Policing the Police in Asia: Police Oversight in Japan, Hong Kong, and Taiwan (SpringerBriefs in Criminology) 3030829804, 9783030829803

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SPRINGER BRIEFS IN CRIMINOLOGY POLICING

Lawrence Ka-Ki Ho  Jason Kwun-hong Chan  Garth den Heyer · Jen-shuo Hsu  Arata Hirai

Policing the Police in Asia Police Oversight in Japan, Hong Kong, and Taiwan

SpringerBriefs in Criminology Policing

Series Editor M. R. Haberfeld City University of New York John Jay College of Criminal Justice New York, NY, USA

More information about this series at http://www.springer.com/series/11179

Lawrence Ka-Ki Ho Jason Kwun-hong Chan • Garth den Heyer Jen-shuo Hsu • Arata Hirai

Policing the Police in Asia Police Oversight in Japan, Hong Kong, and Taiwan

Lawrence Ka-Ki Ho Department of Social Sciences Hong Kong Institute of Education Hong Kong, Hong Kong

Jason Kwun-hong Chan Department of Public Policy City University of Hong Kong Hong Kong, Hong Kong

Garth den Heyer School of Criminology and Criminal Justice Arizona State University Arizona, AZ, USA

Jen-shuo Hsu Graduate School of Law Hokkaido University Sapporo, Japan

Arata Hirai Organization for Regional and Inter-­regional Studies Waseda University Tokyo, Japan

ISSN 2192-8533     ISSN 2192-8541 (electronic) SpringerBriefs in Criminology ISSN 2194-6213     ISSN 2194-6221 (electronic) SpringerBriefs in Policing ISBN 978-3-030-82980-3    ISBN 978-3-030-82981-0 (eBook) https://doi.org/10.1007/978-3-030-82981-0 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Book Keywords

Policing; Police oversight; Police misconduct; Police legitimacy, Police accountability; Complaints against police; Asia; Hong Kong; Japan; Taiwan

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Acknowledgement

This work was supported by the Policy Innovation and Coordination Office of the Hong Kong Special Administrative Region Government under Public Policy Research Fund (Special Round) SR2020.A5.023.

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Contents

1 A Helicopter View of the Police Oversight Mechanisms in Hong Kong, Japan and Taiwan������������������������������������������������������������   1 1.1 Studying Police Oversight Mechanism: Models and Typologies ������   1 1.2 Purposes of Police Oversight��������������������������������������������������������������   2 1.3 From Literature: What Is ‘Good’ Oversight Mechanism?������������������   3 1.3.1 Independence and Impartiality������������������������������������������������   3 1.3.2 Accessibility����������������������������������������������������������������������������   4 1.3.3 Fairness ����������������������������������������������������������������������������������   4 1.3.4 Transparency��������������������������������������������������������������������������   5 1.3.5 Empowerment ������������������������������������������������������������������������   5 1.3.6 Directional-Setting������������������������������������������������������������������   5 1.3.7 Flexibility��������������������������������������������������������������������������������   5 1.4 Our Research Questions����������������������������������������������������������������������   6 1.5 Three Jurisdictions: Hong Kong, Japan and Taiwan��������������������������   7 1.5.1 The Socio-Political Context����������������������������������������������������   8 1.5.2 The Legal System ������������������������������������������������������������������   9 1.5.3 The Policing System ��������������������������������������������������������������  10 1.6 Three Key Controversies: Professionalism, Representation and Empowerment������������������������������������������������������������������������������  11 1.7 Chapter Arrangement��������������������������������������������������������������������������  13 References����������������������������������������������������������������������������������������������������  14 2 Professionalism: A Scarecrow for the Non-­democratic Policing System in Hong Kong������������������������������������������������������������������  17 2.1 Structural Features and Roles of the Oversight Bodies����������������������  17 2.2 Operating Procedures��������������������������������������������������������������������������  18 2.2.1 Intake��������������������������������������������������������������������������������������  18 2.2.2 Investigation����������������������������������������������������������������������������  19 2.2.3 Appeal ������������������������������������������������������������������������������������  20

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2.3 The Two-Tier System in Stagnation����������������������������������������������������  21 2.4 Scarecrow Fallen��������������������������������������������������������������������������������  25 2.5 Concluding Remark����������������������������������������������������������������������������  29 References����������������������������������������������������������������������������������������������������  31 3 Representation: Police Oversight Mechanism in the Democratic Japan����������������������������������������������������������������������������  33 3.1 Structural Features and Roles of the Oversight Bodies����������������������  33 3.2 Operating Procedures��������������������������������������������������������������������������  35 3.2.1 Intake��������������������������������������������������������������������������������������  35 3.2.2 Investigation����������������������������������������������������������������������������  35 3.2.3 Appeal ������������������������������������������������������������������������������������  37 3.3 Evolving for Representativeness: NPSC and PPSC����������������������������  38 3.4 Representation with Questionable Professionalism and Empowerment������������������������������������������������������������������������������  40 3.5 Concluding Remark����������������������������������������������������������������������������  44 References����������������������������������������������������������������������������������������������������  44 4 Empowerment: ‘Control Yuan’ As Constitutionally Empowered Oversight Unit in Taiwan��������������������������������������������������������������������������  47 4.1 Structural Features and Roles of the Oversight Bodies����������������������  47 4.2 Operating Procedures��������������������������������������������������������������������������  48 4.2.1 Intake��������������������������������������������������������������������������������������  48 4.2.2 Investigation����������������������������������������������������������������������������  50 4.2.3 Appeal ������������������������������������������������������������������������������������  51 4.3 Transformation: Scattered But Empowered����������������������������������������  51 4.3.1 IAO Investigator to Police Their Counterparts?����������������������  53 4.4 Empowering the External Agencies: The Panacea?����������������������������  54 4.5 Concluding Remark����������������������������������������������������������������������������  56 References����������������������������������������������������������������������������������������������������  56 5 Conclusion: Why to Reform? What to Stress? How to Improve? ��������  59 5.1 Institutional Arrangement ������������������������������������������������������������������  59 5.2 Insiders’ Perspective on Police Oversight������������������������������������������  61 5.3 Reflection from our Findings��������������������������������������������������������������  62 5.3.1 ‘Professionalism’ vs ‘Democracy’ in Police Oversight?��������  63 5.3.2 Empowerment of the Oversight Body������������������������������������  64 5.3.3 Historical Conjuncture and Regime Leadership ��������������������  64 5.4 Demystifying the Prejudice on Police Oversight��������������������������������  65 5.4.1 Police Hate Be Oversighted?��������������������������������������������������  65 5.4.2 Police to Police the Police?����������������������������������������������������  66 5.4.3 Democratic Oversight Means Better Policing?����������������������  68 5.5 Concluding Remark����������������������������������������������������������������������������  70 References����������������������������������������������������������������������������������������������������  72 Index��������������������������������������������������������������������������������������������������������������������  73

About the Authors

Lawrence  Ka-ki  Ho  Dr Lawrence Ka-ki HO is an assistant professor in the Department of Social Sciences at the Education University of Hong Kong, Hong Kong. His research interests are the history and sociology of policing, comparative policing practices, public order management, criminal justice systems,  and public policies. Lawrence is currently undertaking several research projects on Hong Kong policing and comparative policing practices, including the professionalization of Hong Kong Police, the transforming role of the policewomen: policing in colonial & SAR Hong Kong & Macau, private policing in Hong Kong, youth and deviance policing, and comparative policing strategies for protest management.  Department of Social Sciences, The Education University of Hong Kong, Tai Po, Hong Kong, Tai Po, Hong Kong [email protected] Jason  Kwun-hong  Chan  Jason Kwun-hong Chan is a PhD candidate in the Department of Public Policy, City University of Hong Kong. He is interested in private police, policing studies, social movement, state-society relationship, and colonial Hong Kong history.  He also served as sessional lecturer and research assistant in various tertiary institutions in Hong Kong. [email protected] Garth den Heyer  Dr Garth den Heyer is a researcher in policing and counter terrorism and instructor with the School of Criminology and Criminal Justice at Arizona State University. He was a New Zealand police officer for more than 38 years, retiring at the rank of inspector. For more than 20 years he was responsible for the research, development, and application of national, organizational and border security, counterterrorism, emergency management, and search and rescue and disaster victim identification, policies, procedures, plans and responses. He has been with ASU since the summer semester of 2015 and teaches courses in homeland security, and international and domestic terrorism. [email protected]

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About the Authors

Jen-shuo Hsu  Dr Jen-shuo Hsu is an assistant professor in the Graduate School of Law at Hokkaido University, Japan. His research interests are the history, law, policy, and sociology of policing in East Asia, sociology of law, human rights, social movement, legal mobilization, and judicial system. Hsu is currently undertaking several researches on post-colonial policing in East Asia, comparative police law and protest policing, history of political policing and the democratization of policing in Taiwan and Japan, and legal mobilization movement in East Asia. [email protected] Arata  Hirai  Dr Arata HIRAI is an assistant professor (junior researcher) in the Organization for Regional and Inter-regional Studies, Waseda University, Japan. His research interests are transitional justice, comparative politics, East Asian studies, the history and politics of Taiwan, social movements, and policing in East Asian countries. Arata is currently working on various comparative research projects mainly including the politics and laws of transitional justice, the memory activisms after WW2, and the police oversight mechanisms.  Rm325, Nishiwaseda Bldg, 1-21-1 Nishiwaseda, Shinjuku-ku, Tokyo, Japan [email protected] https://jglobal.jst.go.jp/en/detail?JGLOBAL_ID=201801001321534036

Chapter 1

A Helicopter View of the Police Oversight Mechanisms in Hong Kong, Japan and Taiwan

1.1  S  tudying Police Oversight Mechanism: Models and Typologies With public police forces monopolizing coercions in different nation-states, the question of who and how police forces are being policed a topic is worth studying. A growing volume of literature produced in the Western democracies have been emphasizing the importance of establishing an external, civilian-control, independent police oversight body to monitor the actions of the police on police checking. However, out of realpolitik concerns or different socio-political trajectories, the Asian experience seems to be deviating from the experience and holds an alternative path. Our study aims at revealing its complexity and supplementing the prevailing Anglo-saxon centric scholarly discussion. The existing literature on police oversight mechanisms has been built on different modeling of such systems and evaluating their strength, weakness and impact on the relationship between citizens and their police forces. As early as the mid-1980s, Kerstetter (1985) classified different types of oversight institutions based on a review of the with the experience of the U.S.: into (1) the civilian review model; (2) the civilian input model; and (3) the civilian monitor model. He pointed out that these different settings outlined a diverging power-relationship between citizens and the police and brought up his normative argument that “complaint processing and decision making should be vested in the police department but that external monitoring of the police review is essential”. The “externality” of the police oversight body had been highlighted in the early stage of the study. Built on this typology, Goldsmith (1988) broke was breaking it down further into a classification of six types of oversight: (a) traditional (internal police); (b) civilian-in-house; (c) civilian external supervisory; (d) civilian external investigatory; (e) civilian external investigatory/adjudicative; and (f) police investigation on behalf of civilian agency.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 L. K. Ho et al., Policing the Police in Asia, SpringerBriefs in Criminology, https://doi.org/10.1007/978-3-030-82981-0_1

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1  A Helicopter View of the Police Oversight Mechanisms in Hong Kong, Japan…

Similarly, Prenzler and Ronken (2001) termed the (i) internal affairs model; (ii) civilian review model and (iii) civilian monitor model to explain whether it was the police checking themselves, or with citizens’ participation into the checking process. The internal affairs model depicts the situation that the police department is heavily empowered to handle the full complaint process, from receiving complaints, investigating to the final decision on whether any police officer(s) are required to face disciplinary sanctions. Throughout the whole process, there was no “external” or “independent” institution intervention or involvement, except if the officer(s) complained about breaching any law, and as a result hence with the court taking part in the criminal prosecution. Except for the internal checking, Prenzler and Ronken termed the civilian review model to establish an external oversight body, by empowering it to monitor and audit the investigation results conducted by police, while the police department still takes complaints from the public and launches an investigation. Prenzler (2004) later termed the civilian control model, to further emphasize the role of citizens throughout the oversight process. Under such a model, the external oversight body shoulders even more power and responsibility. Being structurally independent from the police department, they could receive and handle complaints from the public against police officer(s). A board of civilians would oversee in-­ charge the process of investigation and recommend or even take action to sanction the concerned officer. A full and complete responsibility of in-charging the police oversight process could be seen from this model. Bringing in models and classifications sometimes complicates the situation. However, we would see this classification necessary for the audience to understand the power relationship in the police oversight process. As the above typologies showed, there is any point to an enduring question in these studies, who has got the power on policing the police, and how? A useful model helps us to see things clearly, and explaining who controls the police oversight process and how police are being monitored and checked in their enforcement of the law enforcement.

1.2  Purposes of Police Oversight Those models did help on simplifying the relationship between police and citizens. However, the models themselves could not explain why the relationships differ across countries. The existing literature did shed light on the purposes of police oversight, giving us an explanation why civilian control models would be emphasized in some countries, while in others it did not. Accountability is one of the major purposes in setting up the police oversight mechanisms. In the report written by the United Nations Office of Drugs and Crime (UNODC), accountability was emphasized while the office was making recommendations to other countries on supporting them to implement criminal justice reform. The report “aims to assist countries in their efforts to develop effective systems of oversight and accountability within their law enforcement authorities” (United Nations Office on Drugs and Crime, 2011, p. 1). By holding police accountable, it was to develop a system “ensuring the police carry out their duties properly and are held responsible if they fail to do so” (ibid). To fulfil such a function of checking,

1.3 From Literature: What Is ‘Good’ Oversight Mechanism?

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the UNODC suggests that countries develop internal or external systems to check and balance the police force by legislation, making policies etc. Indeed, accountability, as the purpose of police oversight, should be viewed together with other values treasured in Western democracies. Police integrity and their trust from the public (or public confidence) are also heavily emphasized. If the police force is held accountable to the public, the public confidence could be restored by punishing the police officer(s), hence the integrity of the police force could be retained. What’s backing up such values behind is their emphasis on individual human rights and democracy, in which individual citizens’ presence is valued. Just as the UNODC’s report wrote, “where policing has been militarized and may be undemocratic and authoritarian, efforts must be made to enhance civilian control over the police”. The discussion on which model should be accepted is in fact value-laden, with the belief in human rights and democracy exerted in the background.

1.3  From Literature: What Is ‘Good’ Oversight Mechanism? What constitutes a “good” police oversight mechanism? One can perhaps list out a few general terms for the criteria, such as independence, impartiality, and so on. While these are all important elements to be found in an effective police oversight mechanism, there are more nuances to it for it to become substantially effective. Stenning (2000) has given some insightful ideas on how a desirable police oversight mechanism should be in terms of its structural features, nature, and other details needed to pay attention to. The table attempts to highlight the elements of a desirable police complaints and oversight mechanism in two major areas, they are (1) the administrative structures and nature of the police oversight body, and (2) the key accounts the police oversight body needs to consider when performing investigation/ oversight of police misconduct, which we use the term ‘operations’ to represent it. Firstly, the body should have a clear statement of its principles and objectives, as well as the priorities of them. It provides clear guidance to the staff who will be implementing the legislation as well as potential judges and adjudicators who may need to interpret it. While these principles can vary, there are keystone elements that are further discussed in the next paragraphs.

1.3.1  Independence and Impartiality A police oversight mechanism that engages with complaints should be, perhaps obvious for many, impartial and independent. The National Association for Civilian Oversight of Law Enforcement advocates that the oversight body should be independent from the police department and all groups in order to be unbiased. Typically, the public are displeased with the potential conflict of interest or unfairness brought by internal investigation within the police department (Perez, 1994). However, Stenning argues that being independent and impartial does not mean that the

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mechanism must be completely outside of the police body itself: in fact, this may cause some other kinds of problems. However, it does not change the fact that the system should at least be separated from the regular commanding structure, as well as a totally separate body being available for serious cases to ensure impartiality. For the same reason, external structures should also hold the power to launch hearings on complaints that the police system turned down initially if they deem necessary. To ensure full independence the investigators should also be free to decide the direction of the investigation.

1.3.2  Accessibility A good system should also be accessible. There can be five ways to make said body more accessible: (1) “Psychological and physical ease provided such that potential complainants can lodge and pursue, alongside adequate information and aid provided to them. (2) Outlets for complaints that concern the “service” and “policy” of the police system, not just “misconducts”. (3) Allowing “third party” complaints, such as pressure groups which victims of police misconduct may first seek help from. (4) Resources such as legal aid are provided adequately. (5) Protection against abuse of the process.” (Stenning, 2000).

1.3.3  Fairness Like other kinds of investigations, the police complaint system should also be fair and respectful to individual rights. Members of the oversight board should have personal integrity, and give unbiased, fair, and thorough treatment of those involved. Also, The mechanism should try its best to ensure adequate notifications for both complainants and respondents regarding the stages and developments of the investigations, sufficient opportunity to present, be represented and appeal, and procedural justice. Procedural rights for individuals to be heard and represented, as well as the rights to be protected from unreasonable seizure and tortures are just as important in this mechanism. Police oversight mechanisms deal with police misconduct for the most part. Further, the mechanism should balance with public and stakeholders’ interests. The power held by the police in nations essentially creates potential cases which concern what is known as “public interest.” Because of that, it is critical for the police oversight mechanism to “be open and accountable to complainants, respondents, police services to which it applies and their police boards, and to the public more generally.” (Stenning, 2000) To do that may require timely announcements of the investigation process, allowing the public and the media to hearings, requiring explanations for controversial decisions, and maintaining accurate and full records. The handling of the case should also be timely enough without sacrificing the investigation quality. This also means that the investigation process should be thorough enough, with sufficient power given to the investigators as well as the adjudicators.

1.3 From Literature: What Is ‘Good’ Oversight Mechanism?

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1.3.4  Transparency A good policing principle is built based on public consent. Therefore, the mechanism should exhibit full transparency in its operations processes, to enhance public confidence in the oversight body and accountability to the community. For instance, the oversight body could provide systematic reporting about the independent investigations, board operations, complaints handling statistics, or policies and working procedures.

1.3.5  Empowerment Whatever the oversight model adopted, the oversight body should have ample authority to review the investigations conducted by the complaints investigating bodies, review the policing policies, or other relevant systematic issues.

1.3.6  Directional-Setting A good police oversight mechanism should not only issue punishments. Equally important is proposing corrective measures as well as pursuing remedial justice. A good police oversight system should seek to identify the root causes and underlying conditions of the misconduct and try to propose solutions to these problems. This restoration process for both the complainant and offender is perhaps of greater benefit. By the same margin, the police oversight mechanism should not only resolve conflicts, issue punishments and provide opportunities for all parties, but also generate systemic information like aggregate data of complaints to the authority and commanding officers so that it can promote better management choices. In other words, the mechanism should deter future police malpractices through the development of policies.

1.3.7  Flexibility While police oversight mechanisms are majorly concerned with the complainants (generally citizens) and respondents (members of the police system), sometimes the cases they handle may concern “public interests”. While it generally should respect the concerned party’s rights and privacy as much as possible, a good system should be able to distinguish between cases that concern the public interest and those that do not. This requires clear guidelines, clear identification of power, and an opportunity to challenge the decision. It is believed that because of this difference of nature among complaints, the police oversight system should be able to change its approach appropriately, with more seriousness and strictness to procedure the more serious the case is. After all, it is inevitable that many of the qualities listed will differ in practice when legislated. Still, these criteria may help leaders in designing an effective, helpful police oversight mechanism.

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Table 1.1  Elements of a desirable police complaints and oversight mechanism Elements Description Organizational structure Independence and The oversight body should be separated from the commanding structure impartiality Possess the power to conduct independent investigation Accessibility Easy for complainants to lodge complaints Provide outlets for complainants that concern ‘service’ and ‘policy’ of the policing system in addition to police misconduct Provide adequate resources such as legal aid Fairness Ensure procedural justice Investigations are fair, thorough, and objective Consider and be accountable to the interest of different stakeholders Operations Transparency Clear guidance and statement of the principles, objectives, and priorities of the police oversight system Transparent operations process Empowerment Adjudicators should be given enough power to investigate thoroughly Directional setting Focus on remedial and corrective measures Flexibility Able to demonstrate flexibility when facing different kinds of complaints

1.4  Our Research Questions The rationale of police oversight in western democracies often stick to the principles of accountability, integrity and public confidence towards the police forces. The belief of human rights and democratic principle reinforced the reform in police oversight mechanisms in Western democracies, by placing more emphasis on the civilian control model. As different area studies of their own police oversight bodies suggested, a trend of reforming these systems into the civilian control model was observed, as in United States and Canada (Ferdik et  al., 2013), in the United Kingdom (Seneviratne, 2004; Porter & Prenzler, 2012), and Australia and New Zealand (den Heyer & Beckley, 2013). This tendency of upholding the “independence” and empowering the citizens to take control of the oversight process could be observed in these mature democracies. However, in Asia, there is a different story to tell. The police oversight mechanisms in the under Asian context varies from the mature democracies in the Western world. Focusing on the three jurisdictions in East Asia, we would like to illustrate their difference and the reasons why they are different behind the story. We would argue the different rationales, namely the Professionalism, Representation and Empowerment, exerting at the background and contributing to their current status quo in police oversight. The examination of the three East Asian approaches to police oversight may assist with the further reform of police oversight and governance in Western nations as these structures are examined in the wake of current policing problems in the United States.

1.5 Three Jurisdictions: Hong Kong, Japan and Taiwan

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Our study will would pay attention to four research questions, which will comprise and tackling them with the following separate chapters subsequently: 1. What are the disparities of the police oversight mechanisms in Hong Kong, Japan and Taiwan, with those in Western democracies? How could we understand their transformation and what are the critical junctures for their development? 2. From historical and institutional angles, what contrasts the police oversight mechanism of Hong Kong, from Japan’s and Taiwan’s? What is the possible rationale behind this? 3. With reference to the view from the stakeholders of police oversight (i.e. police, civil libertarian, legislator, media people and citizen complainants), what factors determine police accountability? Does democracy or professionalism matter for effective police oversight mechanisms? 4. What could we learn from these countries’ cities on the design and operation of police oversight? How could the findings supplement the prevailing Euro-­ American centric, evidence-based scholarly discourses on exploring the question of policing accountability? Our analysis is built on the qualitative data partly derived from a government-­ funded research project. We conducted a comparative study on police oversight mechanisms conducted from March to August 2020. Our research team included the members of native Cantonese, English, Mandarin and Japanese speakers, who received academic training in criminology & policing, law, public policy & politics, history, and international relations. We collected the primary data published in official reports and conducted in-depth interviews with different stakeholders in police oversight. Many publicly accessible government archives were retrieved from Hong Kong, Japan and Taiwan, to support our analysis on the evolution of respective police oversight mechanisms. These archives are collected from the respective databases of the legislative branch, executive branch, police oversight body and police department etc. These data have been compared with the interview data we collected, to understand how the systems were practically implemented practically and any loophole that was being perceived by stakeholders in connection to the police oversight system. Semi-structured interviews were conducted between our team members and different practitioners, ranging from police constables, NGO representatives, members of the police oversight bodies, to lawyers and politicians’. The interviews were completed within the concerned period and hoping to illustrate how the police oversight mechanisms worked in each jurisdiction.

