| The controversial Special Complaints Commission - a much watered-down version of the independent body mooted by the Royal Police Commission - has come under intense fire for its lack of power and independence. Given the widespread opposition to this new proposal - which some ex-commissioners and opposition politicians described as a completely ‘different animal’ - the bill has been postponed to the next parliamentary sitting in March 2008.
 The SCC bill is the government's answer to the proposed Independent Police Complaints and Misconduct Commission bill drafted by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police two years ago.
In its report, the Royal Police Commission recommended the formation of an independent agency to oversee public complaints against the police, arguably the most powerful watchdog ever proposed in Malaysia.
Opposition Leader Lim Kit Siang will be calling for a parliamentary roundtable tomorrow to discuss how to salvage the original proposal made by the Royal Police Commission. The roundtable, which was originally scheduled for today, will be attended by a number of human rights organsations and some of the royal commission members.
But what exactly are the differences between the SCC and IPCMC? Malaysiakini compares the key features of the two bodies.
Members
The SCC chairperson and three other commissioners are appointed by the prime minister and may be revoked at any time without explanation. Commissioners will hold office for two years, not more than two consecutive terms.
The inspector-general of police, director-general of Public Complaints Bureau and director-general of the Anti-Corruption Agency will automatically be members of the SCC.
Whereas IPCMC commissioners are appointed by the Yang di-Pertuan Agong. The king is to choose no more than seven commissioners, including a chairperson and two deputies who will hold full time posts. The chairperson and deputies are required to have at least 10 years legal experience.
Parliamentarians, state legislators, former or current members of the police force are not eligible as commissioners. Commissioners may hold office for a period not exceeding two consecutive three-year terms.
Powers
The IPCMC has the power to launch its own investigations whereas the SCC would channel it to a special task force.
The SCC task force is to be headed by a chief executive officer and the commission is to engage task force officers from the public services, police force, legal officers or its own commissioners.
On the other hand, the IPCMC has the freedom to establish a task force or joint task forces or cooperate with other such groups. It may also engage consultants or officers to perform services for it and these may include retired or former police officers.
The commission will work with relevant bodies in its investigation including the Anti-Corruption Agency, the auditor-general, the Securities Commission, Bank Negara and overseas police forces.
Functions
The IPCMC's main function is to receive and inquire into complaints, particularly "to detect, investigate and prevent police corruption and other serious misconduct."
On the other hand, the SCC merely receives complaints related to an enforcement officer's misconduct and will direct its task force to investigate. The investigation will then be forwarded to the appropriate disciplinary authorities or public prosecutor if legal action is required.
In contrast, the IPCMC has the power to discipline and can, via its chief legal counsel, initiate legal action against police officers found guilty of misconduct.
It is interesting to note that the SCC bill has dropped corruption from its functions and focus.
The IPCMC has a broader scope of function that goes beyond investigating complaints. It is tasked to develop and implement mechanisms to detect, investigate and prevent misconduct. It may also examine and verify any procedural infringement, corruption and misconduct.
Further, the IPCMC will make provisions to audit and monitor particular aspects of the police force's procedure and operations. It may also play a role in promoting awareness of police ethics and integrity or recommending appropriate methods to the government for that purpose.
The IPCMC also has the right to visit police stations and other places of detention.
Investigative powers
The SCC may conduct preliminary investigations "to determine the merit of a complaint" after which it will refer its early findings to relevant bodies for further investigation or action.
On the other hand, the IPCMC may investigate on its own initiative any reports received, referred to it or complaints it has become aware of.
The IPCMC also has the power to direct the IGP to investigate or stop the investigation of any complaints. It may also take over investigation from the IGP without being required to disclose anything to the IGP.
Who can it investigate?
The SCC can investigate all enforcement officers at the federal level while the IPCMC can only probe police personnel.
The IPCMC will investigate any misconduct "by way of action or inaction or alleged" that includes corruption or any corrupt conduct as specified by the Anti-Corruption Act, the commissioning of criminal offences, failure to follow laws or the IGP's rules and any matters which a complaint can be made under the Police Act.
The IPCMC cannot investigate a case involving the employee of a public body or statutory authority if the complaint does not also involve a police officer.
However, it may investigate others cases involving police officers, regardless of whether a police officer was on duty or not, regardless of whether the alleged misconduct occurred within or outside Malaysia and if the misconduct occurred prior to the existence of this Act.
