Continuing our discussions from yesterday, lets note that the IPMC and the EAIC are very similar in description of functions of the Commission

The third aspect of comparison is in the functions of the commission (Section 4).

The description in the EAIC is almost identical to that of the IPMC.

musa hassan police igp pc 250607 officers This is commendable and therefore the recommendations of the RC are intact on this matter.

While the emphasis is upon receiving complaints on misconduct and to investigate them, there are seven other functions.

In this context dealing with complaints (Part IV) seems to be the major task of the EAIC.

Section 21 explains the scope of misconduct.

The major difference here is that IPCMC had a very strong emphasis on corruption which is not the focus of EAIC as it comes under the purview of the Malaysian Anti-Corruption Commission (MACC).

The scope of oversight to twenty one agencies and functions stretching from direct in-depth investigations to a whole range of role must be a real tall order for one commission.

They might be over stretched and become ineffective in the numerous functions. However, the seven functions could also been seen as inter-related functions and therefore not in conflict with one another.

Furthermore, the EAIC would establish two committees, namely the Complaints Committee (Section 16) and Task Force (Section 17).

The EAIC is empowered to appoint consultants including retired or former members of enforcement agencies (Section 15).

If the right people are recruited with the technical competencies and commitment, the EAIC will definitely make an impact in uplifting professional standards and reduced misconduct among enforcement agencies.

However what is of utmost importance is whether parliament will make available adequate funds for EAIC to employ highly experienced and qualified consultants and staff.

The fourth aspect for reflection is the investigative powers of EAIC as described in Part V of the proposed bill and the legal obligations to give information and cooperate with EAIC. EAIC has powers to conduct a hearing, receive evidence, summon any person and issue a warrant of arrest.

It also has powers to search with warrant (Section 40) and without warrant (Section 41).

EAIC powers similar to IPCMC

In addition the EAIC Task Force members shall have all the powers of investigation as contained in the Criminal Procedure Code ( Part V, Chapter 13, section 107 till 120) which provides wide powers.

These will enhance the investigative role of the MAIC.

However one area which the IPCMC proposed, namely the power to intercept communications whether postal other communication tools or to intercept conversations is not provided for in EAIC.

In addition if someone does not give information to the EAIC, the person is said to have contravened the law and could be fined up to RM10,000 or jailed for two years (Section 33).

ramli yusuff commercial crime director police pc 301007 officers Another powerful provision is the protection of witnesses from threats as described in Section 44, where the offender could be fined up to RM100,000 and imprisoned not exceeding two years.

These are strong compelling powers and therefore the EAIC has much bite and could not be labeled as a toothless tiger.

There is one other matter with regards to scope and cases for investigation; the demarcation between the EAIC and MACC on corruption related matters are clear.

However the MAIC complaints and investigation will overlap with that of Suhakam which are related to human rights violations.

A large number of Suhakam cases and public inquiries were matters pertaining to human rights violations by the Police and Rela members.

These will be now handled by EAIC. In addition EAIC is also expected to visit police stations and lock-ups which is also one of SHUHAKAM=s function as stated by the SHUHAKAM Act.

There is a need for Suhakam to review its roles and functions.

The government should also review the Suhakam Act to address the current criticism of appointment of commissioners and their term of office in order to ensure that it complies with the Paris Principles on independence.

This area was one major subject for consideration at the UN Universal Periodical Review process and Suhakam's accreditation to the International coordination Committee is being hampered by this non-compliance.

In addition, the Act could be strengthened to incorporate many of the provisions for enhancing the investigative role of SHUHAKAM in addressing human rights violation.

In addition there could be new provisions which will ensure that all relevant agencies respond to the findings and recommendations of SHUHAKAM within a reasonable time frame.

EAIC can't act independently

The fifth aspect of comparison between the proposed EAIC and the IPCMC is the power to act independently and implement the findings in terms of directly taking action on the guilty officer and by-passing the disciplinary authority or the public prosecutor.

This was the recommendation of the RC in the case of the IPCMC.

lawyers at brickfields police station 220509 04 There were many objections to this provision in the IPCMC proposals by the Police.

The argument used was no single institution should be empowered to undertake investigation, prosecution and finally making a judgment without an appeal process with the IPCMC.

