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EAIC hamstrung by lack of power

PETALING JAYA, 17 March 2009: The proposed Enforcement Agency Integrity Commission (EAIC) is a stronger body than the Malaysian Human Rights Commission (Suhakam), but could suffer from irrelevancy just like the latter.

This is because it still lacks the independence that is necessary for its role as investigator of misconduct and abuse to be taken seriously, cautioned Suhakam commissioner Datuk Dr Denison Jayasooria. Like Suhakam, the EAIC can only investigate and recommend action against errant officers to the enforcement agencies’ respective disciplinary boards.

Denison said in his experience at Suhakam, the commission’s findings and requests for disciplinary action were usually ignored.

“Suhakam’s annual report has also never been discussed in Parliament, and therefore accountability to Parliament is nonexistent. Will the EAIC suffer the same fate as Suhakam, which has the power to undertake an inquiry and make recommendations, but is ineffective in ensuring that violators are brought to book?” he wrote in a personal statement to The Nut Graph.

Denison was also a member of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police Force, and contributed to the proposal for an Independent Police Complaints and Misconduct Commission (IPCMC).

He said the proposed IPCMC, which preceded the EAIC, allowed for action to be taken directly against guilty officers, thus bypassing the disciplinary boards of the respective agencies, and even the public prosecutor.

The EAIC Bill was tabled in Parliament recently and was immediately criticised by human rights groups and the Bar Council for being a “toothless tiger” due to its watered-down powers compared with the IPCMC. The Bill covers police and agencies like the immigration, customs and road transport departments, as well as the People’s Volunteer Corps (Rela).

The EIAC is able to investigate them and refer them to the appropriate disciplinary authorities, MACC or the Attorney-General for action.

No mandatory action

Denison said the EAIC Bill incorporates most of the IPCMC’s major points. But he noted certain weaknesses similar to those that he has encountered in Suhakam.

For one, the EAIC requires enforcement agencies to respond to the commission’s findings on a case within 14 days, which Denison considers too short a period for the agencies to implement any meaningful action.

While it compels the agencies to take some sort of action and report back to the EAIC, the follow-up process is unclear.

He said the EAIC Bill has no provision to compel an agency to follow the commission’s recommended action.

To prevent delays, he suggested that a Parliamentary Select Committee be formed to track the response of agencies under the EAIC’s purview.

“Having a parliamentary accountability process will compel the ministers responsible for the 21 agencies to be answerable to Parliament on how they respond to the EAIC findings and recommendations,” Denison said.

Improve EAIC appointments

Another weakness is the lack of specific criteria in the appointments of EAIC members. There is nothing to state what sort of expertise the commissioners should have, nor is there a provision to ensure that all commissioners are full-time positions, said Denison.

EAIC members should also be full-time, unlike Suhakam members who are part-time and open to allegations of conflict of interest.

“Critics of Suhakam have indicated that in a number of cases, involvement of certain commissioners in their other capacities might be regarded as a conflict of interest,” Denison noted. Besides his Suhakam duties, he is also Principal Fellow at Universiti Kebangsaan Malaysia’s Institute of Ethnic Studies.

He also suggested that the EAIC Bill stipulate the appointment process for its commissioners.

“Major stakeholders including civil society [should be consulted] before the prime minister makes his recommendations to the king. This is a very important dimension to ensure that EAIC commissioners will fulfill their duties without fear or favour as the credibility of the commission is largely dependent on who is appointed.”

The EAIC’s members are to be appointed by the Yang Di-Pertuan Agong on the advice of the prime minister.

Plus points of the EAIC

On the plus side, the EAIC is one up over the SCC for stipulating that no person who is or has been an enforcement officer will be appointed as a commissioner. They can, however, be employed as a staff of the commission.

Under the SCC, the Inspector-General of Police would have automatically been among the commission members, hence raising questions about its neutrality and impartiality.

As for the EAIC’s powers of investigation, Denison said they are largely identical in description with the IPCMC. “The recommendations of the Royal Commission are intact on this matter,” he said.

These include the power to conduct a hearing, receive evidence, summon any person, issue arrest warrants, and conduct searches with and without warrants.

The EAIC’s Task Force will also have investigation powers stipulated in the Criminal Procedure Code, which are wide-ranging. The stiff penalties for non-compliance with EAIC investigations, such as fines of up to RM10,000 or jail for withholding information, should strengthen its role, Denison said.

The major difference in functions is that the IPCMC has a strong emphasis on corruption, whereas the EAIC defers corruption cases to the Malaysian Anti-Corruption Commission (MACC).

What now, Suhakam?

The EAIC’s debut should force a rethink of Suhakam’s role, as both commissions overlap in investigating areas of human rights abuse. This is especially in relation to violations by the police and Rela, which will now be handled by EAIC.

Denison said in the light of this, the government should review Suhakam’s roles and functions. The human rights commission should be further strengthened with provisions to ensure that the agencies under its investigation respond with concrete action within a reasonable time frame, he said.

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