Police Powers (Police Act 1967)

Police Powers

One of the main functions of a police officer is to ensure that peace is preserved. They are legally appointed persons who are given the special duty of preserving peace. The main statute that regulates their powers is the Police Act 1967. Although every citizen has the power to arrest without a warrant and to use reasonable force in the prevention of crime, the police are the specialists. The Act is divided into 3 aspects, namely, police powers, where police officers have powers to ensure that the public obeys the law; control of the police powers, to prevent an abuse of powers by police officers; and consequences of acting beyond powers, to punish police officers who have breached their duty.

General powers

s.19 -Every police officer is always on duty when required to act and shall perform the duties and exercise the powers granted to him under this Act or by any law in Malaysia. For example, if a police officer is off duty, and sees a robbery taking place. The officer is under a duty to stop such robbery.

s.20(1) - Every police officer shall perform such duties and exercise such powers imposed by law or conferred upon a police officer, and shall obey all lawful directions given by any superior. For example, if the superior orders his subordinate to head to the crime scene even when he is off duty, the police officer must obey.

s.20(2) - A police officer is subjected to the orders and directions of any police officer to whom he is directly subordinate and if the superior feels that he himself has a duty to perform the order, then the superior would have to perform such duty.

s.20(3) – Under this  section, more examples of duties of a police officer are provided but it does not affect the previous sections mentioned. Examples include apprehending all persons whom he is by law authorized to apprehend, conducting prosecutions, giving assistance in the protection of life and property, protecting public property from loss or injury and so on.

s.20(4) – A police officer is deemed to be a prison officer when he is escorting and guarding prisoners and other persons in the custody of the police.

Specific Powers

s.21 – Duty on Public Roads

s.21(1) The police officers have the duty to:

 (a) regulate, control and divert any traffic;

(b) to keep order on public roads, streets, thoroughfares and landing places, and at other places of public resort and places to which the public have access; and

(c) to prevent obstruction on the occasions of assemblies and processions on public roads and streets, and in any case, when any road, street, thoroughfare, landing place or ferry may be thronged or liable to be obstructed.

s.21(2) – Any person who obstructs, opposes or disobeys any reasonable direction given by any police officer in the performance of his duties under this section is guilty of an offence and liable on conviction to a fine up to RM 200 or imprisonment for a term up to three months or both.

s.21(3) – Any person who commits an offence under this section may be arrested without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him

s.24 – Power to inspect licences, vehicles, etc

s.24(1)(a) – Any police officer may stop and detain any person; (i) whom he sees is doing any act or who is in possession of anything; or (ii) whom he has reasonable grounds for suspecting is doing any act or is in possession of anything; for which a licence, permit or authority is required under any law.

s.24(1)(b) – Any police officer may stop and search without warrant any vehicle or vessel which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force, provided such vehicle or vessel, subjected to s.24(4), may not be detained longer than is reasonably necessary to complete such search.

s.24(2) – Any person who fails to produce a licence, permit or authority when required under ss.1(a) may be arrested without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.

s.24(3) – Any person who fails to obey any reasonable signal of a police officer to stop any vehicle or vessel or obstructs the police officer in performing his duty, shall be guilty of an offence under this Act and any police officer may without warrant arrest such person unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.

s.24(4) – Any police officer may cause any vehicle or vessel, which he has reasonable grounds to suspect has been used in the commission of any offence against any law or to be the evidence of such commission of an offence to be moved to the nearest Police District headquarters or other convenient place. The Officer in Charge of such Police District (OCPD) may detain such vehicle or vessel pending enquires for not more than 48 hours. However, if there are commenced proceedings in respect of any such offence in which the vehicle or vessel is liable to forfeiture under any law or may be used for evidence, the OCPD may detain until the end of those proceedings.

