1.0 Introduction
Discretionary powers referred to the exercisable of powers in its discretion by the concerned authority. In modern democracies system, discretionary powers are commonly conferred on the administration. The officer has power to make choices between various courses of action; or even if he has to achieve a specific end, he has a choice as to how that the end results may be reached. It is the exercise of expert proficiency and judgment, as contrasting to firm adherence to regulations or statutes, in making a decision or performing official acts or duties.
Exercise of power would be lawful if it is exercised by the authority upon whom it is conferred. This is the general view, where one must apply his own mind to the case and if he does not do so, he is said as not exercised the discretionary power given wisely where the non-exercise of discretionary power by the parties whom it is conferred would lead to illegitimate action.
2.0 Police Discretionary Powers
A public body is given with particular scope of duty and obligation by a statute in order to exercise accordingly. This particular body can’t delegate the power given to them to other person or body as not to exercise a discretionary power. It is because the discretion must be exercise personally where the person given with such power must apply his own mind to the facts and circumstances of each case. A case of no-application of mind also arises when the authority does not act with due care and caution and sense of responsibility in exercising its discretion.
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Police is one of a public body which exercise the discretionary powers. They are responsible to safeguard the law. Malaysian police authority had been given such powers by virtue of Police Act 1967. According to the Police Act, policeman has to follows the limitation given by the act in regards of the organization, discipline, powers and duties of the Royal Malaysia Police and matters related to it. The powers of the policemen had been stated in Part VII which give the police the power to act according to their duties under the Police as well as under the other law at any place in Malaysia where he is ordered to do such duty.
The policemen are required to act according to the powers authorised by law but there are also the discretionary powers given to them as to ensure the public justice or preventing harm. By virtue of the Police Act 1967, police authority had been given very wide discretionary powers. It shows by the wording stated in Act itself where it is the general duties of the police officers as they may act according to law when there is necessarily to do such act in connection to affect the law.
Besides that, the police officers also being given powers to affect an arrest when he has the reasonable suspicion that there is offence being committed. Under section 23(1)(a) of the Criminal Procedure Code, any police officer, without an order from a magistrate and without a warrant, may arrest any person against whom “a reasonable suspicion exists” of his having been concerned in any seizable offence .
Then, the exercise of discretion come into action as what will constitute “reasonable suspicion”? If a policeman sees a man, dressed fully in black and walking towards ATM machines suspiciously with a small barrel- like instrument could be seen protruding from one of the pockets can he arrest that man?
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In the case of Chong Fook Kam & Anor v. Shaaban & Ors . The phrase “reasonable suspicion” was succinctly explained by Lord Devlin where the reasonable suspicion is depends on the circumstances. In short, the policeman cannot use their power as they like. The important element that needs to be noted is the existence of reasonable suspicion that the person has been involved in a manner with a criminal offence. After that, the policeman should take action whether it is necessary to arrest. It also must be noted that the power of arrest is subject to judicial control. Thus, even it is under the discretion of the policeman to interpret in which circumstances will constitutes reasonable suspicion, it is subject to judicial control.
Other examples to shows the discretionary powers exercise by the police officers is the power to grant a licence for assemblies, meetings and processions. Under section 27(2) of the Police Act 1967, the Officer- in-charge of the Police District (O.C.P.D) is authorised to grant an application for a licence by any person intending to convene or collect any meeting or to form a procession in any place if he satisfied that the meeting or procession is not likely to be prejudicial to the interest of the security of the Federation, or to excite a disturbance of the peace. The O.C.P.D can define the conditions upon which such assembly or procession is permitted.
The discretionary power is exercise in determining in which circumstances that the assemblies, meetings and processions are considered as prejudicial to the interest of the security of the Federation. Here, police officers must use the power wisely and it must not contravene with the fundamental right of a person. For example in the case of Chai Choon Hon v. Ketua Polis Daerah, Kampar and Government of Malaysia, the Democratic Action Party (DAP) Secretary of the Kampong Baru, Malim Nawar branch, Chai Choon Hon applied on August 3rd 1984 for a license to hold a DAP solidarity dinner and lion dance in public space. His application was accepted, but stamped with seven restrictions – two of which he found to be highly problematic. The first condition was that the number of speakers at the event must not exceed seven. The second condition was that under no means were the speeches to touch on political issues.
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Upon taking the issue to court, the trial judge ruled that the condition restricting speeches from touching on political issues were unreasonable and violated freedom of speech. However, the judge found that restricting the number of speakers to seven to valid. Chain Choon Hon appealed, and the issue was taken to the Supreme Court.
The Officer to whom Chai Choon Hon made the application (named as the “first respondant” in the case) told the court that limiting the number of speakers was due to time restrictions. Allowing for more than seven speakers might stretch the event well past the licensed time of 11:30pm. The judge, Abdoolcader S.C.J. found this to be unjustified, for two reasons: 1) if the event continued after the period during which it was permitted, the police had the means to deal with the infringement of timeframe, and 2) the officer based the number restriction on assumptions (chiefly that each speaker would talk for 30 minutes).
Chai Choon Hon’s appeal was allowed with costs.
This is an important case because it means that the government’s power to regulate meetings and events is not absolute. As this trial show, such a right is easily abused – especially towards rival politicians – and it is important that freedom of assembly remain safeguarded, and only restricted when it is absolutely necessary for public safety.
