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Proposed law reverses police reforms

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The Malaysian government’s proposed police complaints commission would have no powers to punish rights-abusing police, Human Rights Watch said today.

A bill to create an independent police conduct commission (IPCC) was submitted to Parliament on 26 August 2020, and a second reading is scheduled for the next parliamentary sitting.

The government should withdraw the IPCC Bill from Parliament and significantly revise it to ensure genuine accountability of the police.

“It’s crucial that Malaysia’s police complaints commission not only investigates police abuse but ensures that crimes by police are fully and fairly prosecuted,” said Phil Robertson, deputy Asia director. “The draft law plays a cruel joke on victims of police abuse by creating a toothless commission with no real enforcement powers.”

Allegations of police corruption and excessive use of force have dogged the Malaysian police for decades, culminating in the establishment of the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Force in 2004. In 2005, the commission recommended creating an independent body to investigate complaints of misconduct against the police and take necessary disciplinary action.

The government created the Enforcement Agency Integrity Commission (EAIC) in 2009, but it has failed to ensure police accountability because it is not empowered to prosecute or impose disciplinary actions for misconduct.

In July 2019, the then-Pakatan Harapan government submitted a proposed Independent Police Complaints of Misconduct Commission (IPCMC) Bill for a first reading. That bill, while flawed, would have given the proposed commission the power to discipline police misconduct.

The current Perikitan Nasional government, which took power in March, withdrew the IPCMC Bill “because the police objected to it” and instead introduced an IPCC Bill that deprives the commission of enforcement powers.

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When an investigation discloses misconduct, the proposed commission can only refer the findings to the Police Force Commission, headed by the home affairs minister and with a membership that includes the police inspector general, with the “recommendation” that it take disciplinary action. The proposed commission would have no authority to compel that body to act or even to require the Police Force Commission to report back on its actions. 

Similarly, when the proposed commission’s findings disclose “any criminal offence under any written law,” the bill states that the commission “shall refer the findings to the relevant authority”. It does not specify whether the “relevant authority” is the Attorney General’s Office or the police, nor does it empower the commission to take follow-up action if no investigation is pursued.

The commission is precluded from even investigating any act that is covered by the standing orders issued by the police inspector general. The standing orders, the contents of which are not publicly available, generally govern issues such as the conduct of arrests, treatment of detainees and permissible use of weapons.

While the proposed IPCC will have the authority to summon witnesses and compel the production of documents, a witness may refuse to answer any question “the answer to which would have a tendency to expose the member of the police force, officer of a public body or person to a criminal charge or penalty or forfeiture” or to disclose information if the head of the department in which the witness serves certifies that doing so “is prejudicial to national security or national interest”.

The proposed law is a major step backward from existing law. Currently, a witness appearing before the EAIC is not excused from answering questions or producing documents because they “may incriminate or tend to incriminate the witness, or on any other ground of privilege, duty of secrecy or other restriction on disclosure, or on any other ground”. The existing commission also has the authority to conduct searches and seizures of relevant evidence, but the proposed commission would not.  

The bill would also preclude the IPCC from conducting unannounced visits to police lock-ups and other detention facilities. Under the draft law, the commission would have to give “early advance notice” of its intent to visit such facilities.

Some of the bill’s provisions raise serious concerns about the commission’s independence, Human Rights Watch said. Under the draft law, the home affairs minister would appoint the secretary of the commission and issue regulations governing the commission’s procedures. Unlike both the prior bill and the EAIC, the draft law does not bar the appointment of former police officers or current government officials to the commission.

“Passage of the proposed police commission bill would demonstrate that the Malaysian government has abandoned reforms that are the only real hope for a more rights-respecting police force,” Robertson said. “Prime Minister Muhyiddin Yassin should order the immediate withdrawal of this bill and direct the Home Affairs Ministry to consult widely with rights groups and other stakeholders to propose a law that compels real changes in police conduct.”

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