1.5  Three Jurisdictions: Hong Kong, Japan and Taiwan Selecting Hong Kong, Japan and Taiwan as our focus is to contrast these jurisdictions on their disparities from the Western democracies, not only in relation to the police oversight structure, but also in their socio-political contexts, legal system and

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Table 1.2  Major Sources of the Documentary Searches in this Study Jurisdiction Sources Taiwan Police Forces – National Police Agency Taiwan related governmental bodies (i.e., The Control Yuan The Department of Civil Service Ethics), Official reports of investigation into police misconduct Japan Official Police Forces - National Police Agency & Prefectural Police force Oversight bodies websites and released documents - National Public Safety Commission Annual and status reports - Police White Book released by National Police Agency, Reports on reform Progress released by National Public Safety Commission, Archives of Diet discussions in National Diet Library Hong Kong Police Force- The annual reports published by the Hong Kong Police Independent Police Complaints Council- the annual reports and their regular press release Legislative Council proceedings

policing system. We believe the different levels of democratization among these places and legal framework (common law and continental law system) could provide a sharp contrast to the fellow democracies in the Western world. These differences could be a very important factor in explaining why an alternative direction in general could be seen in the development of police oversight mechanisms in the East Asian context. A brief discussion of the basic features of the three jurisdictions would be provided before we get deeper into the discussion of their police oversight mechanisms.

1.5.1  The Socio-Political Context Being an ex-colony of the British Empire, Hong Kong inherited a large part of its political structure from her colonial ruler. Throughout the about 150 years ruling, the tiny colony had been deemed largely under rule of law, though draconian laws and ordinances were not uncommon especially during the time of disturbances. With her executive-led government, democracy had not never been an issue, and only until the very late moment of colonial rule, indirect election was opened to the public in her legislative branch. Periodic elections could then be held with further liberalization of the seats in the legislative branch, by making more seats popularly elected on a direct basis. The governor, yet had never been popularly elected, even until today. Except its limited openness in the legislative branch, the executive branch had been placed in a privileged position constitutionally speaking. The Governor had been the president of both the Executive Council and Legislative Council, and in only until 1993, the head of the colony ceased to be the president of the latter council. The institutional privilege of the Executive branch over other branches could also be in his power to appoint judges and legislators. The Governor had been the agent of the Queen of England, holding absolute power in such an

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executive-led system. With her sovereignty being returned to China in 1997, “One Country, Two Systems” had been employed, yet it largely retained the same political structure, now under the unitary system of the People’s Republic of China. It could be revealed by the articles in Basic Law empowering the executive branch, namely the separation of votes and limited power given to legislators on initiating bills. In comparison, Japan obtained her democratic ideas and institutions from her miserable loss in WWII, implanted by the American. The Supreme Commander for the Allied Powers (SCAP), General Douglas MacArthur, issued directives to the defeated Japanese government to establish her post-war democratic political institutions under the stipulation of the Potsdam declaration. The directional, if not forceful, orders were heavily stressing three main principles: popular sovereignty, respect for basic human rights and pacifism. These principles had to be incorporated into the post-war new constitution as well. The sacred status of the emperor could have remained, yet his real political power had to be turned symbolic. This formulated the background of the multi-party bicameral parliamentary democracy nowadays in Japan. Similarly, Taiwan became a democratic polity, yet in more recent decades. With the cornerstone of the “Three Principles of the People” advocated by Dr. Sun Yat-­ sen, the Nationalist Government shall be a democratic republic “of the people, by the people and for the people”. With Kuomintang’s retreat to Taiwan in 1949, martial law had been enacted and implemented for decades, and in only until 1987 the draconian laws were relieved, and democratization accelerated (Taiwan Government, 2020). With the martial law being lifted, several rounds of revisions to the Republic Of China Constitution were made, and especially with the 1991 revision, the government has acknowledged that its jurisdiction extends only to the areas it controls. The president and legislators, therefore, are elected by and accountable to the people of those areas only (Taiwan Government, 2020). And in 1996, the Republic of China held its first-ever direct presidential election, with Kuomintang’s representative, Lee Teng-hui, being re-elected. Four years later, Chen Shui-bian, the candidate from Democratic Progressive Party (DPP), became the first non-Kuomintang president in Taiwan history. The democracy in Taiwan started to be consolidated.

1.5.2  The Legal System Comparing their legal systems, Hong Kong stands out from the other two places, as the only jurisdiction running the Common Law system solely. Inherited from the British legacy, the ex-colony emphasized the doctrine of precedence (so-called judge-made laws), in alignment with other statute laws and ordinances generated from the legislative branch. Civil law system, instead, has been the legal system adopted by Japan and Taiwan. For Japan, even though her current legal system was also a result of implantation of the United States, the origin of her modern legal system could be traced back to the Meiji era, in which modernization of laws were introduced with the advice of some Western legal scholars. The legal code of France became her

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blueprint of the first draft of the modern civil and criminal laws in the Meiji era, also adopting some German laws in her consolidation. This basis of civil law later faced a reform after WWII, under the influence of American law, a common law system. Henceforth, Japan is commonly regarded as a civil law system, yet being eclectic by incorporating some common law features under the influence of the U.S. Civil law system is also the word people commonly name the legal system in Taiwan. Being a hybrid civil law jurisdiction, Taiwan has also been inheriting some legal principles and practices from both Japan and the United States. As the former is a civil law system and the latter under the common law, Taiwan’s legal system is a product of mixed. Even so, codes are still the main body of this legal system, as they could be traced back to 1912 with the Nationalist Government codifying some important bases for the future civil law jurisdictions.

1.5.3  The Policing System Not only a difference could be found in their socio-political development and legal system, but also so did the policing system among the three jurisdictions. The police force of Hong Kong is the largest disciplined service in size under the Security Bureau of Hong Kong Government. Established since the early colonial era, the force has remained centralized and paramilitary. Inheriting her colonial policing model, the force has been designed to maintain the internal law and order, ensuring Hong Kong a safe and stable society. Apart from prevention of crime, safeguarding life and property, the force has been designed to better react to potential disorder by establishing the Police Tactical Unit in response to the disturbances that happened in 1950s and 1960s, in order to maintain the colonial order and regime stability. This feature had been largely retained by this centralized and paramilitary force even until today. As the only police force in the region, the Hong Kong Police consists of five departments in six Regions. As of 31 October 2020, the force has been filled with 32,692 disciplined police officers and 4644 civilian officers (Hong Kong Police Force, 2020). Although the force had been paramilitarized, the force succeeded in improving her image from the 1970s, by combatting the long-standing problem of corruption. And the introduction of other policies, including community policing, professionalization and positioning her role of “serving the community”, did help dress the force with a less militarized image. However, with the increasing intensification of state-society conflict in recent decades, the nature of a paramilitary force has become increasingly questioned and is now draining the public confidence of the Hong Kong Police (Ho, 2020; HKPORI, 2019). The Police Force in Japan is instead constituted by the National Police Agency (NPA) and 47 Prefectural police forces. The two-layers structure keeps the NPA operating at national level and supervising the prefectural police forces. The former mainly focuses on policy formulation related to the police system as a whole and conducts nationwide police operations especially for the cases of national public safety and emergency. Also, the NPA takes charges of police education and training,

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communications, and the identification of crime (National Police Agency, Japan, 2021). The prefectural police forces are responsible for daily operations and policing their respective prefecture. For instance, the Tokyo Metropolitan Police Department (TMPD) is the prefectural police force responsible for law and order in Tokyo. In total, there are 259,224 police officers across the country (National Police Agency, Japan, 2019)., for army officers below the rank of Assistant Commissioner would be regarded as local public servants, and for officers above this rank are regarded as the national public servants. Taiwan’s policing system originated from the model established by the Chinese Nationalist Party (Kuomintang, hereafter KMT). It was established even before the Nationalist Government set up their government in Taiwan. Several features of the force were inherited from Japan, as the latter had ruled the island for 50  years (1895–1945). The policing structure of Taiwan could also be regarded as two-­layers, with the force’s headquarter being set up in Taipei (the capital city), the National Police Agency (NPA) of Taiwan is heading the local police agencies. The NPA of Taiwan is composed of 18 internal units being responsible for planning, supervision, and evaluation of national police policies, also with 20 subordinate agencies (e.g., Criminal Investigation Bureau, Aviation Police Bureau) directing specialized police tasks. Under the supervision of the Ministry of the Interior, the NPA is redirecting the control from headquarters to locals. The force is obligated to “maintain public order, protect social security, prevent all hazards, and promote welfare…” (Laws & Regulations Database of The Republic of China (ROC), 2021). The heads of the local agencies are appointed by the NPA, for leading the cities and counties’ police departments, while these heads are considered agents of the local government.

1.6  T  hree Key Controversies: Professionalism, Representation and Empowerment By discussing the socio-political context, legal system and policing system in the three jurisdictions, we intend to provide a clearer picture about the major differences between these jurisdictions and the Western democracies, and also among themselves. Since the 1980s, the Hong Kong Police Force (HKPF) has had a good public satisfaction rate for their performances and has been regarded as “Asia’s Finest” law enforcement agency for its professionalism. However, in 2019, the anti-­ ELAB movement has made investigation of police misconduct and police accountability a pressing local issue. The social unrest has promoted renewed calls to address several controversial policing and integrity issues, such as police ‘brutality’ and the ‘impunity’ in Hong Kong policing – and beyond that, to change the practices and arrangements of oversight mechanisms from a civilian review model to civilian control model. Currently, Hong Kong adopts a ‘two-tier’ complaints and auditing mechanism. While the Complaints Against Police Office (CAPO) of the HKPF handle and investigate complaints against police, the Independent Police

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Table 1.3  Three key controversies of the police oversight bodies Dimensions Representation and transparency

Critics from the public Composition- members of the IPCC are handpicked by the government without the participation from civil society. It is incapable to represent the public voices

Authority and empowerment

Inadequate powers to investigate complaints or make disciplinary decisions. IPCC is only empowered to have a ‘monitoring’ role in the investigations conducted by CAPO Oversight members do not have front-line police operation experience, reflecting the incapability to make professional and objective judgement

Professionalism

Alternative view from practitioners The composition of the oversight board is of balanced representation that both practitioners of policing and outsider are included Non-practitioners do not have policing experience or expertise to conduct independent investigation to make professional judgement Ensure professional secretarial work is offered by the executives who are not front-line officers

Complaints Council (IPCC) observe, monitor, and review the investigation report completed by CAPO.  This two-tier civilian review oversight model is a fair and optional arrangement for behavioral supervision and handling of police misconduct which integrates both the professionalism of internal policing and external supervision across different sectors. However, the public consistently suspects it as a ‘toothless tiger’ because of the lack of true control over the police departments. It is believed that there is an absence of proactive investigation power and elected representatives in the oversight body. We have identified several key major controversies over the existing oversight arrangement in Hong Kong. They are (1) the representation and transparency of the oversight body (2) authority and empowerment, and (3) professionalism of the oversight members. On the top of Hong Kong, our study also examines Japan, Taiwan, as the areas for in-depth review investigation. These four jurisdictions are chosen both by purpose and by convenience. We seek to provide a comparison for the common law Hong Kong with the two civil law jurisdictions. We also prepare to review if the set up and rationales for police oversight in three Asian places would be different from the ‘Western democracies’ made up mainly Anglo-Saxon population. Such a combination would ascertain the comparison more comprehensively. Further, these four jurisdictions also have their own shares of controversies, all of which giving us a glimpse on potential ways to improve the police oversight mechanism in Hong Kong. Taiwan’s Control Yuan was criticized for its operation being inadequate and ineffective in general. Japan’s police oversight organization got low public trust on its usefulness, which leads to the low confidence over the oversight body as a whole. We would argue that there are three different rationales in respective Asian jurisdictions covered, namely the Professionalism, Representation and Empowerment, contributing to their alternative developments in police oversight mechanisms.

1.7 Chapter Arrangement

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These rationales are occupying important positions in the politics of policing in respective regions, giving direction to the reform or in-reform of the police oversight mechanisms. These rationales could be revealed in the archives of the official documentation and re-discovered in the discourses provided by the stakeholders. Some interesting dynamics could be seen between this official discourse and the feedback from different stakeholders on keeping, shifting or shaping these rationales in relationship to the police oversight mechanisms. We would also argue that these rationales are contributing to a different experience of police oversight in the Asian context, when democratization is partially achieved or even absent in the above jurisdictions, hence, diverging from the trend we observed in the mature democracies or literatures produced in the ground of Western democracies. The limited protection to basic human rights or partial commitment to the “universal” democratic value are giving way to other political values including regime stability. This political fact contributes to the different focuses on another set of rationales in the development of police oversight mechanisms, leading to a totally different, if not opposite, experience in the concerned system. In the coming chapters, we would like to explore how these rationales are being built up in respective jurisdictions throughout their own history of policing, and shedding light on the competition and struggle between state and different stakeholders in the society, on directing the politics of policing. Hopefully it will give a lesson not only to the Asian fellows, on realizing how their own police oversight mechanisms have been built up, but also, telling an alternative story in echo to the prevailing theories in policing studies.

1.7  Chapter Arrangement The structure of this book basically follows the argument we set out, by tackling how the rationale of the respective region being twisted and manipulated by the authority to gloss over the true nature of the police oversight mechanism, together with the fightback of other stakeholders. It will first start with the discussion on Hong Kong in Chap. 2, the least democratic region in comparison with Japan and Taiwan. As Professionalism would be the major feature of her police oversight system, the author would spend most time on illustrating how the system has been formulated under such rationale, by detailing its institutional feature and constraint. In Chap. 3, we would discuss the development of police oversight in Japan, highlighting how the system was different from the professionalism-emphasized system of Hong Kong, by placing “representation” in the center of stage. Its institutional development would not be missed for supporting how the structure had been heavily influenced by the United States, just as her political structure and legal system is. It would also cover clever play of this system on how it gives representation without empowering the police oversight bodies, which diverts her system away from the prevailing civilian control model. In Chap. 4, it comes to Taiwan’s model, practically the one example which has the closest resemblance to the civilian control

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model prevailing in the Western democracies. Yet, this model holds a very interesting difference contrasted from the other presidential systems in the other side of the world. Her special constitutional setting drives her police oversight mechanism away from that of the fellows in the West, and arguably gives even more power politically and institutionally to the police oversight body. This experience might be a good example to the democracies in the West, especially when they are struggling with the problem of empowerment to their own police oversight bodies. The last chapter would be the conclusion, hopefully we could summarize our debate and draw some insights from the Asian experience, contrasting it with the popular debate in scholarship of politics of policing and police oversight. A sharp comparison between the police oversight mechanisms in the three jurisdictions would be compared with the Western counterparts. We are not trying to give a generalization of our study to represent the “East Asian Model” or “Asian Model”, but we would like to highlight an alternative pathway in police oversight, experienced by the three jurisdictions. The complexity of the pathways of “Professionalism”, “Representation” and “Empowerment” hopefully would give not only an alternative categorization to the rich typologies of police oversight mechanisms, but also reveal how politics of policing could be manipulated in other political context and somehow might be relevant in context when democracy is in retreat.

References den Heyer, G., & Beckley, A. (2013). Police independent oversight in Australia and New Zealand. Police Practice and Research, 14(2), 130–143. Ferdik, F. V., Rojek, J., & Alpert, G. P. (2013). Citizen oversight in the United States and Canada: An overview. Police Practice and Research, 14(2), 104–116. Goldsmith, A. J. (1988). New directions in police complaints procedures: Some conceptual and comparative departures. Police Studies Intnl Review of Police Development, 11, 60. Ho, L. K.-k. (2020). Rethinking police legitimacy in post-colonial Hong Kong: Paramilitary policing in protest management. Policing: A Journal of Policy and Practice, 14(4), 1015–1033. Hong Kong Police Force. (2020). Complaints against police office, a guide for complainants. Hong Kong Police Force. Retrieved April 29, 2021, from: https://www.police.gov.hk/info/doc/ pol/en/Pol_679.pdf Hong Kong Public Opinion Research Institute (HKPORI). (2019). People’s satisfaction with the performance of the Hong Kong Police, half-year average, 7–12, 1997–1-6, 2019. HKU POP. Retrieved March 28, 2021, from: https://www.hkupop.hku.hk/chinese/popexpress/hkpolice/halfyr/hkpolice_halfyr_chart.html Kerstetter, W. A. (1985). Who disciplines the police? Who should? In W. A. Geller (Ed.), Police leadership in America: Crisis and opportunity (pp. 149–182). Praeger. Law and Regulations Database, Taiwan ROC. (2021). Retrieved March 28, 2021, from: https://law. moj.gov.tw/index.aspx National Police Agency, Japan. (2019). The White Paper on Police 2019. (in Japanese). Japan: National Police Agency. National Police Agency, Japan. (2021). About the number of disciplinary actions during the second year of Reiwa. National Police Agency. Retrieved March 28, 2021, from: https://www.npa. go.jp/news/release/2021/r02_nenkansyobunsyasuu.pdf

References

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Perez, D. W. (1994). Common sense about police review. Philadelphia: Temple University Press. Porter, L. E., & Prenzler, T. (2012). Police oversight in the United Kingdom: The balance of independence and collaboration. International Journal of Law, Crime and Justice, 40(3), 152–171. Prenzler, T. (2004). Stakeholder perspectives on police complaints and discipline: Towards a civilian control model. Australian & New Zealand Journal of Criminology, 37(1), 85–113. Prenzler, T., & Ronken, C. (2001). Models of police oversight: A critique. Policing and Society: An International Journal, 11(2), 151–180. Seneviratne, M. (2004). Policing the police in the United Kingdom. Policing and Society, 14(4), 329–347. Stenning, P. C. (2000). Powers and accountability of private police. European journal on criminal policy and research, 8(3), 325–352. Taiwan Government. (2020). Political System. Retrieved December 13, 2020, from Government Portal of the Republic of China (Taiwan): https://www.taiwan.gov.tw/content_4.php United Nations Office on Drugs and Crime. (2011). Handbook on police accountability, oversight and integrity. New York: United Nations. Retrieved December 10, 2020, from https:// www.unodc.org/pdf/criminal_justice/Handbook_on_police_Accountability_Oversight_and_ Integrity.pdf.

Chapter 2

Professionalism: A Scarecrow for the Non-­democratic Policing System in Hong Kong

2.1  Structural Features and Roles of the Oversight Bodies The two-tier police oversight mechanism in Hong Kong nowadays is inherited from the colonial era. The Complaints Against Police Office (CAPO) has always been the internal unit of the Hong Kong Police Force (HKPF). Established in 1974, itself also a response to the serious syndicated corruption and rampant police misconduct, the CAPO has become the only and major hub within the police oversight mechanism, occupying the most important power of police checking. Another tier of the police oversight mechanism consists of the Independent Police Complaints Council (IPCC). Founded in 1986, previously the standing group of Unofficial Members of the Executive and Legislative Councils (UMELCO), the council continued to receive reports submitted by the CAPO. Being renamed in 1994, by adding the word “independent” before the council’s name, aims at emphasizing the independence of the council. The IPCC Ordinance went into effect in 2009, granting the legal status of a statutory body to the council (IPCC, 2021). As the integral part of the Hong Kong Police Force, the CAPO is under the Complaints and Internal Investigations Branch of the Service Quality Wing, accountable to the Deputy Commissioner of Police and hence to the Commissioner of Police (Hong Kong Police Force, 2020a). The unit is filled with police officers of different ranks, ranging from Junior Police Officers to Superintendents. The CAPO handles all complaints lodged by the public against Force members, being the only window for the Hong Kong citizens to table complaints against Police. The IPCC is an independent statutory body external to the Police Force. The council is all appointed by the Chief Executive of the HKSAR, from 2019 to 2020, the council was formulated by 1 Chairman, 3 Vice-Chairman and more than 20 other members (IPCC, 2019, pp.  94–96). Taking its membership in 2019 as

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 L. K. Ho et al., Policing the Police in Asia, SpringerBriefs in Criminology, https://doi.org/10.1007/978-3-030-82981-0_2

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example, the background of appointees ranged from legal, financial, architectural, arts, engineering, medical to commercial sectors (Ibid, pp.  8–14). The 3 vice-­ chairmen would simultaneously be legislators. The wide range of personal backgrounds and qualifications aims at enhancing the professional image of the council in the public’s eyes. Also, in order to enhance the neutrality of its membership, persons who “hold an office of emolument in a Government bureau or department” or any member of the Police Force would not be considered as eligible for appointment (Legislative Council Secretariat, 2020). Sanctioned by the IPCC Ordinance, the main functions of the IPCC are: • To observe, monitor and review the handling and investigation of Reportable Complaints by the Commissioner of Police. • To monitor actions taken or to be taken in respect of any police officer by the Commissioner of Police in connection with Reportable Complaints. • To identify any fault or deficiency in police practices or procedures that has led to or might lead to a Reportable Complaint. • To advise the Commissioner of Police and/or the Chief Executive of its opinion and/or recommendations in connection with Reportable Complaints; and, • To promote public awareness of the role of the Council (IPCC, 2019).

2.2  Operating Procedures The two-tier police oversight system in Hong Kong shares power of police checking to the two oversight bodies, however, any sensible observer would be able to spot the fact that the system has been skewed by placing much more institutional power to the CAPO, than the IPCC. We will discuss the skewness by breaking down the procedures.

2.2.1  Intake If any member of the public wants to lodge his/her complaints against a police officer, they could do it by letter, email, telephone or in person via the office of CAPO, or any police station in their convenience. Any report room of the police stations or the Reporting Centre of the CAPO are taking the complaints from citizens. The type of complaints these organs take involve all police misconduct, practice or procedure adopted by a police officer or civilian member attached to the police force (Legislative Council Secretariat, 2020). However, if the complaint falls into the category of traffic, the Central Traffic Prosecutions Division would take part and handle the complaints (Hong Kong Police Force, 2020b).