In addition another objection was that this action will usurp the role of the Police Service Commission which is a Constitutional provision.

There is a need to also amend the Federal Constitution on transferring the disciplinary provisions to EAIC.

Civil society criticism and scepticism on this matter is based on the current provisions in the SHUHAKAM Act that after conducting an inquiry on human rights violations, Suhakam then makes the recommendations to the relevant agencies to take appropriate action.

However in a majority of cases, the relevant agencies ignore the findings and Suhakam is deemed as powerless.

Furthermore, Suhakam's Annual report has never been discussed in Parliament and therefore accountability to Parliament is non-existent.

Another criticism levelled by civil society on the current practice by enforcement agencies and relevant institutions is selective prosecution especially in cases pertaining to corruption or in the exercise of fundamental liberties.

Based on this track record and ineffective action by the State, IPCMC was proposed to act

independently.

Fate of EAIC in balance

The current concern over EAIC is, would its fate be similar to that of Suhakam, which has the powers to undertake an inquiry and make recommendations but ineffective to ensure that the human rights violators are brought to the books.

While the EAIC in this context falls short of the IPCMC, however there is one redeeming grace in the EAIC.

The proposed bill in Section 30 indicates that when a misconduct constitutes a disciplinary offence, then EAIC will refer their recommendations to the appropriate Disciplinary Authority.

In the case of a criminal offence, it is referred to the public prosecutor' office.

The redeeming case factor is that the relevant institutions must within 14 days provide information to EAIC of their action and reasons for it and the EAIC will it make public.

police new highway patrol car mitsubishi evo 10 250509 Therefore it would revert back to public opinion and public pressure on this matter.

However in practical terms, can any agency make a decision within 14 days.

Is this too short a period? Would they just say in writing that they have received the report and are in the process of reviewing the findings?

Would the disciplinary authority on receiving the EAIC findings and recommendations reconvene another internal investigative process or would they accept the recommendations of the EAIC.

The proposed bill is silent on this. Furthermore, what happens if one of the twenty one agencies ignores the recommendations of EAIC?

The proposed bill does not make any provisions for compelling an agency to take the recommended action or some specific action.

To further strengthen public accountability on this matter it is proposed that a Parliamentary Select Committee be established to review all the information and data on the investigations, its findings and the appropriate action undertaken by the relevant bodies.

This could be in the form of the Public Accounts Committee comprising both government backbenchers and opposition members of parliament.

Additionally, strengthening the parliamentary mechanism is essential for democracy to flourish in Malaysia.

These avenues will enable members of parliament to play a more constructive role in public policy and delivery matters as demanded by the citizenry of Malaysia.

This parliamentary accountability process will compel the Ministers responsible for the twenty one agencies to be answerable to parliament on how they recommended to the EAIC findings and recommendations.

It is also important to recognize that both internal disciplinary mechanisms such as the

No cover up culture

Disciplinary Authorities and external oversight mechanisms such as SHUHAKAM, MACC and the proposed EAIC are necessary.

The external mechanisms must operate in an independent, transparent, accountable, just and fair manner.

All agencies must be held accountable to respond in a credible and professional manner.

Senior ranking public officials must be accountable to how they respond to the independent findings of inquiry and investigations undertaken by external oversight mechanisms.

In order to strengthen the internal mechanisms, capacity building within each of the enforcement agencies is important through effective training, supervision and monitoring.

Each of the enforcement agencies must establish a high standard of professional conduct for its officers. There must be zero tolerance for indiscipline and misconduct.

This must become an agency culture. Internal cover-up and in house protections must be eliminated.

The role of the senior officers and civil servants are imperative to foster professional and ethical conduct.

We all now recognize the need for external oversight mechanisms. EAIC is one avenue to restore public confidence and check on misconduct among enforcement agencies.

Part 1

DATUK DR DENISON JAYASOORIA is currently Principal Fellow at the Institute of Ethnic Studies, Universiti Kebangsaan Malaysia and member of the Human Rights Commission of Malaysia (Shuhakam). He was a member of the Royal Commission to Enhance the Operation and management of the Royal Malaysian Police. Views expressed in this article are the personal views of the writer and does not necessarily reflect the views of these institutions.