Is the EAIC constitutional?

WHEN our Federal Constitution was promulgated in 1957, Part X was designed to deal with public services. Under Article 132, seven areas of public services were identified: 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.

From Jan 1, 1974, the education service was added, and from May 15, 1981, the railway service was excluded. Due to their special position within the Constitution, each of these areas of public service is supervised by a council or commission.

Hence Article 137 of the Federal Constitution establishes the Armed Forces Council, Article 138 the Judicial and Legal Service Commission, Article 139 the Public Services Commission, Article 140 the Police Force Commission, Article 141 the (now repealed) Railway Service Commission, and Article 141A the Education Service Commission.

Thus when we turn to the issue of the Enforcement Agencies Integrity Commission (EAIC) Bill 2009 which was passed by the Dewan Rakyat on July 1 (but which has yet to be passed by the Dewan Negara), several constitutional issues should be noted.

1. The police are different from other enforcement agencies

The EAIC deals with 21 law enforcement agencies. The government has indicated that it would be unfair to single out the police force when there are other enforcement agencies.

However, it is the Federal Constitution which singles out the police force. All the other 20 enforcement agencies come within the purview of the Public Services Commission.

So while it may be acceptable for the other 20 to have a special commission dedicated to the promotion of their integrity, I believe that it is ultra vires the structure and scheme of the Constitution to mix the police force, which comes under the Police Force Commission, with agencies which come under another commission.

Article 144 sets out the overall functions of the various commissions. Article 144(1) reads:

Subject to the provisions of any existing law and to the provisions of this constitution, it shall be the duty of a commission to which this part applies to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control over members of the service or services to which its jurisdiction extends.

Note from Article 144(1) the fact that disciplinary control is exercised “over members of the service or services to which its 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. This distinction is perhaps violated in the EAIC, where one body, the EAIC, has jurisdiction over 20 other agencies and the police force. What the Federal Constitution has seen fit to rend asunder, no government should join together.

2. The Police Force Commission or an Independent Police Complaints and Misconduct Commission (IPCMC) can exist alongside the Attorney-General

The power to discipline members of the police force was given to the Police Force Commission by Article 140 which at the same time established the office of the Attorney-General under Article 145.

The framers of the Federal Constitution saw no problem with enabling the Police Force Commission to carry out investigations, to hold quasi-judicial proceedings and to pronounce judgment on a member of the police force for any breach of discipline. They did not hold the grant of this power as having usurped the power of the Attorney-General in any way whatsoever to decide on prosecutions.

The Police Force Commission is permitted to perform the role of investigator, judge, jury and executioner. The same is true of the Armed Forces Council, which is empowered to investigate and carry out courts-martial, and to impose punishments pursuant to the codes of military justice.

The argument raised by the Minister in the Prime Minister’s Department in charge of law that the government could not proceed with the establishment of the IPCMC because it would be too powerful, “judge, jury and executioner”, is therefore erroneous.

3. The Federal Constitution provides for delegation, but only for full delegation

In setting up the Police Force Commission, Article 140(1) provided that the jurisdiction of the Commission “shall extend to all persons who are members of the police force and which shall be responsible for the appointment, confirmation, emplacement on the permanent or pensionable establishment, promotion, transfer and exercise of disciplinary control over members of the police force.”

However, Article 140(1) contains what is known as a proviso which reads:

Provided that Parliament may by law provide for the exercise of such disciplinary control over all or any of the members of the police force in such manner and by such authority as may be provided in that law, and 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.

To my mind, what this means is that the powers of the Police Force Commission in the “exercise of disciplinary control over members of the police force” can be fully delegated to a body like the IPCMC.

This is obvious; the Royal Commission on the Police, headed as it was by a retired Chief Justice, would not have recommended the IPCMC if it was unconstitutional. 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 not both.

So the government’s contention that the EAIC is not simply a mailbox but has the power to investigate complaints and hold inquiries (which is part of the disciplinary process), but that ultimately it will be for the police force to decide what disciplinary action to carry out on its members, appears to divide up the disciplinary process.

This does not appear to be permitted by the Constitution. The possible constitutional deficiencies surrounding the establishment of the EAIC do not appear to have been fully discussed in the rushed-through debate in the Dewan Rakyat.

As the EAIC Bill makes its way to the Dewan Negara, our senators should ensure that the establishment and operation of the EAIC will indeed be in line with the Federal Constitution. It would be an embarrassment for the government if the EAIC is subsequently challenged for its constitutionality.

However, what would be more acceptable would be to withdraw the EAIC Bill in favour of the creation of the IPCMC. It is a test both of constitutionality and political will.

Andrew Khoo is the co-Chairperson of the Human Rights Committee, Bar Council Malaysia.

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Posted on 6 July 2009. You can follow any responses to this entry through the RSS 2.0.

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