The OCPD may direct the release of any such vehicle or vessel if he is satisfied that the owner of such vehicle or vessel will duly produce such vehicle or vessel before court when required and may require such owner to execute a bond or deposit such security as deemed reasonable.

s.27 – Powers to control any assembly, meeting or procession.

s.27(1) – Any OCPD or police officer may direct the conduct in public places in such Police District of all assemblies, meetings and processions, whether of persons or of vehicles and may prescribe the route by, and the time at, which such assemblies or meetings may be held or such procession may pass.

s.27(2) – Any person intending to convene or collect any assembly or meeting or to form a procession in any public place has to apply a licence from the OCPD. The OCPD will grant the licence if he is satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or to excite a disturbance of the peace. The licence will specify the name of the licensee and define the conditions upon which such assembly, meeting or procession is permitted.

The OCPD may, at any time on any ground for which the issue of a licence under this subsection may be refused, cancel such licence.

(2A) – An application for a licence shall be made by an organization or jointly by three individuals.

(2B) – Where the application is made jointly by three individuals, the police officer may refuse the application if he is satisfied that such assembly, meeting or procession is in actual fact intended to be convened, collected or formed by an organization.

(2C) – Where an application is made jointly by three individuals, the police officer shall specify in the licence the names of those persons as licensees.

(2D) – No licence shall be issues on the application of an organization which is not registered or recognized under any Malaysian law.

s.27(3) – Any police officer may stop any assembly, meeting or procession where a licence has not been issued or has been cancelled under ss.(2) or which contravenes any of the conditions of any licence. Any such police officer may order the persons comprising such assembly, meeting or procession to disperse.

s.27(4) – Any person who disobeys any order given under ss.(1) and ss.(3) shall be guilty of an offence.

(4A) – Where any condition of a licence issued under ss.(2) is contravened, the licensees shall be guilty of an offence.

s.27(5) – Any assembly meeting or procession which takes place without a licence issued under ss.(2) or in which three or more persons taking part neglect or refuse to obey any order given under ss.(1) and ss.(3) shall be deemed to be an unlawful assembly. All persons attending, found at or taking part in such assembly, meeting or procession, shall be guilty of an offence.

(5A) – In any prosecution for an offence under ss.(5), it is not a defence that the person charged did not know that the assembly, meeting or procession was an unlawful assembly or did not know the facts or circumstances which made it an unlawful assembly.

(5B) – In any prosecution for an offence under ss.(5), it shall be a defence that the presence of the person charged came about through innocent circumstances and he had no intention to be associated with the assembly, meeting or procession.

(5C) – Every member of the governing body of the organization is deemed to have taken part or been concerned in convening, collecting or directing the assembly, meeting or procession unless he proves that he did not know nor had any reason to suspect that the assembly, meeting or procession was going to take place or, if he knew or had reason to believe as aforesaid, he had taken all reasonable steps to prevent the assembly, meeting or procession from taking place or, if it was not reasonably within his power to so prevent, he had publicly objected to or dissociated himself from the convening, collecting or directing the assembly, meeting or procession.

s.27(6) – Any police officer may arrest without warrant any person reasonably suspected of committing any offence under this section.

s.27(7) – Any person aggrieved by the refusal of the OCPD to issue a licence may within 48 hours appeal in writing to the Commissioner or Chief Police Officer (CPO) and the decision of the said Commissioner or CPO is final.

s.27(8) – Any person guilty of an offence under this section shall be liable on conviction to a fine of not less than RM 2,000, not exceeding RM 10,000 and a term of imprisonment for up to 1 year.

(8A) – s. 173A and 294 of the CPC shall not apply in respect of an offence under this section.

Control of Police Powers

Police officers are subjected to the ordinary laws of the land and also a certain extent of judicial control. Under the Act, there are 2 main offences which are desertion and mutiny.

s.86(1)- Any police officer who absents himself from duty without a reasonable cause for at least 21 days consecutively or shows that he has no intention of returning to his duty shall be deemed to have deserted, and shall be guilty of an offence and liable on conviction to imprisonment not exceeding 12 months.

s.86(2) – The Disciplinary Authority may direct that all arrears of pay due to a person who has been convicted under this section to be forfeited.

s.86(3) – ‘police officer’ includes an extra police officer, a member of the Police Reserve and Police Volunteer Reserve and any other member of the police force in Malaysia.

s.87 – Any police officer who causes, incites, or joins in any mutiny or disaffection in the Force or conspires with any other person to cause such mutiny or disaffection, or having knowledge of any mutiny or disaffection or intended mutiny or disaffection, does not, without delay, give information to any superior police officer shall be guilty of an offence and liable on conviction to imprisonment for up to 5 years.