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Before a formal complaint is launched, an alternative option, the “expression of dissatisfaction”, is reserved for the complainants to voice their grievances without formally engaging into long complaint procedures. If the formal complaint is tabled, the CAPO would then conduct initial classification. The complaints would be classified as a) complaints suitable for Informal Resolution; or b) complaints for full investigation. If the complainants do not agree with the proposal for Informal Resolution, the CAPO will initiate the full investigation (HKPF, 2020a, p. 3).

2.2.2  Investigation The CAPO is the sole complaints investigation body in the two-tier system. The complainants will be first approached for a written statement. Investigation follows, either done by the CAPO internally, or by the Divisional or Specialized Police Formations. In the latter case, the investigation process would be monitored by the CAPO. These complaints getting through the investigative process should fall into the category of “Reportable Complaints”, hence needed to be submitted to the IPCC. Having said the investigative process solely in-charged by the police internally, an Observer’s Scheme of the IPCC enables laymen to observe interviews and collection of evidence. The scheme started in 1996 and all observers are appointed by the Secretary for Security from the Executive branch of the HKSAR Government. These observers may attend interviews and observe the process of evidence collection. Observers could be present, upon request of interviewees, to attend the interview related to Reportable Complaints (IPCC, 2019, p. 27). By finishing the investigation, the CAPO (via the Commissioner of Police) should submit an investigation report to the IPCC Secretariat, for vetting. The Secretariat could raise queries at this stage, for facts clarification or asking for further information. If the Secretariat did not have any query, the report would be circulated by the IPCC members and waiting for vetting by the Chairman. Upon receiving the report, the IPCC could conduct an interview with any person “who is or may be able to provide information or other assistance to the Council in relation to the report” (Article 20(1) of Cap. 604 Independent Police Complaints Council Ordinance). If the report is endorsed, the complainant would be notified of the result. However, if the report could not be endorsed by the IPCC, the report could only be re-diverted back into the CAPO for reinvestigation. During the process, the IPCC and CAPO could meet for joint discussion, and if the case is still unresolved, and the investigation result could not be endorsed by the IPCC again, the last resort could only be the Chief Executive.

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2.2.3  Appeal When the complainant was first noticed for the result of the police investigation, itself endorsed by the IPCC, the complainant could request a review of the complaint within 30 days. Then, the IPCC would review the second report of the police investigation again, but this time, the result would be final (Legislative Council Secretariat, 2002, p. 11). Complaints lodged by public

Initial classification by CAPO check Investigation by CAPO

Observers Scheme

Investigation by Divisional or Specialized Police Formations

Investigation monitored by CAPO

queries

Investigation results conducted by CAPO

IPCC Secretariat Vetting

queries Re-investigation result IPCC Sub-groups queries

IPCC Chairman Vetting

Endorsement of IPCC

Report to Chief Executive

Respond to Complainants

Fig. 2.1  Operating procedures of the Hong Kong police complaints mechanism Sources of Information: Hong Kong Police Force. (2021). Complaints Against Police Office A Guide for Complainants. Retrieved from: https://www.police.gov.hk/info/doc/pol/en/Pol_679.pdf. Independent Police Complaints Council – Handling procedures by CAPO. (2018a). Handling procedures by CAPO. Retrieved from: https://www.ipcc.gov.hk/en/complaints/procedure_chart.html. Independent Police Complaints Council – Monitoring procedures. (2018b). Handling procedures by CAPO. Retrieved from: https://www.ipcc.gov.hk/en/what_we_do/monitoring_procedures.html

2.3 The Two-Tier System in Stagnation

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2.3  The Two-Tier System in Stagnation The most serious criticism on the two-tier system has been the over-centralization of investigative power upon the CAPO. Just as report written by the Research Office of the Legislative Council Secretariat in May 2020 summarized: Since the police are primarily responsible for investigating police complaints, there are views that the current mechanism lacks independence and has limited monitoring and disciplinary power. Amid increased public concerns and complaints about police conduct and custody, there have been calls for a reform of Hong Kong’s police oversight mechanism (Legislative Council Secretariat, 2020).

The criticism on the lack of institutional checking against the CAPO is in no way novel. It has been here for nearly 30 years. The then legislator, Rev. Fung Chi-wood, questioned the fairness and impartiality of having police officers investigating police officers as early as in 1992. The government, however, argued the CAPO officers belonging to the Complaints and Internal Investigations Branch of the force, hence “is separate from the rest of the force”, hoping to fend off the criticism (LegCo. HK., 1992a). Pressure from the legislative branch had not disappeared in the remaining colonial years. James To, in April 1993, first moved the motion to urge the Government to set up an independent body to receive and investigate complaints in relation to police officers, replacing the existing CAPO (LegCo HK., 1993). The request to make CAPO an independent body gave continual pressure to the administration through the legislative branch in the remaining years of the last colonial years. In the Legco. Panel on Constitutional Affairs of 13th June 1995, members urged the government to make CAPO independent from the Police Force (LegCo. HK, 1995a). The criticisms from the legislators were mainly built on the low substantiation rate, high rate of withdrawal or non-pursuable cases. For instance, James To raised his concern that in 1992, a total of 1611 complaints were “withdrawn or non pursuable”, 195 were classified as “no sufficient evidence” or “termination of investigation”, and together these two categories of complaints “accounted for 98.9% of all complaints received for investigation” (LegCo. HK, 1993). The shocking fact was “only one out of nearly 2000 complaints was found substantiated”. In 1994, Andrew Wong also pointed out 91.2% of the assault complaints, which he deemed too high in ratio, were withdrawn or classified as not pursuable (LegCo. HK, 1994). The administration, however, refused to take “overhaul of the existing mechanism” by making CAPO independent from the Police Force, as the Principal Assistant Secretary for Security, Jack Chan, considered it unnecessary for its proper functioning (LegCo. HK, 1995b). Instead of making CAPO independent from the Police Force, the Secretary for Security, Peter Lai, announced the government planning to empower the IPCC, including granting them rights to interview witnesses, installing closed circuit television and introducing video or tape recording of statements taken in the offices of the CAPO (LegCo. HK, 1995c). It had become a major tactic that the administration was replacing the radical call with moderate reforms. In the transition period, the main justifications provided by

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the pro-establishment forces to fend off the radical request were the worrying law and order and the importance of smooth transition in 1997 (LegCo. HK, 1992b, 1995c). Hence, in the latest years before the Handover, the colonial administration had been implementing a series of measures to improve the existing complaints system, including empowering the IPCC to interview witnesses, installing CCTV etc. These reforms were relatively mild compared with the call for an independent investigating body. With the seemingly big move in the last colonial year, the draft Bill was prepared by the administration to turn the IPCC statutory body. Carrie Yau, the Acting Secretary for Security, mentioned in July 1996, that the coming Independent Police Complaints Council (IPCC) Bill sought to provide statutory basis for the IPCC, and the council would be empowered to: (a) (b) (c) (d) (e)

require the Commissioner of Police (CP) to submit a report on any complaint; require the CP to reinvestigate any complaint; interview witnesses, complainants and complainees; conduct scheduled or surprise visits to observe investigations by CAPO; and submit its findings and recommendations on complaint cases to the Governor (LegCo HK., 1996a).

With these relatively mild reforms, the attention of the public could be shifted, and an illusion could be created that the two-tier system is improving. However, the fact was that the CAPO’s investigative power was firmly controlled by the Police Force, while the IPCC had not been greatly empowered by those mild reforms. Just as the tripartite Study Group, comprising the representatives of the IPCC, Security Branch and the Police, concluded in the comparative report, “police complaints systems vary from one country to another… the Study Group concludes that it would not be appropriate to copy any one system in its entirety to Hong Kong” (LegCo. HK, 1996b). The line taken by the colonial administration was that the independent civilian body would not be adopted entirely into Hong Kong. With the institutional privilege, the request of separating CAPO out of the Police Force had been labelled “radical” and never been the prevailing demand across Hong Kong society, especially during the transition period, the demand was contrasted with the hope for smooth transition and stability. Also, the justifications provided by the administration successfully diverted the public attention on how to reform the IPCC, instead of an overhaul of the existing system. With the failure to compromise with the legislators, the administration decided to withdraw the above bill on 23rd June 1997, making the last attempt to turn IPCC statutory body before the Handover in vain. Democratic legislators did not stop in the post-colonial era, yet they could only raise their criticism of CAPO during the debate on the Appropriation Bill. Consecutively from 2000 to 2005, democrats questioned the efficiency of the CAPO for spending about $60 million annually on some 180 staff (taken the case of 2000), and proposing to abolish the office. However, all these attempts failed in the face of institutional privilege of the executive branch over the legislative branch, so-called the separation of votes.

2.3 The Two-Tier System in Stagnation

23

The stagnation continued in the first decade of the post-colonial era. Only in 2007, the administration introduced the long-abandoned, revised version of the Independent Police Complaints Council Bill. However, this ordinance would not empower the IPCC with investigative powers. As the Security Bureau gave out their justifications, granting IPCC investigative power would “adversely affect the quality of the IPCC’s investigation”, as the IPCC “does not have investigative powers like those available to the Police… or the necessary expertise and knowledge for investigating complaints…” (LegCo. HK, 2007a). The Security Bureau further claimed the problem could not be solved by formulating an investigation team of its own for IPCC, as it could only “result in an overlapping of resource requirement and duplication of efforts” (Ibid.). In stance of the administration, empowering IPCC to investigate complaints would cause overlapping in function and hence, “confuse the IPCC’s role as an oversight body” (Ibid.). From these responses, we could better understand the meaning of “Professionalism” in the HKSAR context, it is to keep the professionals (CAPO) checking themselves (police) and keep others as professional observers (IPCC). Therefore, even though the 2007 IPCC Bill granted statutory status to the council, it had never truly converted the power relationship between the CAPO and IPCC.  To name some examples, the IPCC could “require the Police to provide explanations” concerning the categorization of non-reportable complaints or to require the Police to re-consider such categorization yet got no power to intervene and categorize the complaints themselves. Upon receipt of the investigation report, the IPCC could require the Police to re-investigate, yet got no power to re-­investigate the complaints themselves. On punishment, the IPCC could only advise but not direct the Police on their disciplinary actions taken (Ibid.). Just as the Hong Kong Human Rights Monitor commented in December 2007, they welcome the bill to transform the existing IPCC into an independent statutory body, yet the bill “suffers from the same fundamental flaw in denying the essential power of investigation” (LegCo. HK, 2007b). The similar challenge from legislators was injected into the legislature, by moving some committee stage amendments, however, ruled outside of the scope of the bill (LegCo. HK, 2008a). Thus, finally in 2008, the IPCC Bill was passed in the Legislative Council, successfully turning the IPCC into a statutory body. With the fact that the IPCC Bill didn’t really alter the power relationship between the CAPO and the IPCC, the author believes there had been a scarecrow erected since the colonial years, mythicized the existence of an “independent” body, hoping that ill-empowered institution sufficiently checking the only police complaints investigation body, the CAPO, and its counterpart in Hong Kong Police Force. With the legislation of IPCC Ordinance in 2008, by formally turning the IPCC into a statutory body, it only erected a bigger scarecrow, further hiding the unpleasant truth that the IPCC had not been truly empowered in the police oversight mechanism. Legco member, the Hon Margaret Ng, in 2008, summarized how the two-tier system had survived under the shadow of scarecrow named “professionalism” (Table 2.1):

N/A

N/A

N/A

N/A

N/A 0 (2003–2008)

Withdrawn (%)

Not pursuable (%)

Curtailed (%) IPCC Interview Scheme (persons invited/ interviewed) IPCC Observers Scheme (Scheduled/Surprise)

Compiled by authors from the IPCC, Hong Kong Reports, 2009–2020

1974

2021 (1451/570)

18.60% N/A

15.40% N/A

False (%) Allegations not required full investigation (total) Informally resolved (%)

2012 (1667/345)

511 (15.1%) 1970 (58.3%) 885 (26.2%) 11 (0.3%) 2 inv./2 int.

2471 (2128/343)

396 (11.6%) 2058 (60.1%) 968 (28.3%) 0 (0%) 12 inv./11 int.

43 (3.3%) 557 (42.3%) 467 (35.4%) 93 (7.1%) 3422

29 (1.9%) 630 (41.8%) 605 (40.1%) 81 (5.4%) 3377

54 (3.0%) 884 (48.3%) 596 (32.6%) 117 (6.4%) 4410

61 (2.9%) 1107 (52.6%) 567 (26.9%) 144 (6.8%) 5077

1808 (1477/331)

17.30%

8.50%

No fault (%)

2007: 263 (263/0) 2008: 548 (497/51)

597 (50%)

754 (65%)

4740 1318

2013–14

101 (6.7%) 86 (6.5%) 61 (4.0%) 72 (5.5%)

4884 1507

2012–13

130 (6.2%) 98 (5.4%) 96 (4.6%) 80 (4.4%)

6239 1829

2011–12

923 (20.9%) 2447 (55.5%) 1024 (23.2%) 16 (0.4%) 14 inv./13 int.

14.20%

11%

7182 2105

2010–11

1293 (25.5%) N/A 2443 (48.1%) N/A 1329 (26.2%) N/A 12 (0.2%) 8 inv./5 int. 7 inv./6 int.

N/A 1194

N/A 1159

Allegations (total) Allegations required full investigation (total) Substantiated (%) Substantiated other than reported (%) Not fully substantiated (%) Unsubstantiated (%)

2009–10

2008–09

IPCC stat.

Table 2.1  Oversight statistics of IPCC 3360 1206

2015–16 2807 936

2016–17 2872 1010

2017–18 2466 630

2018–19

2209 797

2019–20

141 (6.5%) 800 (37.1%) 1213 (56.3%) N/A 2 inv./2 int.

22 (1.8%) 523 (43.4%) 469 (38.9%) 51 (4.2%) 2154 204 (10.9%) 653 (34.9%) 1014 (54.2%) N/A 3

10 (1.1%) 389 (41.5%) 375 (40.1%) 73 (7.8%) 1871

327 (17.6%) 642 (34.5%) 893 (47.9%) N/A 4

21 (2.1%) 419 (41.5%) 401 (39.7%) 56 (5.5%) 1862

324 (17.6%) 597 (32.5%) 915 (49.8%) N/A N/A

7 (1.1%) 299 (47.5%) 219 (34.8%) 33 (5.2%) 1836

202 (14.3%) 462 (32.7%) 748 (53.0%) N/A N/A

2 (0.3%) 257 (32.2%) 403 (50.6%) 59 (7.4%) 1412

2259 1704 1817 1999 1874 2127 (2242/17) (1689/15) (1799/18) (1960/39) (1841/33) (2117/10)

328 (11.8%) 1442 (51.9%) 1009 (36.3%) N/A 5 inv./4 int.

26 (2.0%) 560 (42.8%) 522 (39.9%) 74 (5.7%) 2779

76 (5.8%) 81 (6.7%) 49 (5.2%) 68 (6.7%) 58 (8.9%) 57 (7.2%) 51 (3.9%) 60 (5.0%) 40 (4.3%) 45 (4.5%) 16 (2.5%) 19 (2.4%)

4088 1309

2014–15

2.4 Scarecrow Fallen

25

Although the IPCC was criticized by everyone for its inadequate powers and poor performance, why did the public still have a certain degree of confidence in it? Because some people with high credibility were appointed at that time to be IPCC members. As the Government had great respect for them, there was an impression that, first, these people were very smart and capable; and second, they would uphold justice, and as a result, the Government would take them seriously. Therefore, it was hoped that, in the absence of supervision, they would still, irrespective of the degree of supervision and openness, complete the tasks entrusted by the Government. … This was the approach adopted by the IPCC at that time. However, President, this approach actually sought to create an illusion, whereby people were given the impression that all IPCC members were trustworthy (LegCo. HK, 2008b).

2.4  Scarecrow Fallen As the above Table 2.1 Oversight statistics of IPCC shown, most of the police complaints fall into the category of “allegations not required full investigation”. And even if the allegations are lucky enough to go through the whole process of full investigation, only a small proportion of them would be classified as substantiated. The author is not saying it is only normal when most of the allegations needed to be fully investigated, or the substantiation rate must be remarkably high in order to justify the mechanism is trustworthy. Instead, the author would like to point out, if one allegation is wrongly classified by the CAPO, or wrongly investigated by the office as other than substantiated, there is no much institutional room for the allegation to be reclassified, re-investigated. Simply put, the CAPO is not receiving enough institutional checks. Another interesting contrast would be between the dropping number of allegations starting from 2010, accelerated from 2014 on, and more frequent conflicts between citizens and police in the HKSAR, with the Anti-Hong Kong Express Rail Link Movement from 2009 to 2010, the Umbrella Movement in 2014, and the Anti-­ Extradition Law Amendment Bill Movement from 2019 to 2020. Is it a result of better performance of the Police Force, hence less complaints made? Or is it a result of the losing trust of the two-tier police oversight system, in other words, the downfall of the scarecrow? The “Professionalism” scarecrow, used for fending off criticism on the two-tier police oversight mechanism, has undergone some serious challenges in recent decades. The falling of the scarecrow could be argued because of two developments in the post-colonial era: (1) Hong Kong citizens’ losing trust in the police; (2) escalating social conflicts that exposed the weaknesses of the IPCC. On the level of trust in the HKPF, the paramilitary force had indeed earned prestige and a good reputation in the few decades after the 1967 Riot. The professionalization and corruption-combat since the 1970s, the transformation into community policing in the 1980s and subsequent NPM reform helped implanting a professional, non-coercive and law and order service-provider image in the heart of the Hong Kong citizens (Lo & Cheuk, 2004). In the first decade of the post-colonial era, protests did happen, yet in general smaller in scale, and the non-confrontational strategy adopted by the HKPF contributed to the relatively peaceful coexistence between protestors and police. A rather “soft” protest management strategy placed the police

26

2  Professionalism: A Scarecrow for the Non-­democratic Policing System in Hong Kong

into a position of facilitator, mitigating with the protest leaders, making protests largely in order and peaceful. Even in the aftermath of the Anti-WTO Ministerial Conference of 2005, in which tear-gas and non-lethal weapons had been employed to oppress the Korean farmers, the HKPF still enjoyed the record-high satisfaction rate of 82% (HKPORI, 2019). The restrained employment of coercion and the respect for freedom of procession did maintain the professional image of the HKPF, hence sustaining the force with public trust. However, the unresolved political struggle between the Hong Kong citizens, the HKSAR government, and the Central Government at the background placed the HKPF into a more confronting position against the protestors. With the rise of localism, identity politics has become the major tone orchestrating a series of protests safeguarding “Hongkongese”. The 2007 demonstrations against the demolition of the Queen’s Pier, the 2008 protest the Guangzhou-Shenzhen-­ Hong Kong Express Rail Link, a series of protests parallel trading, and the Moral and National Education controversy revealed an increasing part of Hong Kong population worried about the stronger influence of China and the fading identity of Hongkongers (So, 2008; Garrett & Ho, 2014). The more coercive involvements of the HKPF in these movements were captured through the lens of the press and left a different image in the eyes of the public. These images shook people’s satisfaction with the force. As of the latter half of 2007, the HKPF earned 77% of satisfaction net value, yet fell 20% to 54.8% in the second half of 2008. The net value struggled and fell again in 2012 into 40.8% (HKPORI, 2019). The next profound impact to the trust in the HKPF should be the Umbrella Movement. Shot 87 canisters of tear gas on 28th September 2014, it left a mark in history that the crowd-control weapon was used against Hongkongers since the city’s return to the Motherland in 1997 (Arranz & Lam, 2019; Wong & Chan, 2017). The 79-day sit-in across Admiralty, Causeway Bay and Mongkok blocked some of the major channels in the districts and led the traffic to a standstill. The HKPF was deployed for a clearance to cut societal cost the traffic blockade done. However, the sometimes-­excessive coercion involved drained the public satisfaction. In the second half of 2014, the satisfaction net value had already been 29.1%, and it came to a record-low point of 20.9% in the first half of 2015 (HKPORI, 2019). The political struggle not only reduced the satisfaction rate of HKPF to the historically low point, but also it inflicted damage to the trust on police oversight mechanisms. The complaint was directed towards Franklin Chu King-wai, a Police Superintendent, who was suspected for excessive use of force on protesters on 26th November 2014. Hitting the pedestrians with a baton, without warning, the brutal act of Chu had been captured and widely circulated via television broadcast, hence drawn societal attention. Chu explained his baton was “an extension of his arm” and “unintentionally touched” the pedestrians (Progressive Lawyers Group, 2015). With the complaint being fully investigated by the CAPO internally, the IPCC received the investigation report on 20th May 2015. However, the CAPO had not classified the allegation against Chu into “Assault”, which IPCC could not agree, hence the latter urged to substantiate the Assault allegation against Chu. The disagreement continued and on 10th July, the IPCC called a special in-house meeting

2.4 Scarecrow Fallen

27

to discuss the issue. In which, the CAPO suggested categorizing Chu’s allegation as “unnecessary use of authority”, which IPCC instead insisted it was an assault (Apple Daily, 2018). Afterwards, the CAPO agreed the Assault allegation against Chu, however, deemed there was insufficient evidence to fully support the claim. Hence, the CAPO suggested it to be classified as “not fully substantiated” (Ibid.). The second special meeting called by IPCC, on 22nd July (1 day before Chu’s retirement), retained their categorization as an allegation of assault. The CAPO accepted IPCC’s categorization only until 14th December 2015, reported to the IPCC that the Assault complaint against Chu was substantiated, the retired officer Chu faced “warning with divisional record file entry” (Ibid.). Criminal investigation and prosecution followed in 2017 and 2018. Chu finally faced 3-month jail, sentenced in January 2018 (Ibid.). One may think it was a success or somewhat a proof showing the current police oversight mechanism has been working well. Yet, institutionally speaking, the case exposed the weakness instead of justifying it. Throughout the Chu’s case, we could see that most decision-making power was heavily vested into the hands of the CAPO. The position of the IPCC is utterly passive. The IPCC could not take complaints from the public, not able to launch an investigation proactively, but only wait for the CAPO to submit their investigation report on “reportable complaints”. The lack of independent investigative power seriously paralyzed the institution. Even if they disagree with the categorization of allegations made by CAPO, just like the above case of Chu, they could only request the CAPO to recategorize it. Or if they believe some important evidence was missing, they could only request CAPO to reinvestigate, as their power of interviewing witnesses is so limited. A more wide-spreading and unprecedented social conflict came in June 2019, lasting for several months, it created the greatest momentum impacting the Hong Kong society, altered the Central Government’s governing strategy to Hong Kong, hence gave the last strike on people’s trust on the police force and her police oversight mechanism. The social conflict escalated with an estimated one million Hongkongers’ march on 9th June 2019, requesting a withdrawal of the extradition bill, yet rejected by Lam’s administration. At the completion of the march, tens of thousands of Hongkongers were cold-shouldered by the authorities, as the latter decided to resume the second reading of the controversial bill on the 12th of June (Dapiran, 2020). The protestors could not hide their anger towards the decision, and hence took the Harcourt Road outside government headquarters on the day the Legislative Council’s meeting resumed. In that morning, about 100,000 citizens flocked and the wave flooded the area surrounding the Legislative Council. Legislators were blocked from entering the building. Meeting suspended, however, protestors could not ease their heart and persist their demonstration, for a full withdrawal of the bill. At three o’clock, a deadline set by some protestors, conflict between police and protestors happened, with exchange of metal bars from protestors, pepper spray, batons and tear gas from the police, it kickstarted the long story of coercive oppression hereafter. The “compromise” made by Lam’s administration on 15th June, announcing the bill would be suspended, had already failed to pacify the protestors. On 16th June,

