Do not cross the line

The Star 
by HARIATI AZIZAN

The Enforcement Agency Integrity Commission is here to keep the enforcement agencies in check, but they need the help of the public to do it.

YOU will need bodyguards soon.” Datuk Helilah Mohd Yusof is used to hearing this joke after she was appointed as the chairman of the Enforcement Agency Integrity Commission (EAIC) last year.

The serene-looking retired Federal Court judge with steely eyes only laughs wryly when she hears the remark again at The Star. After all, she knows only too well the massive task on her shoulders and those of her six fellow commissioners and the 26-strong EAIC team in enforcing the law on the enforcers.

In an interview, Helilah concedes that the initial “unfriendly” reception towards the commission only reinforced the misconception of the “enemies” that she might make in the 19 enforcement agencies under its purview.

Yet, as she sees it, the reputation of the agencies are being marred by a minority like the Malay saying, Setitik nila merosakkan seperiuk susu (A drop of dye/iodine spoils the whole pot of milk).”

The commission's biggest challenge now is to implore people to come forward to officially file their grouses about the conduct of enforcement agency officers. Now people prefer to gossip or blog about their grouses instead of bringing it forward to the authority, she laments. Then there are many who do not know how to or are reluctant to follow through their grouses with the “authority”.

“You might hear your niece grumbling about having to pay duit kopi' to get off a traffic fine, for example. But when you ask her to make a report against that officer, she will just shudder in fear and say, ee takut'. Or if you ask her for the cop's badge number, she will just look at you blankly,” Helilah adds.

The EAIC's job is to investigate complaints from the public on errant enforcement officers but the public need to do their part and come forward, she stresses. This would require them to write in to the EAIC with complete information on the case or incident and the errant officer involved.

“If you just sign off with Noraini from Kepong, how can we take the relevant action?” Helilah quips.

Crucially, the commission's founding legislation, the Enforcement Agency Integrity Commission (EAIC) 2009, ensures that protection is given to the complainants.

Launched on April 1, 2011, the statutory body is legislated from a recommendation by a royal commission for an independent tribunal on the police, the Independent Police Complaints and Misconduct Commission (IPCMC) in 2005. However, as the proposal was strongly opposed by the police, the EAIC Act, which gave it a wider purview over 19 federal enforcement agencies including Immigration, Customs and Rela, was implemented instead.

Notably, since its low-key inception, it has not garnered much attention, receiving only 90 complaints despite the mounting grouses vented against enforcement agencies in the cyber world, media and the coffee shops.

Others have chosen other recourses, like N. Indra, the mother of A. Kugan, a car thief suspect who died in police custody two years ago. Instead of taking her case to the commission, Indra is suing the police and government for more than RM100mil in damages.

“This is not the ideal action, but I'm in the business of getting results for my clients and I am not convinced that the EAIC can give my client what she wants justice for her son,” says her counsel N. Surendran.

Most telling is how the EAIC has been overlooked in the current public dissatisfaction on alleged police brutality during Bersih 3.0.

Worse, there have been calls for the formation of IPCMC, including from the Bar Council.

Says Bar Council president Lim Chee Wee, while the EAIC provides an alternative avenue for members of the public with genuine complaints of police misconduct in last week's rally, he is not convinced that the EAIC has adequate powers to investigate the cases.

Helilah, nevertheless, is not deterred by the lack of faith.

“More than 71 of the complaints we received were against the police. So the EAIC is fulfilling the role of the IPCMC. How many bodies do we need to set up before we address the problems in the (police force) and improve their integrity?

“The EAIC has been set up to address the grievances of the public towards the police as well as other enforcement agency officers. We want to do the job and we can do the job,” she reiterates.

Here is an excerpt of the EAIC chairman's interview with Sunday Star:

> Why do we need to have a body like the EAIC?

There is a lot of dissatisfaction and unhappiness among the public when they perceive enforcement officers, whose duty is to prevent crimes, for example, facilitating the crimes or other things that they are supposed to prevent. This (setting up of the EAIC) is a measure or an attempt by the Government to provide one solution.

> How can we raise public confidence in our enforcement officers?

True, public confidence in enforcement agencies is low (but) the public also need to gauge how objective or subjective they are.

How do they rate the ability, the efficacy or the efficiency of the system?

If there is dissatisfaction or a complaint about a particular thing, what is the criteria for this?

Two sides of the question so that the officers' morale is not affected and that the public will not be dissatisfied.

Is it a specific instance? A personal happening? What is their complaint based on? Many are basing it on others' experiences relatives, friends neighbours and from rumours and hearsay.

What is their source of information? From newspapers and TV? Is it correct and fair reporting? Or is it from blogs and forums?

We are not denying that there are instances where the police officer has fallen short of the norm or the yardstick and not done enough. But I'm saying that the public need to be responsible too; they also have a role to play.

For example, in the case of a child who was kidnapped and burned recently. The relative said he hoped this would be the last incident of such a case and that something would be done to prevent this in the future.

But was it really the enforcement agency's fault? Was there any inaction in the enforcement agency or in the public?

