The Malaysian Bar refers to the recent announcement made by the Minister of Home Affairs, Datuk Seri Saifuddin Nasution Ismail, where he stated that the Independent Police Conduct Commission (“IPCC”) Act which was passed in the Dewan Rakyat earlier this year would come into force in June 2023.1 We are disheartened by the Government’s plan to forge ahead with the Act, especially when the Malaysian Bar has consistently expressed grave concerns relating to the shortcomings of the IPCC Act.
Over the past many years, Malaysians have been barraged with the disturbing phenomenon of deaths in police custody. As a nation, we are deeply dismayed by the unabated spate of deaths that appear to have no end in sight.
The police exercise a wide array of powers — ranging from the right to arrest; the right to use force, seize property, and to search private premises; just to name a few. These are all draconian measures that must be justified, and they demand a high standard of integrity and competence from those executing them. The public has a right to expect that the police will act with utmost fairness when dealing with the community they serve. It is therefore only right that there should be an independent oversight body to preside over one of our country’s most important public services — the police force.
The Malaysian Bar has always been a vocal advocate for the establishment of an Independent Police Complaints and Misconduct Commission (“IPCMC”). The most salient feature of the IPCMC is that it is provided with disciplinary authority over the police. It goes without saying that the police cannot police themselves. The IPCMC guarantees accountability because it provides the necessary “enforcement powers” to reprimand and punish errant officers if they break the law. The IPCMC will provide the police with the dignity and respect it rightly deserves by addressing the misconduct committed by a few of its members, which brings disrepute to the rest of the hardworking men and women in blue who are committed to serving our nation and its people. It should also be noted that prior to 2020, the Government of the day in 2018 had tabled the IPCMC Bill, only for it to be replaced with the IPCC by the Government that took over after the so-called Sheraton Move.2
It has always been our view that the IPCC in its current form fails to live up to our expectations of a more transparent and better regulated police force. First of all, the Commissioners of the IPCC ("the Commission”) are appointed by the King on the advice of the Prime Minister. The Chief Executive Officer of the Commission is appointed by the Minister of Home Affairs, which further undermines any form of independence or impartiality in this oversight mechanism, leading it to become further entwined with the Executive. Secondly, the Commission may conduct visits to any place and premises, such as police stations, lock-ups and detention centres, but they will have to provide early notice. This will render such visits ineffective as it will give time to the authorities that they are visiting, the time to make arrangements in advance — and that may not be reflective of the actual situation at the premises. Thirdly, the Commission under the IPCC does not bar the appointment of former police officers or current government officials to the Commission, therefore further blurring the line between the Executive and the Commission.
One of the main differences between the IPCMC and the IPCC is that under the IPCC, the Commission cannot act against police officers who have committed wrongdoing, but can only recommend proposed action to the Police Force Commission or other relevant authorities. It is a toothless piece of legislation that does not effectively achieve the intended objective.
Good policing is fair, just, and effective. It requires trust by the public in an institution that is mandated to serve and protect us. This can be done through establishing a system of civilian oversight, which is exhibited in the IPCMC Bill, but not in the IPCC Act. External scrutiny is a hallmark of any democratic police force and one that is accountable, transparent, and responsive to the needs of the public.
The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in its Report (2005) stated that:
“… When officers act in contravention of laws and regulations without fear of investigation or reprimand, the culture of impunity begins to develop. Each wrongdoing that is not investigated or punished or is supported by higher ranks within the police leadership leads to the perception that such misconduct is permissible …”
The IPCC Act is a step backward in regard to creating a police force that operates effectively and transparently. Instead, the IPCC Act is one that entrenches impunity and turns a blind eye to the very real problems that the institution faces. Our newly minted Government that has repeatedly emphasised the importance of good governance should reconsider its position in allowing the IPCC Act to be brought into force.
The police wield great amounts of power, and therefore it is only logical that a proportionate amount of responsibility and accountability must follow correspondingly. The Malaysian Bar therefore calls upon the Government to substantially amend the IPCC Act to incorporate the necessary provisions as those found in the IPCMC Bill to bring about police accountability, including granting disciplinary powers to the IPCC, before implementing the IPCC Act.
Karen Cheah Yee Lynn
22 December 2022
1 “IPCC to comes in force June next year”, New Straits Times, 13 December 2022.
2 “IPCC Act to be in force June 2023, says home minister”, Malay Mail, 13 December 2022.