ON 10 May, there was finally some agreement among the key players that it is time for the Independent Police Complaints and Misconduct Commission (IPCMC) to be established.
This is reassuring news, following the worrying note of uncertainty in recent developments on the IPCMC. While the government insisted it was not backing down on its manifesto promise to establish the IPCMC, objections raised by the Royal Malaysia Police (PDRM) and associated bodies showed that it did not have the full support it needed to function optimally.
Calls for the establishment of the IPCMC were neither new nor controversial. The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Force recommended the formation of the IPCMC in 2005. But while many of the 125 recommendations have been implemented, the most important recommendation, the IPCMC continually fell by the wayside.
Instead of the IPCMC, in 2011, the then Barisan Nasional government established the Enforcement Agency Integrity Commission (EAIC) to supervise 21 enforcement agencies, rather than only the
PDRM. The EAIC also suffers from lack of resources, limited powers and appears to be a superficial nod to increasing demand for law enforcement accountability.
It is important to note that the PDRM is a centralised police force, with enormous power in the hands of one individual, the IGP. The police can and do take action against their own, with 72 personnel sacked between January and October 2018 for various offences. The real problem lies when abuse of power, especially the “we were only following orders” or “orders from above” type of abuse, occurs.
These breaches are then accepted by higher ranks within the police leadership, who protect the perpetrators from internal discipline. Each misconduct that is not investigated or punished leads to the perception that such misconduct is permissible.
Crucially, while looking ahead to the formation of the IPCMC, we must not forget the human element to this long awaited recommendation for a truly independent complaints mechanism to be established and the real cases which have brought the integrity of the police into question.
In 2009, 22-year-old Kugan Ananthan died after six days in police custody. He died of kidney failure as a result of being beaten, suffering 45 categories of external wounds and internal haemorrhaging.
A civil case found evidence of police cover-up, falsified diary records and an internal investigation subverted to limit its scope. Despite the alleged involvement of at least 13 police officers in his death, there was only one conviction against an officer and there was no disciplinary action taken against other personnel.
In 2010, 14-year-old Aminulrasyid Amzah was shot and killed by police during a car chase. The officer who fired over 20 shots admitted that he had no cause to do so, but his initial conviction was later overturned. While this officer apologised to the family, there was no official apology from the police. Instead, Aminulrasyid was falsely portrayed as a criminal who deserved his fate. The Selangor
Police Chief at the time made the unfounded allegations that the teenager had a machete and attempted to ram the car into police in order to justify the excessive force used.
More recently, the Human Rights Commission of Malaysia (Suhakam) in its inquiry report on the enforced disappearances of Amri Che Mat in November 2016 and Pastor Raymond Koh in February 2017 concluded that they were abducted by Special Branch personnel because of their alleged religious activities.
When such serious allegations are made, from deaths in custody, fatal shootings to enforced disappearances, there is a clear conflict of interest in allowing an internal police body to investigate their own force.
Now the merits of the IPCMC have been accepted in principle by almost all quarters, including the recently appointed IGP, Datuk Seri Abdul Hamid Bador, who has voiced support for the body. But in the past couple of weeks, the objections of the PDRM have been raised again, including by the IGP’s predecessor, who in a parting retirement shot voiced the protestations of the police.
Those protestations included the suggestions that the IPCMC would require an amendment to Article 140 of the Federal Constitution which sets up the Police Force Commission, and that it would erode the powers of other bodies that govern police oversight and internal discipline.
The fact is no amendment is necessary, as Article 140 already allows Parliament to legislate for a body to exercise disciplinary control over the police and specifies that this would not be inconsistent with the Constitution. While the PDRM already have the Integrity and Standards Compliance Department, the IPCMC will provide something crucial which the existing body cannot i.e. independence.
There was also some difficulty with the notion of independence in this debate, with the very fact of the IPCMC being an external body cited as cause for concern. Independence does not mean taking the complainant’s side, but neither does it mean sitting on the fence and trying to please everybody. At the heart of an independent investigation is the search for truth, the objectivity and impartiality to speak that truth, regardless of which “side” it seems to favour.
The retired police officers’ associations had expressed further concern that, as an external body, the IPCMC may not have all the necessary information before taking action. This hits on the unavoidable fact that to be effective, the IPCMC will require cooperation from all parties in relation to its investigations.
But the solution to this is simple. To ensure that the IPCMC does have all the required information to conduct a fair investigation, it needs to have the necessary power to compel, collect and evaluate evidence, and all the police need do is co-operate and provide it freely.
Fears of so-called “outside manipulation” were misguided. If the correct procedures are followed, enforced and properly documented, what could be manipulated? The purpose of the IPCMC is not to unduly interfere with the important role of the police in our society, or falsely accuse anyone of misconduct.
It is not unheard of for a few rogue or corrupt individuals to operate within a large organisation like the PDRM, but when we fail to identify and discipline them, we allow them to bring the reputation of the entire force down. In this sense, the IPCMC is as much in the interests of the police as the complainants and the public.
To say that the PDRM cannot be trusted to investigate itself is not an affront to the police, it is merely a call to adhere to reason, international standards and principles of natural justice. The strength and effectiveness of any complaints mechanism lies in sufficient independence and power.
For example, in England and Wales, the Independent Office for Police Conduct (IOPC) is a public body independent of the police and investigates the most serious complaints of misconduct, including death or serious injury which occurs during or following contact with the police.
It can launch its own investigations without referrals from police, can re-investigate cases and its investigations are completely separate from those carried out internally. The IOPC will also be able to bring disciplinary cases against police officers even if the police disagree with its findings and takes no action.
The harrowing stories of deaths in custody, fatal shootings and enforced disappearances are unfortunately not an exhaustive list. Without an independent complaints mechanism, the centralised structure of the PDRM simply cannot police itself.
The government was right to push for this reform, as without fear of investigation into serious misconduct, the culture of impunity persists. The realisation and acceptance by the police that this is not a satisfactory state of affairs for the first time in 14 years after the IPCMC recommendation was made, is cause for renewed hope in Malaysia Baharu.
Eric Paulsen is the Representative of Malaysia to the Asean Intergovernmental Commission of Human Rights (AICHR).