Why the EAIC is unconstitutional

THE Enforcement Agencies Integrity Commission (EAIC) Bill 2009, passed by the Dewan Rakyat on 1 July and now on its way to the Dewan Negara, appears to be unconstitutional.

The EAIC sets out to oversee the integrity of 21 law enforcement agencies, including the National Anti-Drugs Agency, Ikatan Relawan Rakyat Malaysia (Rela), the Road Transport Department, the enforcement division of the Health Ministry, and the Royal Malaysia Police.

The government’s argument is that the EAIC is preferable to the previously proposed Independent Police Complaints and Misconduct Commission (IPCMC). This is because the IPCMC focuses solely on the police force, whereas the EAIC will deal with all 21 law enforcement agencies. It would be unfair, according to this logic, to single out the police force when there are other law enforcement agencies, too.

What this argument appears to overlook is that it is the Federal Constitution itself that separates the police force from these other enforcement agencies. Under the constitution, the area of Public Services is dealt with in Part X (Articles 132 to 148). Article 132(1) lists seven areas of public services: the armed forces, the judicial and legal service, the general public service, the police force, the railway service joint public services (between the federation and one or more states), and the public service of each state.

With effect from 1 January 1974, the education service was added, and with effect from 15 May 1981 the railway service was excluded. The constitution mandates the setting up of a council or commission to oversee the different sectors of the public service. Hence we have the Armed Forces Council (Article 137), the Judicial and Legal Service Commission (Article 138), the Public Services Commission (Article 139), the Police Force Commission (Article 140), the (now repealed) Railway Service Commission (Article 141, now repealed), and the Education Service Commission (Article 141A).

Article 144 sets out the overall functions — including disciplinary — of the various commissions. It should be noted from Article 144(1) that disciplinary control is exercised “over members of the service or services to which [the Commission’s] jurisdiction extends”.

There is no crossing over or merging of jurisdictions of the various commissions. The Police Force Commission has no jurisdiction over the Public Services Commission and vice versa. It thus appears to be ultra vires the structure and scheme of the Federal Constitution to mix the police force, which comes under the Police Force Commission, with agencies coming under another commission.

Some unions just weren’t meant to be (© mari171 / sxc.hu)

In other words, the EAIC as it is currently organised may well be unconstitutional. To borrow from the wording of a western marriage vow, what the Federal Constitution has rent asunder, let no government join together.

Don’t share, delegate instead

The mechanics of how the EAIC is to work are set out in Part IV (clauses 22-30) of the Bill. A Complaints Committee is provided for to receive and filter complaints from the public. After this filtering process, the Committee may make a preliminary investigation.  Based on the filtering process and this preliminary investigation, it can recommend to the EAIC to:

(a) Refer the complaint to be dealt with by the Disciplinary Authority (of the relevant law enforcement agency);

(b) Refer the complaint to be dealt with by the Malaysian Anti-Corruption Commission (if it involves corruption);

(c) Launch a full investigation; or

(d) Reject the complaint.

Thus, only in the case of (c) will the EAIC actually undertake an investigation into a complaint of misconduct. This is possibly one of the reasons why the Minister in the Prime Minister’s Department in charge of Law insists that the EAIC will not simply be a mailbox for complaints.

Let’s say we go by this assurance that the Bill is designed to allow the EAIC to investigate a complaint of misconduct. Such a provision may cause the EAIC to be unconstitutional for a second reason: there appears to be a constitutional prohibition against the sharing of such a disciplinary function.

In providing for the Police Commission, Article 140(1) of the Federal Constitution stipulates that the Commission’s jurisdiction “shall extend to all persons who are members of the police force and which … shall be responsible for the … exercise of disciplinary control over members of the police force.”

However the additional proviso to Article 140(1) provides for Parliament to create an authority empowered to discipline the police force. The article clarifies that “in that event, if the authority is other than the Commission, the disciplinary control exercisable by such authority shall not be exercised by the Commission (emphasis added).”

What this appears to mean is that the disciplinary powers of the Police Force Commission can be fully delegated, for example, to a body like the IPCMC.  What the constitution appears to prohibit is the sharing of such disciplinary control — it is to be exercised either by the Police Force Commission or another body, but it cannot be by both.

IPCMC is more clearly constitutional compared to the EAIC

The IPCMC is therefore constitutional in that it deals only with the police force. Secondly, the IPCMC deals explicitly with misconduct only of members of the police force, and clearly within the context of disciplinary proceedings. Under section 45 of the proposed IPCMC Bill, which was included in the report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (or Royal Commission on the Police), the IPCMC would be able to discipline errant members of the police force in only the following ways:

Caution and discharge the police officer;

 

Deprive the police officer so convicted of one or more good conduct badges and allowances;

Stop the increment for a period of not less than three months, or forfeit any approved services for increment;

Reduce the rank of a police officer;

 

Impose a fine not exceeding the amount of one month’s basic pay of the offender;

Severely reprimand the offender; and

 

Transfer the offender to other duties; or

 

Dismiss the offender.

 

There is no question of the IPCMC initiating criminal proceedings against offenders without the need to comply with Article 145(3) of the Federal Constitution, which deals with the prosecutorial discretion of the Attorney-General (AG). In fact, the supposed unconstitutionality of the establishment of the IPCMC in relation to the AG’s powers has also been partially addressed by rights groups.

Of U-turns and alternatives

The government says 80% of the recommendations of the Royal Commission on the Police have been implemented. These generally involve pay and conditions, housing, equipment, and so on. However at least six major recommendations remain unimplemented, and they probably remain unimplementable in the eyes of the government. These are:

Establishing the IPCMC itself;

 

Amending section 27 of the Police Act 1967 and doing away with the need to have a police permit in order to organise a public assembly;

Repealing the Restricted Residence Act 1933 that allows the preventive detention of suspected criminals in a specific residential area for an indefinite period of time, that may even extend up to the remaining lifetime of a person;

Repealing the Emergency (Public Order and Prevention of Crime) Ordinance 1969; 

Conducting inquiries into all cases of custodial deaths and making the process more expeditious, transparent and accountable (it has been admitted in the Dewan Rakyat that between 2003 and 2007, there were 1,535 deaths in custody);

Enhancing the accountability of the Special Branch by clearly spelling out its powers and responsibilities in law so that it can function impartially and independently, and to clearly define the term “security” to avoid any misconception and abuse of power.

Not the expected about-turn
(© Smurrayinchester / creative commons sharealike 2.5, Wiki Commons)

In late June, the present home minister reportedly announced that he would revisit the 125 recommendations put out by the Royal Commission on the Police. In order to enhance the image and operations of the police, he said he would be retracing steps to see if the recommendations had been carried out and if they had made an impact. A couple of days later, he made an about-turn and said the ministry would come up with a new strategy to boost public confidence in the police force instead of revisiting the 125 recommendations.

It appears as though somebody had got to the minister and told him that revisiting the 125 recommendations was a bad idea. It would only serve to revive publicity about the failure to honour the previous prime minister’s promise to establish the IPCMC.

However, it appears that the alternative to the IPCMC, the EAIC, may be constitutionally untenable.

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Andrew Khoo is an advocate and solicitor in private practice, and an aspiring columnist and commentator.