The police and their powers of intimate search

For what ever reason, some of you might be interested to know more about our Police 'drama' lately nieh.... and for those yang tak sempat nak baca kat The Star.. a bit panjang... but worth to read...

May I present the opinion of X-IGP, Tun Hanif Omar... (any other comments are appreciated). TQ

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OUR police, like all police forces, and for obvious reasons too, must have adequate powers of search of premises and of the person, in appropriate circumstances. Otherwise they would be powerless to prevent or solve most crimes. No right-thinking person would dispute this because we want peace and security, and protection from criminals and bullies.

However, from time to time, people have complained about the manner or appropriateness of the way the police have conducted themselves in the exercise of these powers. Authorities and law enforcers must appreciate! that in Malaysia they do not have carte blanche powers because not even Parliament is supreme. Only the Constitution is supreme. So, all these powers are trust powers entrusted to the authorities and law enforcers to be exercised within their parameters, for their purposes, and in the manner legally prescribed.

Otherwise, the authorities or law enforcers could be ultra vires the Constitution or some primary or secondary law. This is something that we all need to understand and subscribe to, in order to avoid unnecessary problems. So, in the context of today’s “hot potato”, everybody wants to know what exactly are the police powers of search? Can the police strip-search? Can they do more? Isn’t that demeaning, degrading, unnecessary and against human rights?

While sitting on the Royal Commission To Enhance The Operation And Management Of The Royal Malaysia Police, my fellow commissioners and I listened to many allegations of unne! cessary roughness; of confiscation of non-material items; of unearthly hours of searches; of search parties not in uniform yet resentful when challenged to show their authority cards or warrants; and of unnecessary, punitive and humiliating strip-searches.

One of the commission’s findings, at p130, is that “intimate search and strip searches [were] held not in strict accordance with prescribed regulations, sometimes due to lack of facilities”. The commission report on p340-p341 refers to one of these cases where a woman and a friend were arrested and detained with another 30 detainees in one cell (presumably large enough) without being assigned any reason for the arrest right until her release six days later without any charges preferred.

During her detention she was forced by a woman officer, in spite of her protest, to strip down completely in front of the other detainees and do the ketuk-ketampi or ear squats for no justifiable rhy! me or reason. The commission observed that this was an infringement of human rights. It also observed that the police had no proper, standard guidelines on strip and intimate searches consonant with a modern human rights regime. It was the pious hope of the commissioners vide the report’s Recommendation No. 56 that compliance with prescribed laws and human rights would be made one of the three top priorities for the police and that efforts towards this end would be completed by June 2005.

Looking back, I would now think that the deadline for completion was probably unrealistic by at least three or four months. The primary sources of police search powers are the Criminal Procedure Code (FMS Cap 6) Section 16 (search of place entered by person sought to be arrested), s17 (search of persons {found} in place searched under warrant), s20 (search of persons arrested), s21 (power to seize offensive weapons), s22 ( search of persons i! n lawful custody for name and address ), s58 (search for persons wrongly confined), s62 (search without warrant) and s116 (search by police officer).

The present “hot potato” is really in respect of the conduct of a body search of a person. Under s17 of the CPC, when a lawful place-search is conducted, all persons found on the premises may be bodily searched “if the thing sought is, in its nature capable of being concealed upon the person”. To me the word “upon” is certainly enabling of a “body-pat” or even a strip search but it probably also allows for an intimate search because the phrase, “within the person” does not occur in the CPC in respect of searches.

The CPC does not use the terminologies “strip search” and “intimate search” but it is generally understood that a strip search is “any search involving the removal of more than outer clothing” (Butterworths {English} Police Law 2002 at p129). And an intimate search is “a s! earch which consists of the physical examination of a person’s body orifices other than the mouth. ‘Body orifices’ includes (sic) nose, ears, anus and vagina.” (ibid at p130). But this incidental body search under s17 CPC can only be done by or in the presence of a magistrate or a police officer not below the rank of inspector and, presumably, may be conducted on the premises. S63(i) pertains to a random place – search for stolen items and s116 is a place-search for documents or items and I do believe that under the circumstances mentioned in s17, a body search of persons found on the premises can also be made subject to the same strictures.