28

2  Professionalism: A Scarecrow for the Non-­democratic Policing System in Hong Kong

another two million people outraged and made their 5-demands from the streets. The alleged half-hearted verbal apology of the Chief Executive, Carrie Lam, on 18th June, was deemed too minor in concession on easing the public anger. And in the meantime, the death of several persons, in relation to the protest, enlarged the cleavage between protestors and administration. The cleavage led to the besiege and break-in of the LegCo building on the 1st of July, resulting after the flag-raising ceremony at the Convention and Exhibition Center of the morning. The LegCo was occupied by protestors for 3 h, with the symbolic representation of sovereignty, the emblem of the HKSAR being smeared. The Black Bauhinia flag was erected (Lo et al., 2021). It shows their ultimate distrust of the political institution of the HKSAR. The wave of distrust erupted and further challenged the legitimacy of HKPF, especially by the happenings of the July 21 incident. In the daytime of the 21st of July, the Civil Human Rights Front organized another demonstration against the extradition bill, while some radicals mobilized to protest the Liaison Office at Sheung Wan. At the front door of the building, the PRC’s national emblem was damaged. The police were deployed to oppress the protestors by firing tear gas, rubber bullets and sponge grenades (Ibid., p. 122). Protestors escaped and retreated, and a number of them were allegedly retreating by MTR. Hence, at the nighttime, triad members dressed in white shirts gathered around the Yuen Long MTR station, hoping to catch and punish those protestors retreating from the protest at the Island, with rattans, sticks and metal bars (Ibid.). One of the fatal wounds to police legitimacy was, when the white-shirt gangsters were attacking the passengers at the lobby of the Yuen Long MTR station, two police constables walked by the MTR station, yet turned away (Ibid., pp. 123–124). The police legitimacy was harmed not only out of the inaction on maintaining law and order (in fact, the police did not arrive the scene until 39 min passed, after the first call citizen made to the police report center), but more importantly, the alleged collusion between police and the white-shirt triads. The allegation of the HKPF with collusion with gangsters seriously harmed the ethos of the public policing system, the Professionalism, itself the cornerstone of this “Asia’s finest”, as the police are now criticized as enforcing law and order selectively, if not selectively targeting the protestors. With the losing faith of Professionalism on HKPF, the two-tier police oversight mechanism, heavily relied upon the ethos, is also under legitimacy crisis. In the reluctance to set up an independent commission of inquiry to investigate the disturbances and police performance, the Lam administration insisted on relying upon the existing IPCC to investigate events. On 4th of September 2019, the IPCC appointed an International Experts Panel, with membership of five, to review the process and procedure the HKPF employed in the recent disturbance. However, only about 2 months before the panel’s final report came out, a member, Clifford Stott, wrote on his personal Twitter that the experts panel had made a “stock-take” in the report of progress. The panel concluded that there were “structural limitations in the scope and powers of the IPCC Inquiry remain, inhibiting its ability to establish a coherent and representative body of evidence” (Ming Pao, 2019). Hence, the panel suggests the IPCC “needs to substantially enhance its capacity: to assemble a coherent account of the facts from police and other bodies; to access important

2.5 Concluding Remark

29

documents and validate accounts supplied by the police and others in a timely fashion; and to significantly improve its capability to identity and secure evidence from key witnesses from outside policing” (Ibid.). The suggestion made by the International Experts Panel simply shows how underpowered the IPCC is, in terms of investigation. The last straw on the camel’s back came in December of 2019, when the experts panel decided to resign from the positions, as a protest of the IPCC’s incapacity on investigation. As quoted in the following: Given the scale and complexity of events subject to its Thematic Study, we determined that addressing at least the capacity and investigative capability shortfalls, would be necessary in order for the IPCC to begin to meet the standards citizens of Hong Kong would be likely to require of a police watchdog operating in a society that values freedoms and rights (HK01, 2019).

Various incidents of 2019 protests did not only expose the structural nature of the HKPF, as a paramilitary force inherited from the colonial era, smoke-screened by the ethos of Professionalism, but also tore down the scarecrow supporting the two-­ tier police oversight mechanism. Professionalism could no longer sufficiently check the police force, nor to restore public trust on the policing system. In the face of subsequent development of legislating the National Security Law and harsher oppression on the opposition, we do not see any chance of restoring trust by continuing relying upon the above ethos.

2.5  Concluding Remark In this chapter, the institutional limitations of the CAPO and IPCC were examined by addressing the puzzling phenomenon of Hong Kong people’s satisfaction with the police force dropping after the establishment of the IPCC. It does not mean that the IPCC was doing harm in terms of police performance. In contrast, reviewing the history of the development of police accountability in Hong Kong, the IPCC represents an obvious improvement in the police oversight mechanism. With the IPCC, the two-tier auditing mechanism was institutionalized. The examination revealed that the institutional design of the IPCC has not been able to cope with the rapidly changing state-society dynamics or the relationship between the police and the public in Hong Kong in the past decade. The IPCC is always criticized for having too little power to monitor the police. This criticism was most acute during the Anti-ELAB Movement when the police’s improper use of violence became the main reason for the mass population to support the movement (Lee et al., 2019). The saga was dramatized when the overseas professionals at the International Experts Panel, which was formed under the authority of the IPCC, quit the panel and complained that the IPCC had too little power to dig into the truth. However, two points should be addressed regarding the situation at the IPCC. First, the context of institutional design should be considered. The IPCC bill was drafted and tabled in the LegCo during the time that Hong Kong citizens

30

2  Professionalism: A Scarecrow for the Non-­democratic Policing System in Hong Kong

were most satisfied with the police force, and the bill aimed to formalize the role of the existing agency in reviewing reportable cases from CAPO. A long time for public discussion would be needed if the government were to propose granting investigative power to the IPCC, which would be a radical institutional change. The IPCC bill supported incremental improvement of the oversight mechanism, which was suitable for the political atmosphere at that time. Second, from a public administration perspective, it would be a major undertaking to establish an agency based on the civilian oversight model (i.e., granting the agency investigative power). Unlike the ICAC that mainly focuses on corruption that involves transfers of interest, the IPCC must handle a large variety of complaints, from the use of violence to the general misconduct of police officers. Given the complexity of the complaints against police officers, an upgraded IPCC with the power to effectively investigate these issues would have to be a giant agency with a significant budget. At the time, this kind of agency was too far removed from the publicly perceived need for an external body to monitor and review complaints to the police. The institutional design of the IPCC was not able to cope with the rapidly worsening relationship between the police and the public. The difficulty that the IPCC has faced represents the difficulty of police oversight in a liberal authoritarian regime. The tension between citizens’ exercise of civil liberty and potential repression from authority is fundamental and persistent in a liberal authoritarian regime. In a liberal authoritarian regime like Hong Kong, the repressive side of the police force is not obvious when the political opportunity structure induces predominantly moderate protests. However, when the state decides to repress a protest with a more hardline approach, the repressive side of the police force can rapidly appear. In this case, the public expectations for an expanded oversight mechanism could suddenly grow. The perceived powerlessness of the IPCC, as an institutional limitation, is to some extent situational and is affected by the state-society relation at that moment. Yet, this does not mean that the institutional practice of the IPCC is perfect. Part of the inefficacy of the agency comes from the agency’s resource distribution and personal appointments, which is within the ability of the government to adjust. First, compared with the enormous police department budget, the budget for the IPCC is too thin for it to be effective. It could be part of the reason that the perceived efficiency of the IPCC among the public was so unsatisfactory. Second, the government has failed to build up an image of IPCC impartiality, which could be improved by appropriate appointments of core members. Impartiality cannot be built when the agency lacks the participation of members from the pro-democracy camp. The observations in Hong Kong can bring us to ask a more fundamental question about oversight mechanisms and policing: to what extent can an ideal oversight mechanism be established? The ideal agency is not purely a question of being more powerful. In the mature democracies, empowering civilian agencies by granting them the power of investigation is a growing trend (Smith, 2015). It is based on the transformation of people’s perceptions of police from focusing on fighting crime to community engagement and civic education (Ho, 2020), but this transformation is not necessarily shared by developing countries in which fighting crime and protecting citizens’ lives are still the vital jobs of the police.

References

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References Apple Daily. (2018). The 3 years and 8 months of Chu King-wai case (in Chinese). Apple Daily, Retrieved April 29, 2021, from: https://hk.appledaily.com/local/20180808/ LBCYDFEDLA2WKSLLU7SNSNRJZM/ Arranz, A., & Lam, J. (2019). From occupy 2014 to protests 2019. South China Morning Post. Retrieved April 29, 2021, from: https://multimedia.scmp.com/infographics/news/hong-­kong/ article/3030696/from-­occupy-­to-­hong-­kong-­protests/index.html Dapiran, A. (2020). City on fire, the fight for Hong Kong. Scribe Publications. Garrett, D., & Ho, W.-C. (2014). Hong Kong at the brink-emerging forms of political participation in the new social movement. In J. Y. Cheng (Ed.), New trends of political participation in Hong Kong. City University of Hong Kong. HK01. (2019). International experts of IPCC quit (in Chinese). Retrieved April 29, 2021, from: https://www.hk01.com/%E7%A4%BE%E6%9C%83%E6%96%B0%E8%81%9E/408794 /%E7%9B%A3%E8%AD%A6%E6%9C%83%E5%9C%8B%E9%9A%9B%E5%B0%88% E5%AE%B6%E7%B5%84%E9%80%80%E5%87%BA-­%E6%94%BF%E5%BA%9C%E 7%99%BC%E8%81%B2%E6%98%8E-­%E5%B0%87%E7%A0%94%E7%A9%B6%E5%A 0%B1%E5%91%8A%E6%89%80%E6%9C%89%E5%BB%BA%E8%AD%B0 Ho, L. K.-k. (2020). Rethinking police legitimacy in post-colonial Hong Kong: Paramilitary policing in protest management. Policing: A Journal of Policy and Practice, 14(4), 1015–1033. Hong Kong Police Force. (2020a). Organization structure: Organization chart of HKPF. Hong Kong Police Force. Retrieved December 14, 2020, from: https://www.police.gov.hk/ppp_ en/01_about_us/os_chart.html Hong Kong Police Force. (2020b). Complaints against police office, a guide for complainants. Hong Kong Police Force. Retrieved April 29, 2021, from: https://www.police.gov.hk/info/doc/ pol/en/Pol_679.pdf Hong Kong Police Force. (2021). Complaints against police office a guide for complainants. Retrieved May 11, 2021, from: https://www.police.gov.hk/info/doc/pol/en/Pol_679.pdf Hong Kong Public Opinion Research Institute (HKPORI). (2019). People’s satisfaction with the performance of the Hong Kong Police, half-year average, 7–12, 1997–1–6, 2019). HKU POP. Retrieved March 28, 2021, from: https://www.hkupop.hku.hk/chinese/popexpress/hkpolice/halfyr/hkpolice_halfyr_chart.html IPCC, Hong Kong. (2018a). Handling procedures by CAPO. Independent Police Complaints Council. Retrieved April 29, 2021, from: https://www.ipcc.gov.hk/en/complaints/procedure_ chart.html IPCC, Hong Kong. (2018b). Monitoring procedures. Handling procedures by CAPO. Retrieved April 29, 2021, from: https://www.ipcc.gov.hk/en/what_we_do/monitoring_procedures.html IPCC, Hong Kong. (2019). Report of the independent police complaints council, 2018–19 (SP 2019/2020-067). Legislative Council. IPCC, Hong Kong. (2021). What is IPCC? Independent. Police Complaints Council. Retrieved April 29, 2021, from: https://www.ipcc.gov.hk/en/about_us/about_ipcc.html Lee, F. L. F., Yuen, S., Tang, G., & Cheng, E. W. (2019). Hong Kong’s summer of uprising: From anti-extradition to anti-authoritarian protests. The China Review, 19(4), 1–32. LegCo. HK. (1992a). Official record of proceedings, H19920219, Legislative Council, Hong Kong. LegCo. HK. (1992b). Official record of proceedings, H920311, Legislative Council. LegCo. HK. (1993). Official record of proceedings, H19930421, Legislative Council, Hong Kong. LegCo. HK. (1994). Official record of proceedings, H19940608, Legislative Council, Hong Kong. LegCo. HK. (1995a). Legco. Panel on constitutional affairs, notes of meeting, PL12249495, Legislative Council, Hong Kong. LegCo. HK. (1995b). Legco. panel on security, notes of meeting, PL7219495, Legislative Council, Hong Kong. LegCo. HK. (1995c). Official record of proceedings, H19951102, Legislative Council, Hong Kong.

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LegCo. HK. (1996a). Legco. Panel on security, minutes of meeting, CB(2)21129596, Legislative Council, Hong Kong. LegCo. HK. (1996b). Report on comparative study of complaints against police systems, SE960708P, Legislative Council, Hong Kong. LegCo. HK. (2007a). Administration’s response regarding whether the statutory Independent Police Complaints Council should be empowered to investigate complaints lodged by the public against the Police. CB(2)24307-08(03), Legislative Council, Hong Kong. LegCo. HK. (2007b). Submission on independent police complaints council bill from Hong Kong human rights monitor, CB(2)49907-08(02), Legislative Council, Hong Kong. LegCo. HK. (2008a). President’s ruling on committee stage amendments to Independent Police Complaints Council Bill proposed by Hon James TO Kun-sun and Hon LEE Wing-tat, R080710, Legislative Council, Hong Kong. LegCo. HK. (2008b). Official record of proceedings, H20080711, Legislative Council, Hong Kong. Legislative Council Secretariat HK. (2002). Mechanism of handling complaints against police. Legislative Council. Retrieved April 29, 2021, from: https://www.legco.gov.hk/yr01-­02/english/sec/library/0102in24e.pdf Legislative Council Secretariat HK. (2020). Research task: Police oversight mechanisms in selected places, RT09/19-20. Legislative Council, Hong Kong. Lo, W.-H.  C., & Cheuk, C.-Y.  A. (2004). Community policing in Hong Kong: Development, performance and constraints. Policing: An International Journal, 27(1), 97–127. https://doi. org/10.1108/13639510410519949 Lo, S. S.-h., Hung, S. C.-f., & Loo, J. H.-c. (2021). The dynamics of peaceful and violent protests in Hong Kong: The anti-extradition movement. Palgrave Macmillan. Ming Pao. (2019). IPCC international experts panel: IPCC is lacking power and investigative capability (in Chinese). Retrieved April 29, 2021, from: https://news.mingpao.com/ins/%E6%B8%AF%E8%81%9E/article/20191110/s00001/1573371096026 /%E5%9C%8B%E9%9A%9B%E5%B0%88%E5%AE%B6%E7%B5%84-­% E7%9B %A3%E8%AD%A6%E6%9C%83%E3%80%8C%E6%AC%8A%E5%8A%9B%E5%8F% 8A%E7%8D%A8%E7%AB%8B%E8%AA%BF%E6%9F%A5%E8%83%BD%E5%8A%9B %E4%B8%8D%E8%B6%B3%E3%80%8D Progressive Lawyers Group. (2015). Let’s stick to the facts: The strange case of superintendent Chu King-wai. Hong Kong Free Press, Retrieved April 29, 2021, from: https://hongkongfp. com/2015/08/07/lets-­stick-­to-­the-­facts-­the-­strange-­case-­of-­superintendent-­chu-­king-­wai/ Smith, G. (2015). The Tripartite Police Complaints System of Hong Kong. Asia-Pacific Journal on Human Rights and the Law, 15(1-2), 119–145. So, A. Y. (2008). Social conflict in Hong Kong after 1997: The emergence of a post-modern mode of social movements. In M. K. Chan (Ed.), China’s Hong Kong transformed: Retrospect and prospects beyond the first decade. City University of Hong Kong Press. Wong, Y. C., & Chan, J. K. H. (2017). Civil disobedience movements in Hong Kong: A civil society perspective. Asian Education and Development Studies, 6(4), 312–332.

Chapter 3

Representation: Police Oversight Mechanism in the Democratic Japan

The police oversight mechanism in Japan is generally understood as the ‘civilian review’ model, in which an external oversight body monitors or audits the internal oversight body but without investigative power. However, the principles of ‘balanced representation’ and ‘political neutrality’ in the composition of external oversight boards makes it distinguished from the civilian oversight operating in most of the western democracies. The system is constituted by the internal police complaints body, the National Police Agency (NPA), and the external oversight body, known as the Public Safety Commissions (PSC). The PSC could be further separated to national and regional level, with the former being the National Public Safety Commission (NPSC), and the latter Prefectural Public Safety Commissions (PPSC). In this chapter, we will explore how representation colored the external oversight agencies, itself distinguished from the case of Hong Kong and Taiwan.

3.1  Structural Features and Roles of the Oversight Bodies The National Police Agency (NPA) is the national unit for the Japanese policing. With its Commissioner General appointed by the National Public Safety Commission, it acts as the core agency to formulate the police system, conduct operations over cases that concern involving national public safety, administering “foundations of police activities” (NPA Japan, 2005) including police education, training, communications, equipment, and coordination. They are supervised, thus supposedly accountable to an external agency called ‘National Public Safety Commission’ (NPSC). The NPA also manages prefectural police, which are the operational backbones of daily policing in the communities. The prefectural police forces which are staffed by a combination of local civil servants (police officers who ranked below superintendent) and national civil servants (police officers who ranked above superintendent). They are responsible for the daily operations and

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 L. K. Ho et al., Policing the Police in Asia, SpringerBriefs in Criminology, https://doi.org/10.1007/978-3-030-82981-0_3

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investigations of that region. The prefectural police forces are also monitored by their respective Prefectural Public Safety Commissions when they are answerable to the NPA. Each prefecture has one corresponding Prefectural Public Safety Commission, except for Hokkaido, which has five in total. The National Public Safety Commission (NPSC) is a collegial commission under the cabinet office, constituted of the Minister of State as the chairperson and 5 other members. Members are chosen from representatives of legal, scholarly, entrepreneur, and journalism domains (NPSC Japan, 2020a, b). The institution was established under the principle of political neutrality and democracy of the police force and its administration. Its specific roles include (1) Matters concerning planning and research of institutions relating to the police, (2) Matters concerning matters of emergency, (3) Matters concerning police communication, equipment, examination, statistics, national budget (4) Matters concerning nationwide organized crimes (Police Act, Chapter 2 Article 5). The NPSC, however, does not handle civilian complaints in general and only supervises internal investigations conducted by the National Police Agency (NPA) most of the time. It is true that the NPA is obligated to report all internal investigation results and measures taken as well as yearly internal investigation plans to the NPSC for approval. The NPSC can question and reject the reports submitted as they see fit. It can also appoint supervisors (who will still be within the police system) or issue specific commands towards specific cases of investigation when they deem necessary (NPA Japan, 2005). In general circumstances, the NPSC is a missionary type of agency that only outlines the missions and principles for the policing and oversight. They would not have interactions with complainants or complainers at all. Prefectural Public Safety Commissions (PPSC), meanwhile, is known as a special unit of public servants administering the prefectural police. PPSC are constituted of 3–5 members (including 1 chairperson) under the appointment of the relevant regional leader with the consent of the Local Diet (National Diet Library Japan, 1947a, b, c, d, e, f). They generally share the same legal standing, missions, powers, but their powers are limited to supervise the affairs of the regional police bureau of the prefecture. (Besides Hokkaido which has 5 public safety commissions, generally one prefecture will have one corresponding public safety commission.) They are also responsible for reviewing and overseeing complaints from civilians against prefectural police in the corresponding area (NPSC Japan, 2000). Both the NPSC and the PPSCs are the integral units in the police oversight mechanisms in Japan. They are designed and empowered to supervise the professional police bureaucracy via a collegial body of non-experts. The roles they practiced are different: the PPSCs manage the specific police activities of the prefectural police, and the NPSC’s management focuses on the planning of general policies for police administration and the guidance and coordination with the prefectural police. Accordingly, agendas of the PPSCs are highly specific local police activities including a lot of operational technicalities that are uneasy for non-policing practitioners to comprehend. Comparatively the discussion of NPSC generally concentrates on policy direction in policing that might leave more room for inputs from the perspective of the public (Ogino, 2010).

3.2  Operating Procedures

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3.2  Operating Procedures The police oversight mechanism in Japan had both the internal and external oversight agencies shoulder some parts of the procedures. To understand the procedures, we could know more about the power distribution between these agencies for handling police complaints.

3.2.1  Intake Public complaints against the police could only be accepted in documental form to either the prefectural police, or to the prefectural public safety commission (PPSC). There are two major channels for making complaints against the police. It could either be made in accordance with the Police Law Article 79 or based on the different prefectural police rules. According to the data surveyed by Japan Federation of Bar Associations (JFBA), most of all complaints overwhelmingly belong to the latter (NPSC, 2005). Complaints in accordance with Article 79 of the Police Law can be filed at the department in charge of the PPSC affairs or at the department in charge of complaints at each police station. In accordance with the NPSC Regulation No.11: “Regulation on Procedures for Filing Complaints,” the person filing the complaints should provide the name, address, telephone number, and contact information of the complainants, as well as the date, time, and place of the performance of duties that gave rise to the complaints, the way the police officer performed the duties, an outline of the case, and a description of the complaints. The document stating the specific disadvantage suffered by the complainant as a result of the performance of the duties causing the complaint or the details of the complaint against the manner in which the police personnel performed their duties may be sent directly to the PPSC by mail. Alternatively, the complaint may be brought and submitted to the Assistant offices of the PPSCs, which belongs to the General Affairs Division of the prefectural police. Complainants used to be required to sign and seal the document until 2020, when the regulations on the procedure for filing complaints was amended, making it unnecessary for signing and sealing the complaint form anymore (Fig. 3.1).

