision, making consideration of public interest mandatory, is absent from the 2019 bill.

The categories of complaints listed in the 2005 bill include breaches of human rights enshrined under the Federal Constitution. These categories are also absent from the bill.

Another important provision in the 2005 bill is that the commission is empowered to look into any police misconduct whether or not it occurred before the commencement of the Act. This is important as it would enable the commission to look into all past police transgressions. Sadly, this important provision has been left out of the bill.

In the bill, the powers of investigation by the commission into any alleged police misconduct do not include the extensive hearings laid out in the 2005 bill (see clauses 30 to 43).

Under the bill, a complaint of misconduct will be channelled to the complaints committee which may decide to appoint an officer of the commission to conduct an investigation. 

The officer may examine any person orally or require any such person to make a statement in writing, under oath. The officer, upon completing the investigation, will submit his findings to the committee. 

The committee, after reviewing the findings, may take any of the following actions: refer the findings to the MACC, refer the findings to the relevant authority (which may include the police), or refer the matter to the commission for the purpose of commencing disciplinary proceedings to deal with the alleged misconduct.

The investigation process entrenched in the bill seems to be very summary in nature when compared to the process entrenched in the 2005 bill, because the 2005 bill even provides that the commission may hold public or private hearings (Clauses 30 and 31) for the purpose of investigation, akin to court hearings, which include examination and cross-examination of witnesses (Clause 35).

In addition, the 2005 bill empowered the commission to summon witnesses to take evidence and even to issue warrants of arrest for any persons whose evidence is desired or are required to appear before the Commission (Clauses 36 and 37). 

It empowered the commission to issue search warrants to seize any documents relevant to or reasonably necessary for its investigations (sections 45 & 46). It empowered the commission to intercept communications (section 48). It even empowered the commission to take over from the inspector-general of police any ongoing investigations of complaints, and to direct him not to investigate a complaint (Clauses 55 and 56).

All those powers are absent from the bill.

Clearly, the bill confers far less investigative powers to the commission than the 2005 bill (see sections on hearings and right of the appearance of interested persons, the power to search with warrant, and search and seizure without warrant).

The bill also is muddled with respect to what is mandatory and what is discrectionary. 

For instance, Clause 31 (1) which reads “The Commission shall have disciplinary authority over any misconduct committed by any member of the police force,” appears to be at odds with Clause 31 (2) which states “The Commission may exercise disciplinary jurisdiction over any complaint concerning the misconduct of any member of the police force”. Notice that the first sub-clause uses the word “shall,” while the second sub-clause uses the word “may”.

We are also very concerned as to the extensive powers conferred on the prime minister in respect of the power to appoint and remove commissioners and the power to amend the schedule and to make regulations under the bill. (Clauses 6, 49 & 50)

Another worrying provision is the power, under Clause 35, to limit criticism against the commission. We are of the view that the term “any act of disrespect or any insult” is too wide. The said term would make any criticism against the commission subject to investigation and possible charges.

The conclusion is inevitable. The IPCMC Bill 2019 is a watered-down version of the EAIC Act 2009, and is a mere fragment of the commission envisaged by the 2005 Bill.

It is also to be noted that the bill provides for the EAIC Act 2009 to be repealed when the IPCMC Act is gazetted. It is baffling that once the EAIC Act 2009 is repealed, the oversight mechanism for the other enforcement agencies shall revert to the respective disciplinary authority of each agency

We urge that the EAIC Act 2009 should remain in force for the other enforcement agencies specified in its Schedule. Indeed, its powers should be enhanced to enable it to be more effective in enforcing discipline in those agencies.

In respect of disciplinary powers, the 2005 bill empowered the Commission itself, upon finding any police officer guilty of any misconduct, to caution and discharge the police officer, amongst other punishments (Clause 44). 

Much to our disappointment the bill provides that it is the disciplinary board established under the commission which deals with any police misconduct and that it is the duty of the disciplinary board to impose any punishment for any police misconduct (Clauses 31, 32, and 33).

It is most alarming to note that the disciplinary board specified in the schedule of the bill states that the board includes the IGP or a representative from the police force of a higher rank than the offending police officer. This provision in itself is sufficient grounds to reject the bill, for clearly it would be a misnomer to call the commission independent as implied by its name.

Clause 47 of the bill states that the police force shall refer to the commission any incident which has resulted in grievous hurt or death to any person under the detention or custody of the police force without elaborating as to its purpose. 

Neither does it provide any penalties for any failures to report. More importantly who in the police force is to do such reporting? Is Clause 47 in the bill merely a statistics-gathering exercise by the commission?

All of the above leads us to an inexorable conclusion. The IPCMC Bill 2019, in its present form, is designed to give the false impression that proactive steps are being taken to bring about much-needed reforms in the police force. 

Unless drastic amendments are made to the bill to give the commission the powers which are essential for it to effect meaningful reforms, the IPCMC will be a mere cosmetic, toothless and useless commission.

A truly dedicated and disciplined professional police force is essential for the wellbeing of our nation. Truth be told, the Police simply cannot be left to regulate themselves anymore. 

Civilian oversight is essential. Such oversight can be established only if there is strong and sustained political will on the part of the Harapan government to make it so.

The Harapan government must ensure that the provisions of the IPCMC Bill 2019 truly reflect the hope of the rakyat to have a police force that is truly disciplined, professional and trustworthy to serve the nation and its people. 

M VISVANATHAN is the chairperson of Eliminating Deaths and Abuses in Custody Together (Edict).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.