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.
Yesterday,
in Kampong Perak in Padang Serai, Kedah, Surendran led a team of PKR
workers to register the stateless and although he found only six people
without identity cards, he said the number sustained his view that the
overall total was closer to his projections than MIC’s.
“It’s
a massive task but what we can collate we will submit for processing by
the registration authorities so that these long suffering captives of
statelessness can reclaim their dignity as citizens,” he said.
Before the rally, I 
They
were there because they see the country moving in the wrong direction
and wanted to make it right. At the very least, the Bersih rally
revealed the shortcomings of the country's leaders in addressing the
concerns of a large, important and increasing number of its citizens.
This
stands in stark contrast to the alternative image based on a more
reactionary nationalism, one in which the threat is defined as the
protesters, ordinary people, who are challenging the status quo. They
were portrayed as attacking the country, first on the police force and
then later the incumbent system as a whole.
This
stems from a deep-seated fear of Opposition Leader Anwar Ibrahim. While
both Pakatan Rakyat and the civil society-led Bersih movement share
some common interests in reform, as do the overwhelming majority of
Malaysians from across the political divide, they are not the same.
Bersih represents a broad social movement that goes beyond opposition
political leaders, and arguably even the Bersih leaders themselves.
Malays,
Chinese, Indians, Kadazans, Ibans and more met each other, shared
laughter, water, sweets, salt... and tears. (The spillover is that it
helps build trust among many opposition supporters who came to the
rally, as well as the middle-ground Malaysians who met die-hard
opposition members for the first time. For PAS in particular, perhaps
the biggest success was its Amal security units, which were seen
protecting rally-goers across races.)
Finally,
the reactionary nationalists appear to be mistakenly ignoring the issue
behind the rally - electoral reform. Polling conducted in late 2011
shows before Bersih 3.0 that only a third of citizens think the
electoral process is fair and free - very much in line with the Umno
hardcore.
Second, it assumes that Najib can control the actors who are carrying out hardline manoeuvres. Already the Umno-linked New Straits Times has been