3.2.2  Investigation Once the prefectural police have received a complaint, the case will be reported to the relevant chiefs of the police force. Once investigation is completed and decision is made, the heads will report to the public safety commissions for agreements (NPA, 2005). If the complaints are made through the PPSC rather than police force (citizens could make complaints through either channel, as introduced in previous

Fig. 3.1  Operating procedures of the Japan police complaints mechanism Sources of Information: Police Act (2009). Japan https://elaws.e-­gov.go.jp/document?lawid=32 9AC0000000162 Notification regarding appropriate handling of complaints on police officers’ performance on duties and NPSC rule No.11(in Japanese). National Police Agency, Japan (2019). (Notice) Regarding appropriate handling of complaints on police officers’ performance on duties. (in Japanese). http://www.npa.go.jp/laws/notification/kanbou/jinji/jinjikansatsu.kujyou20190329. pdf. (accessed 11 August 2020).

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paragraphs), PPSC would order the prefectural police to carry out investigations. After the PSC agrees with and endorses reports of the investigations by police, the Commission will send out a formal written reply to the complainants. Both the NPA and Prefectural Police are required to conduct investigation plans and report to the relevant public safety commissions. If the PSC dissatisfies the investigation process or conclusion, she could issue specific orders to request to relaunch or further investigations. All conclusions of the investigation and disciplinary actions that may impose on officers suggested by the NPA or Prefectural Police must be reported to NPSC or PSC for substantiation (NPA, 2005). In principle, the PSC can also appoint designated personnel or parties to oversee the police investigations when deemed necessary. Usually, the appointees are not the members of the Commission, and the persons who are familiar with policing operations that have been or serving in the same or other prefectural police forces. However, the PSC could not directly impose disciplinary measures against police officers. All punishment decisions must be made by the Chief of the prefectural police and enacted within the police department, reported and approved by the PSC (NPSC, 2000).

3.2.3  Appeal In Japan, disciplinary actions taken against police officers committing misconduct behavior were not transparent. Complainants who made substantiated complaints after internal investigation would also not be properly informed as well difficult to be known to outsiders. There was no way for the complainants to make an appeal if they dissatisfied with the process and conclusion of investigation. Even after the reform of the mechanism in 2000, the PSC was only required to notify the result of investigation to the complainants. The Administrative Complaint Review Act, or the Administrative Case Litigation Act could not be applied to the situation for review or launching litigation. Only the State Redress Act could help on this judicial path. Beyond the institutional means, citizens could only resort to mass media to impose pressure on the policing authorities (Hagiwara, 2001, p. 109). There had been limited chances for police officers to make an appeal against the result that were unfavorable to them as well. Theoretically speaking, the police officers verdict for misconduct or misbehavior could request examination and litigation against the result (National Public Service Act, 90, 92-2; Local Public Service Act, 49-2, 51-2). However, the officer could be advised by their seniors to ‘voluntarily’ and ‘proactively’ quit the force that might de facto complete the investigation process (Yoshimura, 2009). This was regarded as the best resolution to ‘limit the damage’ to the force reputation by the authorities; as well as advantageous to the misbehaved officers who could avoid formal disciplinary actions (Yoshimura, 2009; Hironaka, 2001). Meanwhile, there has been a general perception among the police officers that ‘lawyers are enemies’, and they are not the trustworthy party to settle the ‘internal issues’ of police management. However, police in Japan did not have the rights to unionize and thus no formal channel and representation in industrial bargaining on conditions of service.

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3.3  Evolving for Representativeness: NPSC and PPSC The oversight system in Japan shows the lack of the proactive investigation power for the external oversight agencies (NPSC and PSC). However, there is an important element, representativeness, that could not be revealed by the operational procedures. This feature is richly colored by democracy and largely a result of the democratization project imposed by the United States in the post-war era. Since the Meiji restoration, the Japanese police have been centralized by the Police Affairs Bureau of the Home Ministry. However, the Japanese policing system underwent a fundamental reconstruction after the Second World War. As instructed by the occupation authorities, the design of the new police oversight mechanism was emphasized for “ensuring democratic governance” (NPSC Japan, 2000). A series of major institutional reforms like the abolition of the Home Ministry, were implemented. The PSC was established to maintain “the neutrality of the police force and the democratic methods within police administration”, enacted by the new parliament under the new constitution in 1947 (National Diet Library Japan, 1947a, b, c, d, e, f). A new Police Act was drafted by the new Japanese cabinet, with General MacArthur’s request to establish a new police oversight mechanism. The Public Safety Commission was hence established under the decision made in the two Houses of Representatives (Diet) in December of the same year. The Police Act also reformed the traditionally centralized national police system into a two-tiered system, better reflecting the principles of democracy and local autonomy enshrined in the new Constitution. After the re-institutionalization, ‘democracy’ was emphasized. The Public Safety Commission, composed by citizen representatives, was adopted, decentralizing the management of the police to the public. All cities, districts and villages had their own public safety commissions, a decision agreed by the Diet in December 1947 and subsequently put into practice. All public safety commission members were appointed by the Prime Minister or the local governor of the corresponding region with the approval of the National or Local Diet. With this mechanism, public safety commission members were theoretically “representatives of the people” (National Diet Library, Japan, 1948). With them in the administrative position over the police forces, the police force was “overseen by the people” from the official standpoint. Therefore, a system emphasizing representation was built in early post-war Japan. After the Chinese civil war in 1948–49 and the Korean war (1951–52), the tension between capitalist bloc and communist bloc in the region had been escalated. The geopolitics also brought significant impacts on Japan policing. The Police Act was completely revised and promulgated in 1954 after Japan regained its independence and sovereignty with the treaty of San Francisco. A recentralization of the police organizations took place by abolishing the two-tiered system and establishing the National Police Agency and the prefectural police departments. The National Public Safety Commission (NPSC) was constitutionally the commanding agency for the NPA, meaning that it is the highest policing body in Japan.

3.3  Evolving for Representativeness: NPSC and PPSC

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The NPSC was established to oversee the NPA, and the public safety commissions (PSC) in different prefectures correspondingly monitored the frontline policing practices of the prefectural police forces. The former city, district, and village public safety commissions were also removed due to the financial burdens they posed to the local governing bodies, leaving the monitoring of regional police forces in the hands of prefectural police forces (National Diet Library, Japan, 1947a, b, c, d, e, f). With the objective to “ensure the cabinet’s responsibility in public order” that was supposedly held by the NPSC, the reform specified the Minister of State as the mandatory chairman of the NPSC (NPA, Japan, 2016). This means that a cabinet member will always be present in the most major police oversight body. As mentioned above, committee members of the NPSC are appointed and dismissed by the Cabinet from among non-specialists for 5-year terms, with the expiration of the terms staggered by 1 year. The committee members cannot be elected at once so that is effective not only in ensuring continuity but also in ensuring political neutrality. In addition, the PSCs independently manage the police and exercises the powers without the direction and supervision of the Minister or the Governor. To ensure political neutrality, only the members of the NPSC have the voting right at meetings of the Commission, and the Chairman of the NPSC, who is the Minister of State, does not have the right of vote. Instead, the Chairman of the NPSC, as the guarantor of the Cabinet’s responsibility, has the right to decide in the event of a tie. In the post-war reforms, several independent administrative commissions have been established by the occupation authorities, but quickly abolished because of their ‘incompatibility’ with the new directive of ‘national sovereignty’ since the 1950s. In policing, ‘political neutrality’ was still upheld as the guiding principle for its establishment and operation (National Diet Library, Japan, 1958). This could be partly understood as the historical legacy in ancient Japan. For example, there was an Advisory Council held after WW2 for discussing about the brand-new police system. Many of the members of the council addressed the need for the police to be ‘political neutral’. This was because the pre-war Home Ministers often had used the personnel authority over prefectual governors and police officers to mobilize local civil servants and police officers to openly or unofficially pressure opposing candidates and interfere in elections (Tamura, 2019). On the other hand, under the parliamentary cabinet system stipulated in the Constitution of Japan, the cabinet was responsible to the Diet for the exercise of administrative power (the Constitution, Article 65 and 66), and therefore, basically, it is not possible to establish a body that is completely independent of the cabinet. Therefore, the Prime Minister or the Governors might appoint or dismiss the PSC with the consent of the Diet or the local assembly (Police act, Article 6, 9, 39 and 41). The NPSC also has the authority to appoint and dismiss the Commissioner of the NPA and senior officials of the prefectural police with the consent of the PPSC (Police act, Article 16 and 55). The Cabinet offered final approval to the appointment and dismissal of the Commissioner of the NPA and the Superintendent General of the Tokyo Metropolitan Police who are appointed by the NPSC (Police act, Articles 48 and 49). The chief of the prefectural police, appointed by the NPSC with the consent of the PPSC (Police act, Articles 50), had the authority to appoint and

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dismiss other prefectural police officials after hearing the opinions of the PPSC (Police act, Article 55 and 56). The Public Safety Commission’s mechanism did not undergo major transformation until 2000, when a number of syndicated police misconduct cases were reported by the media in a high-profile manner. Public trust in the police force was immediately plunged, and the improvement of the Public Safety Commission system became part of the police reform campaign launched by the government. A series of reforms was passed eventually, including to establish a complaint management system into prefectural public safety commissions (Police act, Article 78), to clarify duties of the public safety commission (The PSC’s managerial regulation), to enhance public accessibility to policing information (Police act, Article 21), to empower the public or designated bodies to oversee police investigations when necessary (Police act, Article 39), and to set up the police station councils in order to reflect the opinions and requests of the community residents (Police act, Article 53) (NPSC, Japan, 2000). To sum up, the control mechanism over the police in Japan is designed to strike a balance between democratic representativeness and political neutrality. In the name of democratic representation, the governments and the congresses are responsible for the appointment and dismissing of the committee members of the PSC. Thus the NPSC is also responsible for the appointment and dismissal of the heads of the NPA and the prefectural police. On the other hand, in the logic of political neutrality, the PSC performs its duties independently of the Cabinet and prefectural governors, while there are certain restrictions on its “supervising authority” over the police. While its democratic representation is ensured by its personnel authority of political leaders, from the perspective of respecting political neutrality and professionalism, the PSCs do not have direct command authority over the police activities. In other words, democratic representativeness here is merely for formality on the need of constitutional principle. Therefore, the appointers of all civil servants certainly can be traced back to the political leader democratically elected. It means the democratic representatives are responsible for what the public servant personnel do as their final appointer. However, customarily speaking, democratic representatives do not intervene in actual personnel selections or the management of the duties of the police, which remain to the professionalism to a great extent. This is how to balance representativeness and political neutrality in Japanese institutions.

3.4  R  epresentation with Questionable Professionalism and Empowerment Japan’s police oversight mechanism has been featured by her representativeness, however, at the same time doubted by the citizens for its level of professionalism and power to respond to the complaints effectively, fairly and transparently against the police misconduct. In this section, we will explore the limitation of this police oversight mechanism emphasizing representation. We have talked to several

3.4  Representation with Questionable Professionalism and Empowerment

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informants including legal practitioners, former police officers, and civil societies representatives who have been experiencing the operational practices of the police complaint and oversight mechanism and acknowledging the detail of the dynamics throughout the investigation and external review procedure. Interestingly, all the informants unanimously draw our attention to the power dynamics in the institutional structure, leading to the lack of empowerment and professionalism of the personnel. Other problems mentioned would include the lack of transparency. These problems undermined the public trust towards the police oversight mechanism despite its apparently democratic representation in the composition of oversight board members as well as the transparent procedures. Firstly, the external police oversight agencies in Japan, namely the Prefectural Public Safety Commissions, had limited power on supervising the police agencies. All complaints would be directed to the department head or vice-chief of police stations. The PSC was thus practically disempowered by this tactical arrangement in which its authority was counter-checked by the police. Appointments of the PSC members were not based on their professional merits or understanding of the police system. A lawyer who has frequent interactions with the PSC suggested, We have tried (complaining to) the Public Safety Commission, but...well… it’s useless... The members only consist of individuals whom the police can accept. They are not chosen based on their expertise or knowledge… They may simply do their jobs according to the information they are given by the police... Even if we want to investigate briberies, there are no Public Safety Commissions that can oversee it. They just ask a few questions, but never investigate seriously.

Another police constable shared similar perspective, In fact, in my experience as a police officer, the nomination of the PSC membership is a compromise made between the local police department and the local Diet. And when we are handling the nomination, the basic requirement is their neutral political stance, without criminal record, or businessmen without financial difficulties

This institutional arrangement de facto limited the possible critiques that could be posed by the PSC to the police force. Even if the members of the Public Safety Commission are committed and passionate to fully exercise their authority, their exposure and knowledge to the technicalities of policing operations are likely to be insufficient for them to pose accurate questions to the police. The lawyer added, If you do not have knowledge, you will be swallowed by the information. The problem of the police is that they have too much internal information and contexts hidden from the public, it is not something a certain CEO or a university scholar can understand. They can only judge based on the information given to them. Neutrality can only exist if they have the power to judge for themselves, with a drive to stand on its own ground. If not, no neutrality is possible.

The PSC is considered too weak, or even incapable of checking the police. There was a perception that it would be even more effective to submit a complaint to the police rather than to the public safety commission. The investigation takes a long time. I do not remember the exact length, but I have been waiting for the police 7 months without any explanations…...In some scenarios, the Public

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3  Representation: Police Oversight Mechanism in the Democratic Japan Safety Commission only replied by citing Article 4 and 5 (of The Police Duties Execution Act), mentioning ‘they have received explanation (from the police)’ ... This is a totally empty response.

All the PSC appointments were on an individual and part-time basis, but they could be rewarding a great sum of honorarium. They had their daytime professions and would only meet in the weekly report from the police. In the debates of this professionalism and capacity, Shimane (2014) stated the arrangement was effective on ensuring police accountability, as all the members were social elites and they should be capable of raising sensible questions or even critiques to the police, in which they would duly respect to the feedback to all constructive opinions. However, there have been voices asking for independent investigative power to the PSC, although it was eventually rejected by the government on the grounds that police and policing needed to maintain their profession, secrecy in operation and high administrative cost, and thus was not suitable for full external scrutiny by an organization with overriding statutory power (Yoshimura, 2009; Abe, 2001). There was a case of syndicated police corruption emerged in 2004. Investigative reporting from the media found the systematic and continuing fraud of the frontline criminal detectives, and the PPSC followed up the accusations and issued the order to the police agency for thorough investigation (Yoshimura, 2009). Misconduct offices were sanctioned after investigation, but the police authorities refused to disclose the full details of its investigation process and result on the grounds of confidentiality (Hokkaido Shibunsha, 2005). The saga showed the limited capacity of the PSC to express dissident views towards the investigation process and result submitted by the police agency, even though it could issue the order for investigative actions (Takada, 2014). Meanwhile a lawyer from the Japan Federation of Bar Association (JFBA) also explained the inconsistency of decisions made by the PSC and its lack of transparency: What we found interesting is that the answers can differ greatly depending on which Public Safety Commission is issuing the response. Some provide appropriate information, who keep a close record of the complaints delivered, tracking the case, and answering what they know accordingly. Some, however, simply give arbitrary decisions. There are these two styles. We have now started to gather information on lawyers who filed complaints against the police and the responses they got. Briefly it seems that the difficulty for effective oversight is still rather high at that side (the police). Most of the complaints filed are reported as “not eligible” for the complaint handling system we have. But when we ask the complainants, it is very common to see them puzzled on how their complaints are not eligible.

A lack of transparency could simultaneously be found in the internal oversight agency. It was extremely difficult for outsiders to observe: I have done a few trial cases of requesting deletion (of personal data). The data was stored in the National Police Agency… Even though the right to make this request was admitted (by the court), it often declares that the data was given with consent, even though the client was very hesitant about it, or it forcefully identified the client as a criminal who committed misdeeds, and thus the data collection was legal. This is for cases who went to the court. For those that didn’t, we do not know whether the request has been implemented. There are two to three cases where they receive a reply from the police saying that ‘they will delete the data.’ This only happens when the case itself is problematic enough, that it will cause a lot of trouble if it goes to the court.

3.4  Representation with Questionable Professionalism and Empowerment

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We do not know that whether the measures taken will be towards the officers in question alongside deleting the data. They don’t tell us that. It is difficult because there are no regulations or laws regarding the deletion of data. If a law regarding the issue is created, through the same procedure (requesting deletion), an obligation to delete the data can be created. Combining this with a third party to check the operation, we can more firmly guarantee that the data has been deleted rather than hidden. … We never win a court case. Cases where the data gets deleted are only those that will cause problems if they don’t do so.

In Japan, magazine reporters were not officially regarded as professional reporters. Only those affiliated to printed newspapers, television channels and new agencies who joined the ‘Reporters Club’ could obtain the information officially broadcasted by the police. Independent freelance reporters would be not entertained by the police at all and police would be highly skeptical of their inquiries. Meanwhile, reporters from the presses which were regarded as ‘not friendly’ would not be disseminated for the official crime information and allowed to interview the police officers. This was a serious blow for the small and local presses (Takada, 2014). Those reporters who could not get access to police crime briefing sessions must rely on the limited repertoire of information that was highly censored and screened by the police authorities (Ogasawara, 2017). Meanwhile, the PSCs were in an embarrassing position to check and balance the internal agency of police oversight, limited by the institutional setting, lack of empowerment, lack of professional background and transparency. This situation could be worsened if the police complaint is related to the public security police. Being the other class of police, the public security police oversee protecting ‘public security’, and engage with civilian political activities, demonstrations, strikes as well as monitoring activists. Due to its nature, most of its operations are in secret. More often, they would act as the “police of the police.” Although the public security police is not institutionally independent, still being a part of the police system, they are free from the supervision from the oversight institutions. All matters related to their field will be linked to them directly rather than the uppers in local police stations... With all security related cases handled by ordinary prefectural police, they enjoy a significant amount of power that is totally separated from ordinary police. Its penetration is immense, but the laws available to monitor are absent. They are supposed to oversee public safety and security, but the boundaries of the term itself, the scope of their actions are all not written down. To monitor this part of the police system, new institutions and laws need to be introduced.

Another informant shared a similar observation to the PSP. The Public Security Police Department in the 1960s-70s was facing immense public order challenges due to social movements from radical left-wing groups…... To encounter this, the police have started background checks on newly recruited police officers as well as their families and relatives.

The Public Safety Commission in the oversight system could gain too much public trust and thus did not consider as an entrusted or legitimized means to show public opinions to the policing issues. The Public Safety Commission is an organization with no power at all. They are non-­ existent…. ordinary citizens do not care about this matter. There is almost no one who will rise up and say something is wrong. Without the citizens keeping it in check, it cannot func-

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3  Representation: Police Oversight Mechanism in the Democratic Japan tion properly… There is no one complaining that ‘this is not external oversight’. This makes the police’s job much easier.

3.5  Concluding Remark Words from our informants describing the police oversight mechanism in Japan is ‘still quite far from perfection’. Although it apparently upholds the principle of democratic representation in the composition of the Public Safety Commission, the public generally feel they are under-represented, the investigation is insufficiently transparent, and even question the ‘professionalism’ of the Commission. Reform efforts have been taken in the past two decades. As shown in the debates of increasing transparency of the police complaints investigation, the police were not enthusiastic, or said quite reluctant to respond to the reform appeals from the public. They had even collectively worked to counteract the reforms, and sometimes asking for ‘compensation’ for the request of increasing public accountability. Another issue of Japan policing is the strong hierarchical tradition, and the rights and interests of the junior and frontline police officers were not properly respected. They do not have the right to unionize and are often forced to meet some of the ‘performance indicators’ due to a discrepancy of mindset between the local and the state. Meanwhile, they find difficulties in seeking legal help, and have the prejudice towards lawyers who are the ‘enemies’ of police. While the Public Safety Commission is an ‘independent’ body from the police, apparently it still has a very strong connection to the police agencies. Most of its members have policing background, its administrative work entrusted to the police staff, and their source of information are majorly from the police. This leaves a doubtful future for the commission to practice its duties without biases, as well as casting concerns over its neutrality. The mechanism was under severe criticism from the public, after the outbreak of several scandals on police misconduct in the early 2000s. Reforms were followed, and there has been increasing transparency of the police complaints and cases management in these years. However, it remains to be seen if the newly reformed procedures would overturn public skepticism toward the usefulness of official complaints on checking police accountability. Besides, public education seems also significant to improve the people’s consciousness of exercising their civil rights.

References Abe, Y. (2001). Measures to Counter Police Corruption: Focusing on Emergency Proposal by Police Reform Council and Summary of Police Reform by National Public Safety Commission. Hajime, Shinohara ed. Police Ombudsman (in Japanese). Shinzansha, 39–76. Act 162 of 1954, Police Act. Chapter 2: National Public Safety Commission (Article 4 – 14).