In the case Madhavan Nair & Anor v Public Prosecutor , it discussed the validity of the condition imposed on license of a public meeting and whether a ban on reference to sensitive issue is infringing right of speech.
The appellants were, even after being issued a license by the police officer to hold a public meeting, charged with reference to sensitive issue by questioning the requirement to pass the national language paper in order to determine whether a student gets a General Certificate after the Malaysian Certificate Examination.
The dispute centered on whether Condition 14 of the license can be exercised by the police officer in charge under S 27 of the Police Act. The appellant’s counsel Karpal Singh argued that once the police allowed the issuance of license for assembly, it is beyond their power to impose restrictions beyond administrative and logistics matters. The counsel argued that only Parliament has a right to impose restrictions on freedom of speech. The appellants appeal was unsuccessful as the judge ruled that the OCPD has the power to impose condition 14.
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In P Patto v Chief Police Officer, Perak & Ors the question of the manner of exercise of power granted to the police by section 27(2) of the Police Act was raised. The appellant to the OCPD concerned for the grant of a licence for holding a solidarity dinner and lion dance in a public place. Instead of dealing with the application himself, the OCPD forwarded the application to the higher police authorities. The application was rejected by the CPO. This was challenged and the matter ultimately reached the Supreme Court.
The court ruled that under the relevant law, power to grant the licence under section 27(2) of the Police Act is vested in the OCPD himself who is the licensing officer. Instead of disposing of the application himself, he sent it to the Chief Police Officer for disposal. The CPO is the appellate authority to whom an appeal lies against refusal to grant a licence by the OCPD. Thus, the court ruled that the OCPD as the licensing authority under the Act ‘had abdicated his functions by transmitting the application for consideration and determination’ by the CPO. It was pleaded that this was the normal departmental procedure.
But the court characterized it as a ‘lame excuse’. Thus, the court ruled that the rejection of the licence applied for by the appellant was prepared by the wrong authority, that the CPO who was the appellate body had wrongly assumed authority, and that the rejection was intimated to the appellant in a wholly unreasonable period of time so as to preclude any appeal by him against it.
3.0 The Benefits of Discretionary Powers Exercise by the Policemen
There are benefits and problems when the discretionary powers are used very wide. The used of very wide discretionary powers allows the policeman to do their jobs efficiently. It is on the part of the police himself to determine which action is good or bad. For example, in effecting an arrest, police may arrest when he has a reasonable ground to belief that there is offence has been committed. Here, the reasonable ground is not being specified by the statute as it may me reasonable in any way. Thus, the police may interpret
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Beside that it helps in given fair and justness of the action by the policeman. Where there is in need of discretion of the police, one may find that in is easier to negotiate with the policeman on the problems that one faced. It may cause the law not too rigid on people. For example in the case of granting licence
4.0 The Problems occurs during the exercise of discretionary powers
One of the problems that will arise is the abuse of powers as a result of wide discretionary powers. This problem may arise due to the way of how the discretion is used. As discuss before, discretion is exercised personally by the individual person. Here the discretionary power is not specifically determine by the statute. For example, the term ‘reasonable suspicion’ used which allows the police officers to arrest a person. The reasonableness is depends on the situation and it may be differs. Thus, there will be chance to the abuse of powers and leads to the illegal detention of a person.
Other than that, the absence of direct supervision during their under the duties also will cause the abuse of powers given.
Then, there are also will arise the issue of the infringement of human right. As the policeman being given the legal power to stop, search, detain and so on, it is necessarily depriving the person of his or her liberty. For example, in the event of affecting an arrest
For a person whose right that has been deprive may bring this matter to the court
Clearly the authorities especially the Police have to learn how to respect the rights of Malaysians which are enshrined within the most important document on the land, the Malaysian Constitution.
5.0 Conclusion
Discretionary powers conferred under the Police Act 1967 g
6.0 List of cases
1. Chai Choon Hon v. Ketua Polis Daerah, Kampar and Government of Malaysia[1986] 2 MLJ 203
2. Chong Fook Kam & Anor v. Shaaban & Ors[1968] 1 LNS 23
3. Madhavan Nair & Anor v Public Prosecutor[1975] 2 MLJ 235
4. P Patto v Chief Police Officer, Perak & Ors[1986] 2 MLJ 204
7.0 List of statutes
1. Criminal Procedure Code
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2. Federal Constitution
3. Police Act 1967
8.0 Bibliography
M.P.Jain, Administrative Law of Malaysia and Singapore (2nd ed) 1989 Malayan Law Journal Pte Ltd
Miller, Seumas and Blackler, John , Ethical Issues in Policing. England:Ashgate Publishing Limited, 2004
Miller, Seumas, Police Ethics England:Ashgate Publishing Limited, 2005
Ortmeir, P.J and Meese, Edwin Leadership, Ethics and Poilicing (2nd ed) 2010 Pearson Hall
Appendices
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[ 2 ]. MP jain
[ 3 ].
[ 4 ]. Section 20 (3) of Police Act 1967
[ 5 ]. Criminal Procedure Code
[ 6 ]. [1968] 1 LNS 23
[ 7 ]. Mp Jain
[ 8 ]. [1986] 2 MLJ 203
[ 9 ]. [1975] 2 MLJ 235
[ 10 ]. [1986] 2 MLJ 204
[ 11 ]. Miller