The IPCMC may even investigate cases where no police misconduct is suspected or cases where no particular police officer or other person is implicated.
The SCC will not examine any complaints that are deliberated by other disciplinary authorities, courts and enforcement agencies. Neither will it consider cases that have already been determined by those authorities.
Disciplinary powers
The SCC can only refer investigation papers and documents to the disciplinary authorities if the established misconduct is disciplinary or the public prosecutor if the misconduct is criminal.
The IPCMC may refer a matter to relevant authorities for investigation or action but it can also act on its own prerogative.
The IPCMC can caution and discharge, remove badges and allowances, stop salary increments or impose a fine upon establishing guilt and considering the severity of an officer's misconduct.
It also has the power to demote, transfer duties or dismiss the officer concerned. These disciplinary powers are final and cannot be "challenged, appealed or overturned in any court."
While the IPCMC can initiate its own legal action via its chief legal counsel, it may also refer to the public prosecutor matters involving money laundering, confiscation or recovery of crime proceeds.
The IPCMC may enter into arrangements with the public prosecutor and may recommend that legal immunity be granted to certain persons.
If a corporation is found guilty by the IPCMC, the maximum penalty is double of the monetary penalty stipulated for that offence.
Further action
If the IPCMC is unsatisfied with the disciplinary action taken by the appropriate authorities or public prosecutor, it may submit a report and recommendations to the prime minister after giving the relevant bodies a chance to comment. If it is still unsatisfied, the IPCMC may also submit a report to parliament.
There is no such provisions in the SCC bill.
Power to amend Act
Under the Special Complaints Commissions Act, the prime minister has the power to amend any provisions of the act to "remove difficulties and prevent anomalies" within two years of its enactment.
The IPCMC bill has no provisions for amendments.
Secrecy laws
The SCC's investigations are curtailed by the Official Secret Act 1972 [Act88] or any laws regarding confidentiality of documents or information while these do not apply to the IPCMC.
The IPCMC can intercept any method or form of communications for its investigations.
Commission reports
The IPCMC reports directly to parliament on any investigations or public hearings it has conducted.
It may also recommend that a report be made public, irrespective of whether it has been laid before parliament or not.
The IPCMC may submit special reports to parliament at any time on matters of administration and general policies that relate to its function. It may also submit reports to the Yang di-Pertuan Agong at any time, with a copy made available to the prime minister.
The SCC submits its annual report to parliament while the IPCMC annual reports must be submitted to the prime minister and the Yang di-Pertuan Agong, who will then make it available in parliament.
Arrest and search warrants
The IPCMC has the power to issue arrest warrants for persons who have failed to appear at its hearings while the SCC can apply to a magistrate for a summons to secure a person's attendance.
IPCMC commissioners or any officer authorised in writing may enter premises, inspect documents at the premise and take copies. The IPCMC is also empowered to issue a search warrant if necessary and if there are reasonable grounds to do so.
IN BRIEF: SCC vs IPCMC
Appointments
SCC - Prime minister to appoint commissioners
IPCMC - Agong to appoint commissioners
Members
SCC - Inspector-general of police, Public Complaints Bureau director-general and Anti-Corruption Agency director-general are automatic members.
IPCMC - Unlike SCC, parliamentarians, state legislators, former or current police officers not eligible as commissioners.
Investigative powers
SCC- Task force to investigate complaints.
IPCMC - Power to initiate own investigation and to direct IGP on investigations.
Secrecy laws
SCC - Bound by Official Secrets Act and secrecy laws.
IPCMC - Not subjected to secrecy laws and can intercept any form of communication.
Investigative powers
SCC - Power to probe all enforcement officers at the federal level.
IPCMC - Can only investigate current and former police officers whether alleged misconduct was committed on or off duty.
Disciplinary powers
SCC - Refer investigation to disciplinary authorities or public prosecutor for legal action.
IPCMC - Has disciplinary powers and can initiate legal action via its chief legal counsel.
Amendments
SCC - PM empowered to amend the Act in the first two years.
IPCMC - No provisions for amendments.
Annual reports
SCC - Annual reports submitted to parliament.
IPCMC - Annual reports submitted to parliament through PM and Agong. Case and special reports can be made direct to parliament. |
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