References

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Hagiwara, K. (2001). Considering Mass Media as the Subject of Police Ombudsman: the Design of democratic control system of police. Hajime, Shinohara ed. Police Ombudsman (in Japanese). Shinzansha, 99–118. Hironaka, T. (2001). Thinking about the Citizen Audit Request of Telephone Interception by Police, Hajime, Shinohara ed. Police Ombudsman (in Japanese). Shinzansha, 77–98. Hokkaido Shibunsha. (2005). Japanese Police and Bribe: Bottomless Corruption (in Japanese). Kodansha. National Diet Library, Japan. (1947a). Official record of proceedings, 6 November 1947, house of representatives public safety and regional institution committee, 31. (in Japanese). National Diet Library. National Diet Library, Japan. (1947b). Official record of proceedings, 13 November 1947, house of representatives public safety and regional institution committee, 33. (in Japanese). National Diet Library. National Diet Library, Japan. (1947c). Official record of proceedings, 14 November 1947, house of representatives public safety and regional institution committee, 34. (in Japanese). National Diet Library. National Diet Library, Japan. (1947d). Official record of proceedings, 17 November 1947, house of representatives public safety and regional institution committee, 35. (in Japanese). National Diet Library. National Diet Library, Japan. (1947e). Official record of proceedings, 21 November 1947, house of councilors public safety and regional institution, constitution joint committee, 6. (in Japanese). National Diet Library. National Diet Library, Japan. (1947f). Official record of proceedings, 26 November 1947, house of councilors public safety and regional institution committee, 18. (in Japanese). National Diet Library. National Diet Library, Japan. (1948). Official record of proceedings, 3 June 1948, house of representatives public safety and regional institution committee, 34. (in Japanese). National Diet Library. Retrieved August 11, 2020, from: https://kokkai.ndl.go.jp/#/detail?minId=10020439 8X03419480603&spkNum=10¤t=80 National Diet Library, Japan. (1958). Official record of proceedings, 28 October 1958, house of representatives regional administration committee, 9 (in Japanese). National Diet Library. Retrieved August 11, 2020, from: https://kokkai.ndl.go.jp/#/detail?minId=10300472 0X00919581028&spkNum=5¤t=4 National Police Agency (Japan). (2005). The white paper on police 2004. (in Japanese). National Police Agency. National Police Agency (Japan). (2019). The white paper on police 2019. (in Japanese). National Police Agency. National Police Agency (Japan), National Public Safety Commission. (2005). Composite evaluation on police reform progress. (in Japanese). National Police Agency, National Public Safety Commission. National Police Agency, Japan. (2016). National police agency  – Police system.(in Japanese). National Police Agency. Retrieved August 10, 2020, from: https://www.npa.gov.tw/NPAGip/ wSite/ct?xItem=92894&ctNode=12994 National Public Safety Commission. (2000). Police reform summary – In response to “Emergency proposal regarding police reform”. (in Japanese). National Public Safety Commission. National Public Safety Commission. (2020a). On how supervision, public safety commission and complaint handling should be. (in Japanese). National Public Safety Commission. National Public Safety Commission. (2020b). A summary of the national public safety commission. (in Japanese). National Public Safety Commission. National Public Safety Commission, Japan. (2000). Police reform summary  – In response to “Emergency proposal regarding police reform”. (in Japanese). National Public Safety Commission. Retrieved August 11, 2020, from: https://www.npsc.go.jp/kaikaku/youkou.pdf Ogasawara, J. (2017). Invisible Misconduct (in Japanese), Leaders Note.

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Ogino, T. (2010). Regarding the ‘administration’ of the National Police Agency by the National Public Safety Commission. (in Japanese). Journal of Public Policy Studies, 9, 120–132. Shimane, S. (2014). The Fundamental Structure of Contemporary Police System, Kenichi, Sekine et al. (ed). The course in Police Law Vol.1 (in Japanese). Tachibanashobo, 237–269. Takada, M. (2014). The Truth: When Newspaper Surrendered to Police (in Japanese). Kadokawa. Tamura, M. (2019). Police administrative law commentary (in Japanese). Tokyo Hourei Syuppan. Yoshimura, H. (2009). Police Reform: Revitalizing Law and Order (in Japanese). Tachibanashobo.

Chapter 4

Empowerment: ‘Control Yuan’ As Constitutionally Empowered Oversight Unit in Taiwan

The Control Yuan is a constitutionally empowered unit in Taiwan to oversee the civil servants including police officers. The power vested into the hands of its members made this system too special to be fully described by the civilian control model, which its feature of “empowerment” is worth special attention. In this chapter, the other institutions in the police oversight mechanism would be described, to show the uniqueness of the Taiwanese system. The power of Police Oversight is rather scattered in Taiwan given the previous ambiguous and tangled relations between different governmental organizations. Both inside and outside of the police force, there are agencies responsible for police oversight. In general, the police oversight mechanism in Taiwan consisted mainly of three bodies: The Internal Affairs Office (IAO) of the National Police Agency (NPA), The Control Yuan, and Civil Ethics Unit and Agency Against Corruption (AAC). This scattered, but respectively empowered setting enabled institutional cross-checking from inside and outside of the police force, that gave a different landscape in police oversight from the other Asian counterparts.

4.1  Structural Features and Roles of the Oversight Bodies The IAO is part of the internal police oversight system. It was set up in regional Police Offices for internal inspection. The IAO is a specific agency under the National Police Agency empowered to handle complaints against police. The IAO oversees all police misconduct unrelated to corruption. Under this circumstance, if there are any complaints against police except corruption-related cases, IAO will always be the major agency to receive the complaints and begin the investigation. Besides being the major body handling complaints, the IAO is also an advisory body to the Chief of the Director General of National Police Agency in Taiwan (Chen et  al., 2017). Therefore, its roles indeed range from planning,

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 L. K. Ho et al., Policing the Police in Asia, SpringerBriefs in Criminology, https://doi.org/10.1007/978-3-030-82981-0_4

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implementation, guidance to examination of police duties. Receiving complaints is only part of their overall role. The external agencies for police oversight include the Control Yuan, Civil Ethics Unit and Agency Against Corruption (AAC). The Control Yuan is an ombudsman unit to supervise and oversee all the governmental officials’ misconduct, including the police department. Consisting of 29 members including a president and a vice-­ president, all members of the Control Yuan are directly nominated by the President with the consent of the Legislative Yuan (Control Yuan, 2020a). Apart from these members, the Department of Supervisory Operation and the Department of Supervisory Investigation have around 60 investigators respectively. They are employed as civil servants to facilitate investigations handled by the authority. The Control Yuan is constitutionally empowered and institutionally independent to launch investigations on its own. So, despite the IAO of the NPA being the major body handling complaints, the Control Yuan is simultaneously empowered to handle and investigate police misconduct. The Control Yuan is, however, involved only in more serious misconducts. Nevertheless, it provided a huge external outlet for citizens to oversee police misconduct (Wu, 2006). Citizens are free to file their complaints either to the IAO or the Control Yuan. The Agency Against Corruption (AAC) under the Ministry of Justice is the specialized body for anti-corruption. It handles complaints and investigation relating to corruption and acts as another external body for police oversight (Agency Against Corruption Ministry of Justice, 2020). It was established in 2011 to offer a more comprehensive management over Government Ethics officers as well as to revamp its negative image associated with the White Terror Era (Chen, 2016). Although they are only in charge of police corruption, they are able to have in-bureau inspectors consistently as well as enjoy direct legal right to investigate police misconduct.

4.2  Operating Procedures In Taiwan, the handling and overseeing of investigations of complaints against police are mainly related to police’s standard operating procedures (see Fig. 4.1 below).

4.2.1  Intake Both the IAO of the police force and the Control Yuan could receive police complaints. Public complaints against the police, except corruption allegations, could be made to the IAO through different means from in-person, hotline, to online (National Police Agency, 2020). Complaints could also be submitted to the Control Yuan directly if complainants deemed it necessary. Citizens could send their complaints to local police stations or any other municipal hot-line and mailbox. In response to

Fig. 4.1  Operating procedures of the Taiwan Police complaints mechanism Sources of Information: Control Act, Republic of China(Taiwan). §1, 8, 19, 24 (2021). https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=A0030199. Civil Service Protection Act, Republic of China(Taiwan). §25, 72, 77 (2017). https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=S0120001. Civil Service Discipline Act, Republic of China(Taiwan). §23, 24 (2020). https://law.moj.gov.tw/LawClass/LawAll.aspx?PCode=A0030155

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the increasing public demands, beside the traditional methods like phone calls, email or post to individual police stations, the National Police Agency also set up a 24-h civil service hotline from 2012 on (National Police Agency Taiwan, 2020). Besides establishing an instant method to report crimes and accidents, it is expected to be a reliable tool for citizens to submit complaints against police easily and fast. The received complaints would be transferred to the corresponding division of IAO division for follow-up investigations. If the citizens found the internal complaint system not trustworthy, they are left with an alternative option. Being external to the police force, submission of written complaints could be sent to the Control Yuan’s Complaint Receipt Centre. The Control Yuan as well receive complaints about police misconduct with no limitations in nature (Control Yuan, 2020b). Personnel in this center would primarily review the case and decide if investigative actions would be taken.

4.2.2  Investigation After receiving complaints, the IAO would start an investigation on its own or order the head of the corresponding police unit to follow up. For the complaints directly handled by IAO, investigators are required to report the investigation results to their senior and seek their advice on the necessity of taking disciplinary actions to the police officers in the substantiation cases (Lian, 2012). Senior commanders might have the discretion to conclude the investigation, only when the result required no further disciplinary actions to the police officers. Otherwise, they are required to submit the cases to the Public Functionary Disciplinary Sanction Commission (became the Disciplinary Court from July, 2020), which might substantiate or disapprove the investigation result of IAO and confirm the sanctions to the misconduct officers. For cases alleging criminal offences, the IAO would pass them to the Prosecutor Office for further actions (Lian, 2012). Citizens have two ways to petition their complaints. They could report to the nearest local police station. After recording the personal particulars and details of accusations, the police officers in that station would pass the case to investigators of the Internal Affairs Office (IAO). If the police officers involved are found to be guilty or misconduct, further actions including verbal and written warning, marking a ‘demerit’ in the annual appraisal. Complainants could also approach the Control Yuan directly (Chen, 2011). At least a member of the Control Yuan would be assigned as designated in-charge person to oversee the complaints submitted to and accepted by the Control Yuan secretariat. The case will be further examined, reviewed, and followed up by ordering the corresponding actions carried out by the relevant departments or units, including impeachment of individual officers (and transferring the case to the Public Functionary Disciplinary Sanction Commission), or even transferring the case to the judiciary (Control Yuan, 2020c). In case of improper practices and procedures in policing administration, the Yuan could also issue an order to NPA for thorough review.

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An example of this check and review in between the Control Yuan and police authorities could be seen in the management of protests. Outcries from the community have been emerging regarding the policing strategies in protesting scenarios and some civil liberties wonder if the police have jeopardized the civil and political rights on freedom of expression and assembly as stated in the constitution (Control Yuan, 2020d). There are also some relatively minor accusations (or say complaints) regarding the outlook and courtesy of police. It is not uncommon to get complaints for the improper dressing of police uniforms and the untidy outlook of individual officers.

4.2.3  Appeal Theoretically it is possible for both the general public and police officers involved in a complaint to appeal against investigation results from the IAO. However the principle of confidentiality makes the investigation untransparent and this is very difficult for the complainants (or even compalinees) to overturn the verdict of the IAO, as long as they could not produce any concrete evidence or rationale for the potential mismanagement or misjudgment of the investigation police officers. However, they are still able to petition the Control Yuan in writing as the last resort (Wu, 2006).

4.3  Transformation: Scattered But Empowered From its operational procedures, we could see the cross-institutional checking between the agencies internal and external of the police force. The distinctive institutional setting of this Taiwan police oversight model is the scattered but respectively empowered oversight agencies. All the Internal Affairs Office (IAO) of the National Police Agency, the Control Yuan, and the Civil Ethics Unit and Agency Against Corruption shoulder some of the power of police oversight. Especially for the IAO and the Control Yuan, with the former being the major police oversight agency in normal circumstances, the latter exists to check the internal agency with the empowerment of the Constitution. The Control Yuan is hence holding a concrete and constitutionally empowered investigative power to check and balance the other branches, and in this case, particularly to the police force. In this part, we would revisit how these distinctive police oversight mechanisms in Taiwan evolved and the institutional strength and weakness of the system, in connection to other police oversight mechanisms. The establishment of the Internal Affairs Office could be dated back to the foundation of the Republic of China in 1912. To centralize the policing affairs nation-­ wide, the National Police Headquarters were founded under the command of the Ministry of the Interior. Projecting from the Capital, police stations in provinces, provinces’ capital, counties, and different trading ports were established (National

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Police Agency Taiwan, 2019). With the establishment of police departments at various administrative levels, sufficient checking on policemen was also emphasized. Related regulations, the Organization of Municipal Police Departments Act and the Police Reform Organization Act, were legislated to require police departments at various levels to set up their own police oversight bodies. From this, police oversight bodies were existing in both central and municipal police departments. These regulations had even specified the appropriate number of personnel to supervise their police colleagues. Therefore, as early as the establishment of the Nationalist Government on the Mainland, a scattered system of police oversight had been developed. With the subsequent political instabilities, resulting from the Northern Expedition, the Second Sino-Japanese War, the Chinese Civil War and the government’s exile to Taiwan, these scattered police oversight agencies at various levels unified, and from that, the formation of the International Affairs Office (IAO). As the Article 5 (2) of the National Police Agency Organization Act shown, the IAO is considered as an internal, supporting agency. This agency should monitor and issue compliments to police officers, giving credits to those with good performance, minimizing their errors made and facilitating the police professionalism. With these duties, the agency is empowered to initiate investigations to any police officer against misbehavior, criminal offences or any power abuse (Chen, 2007; Lian, 2012, p.  9). Henceforth, the IAO occupied the major position in the Taiwan model of police oversight, to receive complaints from citizens and launch investigations. The power of police checking had been shared by the Control Yuan in this Taiwan system, marking its distinctiveness, as the Control Yuan have had her long history and special constitutional status. Tracing her origin to the founder of the Republic of China, Dr. Sun Yat-sen, Sun proposed the establishment of this power organ. In order to avoid the executive branch being overly undermined, by an institutional setting like impeachment done by the legislative branch, Sun proposed an institutional setting beyond the traditional separation of powers. Therefore, besides the judicial, administrative, and legislative branches, there has been a supreme scrutiny authority, enabled “to achieve division of labor… [exercising] full power of impeachment… with all rankings of government officials and civil servants as target audience”. With this supreme institutional basis, the Control Yuan “can exercise its power of urging other public agencies to correct their inappropriate policies” (Wu, 2006). Since 1931, the Control Yuan has been established to oversee all other governmental departments, including the police force, police then have had an external, superior body to monitor their misbehavior. Even though the Control Yuan has not been the major and specific police oversight agency, the Yuan is empowered to initiate investigations against police upon request. If the complaints are found grounded, orders would be issued to the specific unit by the Yuan to correct their behaviors (Control Yuan, 2020e). The strong investigative power of the Control Yuan and their checking on the internal police oversight mechanism could be revealed in two recent incidents. In 2014, during the Sunflower Student Movement, the police was accused of abusing their force, however, the IAO, being internal of the NPA, concluded their colleagues were exercising their power legitimately. The Control Yuan was brought in and

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didn’t disappoint the crowd by publishing their different investigation result from the IAO. The Yuan also urged the Ministry of the Interior to review police’s operation and bring the alleged police officers under public prosecution. Another case witnessing the proactive intervention from the Control Yuan in 2015. The police department of the Taoyuan City were suspected of shielding a criminal offence of a constable. Investigation by the delegates of Control Yuan disclosed the collective misbehavior, and the Taoyuan City Police Department was publicly censured for undermining the public trust. Other institutions sharing the power of police oversight in Taiwan Model include the Civil Ethics Unit established in 1953, and the Agency Against Corruption (AAC) founded in 2011. Both are the auxiliary agencies in police oversight. The Civil Ethics Unit is established in government departments and statutory bodies to monitor and advocate the integrity of the public servants (Ministry of Justice Taiwan, 2012). Members of the Ethics Units are generally the ordinary civil servants appointed by the Ministry of Justice, but such units in different police agencies would be filled by special prosecutors from AAC and police personnel deployed by IAO. Instead of a general inspection on all police officers’ conduct, the ethics units focus more on anti-corruption, drafting measures and regulations for preserving police’s integrity, protection of police’s official confidential information (Hou, 2012). These Civil Ethics Units, despite being deployed by the Ministry of Justice, would be set up at various levels of police stations in Taiwan, to large-scale police forces such as the Taipei and Kaohsiung. However, in echo to the recent trend of anti-corruption, termed the Sunshine Acts, a bigger move had been expected to strengthen the state’s power in combating corruption (The Ministry of Justice Taiwan, 2008). A specific agency for anti-corruption was established, the Agency Against Corruption. The AAC was divided from the Civil Ethics Unit, being a fully independent authority for corruption-related cases (Agency Against Corruption Ministry of Justice, 2020). Therefore, these two agencies collaborate with one another to act in the supplementary role in police oversight. The distinctiveness of this Taiwan police oversight model lies with scattering the power of police oversight over various agencies, external or internal of the police force. Normally speaking, the duties of police oversight fall upon the shoulders of the IAO, being internal to the NPA. However, there are external bodies empowered with investigative ability, like the Control Yuan and the AAC, checking the internal body of police oversight. Institutionally, the system is designed to provide sufficient checking to the internal investigative body, however, some operational problems emerged.

4.3.1  IAO Investigator to Police Their Counterparts? The first is its transparency. The investigation and decision-making processes of the IAO are rather un-transparent to both the police officers and the public. It is unclear what standards exactly the investigators are adopted to investigate the complaints.

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Confidentiality is stressed in the process of investigation, and results would not be publicly disclosed and even informed the complainants. On the other hand, the police officers being complained would not know they are being investigated as well. They must go through complicated procedures of investigation, and some wonder that they would not be given an appropriate platform for defending ungrounded or even malicious allegations. They always punish you based on a set of rules, which is the Standard for Rewards and Punishments for Police Staff. Most of the time they make judgments based on Article 6 or 7. But when they are handling the cases they never mention or consider the actual details of the incident. They may make a very brief description, but they won’t give you any chance to explain. They will only look at whether you break the rules, but actual context is to a large extent disregarded. You either appeal it yourself, or you seek help at the Civil Service Protection and Training Commission. A lot of police officers won’t appeal for their punishments, because they know that it would not be useful at all

Except the lack of institutional channel for the complainants and complainees to acknowledge the investigation work of IAO, capacity of the investigators is also often a question. Investigators from IAO are selected from serving police officers with reference to the most updated manpower deployment condition. It is common that they would not be staying at the investigator position for a long time- and would almost certainly be replaced and deployed to other units. This merry-go-round posting rotation would demotivate them from serious investigation. They also do not bother to ‘ruin the harmonious collegiality’ during this short-term interim tenure. In fact, they are also not specialists. They do not receive specialized training for internal investigation.

4.4  Empowering the External Agencies: The Panacea? The factors leading to malfunction of the IAO further justifies the existence of the external agencies for police oversight. The Taiwan model marks its difference from the common citizens control model, by constitutionally empowered the Control Yuan. Yet, there are some implementation problems worth mentioning, in order to avoid hindering this special system from functioning properly. The Control Yuan is hugely empowered on paper, nevertheless there are several reasons restraining the exercise of its overriding authorities. The Control Yuan could only proactively launch an investigation until a formal complaint from citizens is submitted to them. The ‘minor’ or ‘technical’ police misconduct that have not drawn territory-wide attention with media (and social media) coverage, usually, would not be entertained as the proposal for launching investigation would not be agreed in their mass chamber. Meanwhile, there is the tendency that their members are more enthusiastic to the misconduct allegations of the senior police officers, which would have ‘sound bites’ in reportage and public circulation. They are eager to exhibit their ‘performance’ and in fact the manpower of the Control Yuan secretariat is limited and improbable to take up all the cases for administrative malpractices and

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officers’ misbehavior that are not confined to police. A member of the Control Yuan recalled its tenure when acting as convenor of those investigation, The Control Yuan is an organization supervising all civil servants in all governmental agencies. In other words, we cannot only focus on police-related cases. Reviewing my entire service in the Yuan, the chance to handle police-related cases is rare. The usual practice is to initiate random visits to the targeted police stations or having regular meetings with senior police officials from national and municipal police stations. If we notice some major problems from their operations, we might exercise our power of impeachment and urge them to correct as soon as possible. However, this is not quite often

In its mission statement, the Control Yuan would come up with an investigation result in no more than 3 months. However, the reality is that most investigations have to process for at least 6 months, and some extraordinarily complex cases would take more than a year. Like the case of amateur IAO investigators, the strength of the Control Yuan is also undermined by the capacity of its personnel. Members of Control Yuan were nominated by the President and endorsed by the chamber, they are socio-political elites, indirectly legitimized by the public mandates, however, might not be professionally competent to comprehend the police and policing. Quite a few members have legal, media and academic background and they are well known leading figures in their respective constituencies. I think the background of the Control Yuan members actually determines the organization’s effectiveness. In a hearing for the impeachment of a police officer, we experienced hardship in responding to the strong defense from the lawyers who raised very sharp and technical questions to us. Those members who have not received legal training before immediately get stuck.

Empowerment by the constitution does not guarantee the ‘supreme’ of the Control Yuan. Collaboration with the NPA is another important matter as well. When police misconduct has been handled by various investigation bodies simultaneously, the power of the Control Yuan could be restrained. A case could be simultaneously investigated by various governmental agencies (i.e. Prosecutors from The Ministry of Justice, Agency Against Corruption) other than the Yuan at the same time. The Control Yuan personnel might not fully comprehend the progress of investigation, even what they are investigating. The mechanism disables inter-­ agency collaboration at all. The efforts might be duplicated, or not effective in securing the most reasonable outcomes although resources have been deployed. It is quite common that the Investigators and members of the Control Yuan face difficulties in investigation Power of The Control Yuan members is limited in terms of evidence collection, and they could only request for documents and written replies only. Receipt and arrangement of on-site visits and interrogation are not mandatory, and the police agencies might reject such demands from the Control Yuan. ‘Self-protection ethos’ in the police agencies also undermines the effectiveness of oversight by the Control Yuan. A former IAO investigator shared, We believe the bad news about the organization should better not be disclosed to the external parties. Even though a particular complaint was reasonable with sufficient evidence; they are still keen on ‘self-rectification’ rather than following the ‘suggestions’ ordered by an external agency.

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4.5  Concluding Remark The police oversight mechanism of Taiwan is characterized by the parallel existence of both internal and external investigative bodies. On the top of them, the Control Yuan is constitutionally empowered to take up the role as ombudsman to monitor the operation of government departments and statutory bodies, as well as integrity management of their personnel. Organizationally the Internal Affairs Office in different police agencies is privileged to handle, investigate and quickly respond to the complaints against police from citizens. However, the power relationship, hierarchical subculture within the police agency makes this check and balance design malfunction. It is well believed that the IAO investigators could not impartially exercise their duties and tend to favor their companion police colleagues or seniors in misconduct allegations. The due process of complaints investigation has not been fully institutionalized and there is generally absent from transparency and public accountability throughout the investigation in complaint cases. Paradoxically, it is common to see the dissatisfaction from both complainants and complainees- the former thought their presentations are often overlooked or under-considered, while the latter their reasonable rights of deference in front of accusations are not fully respected. The IAO investigators are challenged for their limited professional capacity due to the absence from specialized training in police oversight. Self-protectionism of the police officers also discouraged them from cooperating with the external investigators who are empowered but under-acknowledged the technical complexities of police management and policing episodes. The Control Yuan is powerful constitutionally, which is equipped with overriding power to supervise the police and all its personnel. However, there is a fundamental limitation for its members to effectively exercise the authority to oversight the police. The Taiwan constitution stipulated that all government agencies and civil servants are under the scrutiny of Control Yuan. The large scope of its jurisdiction basically disables it to concentrate on policing malpractices and police misconduct. Citizens, even the members of Control Yuan, also believe enormous empowerment sarcastically limits the capacity of this superpower, ombudsman-type institution on police oversight. The reality is that IAO is still the backbone for handling the complaints against police. This constitutionally empowered Control Yuan makes the Taiwan model as an unique one from other electoral democracies regimes. However, it is paradoxical that the empowerment could not uplift the effectiveness of police oversight as speculated Definition of its authorities, composition of its membership, organization and training of its investigators in secretariat are all matters.