Consequences of Breaching Powers

s.74 and s.96 state that the YDPA has discretionary powers to make regulations with reference to police discipline and it can be inconsistent with the Act itself.

s.97 allows the Inspector-General to issue Standing Orders for the general control, direction and information of the Force and of all bodies established or raised for police duties under this Act.

s.75 – All fines imposed by or under the Disciplinary Authority for offences against discipline shall be recovered by stoppage of pay, less allowances and trade pay, due, or become due, to the offender. Such stoppage does not exceed 1/7 of the monthly pay, less allowances and trade pay of the offender. If more than one order of stoppage of pay is in force at one time against the offender, his pay shall only be stopped as to leave him with at least ¾ of such pay, not including allowances and trade pay.

s.76 – No pay or allowance, including trade pay shall accrue to any police officer during the period which he was absent from duty without good cause or leave, or is undergoing any sentence of imprisonment provided that the Disciplinary Authority may authorize the payment of such pay, allowances and trade pay up to one half.

s.94 – Any person guilty of an offence under this Act for which no other penalty is prescribed is liable to a fine of up to RM 500 or to imprisonment for up to 6 months or both.

s.78(1) – If there are any complaints, then the Disciplinary Authority may interdict the police officer pending the investigations and enquiry into his conduct.

s.78(2) – The powers, privileges and benefits of a police officer shall be in abeyance during his interdiction provided that he will continue to have the same privileges or ranking prior to the interdiction.

s.78(3) – During interdiction, the police officer must be paid but only half of his normal pay unless the Disciplinary Authority wants to pay more than half. If the officer is not guilty, the he must be paid in full even for his time in interdiction.

s.79(1) - A Committee of Enquiry may be convened  by a Commanding Officer to enquire into the death or injury of any police officer or into the loss or damage to any property entrusted to or lawfully in the possession of the Force.

s.79(2) – A Committee of Enquiry is empowered to make findings and recommendations as follows:

(a) whether the deceased or injured person was on duty at the time of such death or injury;

(b) whether the death or injury was directly attributable to the nature of the duty on which the deceased or injured person was engaged;

(c) whether the death or injury was due to the default of the deceased or injured person;

(d) whether a pension, gratuity or allowance should be paid in accordance with the provisions of rules under this Act or any other law.

(e) whether any action is necessary to prevent the future occurrence of similar death or injury to other police officers.

s.79(3) – A Committee of Enquiry shall make findings and recommendations to the Commanding Officer as follows:

(a) estimated cost of loss or damage;

(b) individual responsibility for such loss or damage;

(c) action necessary to prevent the future occurrence of similar loss or damage;

(d) the manner in which the cost of such loss or damage may be recovered or made good to the lawful owner of such property.

Electoral System (7 types)

Elections are a crucial part of Malaysian constitutional law, because they provide the basis of Malaysia’s claim to have parliamentary democracy and representative government, although the government has been the same since Merdeka. To ensure proper representation, there has to be a proper electoral system. The current electoral system practised in Malaysia is First Past The Post (FPTP) system.

Majoritarian Systems – Who wins the majority wins the seats

1. First Past The Post

2. Alternative Vote System

3. Supplementary Vote System

Proportional Systems (fairest) – Every vote the party obtains is considered before deciding on the number of seats each party gets

1. Single Transferrable Vote System

2. Party List System

Hybrid Systems – Combines Majoritarian system and Proportional system

1. Additional Member System

2. A.V. Plus System

First Past The Post (FPTP) System/ Simple Majority System

            Under this system, the candidate who gains the highest number of votes in the election wins the seat in his or her constituency, irrespective of the proportion of votes cast for himself or his opponents. For example, if the votes cast for individual candidates at an election are John 3,200, Mark 2,800 and Brown 2,400, John still wins the election although 5,200 or 70% voted for other candidates. The party that wins the majority number of seats is the party that wins the election, and that party will form the government.

