Teresa Kok

Below is an interesting article written by a SUHAKAM commissioner published in NST today, she analysed the challenges faced by SUHAKAM, the need of ombudsmen for civil service as well as IPCMC. Do you agree with her?

http://www.nst.com.my/Current_News/nst/Thursday/Columns/20060420083835/Article/index_html

What kind of watchdog do we really want?
20 Apr 2006
By: Ranita Hussein
————————————————————————————————————————Debates on creating an ombudsman centre on whether it should be an alternative to the IPCMC and what powers the new body should have. RANITA HUSSEIN offers some pointers.

EVER since the proposal was mooted for the creation of an ombudsman, a debate has raged as to whether the ombudsman should be set up as an alternative body to the Independent Police Complaints and Misconduct Commission (IPCMC) recommended by the Royal Commission of Enquiry.

A pertinent observation made in the debate was that the ombudsman should have “teeth” and not replicate the efforts of existing bodies. In the wings stands the Human Rights Commission (Suhakam), an existing independent body, bearing the label, “no teeth”. What repercussions would the creation of an ombudsman have on Suhakam and vice versa? Indeed, how relevant is Suhakam to the ombudsman debate?

The IPCMC was a significant response to the reports of police abuse and misuse of power by various individuals and organisations to the Royal Commission. One such report came from Suhakam.

In 2004, out of a total of 1,342 complaints lodged by the public to Suhakam, only 721 cases were classified as relating to human rights. The rest were mainly complaints of inefficiency and inaction by government agencies, including the police.

Of the human rights-related complaints against government agencies, the majority involved the Immigration Department and the police. Complaints against the police ran- ged from allegations of abuse of power to police violence to deaths in custody.

At this point , it is instructive to examine further the criticisms levelled against Suha- kam, if only to discover the defects that should not be repeated when establishing the IPCMC or an ombudsman.

Suhakam has been described by Datuk Seri Nazri Aziz, the Minister in the Prime Minister’s Department, as having no teeth, not meant to have teeth, and as being “in a mess”. If indeed it is true that the Government does not intend to give Suhakam “teeth” (and, thereby, power to ensure compliance with its recommendations), one cannot help wondering if any other proposed body, ombudsman or otherwise, would suffer the same “teething” problems.

Where is the “mess” in Suhakam? I see only “challenges” that require confronting.

Every year since its inception in 1999, Suhakam has submitted a report of its activities and recommendations on matters dealt with in the previous years. However, to date, the reports and recommendations have not been debated in Parliament. This is Suhakam’s first challenge. Despite being duty-bound to report to Parliament, its recommendations are not addressed through parliamentary process to benefit the public.

One of the key criteria for an ombudsman is public accountability. It is essential that he be empowered to present reports and engage the parliamentary process to reach the public. Such a procedure serves to ensure that he is independent of the Government, free of political influence and can exercise his lawful mandate without interference.

Another challenge relates to Suhakam’s powers of investigation. The law empowers it to obtain all necessary evidence for the purposes of an inquiry. In practice, however, government agencies are reluctant to release their documents. This delays and compromises the conduct of a comprehensive inquiry.

Any proposed ombudsman must, perforce, have strong powers of investigation, supported by legislation that expressly makes it incumbent on the Government to provide the ombudsman unrestricted access to documents, officials and institutions.

Yet another challenge involves independence and impartiality. All Suhakam commissioners are part-time officials, and a number of the staff are still seconded from the civil service. If an independent body is to be accepted by the public, it needs to be not only credible and independent but also seen to be such. Perhaps the appointment of fewer full-time commissioners for a term of at least five years will ensure security of tenure and continuity of focus. It is time also to aim for staff hired independently of the public service.

The principle of independence is essential to the ombudsman and here I would be wary of any attempt to “upgrade” the Public Complaints Bureau to act as ombudsman, as the bureau is a government department, wholly manned by civil servants.

All of this brings us to the question: What kind of watchdog do we need, a general ombudsman or an IPCMC?

Should the new body take the form of a classical ombudsman to deal with complaints against government maladministration, it would concern itself with those complaints classified as non-human rights complaints by Suhakam. However, it would also completely leave outside the ombudsman’s jurisdiction the more serious police cases of abuse and misuse of powers that are human rights-related and currently dealt with by Suhakam.

On the other hand, should the ombudsman be mandated to include human-rights violations, we would have a redundancy problem, at least in respect of Suhakam’s Complaints and Inquiries Working Group.

In view of the possible interplay between the new and existing bodies, is it not logical to revamp Suhakam in order to resolve its challenges? This would mean a rationalisation of the functions of Suhakam with that of the proposed new body, whatever form or name it would eventually take.

Some countries have seen fit to have not just one but several independent bodies, each specialised in a specific sector, such as the public service or health. In other countries the ombudsman’s portfolio includes not only the police but also human rights. How the ombudsman is shaped depends to a large extent on how formidable the problems are in any particular area of government.

An example in point is the Philippines ombudsman, who is mandated “to serve as the lead agency in the total war against graft and corruption with the ultimate objective of restoring integrity and efficiency in the government service”. His powers include investigation and prosecution.

The complaints against police abuse and misuse of power in Malaysia are serious. If the police are singled out, it is because they have the duty of being the protectors of the people and their actions have an impact on our everyday life and sense of security. The nature of recent public complaints about the police goes deeper than police bashing; it is a cry for security to life.

The question that arises is whether an ombudsman mandated to oversee all government agencies would be capable of dealing with police problems with the same focus and to the same extent as envisaged for the IPCMC.

The optimist in me sees the establishment not only of the IPCMC, but also an ombudsman to oversee maladministration in ministries and other government agencies, and the continuation of Suhakam with its challenges resolved.

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Datuk Ranita Hussein is a Suhakam commissioner and a former judicial commissioner. The opinions expressed above are her own.