References Agency Against Corruption Ministry of Justice. (2020). History and development of agency against corruption. Agency Against Corruption. Retrieved September 16, 2020, from: https:// www.aac.moj.gov.tw/5791/5793/5795/5799/228857/post

References

57

Chen, W.-b. (2007). On the role and function of “Inspectors” in Taiwan’s Police system  – An empirical study of Yilan County Government Police Station. (In Chinese), (Dissertation). Fo Guang University. Chen, J.  Y. (2011). Analysis of Government Ethics Department and Inspector Department in National Police Agency for Accountability. (In Chinese), (Master Thesis). TamKang University. Retrieved May 4, 2021, https://www.airitilibrary.com/Publication/ alDetailedMesh?DocID=U0002-­1202201123353800 Chen, Y.  X. (2016). A study of the policy legitimation of the act of the Government employee ethics units and officers in Taiwan, ROC. (In Chinese), (Master Thesis). National Taipei University. Retrieved from https://www.airitilibrary.com/Publication/ alDetailedMesh?docid=U0023-­1005201615104155 Chen, J. G. et al. (2017). Police study. (In Chinese). Central Police University Press. Civil Service Discipline Act, Republic of China (Taiwan). §23, 24. (2020). https://law.moj.gov.tw/ LawClass/LawAll.aspx?PCode=A0030155. Accessed 11 May 2021. Civil Service Protection Act, Republic of China (Taiwan). §25, 72, 77. (2017). https://law.moj.gov. tw/ENG/LawClass/LawAll.aspx?pcode=S0120001. Accessed 11 May 2021. Control Act, Republic of China (Taiwan). §1, 8, 19, 24. (2021). https://law.moj.gov.tw/ENG/ LawClass/LawAll.aspx?pcode=A0030199. Accessed 11 May 2021. Control Yuan. (2020a). The control yuan: Our history. Control Yuan. Retrieved September 15, 2020, from: https://www.cy.gov.tw/EN/cp.aspx?n=230 Control Yuan. (2020b). The control Yuan functions & powers – Receipt of people’s complaints. Control Yuan. Retrieved August 10, 2020, from: https://www.cy.gov.tw/EN/cp.aspx?n=238 Control Yuan. (2020c). Investigation power of the control yuan. Control Yuan. Retrieved May 4, 2021, from: https://www.cy.gov.tw/EN/cp.aspx?n=239 Control Yuan. (2020d). Investigation report (2020 No.0077, released on April 9, 2020). (In Chinese) Control Yuan. Retrieved May 5, 2021, from: https://www.cy.gov.tw/CyBsBoxContent. aspx?n=133&s=17225 Control Yuan. (2020e). The control yuan: Functions & powers – Corrective measures, impeachment, censure. Control Yuan. Retrieved May 4, 2021, from: https://www.cy.gov.tw/EN/ cp.aspx?n=241 Hou, H.-T. (2012). The function of ethics organizations in police institutions  – A case study of Kaohsiung City Police Department. (In Chinese) (Dissertation). National Sun Yat-sen University. Lian, J.-R. (2012). The study on the correlation among role conflict, organizational commitment and coping strategies of police agency inspectors. (In Chinese) (Dissertation). National Taitung University. Ministry of Justice, Taiwan. (2012). Act of the establishment and Management of the Government Employee Ethics Units and Officers. Ministry of Justice. Retrieved August 10, 2020, from: https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=I0070001 Ministry of the Interior, Taiwan. (2008). Police duty act. Ministry of the Interior. Retrieved August 9, 2020, from: https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0080026 National Police Agency, Ministry of The Interior, Taiwan. (2019). Statistics of current personnel. National Police Agency. Retrieved August 10, 2020, from: https://www.npa.gov.tw/NPAGip/ wSite/lp?ctNode=12902&nowPage=3&pagesize=15 National Police Agency, Ministry of The Interior, Taiwan. (2020). Police service centre for the general public. National Police Agency. Retrieved August 10, 2020, from: https://www.npa. gov.tw/NPAGip/wSite/ct?xItem=44900&ctNode=12375&mp=1 Wu, H. L. (2006). An analysis on the orientation of the control Yuan’s powers (in Chinese). Journal of National Development Studies, 6(1), 29–66.

Chapter 5

Conclusion: Why to Reform? What to Stress? How to Improve?

In the first chapter, we stated the main objective of this study is to enhance an understanding of the different police oversight practices and identify possible routes for policymakers to legitimize their existing police complaints and oversight practices. We thoroughly discussed the current practices adopted to against and oversee police misconduct, and the pros and cons of the police complaints and oversight mechanisms. Before we scrutinized the mechanisms in Hong Kong, Taiwan and Japan, we also briefly introduced the measures taken against police misconduct or misbehavior included how the complaints against the police will be handled and investigated; the operations of which vary from different jurisdictions in various forms, including internal measures that involve the work of the police themselves and external oversight bodies that require efforts by institutions that are semi-dependent or independent from the police department, as well as the oversight practices encompassing approaches and models adopted to oversee and review the investigations conducted into police misconduct.

5.1  Institutional Arrangement Our study started by concentrating on the three major controversies in the prevailing literature on policing oversight in the Anglo-Saxon context: Representation  – whether the police oversight body is of ‘balanced’ representation (or say if they are legitimized by democratically elected representatives), Empowerment – whether the police oversight body has sufficient power to enact its monitoring and investigating role, and Professionalism – whether the oversight body members are professional enough to make objective judgement. In the three jurisdictions we have studied, Hong Kong, Japan and Taiwan, they all have external oversight agencies supervising the misconduct of police officers. We also provided an overview of the integrity of the institutional arrangements that

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 L. K. Ho et al., Policing the Police in Asia, SpringerBriefs in Criminology, https://doi.org/10.1007/978-3-030-82981-0_5

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are related to the investigation of police misconduct. The specialized police complaints bodies- that are independent from the police bureau to investigate complaints against the police. The ‘ombudsman’ who handles public complaints against the governmental departments. The anti-corruption agencies- that concern the corruption matters of the public officials and the police, and The human rights commissions (HRCs), which deal with a variety of issues that relate to the violation of human rights (Table 5.1). Here we summarize how oversight bodies differ in their administrative structures (Table 5.2). The table below also presents the power of investigation and power of imposing disciplinary measures (Table 5.3). Table 5.1  Comparison of Integrity Institutions Arrangements Specialized police oversight body Internal Affairs Office (IAO), Taiwan Police Civil Ethics Unit, Taiwan Police National Public Administrative Safety Commission Evaluation Bureau (MIC); and Committee (NPSC) Prefectural Public on Oversight of Administration (House Safety Commissions of councilors) Office of the Independent Police Ombudsman Complaints Council (IPCC)

Ombudsman Taiwan Control Yuan

Japan

Hong Kong

Police complaints body Internal Affairs Office (IAO), Taiwan Police

Anti-corruption Agency Agency Against Corruption (AAC), Civil Ethics Unit

National Police Agency (NPA) Prefectural Police Agencies

Board of Audit of Japan

Complaint Against Police Office (CAPO) in Hong Kong Police

Independent Commission Against Corruption

Table 5.2  Comparison of the administrative structures of the police oversight bodies Taiwan Police Oversight Body Established in Relevant legislation

The Control Yuan 1931 Constitution of the Republic of China (Taiwan) Art. 106 Additional Articles of the Constitution of the Republic of China Act.7 Organic Law of the Control Yuan

Japan

Hong Kong Independent Police Complaint Council Public Safety (IPCC) Commissions (PSC) 1947 1994 (became statutory body in 2009) The Police Law Chapter II Independent Police Complaint Council (Law No. 162 – June 8, Ordinance (IPCCO) 1954)

(continued)

5.2  Insiders’ Perspective on Police Oversight

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Table 5.2 (continued) Taiwan Police Oversight Body The Control Yuan Leadership The President, the Composition Vice-president, and 27 other members

Scope of complaints

All police misconduct

Japan Public Safety Commissions (PSC) NPSC comprises The Chairman and five members PPSC comprises The Chairman and two to five members Police misconduct and any practice or procedure adopted by the police

Hong Kong Independent Police Complaint Council (IPCC) A Chairman, 3 Vice-­ chairman and 14 members, who are all appointed by the Chief Executive of the HKSAR Police misconduct and any practice or procedure adopted by the police

Table 5.3  Comparison of the powers of the Police Oversight Bodies Taiwan The Control Yuan ✓

Japan Public Safety Commissions ×

Hong Kong IPCC

✓

✓a

×

✓

×b

Impose disciplinary measures against the ✓c police Police retains ultimate authority to impose ✓ discipline Ability to make final disciplinary sanctions ×

×

✓ (with conditions) ×

✓

✓

×

×

Police Oversight Body Review police investigation without the power to investigate Audit results of investigation while maintaining the power to investigate Conduct independent investigation

✓

Can audit and oversee the results of the investigation without the power to investigate complaint cases b It can appoint the prefectural police to conduct an investigation c The Control Yuan is empowered to propose corrective measures or impeachment. However, it is not authorized to impose charges for criminal cases a

5.2  Insiders’ Perspective on Police Oversight Our study also attempted to fill in the current research vacuum that the voice of front-line practitioners was under-represented. In the last three chapters, we incorporated the narratives of some ‘insiders’ respondents in our research. They are

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serving and retired police officers, members of the oversight boards or units, complainants of police misconduct, civil societies concerning the police power and human rights, media persons and scholars. The three Asian jurisdictions with civilian oversight mechanisms and desirable figures of public satisfaction to the police: Taiwan, Japan and Hong Kong were selected in this study. In addition to the historical and institutional review, we also purposely incorporated the perspectives from ‘watchers’- the individuals who have been taking part in the formal hearing, investigation and review progress of police complaints in their jurisdiction. They are the front-line police officers who have been complained and investigated; the police officers assigned to the police complaints investigation and mechanism reform; citizens who have made complaints to police misconduct; civil societies or political party members who concerned the police power; the elected representatives and political appointees to the internal consultative or external policing oversight agencies. We treasure the in-depth and wide repertoire of the accounts from them and believe their narratives would further enlighten us on the debates of efficacy of police oversight mechanisms.

5.3  Reflection from our Findings We have identified certain elements that should be considered when developing an effective police oversight system. There are more aspects that we need to look into in terms of the nature of the oversight body and the operational standards. Transparency – Complaints against the police and investigations should be handled transparently. The oversight bodies should follow guidelines to conduct ­investigations. The process and outcomes of investigation should be transparent enough to state how the decisions are derived, how the investigators conduct investigations, what standards they are relying on. Also, the roles of the oversight bodies should be explicitly stated to the public. For example, in Japan, the public at large does not know about the existence of a police complaint body, its function, or not willing to lodge a complaint even if they do. Empowerment – the roles of oversight bodies should not be duplicated with other oversight agencies. Also, it should be empowered to have independent investigative or review power. Competence and Professionalism – the oversight members should be professional, well-trained, and capable enough to conduct impartial investigation. Training should be provided to the oversight members and investigators to ensure they are knowledgeable enough to handle investigations. Impartiality – the handling procedures must be fair and unbiased to ensure procedural justice. The investigators should avoid conflict of interest when investigating. The investigations should also be fair to all the relevant parties, including those who lodged a complaint or those who are being complained.

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Transparency & Accessibility – the complaints mechanism should be accessible for the public. If the complaints submission procedure cannot be accessed by the citizens easily, they are not willing to lodge a complaint to reflect their ideas even if they wish to do so. We noted that historical conjectures and policy orientation of regime leadership appear both decisive in the evolution of their police bodies. The terms ‘professionalism’ and ‘democracy’ have been widely quoted and explained by their authorities to accelerate or resist the reform proposals. They enable the oversight models to be examined and evaluated through a lens of the foundational ideology of the country concerned. Democracy describes the situation where the police are free from political interest and interference (Stenning, 2011), while professionalism is when the police have no conflict of interest in the investigation (Prenzler, 2016) and the public have a high level of trust in the police (Hu, 2016). Opinion of different stakeholders- police constables and officers who have ‘unfortunately’ complained and investigated and interacted with their police oversight officers, members of police unions, elected councilors, members of oversight agencies, were also incorporated for their view on the ‘best arrangement’. The comparison of three places primarily finds that competence of personnel and transparency of the investigation process appear not comparable to the importance of public representation and legal authorization of the oversight agencies in determining public trust towards the oversight mechanism.

5.3.1  ‘Professionalism’ vs ‘Democracy’ in Police Oversight? In Hong Kong, ‘Professionalism’ and ‘transcendency’ are also often publicized by the government for the merits of currently operating; ‘auditor model’ of oversight with limited investigation capacity and made up of non-popularly elected government appointees. There is no critical rebuttal to this claim until the aggravated government-­ protestors confrontations over the past decade. Paradoxically this sharply contrasts to the constitutionally democratic Asian, European, and Oceanic counterparts in which public suspicion and critiques over the operation of police oversight mechanisms are prevalent. The result is that democratic countries mainly use independent models of police oversight (see for example Prenzler & den Heyer, 2016). Our historical-institutional analysis and the reflection from the stakeholder interviewees alarmed several critical junctures in the development of police oversight mechanisms: what should be the most important consideration for a police oversight body? Should it be constituted by the insiders and professionals who are familiar with policing operations, or it should be popularly elected representatives? or both ‘professionalism’ and ‘democracy’ have to be emphasized in order to gain the maximum trust from the public? The issue is however, that even in western democracies, complaints of police actions largely remain dissatisfied with the complaints process and the perceived independence of the investigation (Waters & Brown, 2000).

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5.3.2  Empowerment of the Oversight Body Providing more autonomy to the police oversight body is the direction of reforms in the western democracies (Smith, 2010). A number of police complaint bodies which were limited to internal investigation have been replaced by external bodies with investigation powers. Also, some oversight agencies that were limited to reviewing investigations have now been authorized to investigate themselves, though these are usually undertaken in parallel to an internal police investigation. Yet, the trend of reform of the oversight system has yet to spread to the countries in Asia. The case of Japan and Taiwan show that they are still heavily relying on internal mechanisms to deal with the allegations of misconduct and public complaints. While it seems that the investigations of complaints are internally centered in all three regions where the forces are the only empowered agents to do so. There are bodies external or superior to the Force that are authorized to investigate public complaints and monitor police misconduct. It is just they are not the primary investigating agencies, yet they retain the rights to do so. Further, the monitoring of investigations differs quite significantly in these three regions. It is the case that no specialized oversight bodies are established in these two regimes to review the investigations of complaints, there might be sufficient checking, at least on paper, to impose institutional constraints on the internal investigation body. While there is a specialized body as IPCC in Hong Kong to review the police investigations of complaints, it doesn’t guarantee an independent investigation, as it lost the institutional mandate to give it power for conducting its own investigations. If a democratically empowered organization was found not professional enough to conduct investigation on a police force, it could be trained and enhanced. But if the organization was not empowered to investigate, no matter how professional the membership is, it could not provide sufficient checking on the police force. Our study concludes “empowerment” and “representation” appear to be more important than “professionalism” to sustain public trust in police oversight mechanisms. These findings are like those in existing literature (see for example, Prenzler, 2011; Porter & Prenzler, 2012; Prenzler & Ronken, 2001). The development and change in police oversight bodies are guided by officials and governments. Reform is triggered by critical events that lead to critical junctures.

5.3.3  Historical Conjuncture and Regime Leadership We also find that historical conjunctures and regime leadership are both decisive in transforming the police oversight in three places. The major concern and controversies of police oversight are professionalism and democracy- in all the debates related to police oversight. In response to the western democracies’ literature on police oversight, this is basically the same. Contextual factors do not seem obvious from documentary sources. However, this might be another story if we incorporate some

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behavioral or psychological data from qualitative fieldwork and surveys. Several studies on police legitimacy wonder if there would be more ‘law and order’ concern in Asian context than ‘procedural justice’ highly treasured in western democracies. It deserves to explore if this variation on perception of police and its legitimacy would pose significant impact on police oversight as well.

5.4  Demystifying the Prejudice on Police Oversight 5.4.1  Police Hate Be Oversighted? There has been varying thought among the police officers from different seniority and ranking on the agenda of oversight. Junior officers might wonder if external oversight might not be bad- if it could effectively check the behavior and accountability of the senior commanders in the police force. When investigating the junior police officers, internal investigation is the preferable option because investigators can understand the context, environment, norms of how ordinary police officers operate. Therefore, internal members can understand what exactly the problem was and what can be more flexible better. Some measures within the police system can have a deep-rooted history despite being in the legal gray zone, and these are better handled under internal improvements rather than external condemnations. In our study, some police constables stated external oversight is necessary as the junior cohort would face less pressure from above, especially when they are out of the reach by the senior management of the police force. An external mechanism is necessary to oversee their power. Junior frontline police officers would also utilize the external mechanism in order to file complaints or even accuse their superiors if they witness misconduct. I personally believe that there should be layers over handing the investigations to whom. Internally, you need to divide (the police) into the higher-class officers and the ordinary officers. For ordinary officers, internal investigation will be better because compared to external, they will know better how the ordinary officers operate. What will be the problem given the context, what parts can be given flexibilities, these kinds of things can only be understood by internal investigators. External ones can use the rules and declare officers breaching this or that article, but those actions could be norms and are historical already. Plus, internal investigators will know better “how” to fix the problem instead of merely punishing. But there will also be a need for an external oversight system for say, mid to high-class chiefs and generals. They are already free from oversight, as they are already above the IAO in the system. In these cases, an external organization is needed to keep them in check. In this context, external oversight is needed. Meanwhile, when ordinary officers find problems, they can complain towards the external organization as well.

Majority of the prevailing literature on police oversight devotes attention to the organizational structure of police oversight bodies. We attempt to supplement with the frontliners’ discourse. The ‘first person’ reflection from the street level stakeholders should be significant to make sense of the conception and operation of police oversight. Thus, other than looking into the operational aspects by examining

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the protocols, it is also important to explore how the work environment affects these actors and how it contributes to their perception towards police oversight bodies. Accountability has been one of the expectations, as civilians have for police. Meanwhile, it is an impression shared by many people that police are antagonistic to being kept an eye on. However, words from our respondents showed that some police officers believe an effective police oversight mechanism is good to maintain the quality of a police force. We recalled the words from a respondent who has been placed to the unit of professional conduct management, I am quite patient about policing and I firmly believe in what we do. We have overall good staff. But we have a few mediocre staff who shouldn’t be there. And that’s the trick—is to not focus on the top performers, or okay workers. We need to focus on the deadwood and perish them out.

The respondent reveals his support to police oversight. He described he does not ‘live in the fantasy that all the policemen are good people and never do anything wrong’. Instead, he acknowledges the “reality” that not everyone in the police can always deliver up-to-quality service. And given this fact, the interviewee believes it is needed to take care of the “deadwood”. His belief in police accountability seems to make him motivated to do his work in the police professional conduct team, to maintain the standard of the police force. In other words, police do not necessarily oppose the idea of police oversight.

5.4.2  Police to Police the Police? By looking into the question of “who” is suitable for the job of overseeing police, it happens that our respondents covered the way people get promoted in the police department, which from their point of view, has an impact on the investigation of the police. Most of the complaints made against the police go through internal investigation, meaning that most of the complaints are handled by the police themselves. A retired sergeant who has been suspended from duty because of a complaint recalled his discomfort and distrust to the investigation personnel: That’s why I mean for serious stuff like that, um… When the word “corruption” is mentioned, people would start backtracking, even when you have nothing to do with it. Unless this detective inspector or detective superintendent… I think they can see “This is going to be a big tick on my CV. I have found a corrupt cop.” Um… I was proved to have done nothing. They realized this early on, but they just kept going. Things like that need to be investigated, not by a superintendent but by someone outside the police. The IPCA needs, I think it does have some external investigators, but I don’t know what they investigate. But I think they need to go in and do the investigation as if they were police officers. They investigate as if detectives.

Given the fact that corruption was one of the most unacceptable things within police departments around the world, this witch-hunt, as claimed by the informant Benjamin, encouraged the investigating officers to dig deeper to make a case against the informant. It is because “cutting the deadwood” of the police department would

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be something worth celebrating because it does the police department a favor by keeping the police department away from corruption. Thus, whoever “finds a corrupt cop” would be as if an achievement as a police officer. It is therefore not hard to imagine why our informant was frustrated after going through this investigation originated from a malicious complaint against him, but the case was so attractive to the internal investigators. The internal investigators wanted to make against him was unfair to him and put him in a very vulnerable position and it was the inevitable conflict of interests of these internal investigators, who were police officers as well. They all want to get the “big tick on their CVs”. It was this great incentive that lured some internal investigators with intentions beyond carrying out a fair investigation itself. All in all, the arrangement of having internal investigators looking into police complaints, from our informant’s point of view, does not grant a fair investigation. Rather, appointing “external investigators” would improve the fairness of investigations, which is quite the opposite of what we usually imagine—that police are reluctant to be investigated by outsiders. A fair investigation is important, and it should be conducted by outsiders with no conflict of interest. To put it in another way, the promotion culture of police has a role to play in the operational level of police oversight when investigations into police are handled by their fellow officers. And how does this promotion culture work? A police officer retiree who has been working in promotion exercises stated the logic of promotion within the police force: The problem is, the police around the world, we promote people on perceived potential, and we don’t spend enough time looking at their track record and say “we can promote this person safely because they have a proven demonstrated track record of sensible, reasoned decision making. Or no, a bad track record be superseded, and much value is put on the perceived potential so that’s fucking unproven.” So, putting a promoted person based on the potential then it’s like road testing a vehicle or road testing a plane. Is it really goanna the way we think it will? Well, often no. But then it’s like a car, you bought it, you stuck with it, don’t you? You're just goanna run the best way you can.

