However it is deeply disappointing to note that even this weakened and
diluted form of complaints mechanism in respect of the PDRM has not got
off the ground. What is the Government waiting for? Yet while the
Government has been twiddling its thumbs, gross violations of the rule
of law and other acts of alleged police misconduct have continued to
occur. One only needs to mention deaths in police custody (66 since
2005), harassment of lawyers, falsifying evidence, police bullying and
brutality, delays in police investigations, the alleged “shoot to kill”
policy, and now, most recently, the shooting to death by the PDRM of
14-year old Aminulrasyid Amzah. Add to that abuse of Section 28A of
the Criminal Procedure Code and breaches of the constitutional right of
access to legal representation, as decided by the Malaysian Human
Rights Commission (SUHAKAM) Panel of Inquiry into the arrest and
detention of 5 lawyers from the Kuala Lumpur Legal Aid Centre.
Incidentally, 7 May 2010 marks the anniversary of their arrest.
The Government has responded to the latest incident by establishing a
panel of inquiry headed by the Deputy Minister for Home Affairs and
populated by no less than 3 former SUHAKAM commissioners. While any
in-depth inquiry into the tragedy should be welcomed, the Government
should rightfully be criticised for dealing with problems regarding the
PDRM in an ad-hoc and knee-jerk fashion. A proper mechanism should
have been in place a long time ago.
After all, it is now 5 years since the Royal Commission on the Enhancement of the Management and Operations of the Police recommended an Independent Police Complaints and Misconduct Commission (IPCMC), which the Government has steadfastly refused to accept. The PDRM has received pay rises, better working conditions, improved housing, and enhanced equipment, all of which were also recommended by the Royal Commission on the Enhancement of the Management and Operations of the Police. But the recommendation of an IPCMC was singularly rejected.
If the Government is serious about walking the talk of a transformation programme, it can do no better to start than to admit that it has made a mistake and to implement the IPCMC as proposed. The EAIC is woefully inadequate in its structure and proposed work-flow to tackle head-on the many complaints against the PDRM. It is also out of touch with reality, which is, it is suspected, that the number of complaints against the PDRM far surpasses the number of complaints of the other 20 enforcement agencies put together. The Government seriously and speedily needs to put in place an independent and credible mechanism for oversight of the PDRM which by necessity must involve members of the public. Lay person involvement in hearing public complaints about the PDRM and in deciding on operational policies will go a long way to address deep public concerns that the PDRM operates in a climate of impunity and as a law unto themselves.
The PDRM must also be freed from direct political control by the Government and made accountable to the very people they purport to serve and protect, namely the
rakyat. This after all is the slogan of the Government’s 1Malaysia policy –
rakyat didahulukan.
The PDRM itself also needs to admit that it has made operational mistakes and not adopt an arrogant attitude. It does not help the situation that the current Inspector-General of Police has a tendency to act more like a petulant and sulking child than a professional police officer, in effect saying that if the
rakyat have doubts and concerns about the way the PDRM operates, then the PDRM will withdraw its services. The taxpayers fund PDRM, and taxpayers of Malaysia have a right to demand professionalism and public accountability from the PDRM. The Inspector-General of Police should know better. Shame on him.
Instead of a panel of inquiry, there are now widespread calls for a Royal Commission of Inquiry into the shooting death of Aminulrasyid Amzah. Recalling the last time we had a Royal Commission of Inquiry, in respect of the “Lingam” affair, where no charges were ever preferred against those identified by the Royal Commission of Inquiry as having potentially broken laws, one has to be sceptical about the efficacy of having a Royal Commission of Inquiry.
In any event the questions that must be asked include what guidelines are there to govern the discharge of firearms. The PDRM maintain that such guidelines, included in the Inspector General’s Standing Orders (IGSO), is a confidential document and cannot be released. They have even denied access to this to SUHAKAM. This is patently absurd and unacceptable. Whatever IGSO in place must conform to customary international law, with which Malaysia is duty-bound to honour and comply. In 1979 the United Nations General Assembly, of which Malaysia is a member, adopted Resolution 34/169 on a Code of Conduct for Law Enforcement Officials. It is interesting to note that Article 3 states:
“Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
Commentary:
(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.
(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. [Note: see for example Section 15 of our Criminal Procedure Code.] In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.
(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children [emphasis added]. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.”
Further, in 1990 the Government participated in the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. The Malaysian delegation was headed by none other than (now Tun) Hanif Omar, the then Inspector-General of Police and now one of the members of the panel of inquiry. Members of the Congress (including Malaysia) unanimously adopted the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
The preamble to the Basic Principles acknowledges that “law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights”. The Basic Principles go on to assert:-
“4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment….
7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law….
9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.
11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;
(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;
(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;
(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;
(f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.”
Any inquiries task will include asking to what extent the Code of Conduct and Basic Principles have been adopted and complied with. They should both have already been incorporated. It should also demand to know if the Code of Conduct and Basic Principles are taught or otherwise made known to every serving member of the PDRM, and if not, why not. Such a Code of Conduct and Basic Principles, if adhered to, would have saved not only the life of Aminulrasyid Amzah, but of others who have died in an unnecessary hail of bullets.
But ultimately and more importantly, there is a clear and pressing need for the immediate overhaul of the PDRM into a more open and transparent organisation that is accountable to the
rakyat. The PDRM must operate within the rule of law and the respect for human rights. And for human lives.
(Andrew Khoo is Chairperson of the Bar Council Human Rights Committee.)
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