The public do have a right to be upset as enforcement officers like the police have a responsibility to safeguard their safety. But at the same time, they need to ask themselves if they had taken enough precautions to protect their children.

If they feel that they have a genuine grouse (of a misconduct by an enforcement agency officer), they need to come forward to us to file a complaint.

> The SOP and conduct of the police during the Bersih 3.0 rally last week have been brought into question. Will the EAIC look into it?

If there are organisations or entities like the Bar Council who have facts and evidence that the police did not comply with their SOP or that their SOP do not measure up to international standards, then they need to file a complaint with us. Only then, can we start taking action. If we are able to detect any inadequacy or weakness, we can make recommendations to the Government.

However, there are always two sides of the story, and the SOP of the rally organisers and participants also need to be probed.

Who started the violence? Did the police act beyond their powers or were they taking preventive action? There are various issues should they have waited until the protesters run riot and go on a rampage?

Anyway, being on a human rights platform does not give (protesters) the right to do damage or express one's dissatisfaction or disagreement freely and take the law into one's hands.

> What happens after a complaint is made? After a complaint is registered with the EAIC's Complaints Committee, preliminary investigation will be conducted to verify the complainant's details, and determine the nature of the misconduct, and whether a full investigation is warranted. This is to preclude surat layang and any witch-hunting due to personal grudges.

If the complaint is found to be baseless, it will be rejected. If it is found to be genuine and complies with the criteria of the act, the committee will report its findings and recommendations to the commission for its consideration and decision.

If the commission is not satisfied with the committee's report, they can direct a task force to probe the complaint further. The task force has to report its findings to the commission within 14 days for a final decision from the commission.

(The task force shall have all the powers of investigation as contained in the Criminal Procedure Code, including power to obtain documents or other evidence; power to hold hearing and power to search and seizure with warrant or without warrant.)

When the commission completes its investigation, it will refer the case to the relevant agencies. If it is a disciplinary offence, we will recommend that it is referred to the individual agency's disciplinary board, if there is corruption or a matter of graft, then the matter will be referred to the MACC. If it is a criminal offence, it will be referred to the public prosecutor.

After the complaint is referred to the appropriate agencies, they are required to conduct their own investigation and communicate their findings to the commission within 14 days from the date of receipt.

The EAIC has the discretion to make recommendations on the appropriate action. Under the legislation, the commission is also empowered to ask the specific agencies about their further action or follow-up on the case.

However, the commission does not have jurisdiction to pass sentence or to institute prosecution on its own. The end result still lies with the relevant body.

> How can the commission compel these agencies to follow their recommendations?

The legislation is clear our word is to be followed. The agencies are obliged to adopt our recommendations.

>What are the types of misconduct that can be reported to the commission?

According to Section 24(1) of the EAIC Act, misconduct is any act or inaction by an enforcement officer which is contrary to written law; is unreasonable, unjust or improperly discriminatory, or committed on improper motive and irrelevant grounds in the opinion of the commission. It also includes the failure of an enforcement officer to follow rules and procedures laid down by law or the appropriate authority, and criminal offences.

> Will the EAIC be monitoring the action of the enforcement agencies?

The commission is not really in the nature of an ombudsman; the foundation (for an action) is a complaint. It has to come from the public; it can be the aggrieved or the family of the aggrieved.

But at the same time, supposing we are able to detect something, we will start an investigation. However, it has to be something quite solid, like through a reliable source. And if there is a corporate body, individual, organisation or institution that comes forward with a complaint, in black and white, then we can start an investigation into the problem. It does not have to be an individual who has experienced something (to come and lodge a complaint), but someone who has noticed that something is amiss.

> Is the EAIC responsible for cleaning house at all the enforcement agencies?

That is a misconceived thought. Many think that with all the problems, here comes a body that will solve everything and come up with wonderful solutions as if in a magical way. “Abracadabra!” and everything is good like wizardry. It is not like that at all.

We are dealing with human beings, not just theories. We cannot just barge into someone's home and say we think that this should be done this way or another.

> One of the functions of the EAIC stated in the Act is to assist the Government in formulating legislation, or to recommend administrative measures to the Government or an enforcement agency, in the promotion of integrity and the abolishment of misconduct among enforcement officers; how does the commission do this then?

As a first step, the commission has looked at the different Standard Operating Procedures of the 19 enforcement agencies in order to understand how they implement their investigative and enforcement powers.

For each agency, when they set up their SOPs, the factors they will take into account are how and what sort of action they will undertake when they are carrying out their enforcement duty because they know the best way to conduct their enforcement duties.

(Each one is governed by their respective legislations too. For example, the police have a wide scope under the Penal Code and Criminal Procedure Code. The Immigration enforcement officers have their own Act and so forth.) But we do anticipate that the SOP will be brought into question when a complaint is raised against them.

> Who is in charge of monitoring and reviewing the SOPs then?

It is self-regulatory each agency will look at their own SOPs as it is related to how you implement things on the practical side. So, the agencies ought to know best.