Therefore, successfully digging dirt out of a police officer (for instance making a case against a police officer for taking a bribe) would be proof for someone capable of making “sensible, reasoned decisions”, helping staff to get promoted within the institution—and this happens “around the world”. The allegation of corruption against him put himself in a vulnerable position and the internal investigators who themselves are also the staff of the police took advantage of it to make their way up the ladder. This police promotion culture, or conflict of interest, hints that only by appointing outsiders as investigators, justice will be done to the victims of malicious serious complaints like Benjamin. External oversight is sometimes preferred by police officers. There is a general perception for increasingly democratic representation and substantial empowerment for an external police oversight agency is more likely to check over the possible power abuse of the police and its public accountability. Insider interviewees agreed with this in principle but suggested that the effectiveness of the external body would be subject to the operational arrangement as well as power politics. The external oversight agency, if its members are not directly elected

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instead of appointed by the executive authorities, could be highly politicized. The debates on policing issues might be merely an extension of the party confrontation from the elected legislative chamber. Its ‘success’ is also highly dependent on the dedication and technical competence of members. Assessment on police misconduct could be common sense (like misbehavior and bribery of individual officers), but it is also a highly technical process to judge if appropriate and necessary exercise of force in policing episodes. The efficacy of the follow-up investigation work is also determined by the commitment and competence of the members of the oversight agency, and the absence from the power to sanction against the complainees who found improper conduct. A Taiwan Control Yuan member mentioned, The political disputes in the parliament are extended to the Control Yuan. Members with different party affiliation are also not fully committed to the complaints and allegations to the police power abuse. They might be more eager to focus on the corruption and misconduct of government officers, in which it is also the statutory power for the Control Yuan to monitor the executive units. Most members did not have front-line policing experience, and even lack common sense on police operation. Do you think they could be effective watchers?

5.4.3  Democratic Oversight Means Better Policing? Other than the concern about whether the investigators handling complaints about police have a conflict of interests, the debate of who is professional enough to do the job also appears in our interviews. Police all around the world, especially in developed countries have been working on the branding of “professionalism”. As a result of these grand projects of professionalization, members of these police forces develop a rhetoric that they believe they are professional. By being professional, that means police are equipped with some expert knowledge and skills which people outside the organization do not have and do not understand at all. Following this discourse of police professionalism, when it comes to the discussion of police oversight, it is not rare to see the debate over who is “professional enough” to take up the role of watching the police. A senior police officer who has been responsible for discipline management argued that the ‘sensitivity’ of his job. When asked whether this would put him in a difficult position, the interviewee told us that the credibility he has equipped him for doing this job well: So, I guess…other than the junior staff, people know that I’ve done hard yards. So, I’ve got some operational credibility. I’ve always tried to pride myself and be fair, ensuring, you know…and being up straight and being honest with people, not gilding the lily, not promising things that I can’t deliver. Um…so hopefully it kind of comes with my reputation. There’ll be some people, junior staff who simply won’t know that… But my mantra when I talk to the new staff is eventually, you're going to be involved in a complaint. These are the two things that I expect from you: I expect you to be honest; and do what is asked of you.

This “credibility”, according to the interviewee, is accumulated by his experience, which includes some terrible experiences. It is this credibility that earns

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respect from other staff and this helps him in handling complaints against his colleagues. That is to say, the qualification to be approved by the police in doing the job of police oversight is whether you have their respect. And being an experienced inspector of police who has dealt with different tough situations certain makes Martin a respectable police professional conduct manager. The emphasis of “professionalism” is not only put forward by police officers— the potential subjects of investigations on police, but also lawyers who have the experience of dealing with police complaints. A legal professional who has been involving in the complaint petition to the police oversight body suspected the capacity of the oversight agency even its members were eager to conduct serious interrogations to the cases.: If you do not have the knowledge, you will be swallowed by the information. The problem of the police is that they have too much internal information and contexts hidden from the public, it is not something a certain CEO or a university scholar can understand. They can only judge based on the information given to them. Neutrality can only exist if they have the power to judge for themselves, with a drive to stand on its own ground. If not, no neutrality is possible.

He believed to oversee the police, a person has to acquire some as-if mysterious power and knowledge—that one has to acquire a special way of thinking and handling the information so as to judge whether a police officer did have wrongdoings or did not. Thus, if acknowledging the contention of this Japanese lawyer, overseeing police seems to require some very specialized skills and knowledge, and only people who meet these standards can do the job well, as to how he prioritizes the capability of making a judgment over “neutrality”. Overseeing police, therefore, requires professional knowledge and it is the foundation of effective police oversight, which comes before the concern of independence. It is found to be similar for the case of Taiwan, that a member of Control Yuan, an external police oversight body disclosed to us that knowledge is especially important for a person to do the job of reviewing alleged cases of police misconduct. A respondent shared with us: I think the background of the Control Yuan members undermines the organization’s effectiveness. I observe that members like me have to encounter more judicial procedures to exercise the power of impeachment against misbehaved police officers. But the legal background is not compulsory among us. Even though we may get assistance from investigators with legal knowledge, it gives us more pressure on the Control Yuan. I can see that some civil servants may come along with several lawyers to defend their rights in the Disciplinary Courts’ trials. In this case, we may have to provide proper evidence in addition to oral debates with the lawyers. If the members do not have legal training before, the investigator will be the only person to handle the case. Then it is difficult for The Control Yuan to successfully impose charges to those misbehaved individuals.

As a member of the highest-level oversight body, the respondent found difficulty in gathering the legal knowledge in order to maximize her capacity as a Control Yuan member to hold “problem police officers” accountable. This requirement limits her doing the job even if she has a conclusion that a certain police officer misbehaved, and the police officer should pay for what he/she did. The Control Yuan on

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5  Conclusion: Why to Reform? What to Stress? How to Improve?

the one hand empowers the members in doing the job of watching the police, on the other, the organization excludes the members who do not acquire certain knowledge (such as legal knowledge) from doing more. The knowledge threshold here becomes an obstacle for the empowered to represent the people to protect their rights.

5.5  Concluding Remark Our study brought reflection on some taken-for-granted or well accepted perceptions on police oversight. It is not true that police would always oppose external oversight agencies, in which our common perceptions suggest. The presence of external police oversight agencies could provide fairer treatments to both complainants and police officers being complained. This observation supports the prevailing trend in existing literature (Kerstetter (1985), Goldsmith (1988), Perez (1994), Prenzler and Ronken (2001), Prenzler (2004)). Providing more autonomy to the police oversight body is the direction of reforms in the western democracies (Smith, 2010). A few police complaint bodies which were limited to internal investigation have been replaced by external bodies with investigation powers. Also, some oversight agencies that were limited to reviewing investigations have now been authorized to investigate themselves. Yet, the trend of reform of the oversight system has yet to spread to all the countries in Asia. Our studies, instead, provide some alternative paths taken by three Asian jurisdictions in the process of reforming their police oversight mechanism, showing their complexity beyond the prevailing western literature. In our study, it basically assured the importance of ‘democracy’ in winning public trust towards the police oversight mechanism, and thus also likely to ‘spill over’ to the citizens’ confidence towards the police. However, our studies further the discussion by highlighting three complicated aspects of the police oversight agencies in Asia: Professionalism, Representation and Empowerment. These features detail the complexity beyond the traditional categorization of the external oversight agencies. We have shown the operational limitations for these external oversight agencies. In democratic regimes, members serving the external oversight bodies could sometimes be a highly politicized agenda. Elected politicians and political appointee members might not be fully committed and technically competent to the investigation work of police misconduct because power abuse allegations might involve lots of technicalities in policing episodes and legal provisions. The secretariat and its staff (particularly the investigators who have the statutory power of investigation) of the independent oversight bodies would also be constrained to get the full collaboration with the police throughout the investigation. They might not be the specialists in policing and are not familiar with the police operations and subculture. The provision of external oversight agencies could not guarantee an effective police oversight. The case of Hong Kong showed how “professionalism” had been marketized by both the colonial and post-colonial administration, for slowing down the process of empowering the external police oversight agencies. The advocacy of

5.5  Concluding Remark

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‘professionalism’ and ‘transcendency’ is also often publicized by the authorities or the government for the merits of currently operating; ‘auditor model’ of oversight with limited investigation capacity and made up of non-popularly elected government appointees. There is no critical rebuttal to this claim until the aggravated government-­ protestors confrontations over the past decade. Paradoxically this sharply contrasts to the constitutionally democratic Asian, European and Oceanic counterparts in which public suspicion and critiques over the operation of police oversight mechanisms are prevalent. Our historical-institutional analysis alarmed several critical junctures in the development of police oversight mechanisms: what should be the most important consideration for a police oversight body? Should it be constituted solely by the insiders and professionals who are familiar with policing operations, or it should be popularly elected representatives? And to what extent the external police oversight agencies should be empowered, in order to guarantee “good” police oversight? The case of Japan and Taiwan showed us the complexity in the provision of external police oversight agencies. Even though the case of Japan and Taiwan show that they are still heavily relying on internal mechanisms to deal with the allegations of misconduct and public complaints, these two jurisdictions have developed their distinguished external system of police oversight. While it seems that the investigations of complaints are internally centered in these regions, there are bodies external or superior to the Force that are authorized to review, investigate public complaints and monitor police misconduct. And the external body in Japan is with elements of public representation, while in Taiwan, constitutionally empowered. Even though they are not the primary investigating agencies, they still retain the rights to do so. The constitutionally empowered Control Yuan in Taiwan especially highlights her position in this case. Therefore, even no specialized oversight bodies are established in these two regimes to investigate police complaints, there might be sufficient checking, at least on paper, to impose institutional constraints on the internal investigation body. Nevertheless, our study found the limitations of these two models in Japan and Taiwan. Representation and Empowerment could not work solely on their own, some kind of Professionalism should be enhanced in order to effectively monitor the police department. Although the three elements are not mutually exclusive, they should not be weighed equally. If a democratically empowered organization was found not professional enough to conduct investigation on a police force, it could be trained and enhanced. But if the organization was not empowered to investigate, no matter how professional the membership is, it could not provide sufficient checking on the police force. Our study concludes that “empowerment” and “representation” appear to be more important than “professionalism” to sustain public trust in police oversight mechanisms. We hope this would provide a scholarly implication further the discussion of police oversight agencies, outside the traditional categorization of internal affairs, citizen review and citizen control model, that might fill up the area in between internal and external police oversight models. For the policymakers, our study apparently highlights several important tips for them to enhance the legitimacy of the police oversight mechanism. These include:

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5  Conclusion: Why to Reform? What to Stress? How to Improve?

• To ensure police accountability to the public should be a negotiable objective for the establishment of police oversight, no matter if an independent and constitutionally empowered body is established. • To institutionalize a procedurally justified due process of complaint investigation and oversight that could get the trust from different stakeholders determines if it could get the trust from the public. • To elect members with public mandates (or at least appoint elites with good public image or prestige) is also a very crucial dimension for a successful police oversight mechanism. • To ensure ‘professionalism’ of the investigators and oversight agencies is an easily overlooked but significant element of reform. Research and Development function of the oversight body should be strengthened, just like the ‘Prevention of Bribery’ work taken up by the ICAC in Hong Kong. • To further empower the external oversight body for police oversight for active investigation power, authority to impose disciplinary sanction, and the referral to judicial trails for the substantiated cases align the international trend of reforms. • Efficiency is important – must secure a reasonable timeframe to complete the investigation

References Goldsmith, A. J. (1988). New directions in police complaints procedures: Some conceptual and comparative departures. Police Studies Intnl Review of Police Development, 11, 60. Hu, R. (2016). The impact of Chinese political efficacy and political participation on their trust in the police. The Journal of Chinese Sociology, 3(3). https://doi.org/10.1186/s40711-­015-­0024-­8 Kerstetter, W. A. (1985). Who disciplines the police? Who should? In W. A. Geller (Ed.), Police leadership in America: Crisis and opportunity (pp. 149–182). Praeger. Perez, D. W. (1994). Common sense about police review. Philadelphia: Temple University Press. Porter, L. E., & Prenzler, T. (2012). Police oversight in the United Kingdom: The balance of independence and collaboration. International Journal of Law, Crime and Justice, 40(3), 152–171. Prenzler, T. (2004). Stakeholder perspectives on police complaints and discipline: Towards a civilian control model. Australian & New Zealand Journal of Criminology, 37(1), 85–113. Prenzler, T. (2011). The evolution of police oversight in Australia. Policing and Society, 21(3), 284–303. Prenzler, T. (2016). Democratic policing, public opinion and external oversight. In T. Prenzler & G. den Heyer (Eds.), Civilian oversight of police: Advancing accountability in law enforcement (pp. 51–72). CRC Press. Prenzler, T., & Ronken, C. (2001). Models of police oversight: A critique. Policing and Society: An International Journal, 11(2), 151–180. Prenzler, T., & den Heyer G. (2016). Civilian oversight of police: advancing accountability in law enforcement. Boca Raton: CRC Press. Smith, G. (2010). Every complaint matters: Human rights Commissioner's opinion concerning independent and effective determination of complaints against the police. International Journal of law, Crime and Justice, 38(2), 59–74. Stenning, P. (2011). Governance of the Police: Independence, Accountability and Interference. Flinders Law Journal, 13(2), 241–267. Waters, I., & Brown, K. (2000). Police Complaints and the Complaints’ Experience. The British Journal of Criminology, 40(4), 617–638.

Index

A Accessibility, 4 Accountability, 2, 3, 66 Administrative Case Litigation Act, 37 Administrative Complaint Review Act, 37 Advisory Council, 39 Allegations, 25 Anti-Extradition Law Amendment Bill Movement, 11, 25, 29 Asian jurisdictions, 62 Authoritarianism, 63, 64, 71 B Balanced representation, 33 C Citizens, 2 Civil Ethics Unit and Agency Against Corruption (AAC), 47, 48, 53 Civilian control model, 2, 6, 13–14, 47 Civilian review model, 1, 2, 11 Civil law system, 9, 10 Commissioner of Police (CP), 22 Common law system, 9 Complainants, 35 Complaints Against Police Office (CAPO), 11, 17, 18 allegation, 25 appeal, 20 Appropriation Bill, 22 Complaints and Internal Investigations Branch, 17, 21 decision-making power, 27

formal complaint, 19 HKPF, 17 Hong Kong citizens, 17 independent body, 21 institutional limitations, 29 investigation, 19 IPCC’s categorization, 27 justifications, 22 Police Force, 21, 22 police oversight mechanism, 17 public against Force members, 17 reportable complaints, 27 two-tier system, 21 UMELCO, 17 Confidentiality, 51, 54 Control Yuan, 54–56, 68, 69 and AAC, 48, 53 constitutionally empowered unit, 47 empowerment, 54, 56 management of protests, 51 members, 48, 55 ombudsman unit, 48 police force, 52 power, 52, 55 proactive intervention, 53 public complaints against the police, 48 secretariat, 54 Taiwan model, 56 Credibility, 68 D Democracy, 9, 63, 64 Democratic polity, 9 Democratic Progressive Party (DPP), 9

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 L. K. Ho et al., Policing the Police in Asia, SpringerBriefs in Criminology, https://doi.org/10.1007/978-3-030-82981-0

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Index

74 Democratic representation, 40, 41, 44 Democratization, 8, 13 Discretion, 50 E East Asian Model, 14 Empowerment, 5, 12, 14, 47, 51, 52, 55, 56, 59, 62, 64, 67, 70, 71 External oversight agencies, 59, 67, 70 External police oversight agencies in Japan, 41 H Hong Kong Human Rights Monitor, 23 Hong Kong Police, 10 Hong Kong Police Force (HKPF), 11, 17 allegation, 28 CAPO, 17 force with public trust, 26 legitimacy, 28 non-confrontational strategy, 25 professionalism, 28, 29 satisfaction, 26 trust, 26 trust level, 25 I Independent Police Complaints Council (IPCC), 17 administration, 21, 22 allegation of assault, 27 allegations not required full investigation, 25 anti-ELAB Movement, 29 appeal, 20 complaints against police officers, 30 functions, 18 government, 25, 30 Hong Kong Human Rights Monitor, 23 Independent Police Complaints Council Bill, 23 institutional design, 30 institutional limitations, 29, 30 International Experts Panel, 28, 29 investigation, 19, 26, 29 legislation, 23 Observer’s Scheme, 19 oversight body, 23 oversight statistics, 24 Police Force, 17 police performance, 29 professionalism, 23

public administration perspective, 30 reportable complaints, 19 review, 20 Security Bureau, 23 two-tier auditing mechanism, 29 Institutional arrangements, 59, 60 Internal affairs model, 2 Internal Affairs Office (IAO), 48, 53, 54 and Control Yuan, 51, 55 corruption-related cases, 47 internal police oversight system, 47 investigation and decision-making processes, 50, 53 public complaints against the police, 48 supporting agency, 52 Internal Affairs Office (IAO) of the National Police Agency (NPA), 47, 48, 52, 55 Internal investigation, 64–66, 70 International Experts Panel, 29 IPCC Bill, 22, 23, 29 J Japanese policing system, 38 Japan Federation of Bar Association (JFBA), 42 Japan policing, 44 Japan’s police oversight mechanism civilian review, 33 independent freelance reporters, 43 lack of transparency, 42 operating procedures appeal, 37 intake, 35 investigation and result, 35, 37 NPSC (see National Public Safety Commission (NPSC)) PPSC (see Prefectural Public Safety Commissions (PPSC)) principles of, 33 professionalism, 40 PSC (see Public Safety Commissions (PSC)) public trust, 41 reporters, 43 representation, 40 roles, 33, 34 structural features, 33, 34 Jurisdictions legal systems Hong Kong, 9 Japan, 9 Taiwan, 10

Index policing system Hong Kong, 10 Japan, 10 Taiwan, 11 socio-political context Hong Kong, 8 Japan, 9 Taiwan, 9 L Law enforcement authorities, 2 Legal authorization, 63 Legal systems, 9, 10 Legislative Council, 23, 27 N National Association for Civilian Oversight of Law Enforcement, 3 National Police Agency (NPA), 10, 11, 33, 34, 37–40, 42, 47, 50, 51 National Public Safety Commission (NPSC) cabinet member, 39 cabinet’s responsibility, 39 collegial commission, 34 democracy, 38 democratic representativeness, 40 “ensure the cabinet’s responsibility in public order”, 39 ensuring democratic governance, 38 external agency, 33 investigation and result, 35, 37 Japanese policing system, 38 Meiji restoration, 38 missionary type of agency, 34 National/Local Diet, 38 NPA, 34, 38–40 parliamentary cabinet system, 39 Police Act, 38 police oversight mechanisms, Japan, 34 police system, 33 political neutrality, 39 post-war reforms, 39 prefectural police, 39, 40 proactive investigation power, external oversight agencies, 38 Regulation on Procedures for Filing Complaints, 35 representativeness, 38 United States, 38 National Security Law, 29 Non-democratic policing system in Hong Kong

75 CAPO (see Complaints Against Police Office (CAPO)) IPCC (see Independent Police Complaints Council (IPCC)) operating procedures appeal, 20 intake, 18, 19 investigation, 19 roles, 17, 18 scarecrow fallen, 25–29 structural features, 17, 18 two-tier system in stagnation, 21–25 O Observer’s Scheme of the IPCC, 19 Organization of Municipal Police Departments Act, 52 Overseeing police, 66, 69 P Parliamentary cabinet system, 39 Police Act, 38 Police Complaints Council Bill, 23 Police complaint systems, 4, 6, 22 Police Force in Japan, 10 Police integrity, 3 Police oversight agencies in Asia, 70 democracy and professionalism, 64 historical conjunctures and regime leadership, 64–65 insiders’ perspective, 61–62 ‘professionalism’ vs. ‘democracy, 63 Police oversight bodies, 52 accessibility, 63 comparison of administrative structures, 60–61 comparison of powers, 61 competence, 62 empowerment, 62, 64 impartiality, 62 professionalism, 62 transparency, 62, 63 Police oversight mechanism accessibility, 4 Asia, 6 body, 3 civilian control model, 6 controversies, 11–13 criteria, 3 directional-setting, 5 East Asian approaches, 6

Index

76 Police oversight mechanism (cont.) elements, 6 empowerment, 5 fairness, 4 flexibility, 5 independence and impartiality, 3, 4 jurisdictions Hong Kong, 7–11 Japan, 7–11 Taiwan, 7–11 models, 1, 2 primary data, 7 publicly accessible government archives, 7 purposes, 2, 3 qualitative data, 7 research questions, 7 semi-structured interviews, 7 transparency, 5 types, 1 Western democracies, 6 Western nations, 6 Police oversight mechanism in Taiwan Civil Ethics Unit and AAC, 47 Control Yuan (see Control Yuan) external agencies, 48, 54 IAO of the NPA, 47, 48, 51, 52 (see also Internal Affairs Office (IAO)) operating procedures appeal, 51 intake, 48–50 investigation, 50–51 Police Reform Organization Act, 52 Policing system, 10, 11 Political neutrality, 33, 39 Prefectural police, 35, 37 Prefectural Public Safety Commissions (PPSC) citizen representatives, 38 General Affairs Division, prefectural police, 35 misconduct offices, 42 operational technicalities, 34 Police act, 38 police agencies, 41 police force, 35 Police Law, 35 police oversight mechanisms, Japan, 34 political neutrality, 39 prefectural police, 34, 37, 39

proactive investigation power, external oversight agencies, 38 public complaints against the police, 35 public servants, 34 public trust, police force, 40 Procedural rights, 4 Professionalism, 11, 12, 14, 23, 25, 28, 29, 40, 44, 59, 62–64, 68–71 Public accountability, 56 Public education, 44 Public interests, 4, 5 Public Safety Commissions (PSC), 33 appointments, 41, 42 democratic representation, 40 duties, 40 independent body, 44 independent investigative power, 42 internal agency, police oversight, 43 investigation process and result, 37, 42 JFBA, 42 local police department vs. local Diet, 41 organization, 43 oversight system, 43 police accountability, 42 policing practices, prefectural police forces, 39 prefectural police, 37 principle of democratic representation, 44 public security police, 43 public trust, police force, 40 Public security, 43 Public Security Police Department, 43 Public trust, 41 R Reforms, 44 Reportable complaints, 19, 27 Reporters Club, 43 Representation, 6, 12–14, 37, 38, 59, 63, 64, 67, 70, 71 Republic Of China Constitution, 9 S Self-protection ethos, 55 Self-protectionism, 56 Social conflict, 27 Socio-political context, 8, 9 Socio-political development, 10

Index “Soft” protest management strategy, 25 Stakeholders, 4 Supreme Commander for the Allied Powers (SCAP), 9 T Taiwan’s policing system, 11 Tokyo Metropolitan Police Department (TMPD), 11 Toothless tiger, 12 Transparency, 5, 53, 56, 62 Two-tier police oversight mechanism, 25

77 U United Nations Office of Drugs and Crime (UNODC), 2, 3 Unofficial Members of the Executive and Legislative Councils (UMELCO), 17 W Western democracies, 1, 3, 6, 7, 11–14, 64, 70