Advantages

- It is the simplest to understand, to operate, to use, and to count votes. The voters only choose whichever party they want and the results can be obtained very quickly.

- Each constituency is represented by a Member of Parliament. It is good because the constituents will know who their representative is.

- There is a link between the MP and the constituent. There will only be one MP in the constituency, thus, the constituent will know which MP to turn to whenever there is a problem.

- This system encourages a strong and stable government. Why is this so? The biggest party during the election will normally have the support of more people compared to smaller parties. Hence, more members, stronger campaigning powers and advertising powers. In every constituency, the stronger party will win the seat even though there may be massive support for the opposition

- No coalition government will be formed. It means that the government will be more accountable as they cannot blame any minority parties for bad decisions.

- Party strongholds. There will be strongholds all over the country, meaning that the constituencies will always be won by the ruling party as they have the support of the majority even if they made bad decisions, possibly due to better candidates. The opposition might have strong support, but insufficient to topple the bigger party

Disadvantages

- The system is not proportionate. It lacks the concept of proportional representation. It means that the number of seats which a party obtains in Parliament is not proportional to the actual number of votes gained. This is because under the system, the winner takes it all.

- There are many wasted votes. The total number of votes cast will not be taken into account when it comes to the allocation of seats in Parliament. For example, in UK, John (Conservative Party) gets 8,000 votes, Brian (Labour Party) gets 7,000 votes and Sarah (Liberal Party) gets 5,000 votes, the winning candidate will still be John even if his total number of votes is lower than that of the other two parties combined. In the 1997 UK elections, Labour Party won 44.4% of total votes but they gained 419 out of 659 seats, which means that more than 50% of the seats. This shows that the amount of votes wasted is huge.

- FPTP does not require the candidate to obtain the majority of votes. It does not follow the principle of “1 man, 1 vote, 1 value”. As a whole, sometimes the ruling party might not even have half the seats in Parliament.

- This system translates a small number of votes into a big number of seats. In the 1983 UK elections, Labour Party won 27% of total votes, while the SDP-Liberal Alliance won 25% of total votes. However, Labour controlled 33% of the seats while SDP-Liberal only won 3.5% of seats. This shows that Labour won slightly more votes yet they obtained much more seats.

- The government sometimes becomes too strong and too stable. They will end up dominating the Parliament and they will pass laws as they wish.

Alternative Vote System and Supplementary Vote System

-Both systems are similar to FPTP as they are all Majoritarian systems. There will still be constituencies and in each constituency, there will only be one Member of Parliament. The candidate who wins the majority of votes in the constituency will still win the seat.

AVS

-The main difference between AVS and FPTP is that voting is done according to preference.

- To win the election, the candidate must have at least obtained 50% of first preference votes. In other words, 50% of voters must put him as number 1 to become an MP. The voter marks his ballot paper with preferences expressed in numerical order. The candidate who gets the lowest first preference votes will be redistributed in accordance with that candidate’s supporters’ second preferences. This process is continued until one candidate achieves an overall majority of votes.

- The disadvantage is that some people only have one preference. It also takes more time to calculate the votes

SVS

- It is very similar to AVS

- The only difference is that the voter’s choice is only 1^st and 2^nd preference, instead of ranking all the candidates. If nobody reaches 50%, then votes cast for all candidates other than the top two are redistributed between the two top candidates until a clear winner emerges.

-The advantages and disadvantages are similar to the FPTP system.