Sections 20 and 21, which pertain to search upon arrest, clearly give the right to do a body search extending to intimate searches for the right reasons as postulated in s17 except that in both sections there is no requirement for the search to be done by or in the presence of a magistrate or officer not! below the rank of inspector. These are the two sections of the CPC relied upon to enable the police to carry out strip and intimate searches on detainees. The squat exercise may be less embarrassing than a full-scale examination of the orifices but what is the holding of the ears meant to achieve beyond humiliating the person being searched?

And if these two sections are relied upon to justify the use of strip and intimate searches as a matter of routine, then those searches are done as a matter of course and without regard for the requirement of appropriate reasons for these kinds of bodily search. Then that is clearly an abuse of power and a display of insensitivity to the human rights of unconvicted detainees.

If law enforcers can be so callous about the rights of this class of people, what are the chances that they would care for the human rights of convicted criminals? We should be mindful of the “Theory of the Broken Window” espoused by The Tipping Point (the book referred to occasionally in my column). Thus, it is clear that the primary laws under the CPC are quite bare in its safeguards against the infringements of human rights.

In respect of the body search of a woman, s19 (ii) merely says that “the search shall be made by another woman with strict regard to decency”. It does not even require the search to be performed by a woman police officer. It is possible that the law was passed soon after 1950 when body-searches of women leaving the new villages for work, necessitated by the anti-terrorist food denial operations, were conducted by policemen since there were no policewomen in service.

This had caused an uproar fanned and exploited by the communists, forcing the police to employ their wives as women searchers until 1952 when the first women constables were recruited. Under the circumstances, the new Independent Commission of Inquiry appointed by the Yang Di-Pertuan Agong on Dec 1 should bring the CPC, the Police Act, the Lockup Rules and the Inspector-General’s Standing Orders on this issue in line with the best practices in human rights-aware countries such as the European Community and England. Whilst changing the primary laws – the CPC and the Police Act – can take time as they will have to be passed by Parliament, changing the Lockup Rules and the IGSOs merely require the assent of the Minister and the IGP respectively and can be done within days.

Here I would recommend the commission to read p127-131 of Butterworths {English} Police Law 8th edition on further rights of persons detained, strip searches and intimate searches. In respect of strip searches, it says at p130, “(d). Every reasonable effort must be made to minimise embarrassment. People who are searched should not normally be required to have all their clothes removed at the same time, for example, a man should be allowed to put on his shirt before removing his trousers, and a woman should be allowed to put on her blouse and upper garments before further clothing is removed.”

At p131 it says that, “Before an intimate search takes place, the reasons why it is considered necessary must be explained to the person to be searched and he must be reminded of his entitlement to have legal advice and the reminder must be noted in the custody record. “An intimate search may only be carried out by a doctor or a registered nurse, unless an inspector (or above) considers that it is not practicable and the search takes place because there are reasonable grounds for believing that an article which could cause physical injury to the detained person or others at the police station has been concealed ... and the reason for the impracticability must be recorded.”

The Lockup Rules and the IGSOs, I think, require the OCPD (officer-in-charge police district) in respect of his HQ lock-up, and the OCS (officers-in-charge police stations) in respect of his station lockup, to do a meaningful daily visit. If faithfully done, it will curb a lot of the abuses that I hear are still going on in some of the lock-ups. The recent adverse publicity on our police has badly dented their image but we must continue to support the reformers.

We must help them to overcome the resistance to change. The police leadership are very busy and change requires more time from them which, they may be afraid, will take some of their attention away from what they may consider to be more urgent.

I hope the commission will discuss this aspect as well with them and give the Government appropriate advice.