In typical Malaysian style, there is a wayang kulit (shadow play) in process as a Minister in the Prime Minister\’s Department takes on the role of \’plot-maker\’ in the issue of the Ombudsman, the proposed police watchdog body and the Public Complaints Bureau (PCB).

One day, the Royal Police Commission Report is good enough for the King, the cabinet and Parliament. The next day, the police chief unilaterally turns down selected recommendations. Why? How?

If Parliament has endorsed the commission\’s report, how can the Inspector-General of Police (IGP) \”refuse to accept some of its recommendations\”? Are we not a constitutional state operating under the rule of law and the governance of the legislature, judiciary and executive?

How then could the IGP unilaterally turn down something the cabinet has agreed upon, even if the entire and \”badly corrupt\” police force supports him? If the IGP is really serious about his stand, I think he should resign as a matter of professional disagreement with the Parliament (the legislature) and executive (the cabinet), since he only serves at the pleasure of the King. The police force is a Royal force and not a half-baked morality enforcement agency. It is the premier criminal law enforcement agency under the Federal Constitution.

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This is precisely why I view the arbitrary enforcement of the tudung (headscarf) rule in the guise of discipline as ultra vires the constitution and an extra-judicial violation. In fact, as Radzuan Halim pointed out in The Sun (April 20 2006), changes to the dress code can only be made with the approval of the King, as stated in the Police (Dress) Regulations 1954. And the King will not agree unless the policy is approved by the cabinet and is submitted on the advice of the prime minister.

How can the cabinet approve this ruling without tabling a relevant policy paper? If there is any such document, why is the rest of the cabinet unaware of it? And how could the cabinet of multiracial Malaysia agree to such a ruling, when it had made a precise ruling against a similar matter related to the dress code at the International Islamic University?

The deputy internal security minister has clarified in Parliament that the tudung ruling cannot be enforced based on an earlier cabinet ruling on a similar matter. How then can the IGP, who is appointed by the government to head law enforcement, violate the law himself? Is this rule by law rather than rule of law as required under the federal civil legal system?

Difference in role

One could easily argue that getting rid of endemic corruption within and outside the police force and public service needs more than ceremonial discipline and external forms of religiosity. Frankly, I believe that such decisions are made because the male ego needs to cow female police officers into accepting its conviction by sheer force.

Technically and theoretically speaking, the IGP could be a non-Muslim and non-Malay. Similarly, the whole police force could be made up of Ibans from Sarawak or Kadazans from Sabah and they may not be Muslims either.

The Malaysian Rangers and their classic and famous role in the May 13th incident and enforcement of security in Kampung Baru provides ample reminder of the danger of unbridled emotional interpretation of rules in the affairs of the public service and enforcement agencies.

Now back to the necessity for, and the role of, an Ombudsman in Malaysia. The Ombudsman, as an institution, is very much needed especially in a multiracial country like Malaysia with a dual system of administration – federal civil law and state-enacted Syariah law.

I believe that the Special Committee on Integrity set up by Parliament recently and whose first round of hearings were recently completed would bear testimony to the kind, range and quality of the types of complaints against the public services in general. I attended two such hearings and heard much of the feedback and core issues raised.

But to rationalise the Ombudsman as simply an upgraded public complaints bureau is not just an insult to the institution and the concept, but may also reveal lack of understanding and true appreciation of its role and functions.

The Ombudsman must report only to Parliament and is appointed for a fixed period of time and must be given authority to resolve issues. It should focus especially on issues that fall outside the current laws and regulations. It is more than an operational PCB which only operates like a postman for complaints.

The Ombudsman must be responsible for \”resolving real and serious issues which may fall between the cracks of the traditional jurisdictions of the legislature, the executive and the judiciary\”. The PCB should remain in its focused role in complaints monitoring and speedy resolution under current laws and regulations.

The Ombudsman must be viewed as a new role and responsibility for cross-jurisdictional issues related to citizens that need resolution. It must remain an integral part of the legislature but focused to resolve issues which defy definition between the currently defined functions and jurisdictions of good governance.

Case in point

Let me state a case in point, which I explained more extensively to the Parliamentary Select Committee on Integrity on Feb 13. After having served the public service for more than 31years, I tabled my sad conclusion that \”the public service of Malaysia may have lost its moral integrity and leadership as a neutral policy advisor to the government\”. This is a very serious statement if we understand and appreciate the role and functions of a policy advisor.

My contention was that the public service has lost the competence and legitimacy to assume the role of the traditional policy advisor, as portrayed in the Yes, Minister TV series. Public policy advisors technically present at least two, if not three, options regarding the specific way to resolve any policy issue or problem. My contention is that the public service is today only involved in evaluating the options for implementation and less so in presenting different policy options for the cabinet\’s consideration.

A PCB cannot deal with such an issue. You would need the Ombudsman\’s services to study the issue thoroughly, consider it and benchmark it against good practice elsewhere before recommending a solution to Parliament, as the ultimate seat of the government in power. Parliament must then seek to resolve the issue, whether through the judiciary, executive or through the legislature itself.

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Take another recent controversy about the alleged poor performance of some judges. This is also a serious matter. Only the Ombudsman can review and reconsider if in fact seniority and not just skills and competence are matters for consideration in judicial promotions.

We could even consider the case of the late army commando M Moorthy\’s widow and her lack of legal recourse over his conversion to Islam as a non-technical legal issue for the judiciary to resolve per se, but also as the result of poor design and development of the different policy considerations at the point of reframing Article 121 (1A) of the Federal Constitution.

Today, there appears to be a fundamental difference in interpretation between the drafters (then Attorney-General Abu Talib Othman and prime minister Dr Mahathir Mohamad) and their intentions in redrafting the provision, and the learned judges regarding interpretation and enforcement via judgments based on the amended article. Moorthy\’s widow is merely a victim of the lack of due process and resultant poor inter-jurisdictional governance.

Any conflict and confusion arising from wrong interpretation of the constitution and the resultant \’reverse takeover\’ by Syariah law through various state enactments are all matters of poor jurisdictional separation of powers between the three arms of governance within the context of the original social and legal contracts facilitated by both the Reid and Cobalt Commissions.

These are all matters today that fall outside the ambits of existing governance. Any developed nation must provide due recourse for such issues and complaints of a general and substantive nature in a legal arena outside the jurisdiction of the existing arms of governance.

The Ombudsman\’s Office should be duly created to address all such issues of a general nature, although it will not consider complaints about either the police in operational matters or any other specific arm of the public service.

The Ombudsman is a very serious institution and can have a very credible role. It is hoped, however, that the legal dimension and the rule of law principle will become the basis of its creation. This is especially to avoid abuse of the rule by law, which happens so frequently in our still developing nation.

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As argued by Johor Bahru MP Shahrir Samad in Parliament recently, we have to work hard to \”restore Parliament\’s integrity and independence\” as the seat of power between elections.

\”How can we ask for integrity in others when we ourselves do not have integrity?\” he had asked.

It is my firm belief that parliamentary integrity would be greatly improved if the special committee on integrity is slowly but surely made a permanent feature through the Office of the Ombudsman.