The initial police reluctance in attending the Suhakam inquiry on the Nov 5 '100,000 People's Gathering' was perplexing. What is afoot?

The police cannot be said to be playing the game of denying the legitimacy of Suhakam. Suhakam is a properly constituted body under the law. On that note alone, police reluctance to cooperate with Suhakam could be easily construed as lawlessness.

The report of testimonies by various witnesses in malaysiakini provided food for thought.

Campaigns in relation to police powers are related to arrests and detention without trial, procedures which are available under several laws including the Internal Security Act. Human rights groups have campaigned extensively for the eradication of these laws which deny the basic right to a free and fair trial.

Very little campaigning by organs of civil society is focused on putting police and internal security forces under a rule of law geared towards democratic governance and respect for human rights. Police abuse may have been documented and still we know little of the workings of the police and its norms in relation to management and governance.

Police and internal security forces are usually placed under 'civilian rule' from the person of the governor-general in colonial times to the elected chief executive of an independent state. The home minister is the civilian chief of police in our case. This civilian chief is somehow to ensure the political neutrality and lawful behaviour of these state apparatuses.

Independence constitutions thus have scant provisions or none on redefining the mission, training and accountability of these security organs.

Gun barrel rule

A report on the Governance of Internal Security Forces in Sub-Saharan Africa (held in Addis Ababa in 1995), by the International Third World Legal Studies Association (Intworlsa) states that leaders of new post-colonial governments had stressed the importance of having a professional police and army at their disposal.

The ability of the security forces to impose political order was said to be of paramount importance in view of the assumed fragility of the new states. Cold war politics reinforced this view. Assistance is given to new states to help strengthen security forces which were perceived as bastions against communist takeovers.

These observations appear to strike a familiar chord. The report also noted that the predatory nature of post-colonial politics, the ambitions of executives to establish their continuing personal rule and the authoritarian impulses of political elites in power contributed to the establishment of many, increasingly despotic, civilian regimes usually commanded by powerful chief executives under the aegis of de jure or de facto one-party rule. Police and internal security forces proved essential to this political and constitutional transition.

The reports of the participating African countries in the Intworlsa project concluded that by the mid-70s, most of Africa was ruled by the barrel of a gun. The weakness or complicity of legislative and judicial bodies and the repression of civil society facilitated this trend.

New studies, whether of the Third World or elsewhere, point out the need to put the police under effective democratic and not just civilian control. In essence this means that policing must concede to human rights standards and be made accountable to judicial processes and non-partisan independent bodies like Suhakam and/or an ombudsman.

Police and internal security forces generally have powers of secret surveillance, the use of force against citizens, detention and interrogation, arrest, search, seizure and imprisonment.

When police powers come under judicial scrutiny, it largely covers powers of arrest and detention. There is a tendency for the courts not to question the validity of any Act of Parliament granting powers to police and security forces as long as the requisite majority is secured in Parliament for the passage of the law in question.

Strait-laced decisions such as these will consequently uphold any amendment to laws granting executive and police powers at the expense of our civil liberties. We have succumbed to the tyranny of parliament, even if the Proclamation of Independence of March 31, 1957 plaintively calls for parliamentary democracy.*

Judicial standards merely fall in line. There is no appeal to morals or universal standards or universal principles of justice as a frame of reference.

Courts are especially shy of investigating 'reasons of national security'. Is this a relic of our colonial past to be used with impunity? Is national security to be preserved at the cost of democratic constitutionalism?

The constitutional goals of a state rest on the rule of law. The paramount constitutional goals are the promotion of human development, universal rights and democratic institution and processes. Every officer and organ of state must be obligated first and foremost to respect and protect the constitutional order establishing these goals.

Holistic approach

If we value these goals, then there is a need to transform existing police institutional cultures and traditions to reconcile the orientation and values of security personnel with the more humane concepts of human rights and a free society.

The goals of national security for example should be understood to incorporate due regard for the dignity and rights of peoples rather than the attainment of the security of the government of the day at all costs. This is more consistent with ideas of popular sovereignty as providing justification and rationale of the state.

Rights necessary for political dissent and an active civil society should be part and parcel of the concept of national security to be protected by the police in a well-governed independent nation state. We must move away from that transitional state of the post-colonial period where members of civil society including students, intellectuals and politicians all became 'enemies' of the state.

Police have a critical role in creating conditions essential for human development and democratisation. A police force under the rule of law means effective security for persons and property, the alleviation of communal tensions, the promotion of effective political participation including facilitation of public assemblies and administration of fair elections. These are concerns both of the state and civil society.

The decision by Suhakam to investigate the complaints of civil society against police is momentous in our political and legal history. Unlike the courts, Suhakam is not limited to the narrow confines of decision-making on the facts as presented in the case. It has a human rights mandate. It has to advise the state on a more holistic approach to human rights abuses.

* And whereas by the Federal Constitution aforesaid provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and the fundamental rights and liberties of the people and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a constitutional monarch based on Parliamentary democracy. - paragraph eight of the Proclamation of Independence, 1957.