Proportional Representation System

-Proportional Representation simply refers to an electoral system in which parties gain seats in proportion to the number of votes cast for them. The percentage of total votes is proportional to the total number of seats. For example, 25% of votes will result in 25% of total seats. There are two types of proportional representation, i.e. the Single Transferrable Vote System and the Party List System

STV

- Under this system, multi-member constituencies between 5 to 7 members are required. Voters list the candidates in order of preference. The principle used in vote counting is that the candidate only needs a certain number or quota of votes to be elected and any votes he receives beyond this figure are surplus. Once the candidate has received the quota necessary to secure his election, the surplus votes are redistributed among other candidates according to 2^nd preferences.

Party List System

Under this system, each party is allowed to put up a list of candidates equal to the number of seats to be filled. The voters vote for a party rather than an individual. The voters will see a list of all candidates for a particular party and vote for the list as a whole. Seats are allocated in proportion to the votes cast. For instance, the total number of votes polled by each party is then divided by the quota. Suppose the quota is 10,000 and a particular party list gets 50,000 votes. The first 5 names of the list are declared elected.

Advantages

- Every vote has a value, there will no longer be wasted votes; “1 man, 1 vote, 1 value”. Every vote has an equal value because there are no more constituencies under this system. The ruling party will become weaker as there are no more burnt votes

- Provides a better check on the Executive in Parliament, thus, ministerial responsibility will be upheld. When there are more opposition MPs in Parliament, everything becomes more effective.

- Easy for illiterates to vote, as they only vote based on the logo of the party.

- Vote calculation can easily be done

- Minorities will be represented fairly in the Parliament

Disadvantages

- There are no constituencies under the Party List. It destroys links between the MP and the constituents. If any problem arises, constituents will not know who to go to since no MP represents them.

- Under the Party List, the government formed may end up too weak, too unstable and cannot rule. Therefore, they may have to form a coalition government. France uses Party List and after every election a coalition government is formed. The parties there are matured enough politically to rule together. However, such system is unlikely to work in Malaysia

- Difficulty in drawing the list. It is hard to decide on who should be the 1^st, 2^nd, 3^rd and etc. It may end up having a system where the leader of the party has the say on who should be the MP

- Voters cannot choose which candidates they want to vote for

Hybrid system

- Basically, it is the combination of one majoritarian system and one proportional system. Under the system, each voter will now have 2 votes. There are two main hybrid systems; Additional Member System (AMS) and A.V. Plus system

AMS

-AMS is the combination of FPTP and Party List system. Each voter would have two votes; one for the candidate in the constituency and another for the party of his choice on a regional basis. An equal amount of seats for constituency and Party List is put up. Whichever party with the most seats after combining the systems will become the ruling party. To illustrate, Jack votes for Bala from BN, voting by constituency and at the same time, he votes for DAP, voting by party. BN won 80 seats from constituencies and got 40% of votes (50 seats) for Party List. They become the ruling party with a majority of 130 seats.

A.V. Plus

-This system is very similar to the AMS. It was first proposed by a special commission formed in UK. Lord Jenkins proposed that AV Plus, a combination of AVS and Party List should be used. It has the exact same advantages and disadvantages with AMS.

Advantages

-A strong and stable government where people get to choose their representatives is formed

- The number of seats that the winning party wins will be reduced. This is to ensure that the opposition parties have the chance to win more seats.

-There will be more checks on the Executive by the Parliament as the Parliament is well represented.

- Voters can choose to vote for a candidate and a Party which they favour separately. For example, John can vote for Lim from PR and yet vote for BN in the Party List.

- There are still constituencies and each constituency has 1 MP. Thus, the link between MP and constituent is not broken.

 Disadvantages

- Government may not be as strong and stable as in FPTP

- It is a more complicated system and it is harder to use

- More MPs will be coming from constituencies and Party List. MPs from the constituencies will probably gain more respect from the people as MPs from the Party List represents the list, not the people.

Conclusion

-Democratic states take many forms, but all have an electoral system where citizen can elect for their political leaders. There are no right or wrong answers in choosing an electoral system. There is no one perfect electoral system where everybody can agree on.