> The initial worry was that the EAIC would undermine the morale of enforcement officers. How is the EAIC handling this?

In the initial stages, there was hesitation or suspicion of the EAIC (from the enforcement officers) ... I'd even call it a grudge. They asked, “Why do you need to come after us? Why do we need a specific body? We have our own way of dealing with this.”

Then there were those who said that having the legislation in place was “an insult” and “depressing” or that “too much power” seems to be vested with the commission.

We knew that we had to take an approach that is non-offensive and more psychological (to deal with the officers) because it is like an attack on their self-esteem and self-confidence.

Our response was to throw out a simple question why do you think that despite all that, the Government felt that they required such legislation?

The answer is that there is something wrong. The Government is reacting or responding to a situation with an underlying statement that there are acts by enforcement agencies that have caused the public to be disturbed.

It is a question that enforcement officers need to ask themselves if they think that it is an insult, if they think that their agency is doing well, or that their agency has integrity, why does the Government feel it necessary to set up this commission?

If they feel that their confidence is lost with the introduction of this Act, then why are there still reports of policemen caught in graft or Immigration officers living beyond their means?

> It is stated under the ACT that the EAIC will prevent misconduct among enforcement officers how are you doing that?

Preventing is a general term and has negative connotations. The commission was set up to help strengthen integrity among federal enforcement agencies. Of course, it begs the question of what we mean by integrity.

It is not only the integrity of the officers but also the public. The public also need to have integrity. For example, there are those who expect “favours” from the enforcement agencies, such as Immigration officers to process their paperwork fast. This is when graft may occur.

They cannot just demand that the enforcement officers do everything and be absolved from their responsibility.

> Integrity has become a buzzword - there are those sceptical of the word or simply don't understand the meaning. How do you define it?

True, some may think it is just a buzzword or an impossible ideal. What is integrity?

It is defined as adherence to moral and ethical principles; soundness of moral character and firmness of mind. It is also the state of being whole, entire, or undiminished, like the Rukun Negara.

It is something that you need in your relationships professionally as well as personally. It is honesty and sincerity, it is central to one's morality. Nobody is an angel, everyone has a weakness.

So it is a question of how we inhibit the negative aspects and encourage the positive aspects of a person so that he or she does not commit any wrong and break the law.

> How will this integrity be instilled?

Training is one aspect that the EAIC is exploring. For now, we have initiated dialogues with the different agencies. There are also various other issues the enforcement agencies might need to look at their selection criteria so that they will recruit only suitable candidates.

We have also recommended that certain persons with certain calibre do certain things because of the responsibility, maturity and knowledge that is needed.

> One of the criticisms against the EAIC when the Act was being drafted was that it is not an independent body. How fair is this statement?

How can you suggest that anything that comes from the Government will not be independent? And how can you attribute to the fact that because we were initiated by the Government that we will not be able to do our functions properly.

> Another criticism is that the commission is toothless as it does not have the power to prosecute.

If we have the power to prosecute, we will be taking the power of the public prosecutor or the MACC. We do not usurp the power of the other agencies. The intention is not to create another “superpower”.

The EAIC complements the existing systems. We also do not want to usurp the existing internal mechanisms or duplicate work that is already done by the other people. For example, the police already have their own internal affairs department.

> With all the allegations against enforcement agencies and their officers reported in the media like the Bersih rallies and deaths in police custody, why hasn't the EAIC started any probes into them?

We are not an enforcement agency, so we don't initiate investigation.

The foundation of any action under the legislation is the receipt of a complaint. We need the aggrieved family or relevant organisations and individuals to come forward and file a complaint.

We also need concrete facts; we don't just take action if people say they are unhappy or dissatisfied or if there are reports in the paper.

The commission also does not deal with complaints of any incidents occurring before the Act came into effect in 2009. We can't entertain something that happened in 1989 or even as recent as 2009. We can only look at incidents that happened concurrent with the year and after the Act was passed.

> Many people don't really know what is good or bad conduct for enforcement officers. One reason is because the SOPs of the enforcement agencies are confidential. How can we raise public awareness on what is right and wrong?

This is an interesting aspect. When the public questions what is right and what is wrong, what do they mean?

When you do certain things, you yourself know what is good conduct and what is bad conduct. It starts with you .

We also need the SOPs to be transparent. We cannot have the whole SOP to be transparent as it would put the enforcement agencies at risk (or affect their work), but the public need to know.

If you are not sure if something is a misconduct that is worthy of a complaint or not, you can check the FAQ on the website or just write to the commission. But you must be willing to follow it to the end, not just whining because you are dissatisfied or sad.

> Why is it important for the public to come forward to the commission about misconduct by enforcement officers?

It starts from them. It is important for us to understand where the enforcement agencies have committed the misconduct so that we can address it. If there is a genuine complaint, the public is invited to write directly to the commission.

* Those who have enquiries or want to file a complaint with the EAIC can call their hotline at 03-8888 6618, e-mail aduan@eaic.gov.my, tweet www.twitter.com/eaic_gov or go to www.facebook.com/eaic.