Monday, November 20, 2017

Police’s political restructuring

Afzal Ali ShigriNovember 14, 2017

AN organisation with large human resources can only function proficiently if a proper service structure has been provisioned for its members. This factor attains greater importance if the organisation supervises a disciplined force responsible for law enforcement. For such an institution, induction at different levels is determined by its size and the nature of the duties of the members of the organisation along with sound career progression.
The police departments in Pakistan perform important functions. Therefore the establishment of a structure based on internationally recognised standards is essential for their efficacy as a force. The police that we inherited at the time of Independence met the benchmarks of that period. To maintain order in Pakistan at the time of its inception, it was, therefore, possible to revive police functionality with the existing colonial structure, although this was not an ideal arrangement.
The police structure that was inherited had multiple layers of induction at three levels. At the entry level, a constable with elementary education was recruited and put through rigorous militarised training with the basics of policing and criminal law.
The middle level allowed the selection of educated candidates at the rank of assistant sub-inspector/sub-inspector. At the mid level, they were recruited through a selection process of candidates who possessed specified educational quali­fications.
At the senior level of supervision, assistant superintendents of police (ASPs) were recruited centrally from amongst the cohort of graduate candidates through a countrywide competitive examination. The bulk of the force comprised the lowest rung of the structure, performing routine duties of maintaining order and preventing the commission of offences. Only selected literate members of this level were imparted in-service training for promotion to higher levels, and the system allowed these police officers to rise to the rank of inspector.
The situation will take decades to reset even if such inductions are stopped.
A combination of these directly inducted officers and promoted officers from the lower level formed the backbone of the police department. They were directly involved in day-to-day and on-ground policing. They manned the police stations, supervised the constabulary, investigated the cases, performed watch-and-ward duties and maintained order.
At the third and highest tier, the assistant superintendents of police (ASPs) were recruited for command and control assignments of the police department.
This three-tiered induction had evolved on the basis of experience that called for the provision of a smooth promotion system that did not create distortions or conflict. For instance, lower-tier officers would be nearing retirement when they were promoted to the next level.
This was a neat arrangement for police officers progressing through various levels of induction and who did not end up in posts that were principally meant for officers recruited for a specific level of responsibility. It not only ensured a smooth transition but also combined fresh blood with experience at different levels.
Before Independence, there were some exceptions with the direct recruitment to the level of inspectors and deputy superintendent of police (DSPs) from the public at large. This was done purely out of political considerations, but the number was so restricted that it did not have any impact on the structure of the police department. These officers were absorbed by the system and accepted by their colleagues; as such, these inductions did not create any serious distortion or anomalies in the department.
The need to enact structural reforms to meet the new challenges of changing environments prompted governments of the time to exploit the system for furthering political opportunities rather than improve it. Governments with the stated intention of reforming the police started making exceptions to existing functioning police structures.
In the name of changing the thana culture, recruitment was done at the level of inspectors, and for engineered shortages DSPs were inducted. Then in the name of special requirements, officers from other institutions, including the armed forces, were inducted as superintendent of police and even deputy inspectors general. The results of these whimsical decisions caused opaque induction, violation of merit, conflicting/ competing claims on vacancies and administrative distortions with promotion blocks for juniors and groupings at command levels.
These also gave rise to litigation and a number of rulings that had a very negative impact on the discipline of the police forces. Some of these politically motivated decisions were set aside by the courts, but continuing multiple inductions have damaged the department, which is now facing very serious challenges in maintaining discipline within the force.
The situation will take decades to reset even if such inductions are stopped. The political leadership must understand the implications of interference in human resource management and realise that the key to good governance lies in merit-based human resource management for every department/ institution of the government, and more so for the police force that has the vital responsibility of maintaining order.
Police Order 2002 was an attempt to address this problem and provided induction through a transparent procedure. Its provisions ensure transparency and recognise the importance of harmony in an organisation that exercises the coercive powers of the state. Unfortunately, this attempt was frustrated in the name of the 18th Constitutional Amendment, and this law stands repealed by three provinces, with Punjab set to change it.
Police forces all over the world have a unique status as each is answerable to its own hierarchy, but each member of the force also has an inherent role that is independent of this hierarchy and all officers have legal powers that they exercise for which they are answerable to the courts.
This exclusive status of the police presents a complex and challenging dilemma vis-à-vis its management structure. This peculiar position, therefore, needs to be managed, supervised, guided and controlled through an intricate process.
Political interference in such a delicately calibrated management system can be fatal as the outcome will be chaos and anarchy that inevitably derails democratic governance. We are in the midst of such a chaotic situation, thanks to tinkering with the police organisation and the equally unwise decision to ask the army to take up policing. It is no surprise then that complaints of ‘institutional conflict’ follow when policing powers are given to other security forces.
The writer is a former IGP Sindh.
Published in Dawn, November 14th, 2017

Friday, August 11, 2017

Judiciary & Investigation

By Afzal A Shigri

UPON independence, we inherited a functional criminal justice system (CJS) that delivered and maintained peace in the country until the late 1960s. However, as Pakistan became embroiled in regional issues, the system faltered and the country paid a heavy price in the form of the virtual annihilation of the CJS’s fundamental structure, one that had evolved over decades.
Against this backdrop, attention shifted from institution building/improvement to fulfilling the onerous responsibilities of the newly assumed role of ‘regional leader’. Every institution was sacrificed at the altar of local political expediency to the point where its purpose and function were rendered obsolete. It goes without saying that in the absence of strong institutions to control arbitrary decision-making by the government, which legitimises its actions through a questionable political process, the hope for just governance is likely to remain a chimera.
The British rulers established the structure of the CJS around the Indian Penal Code, the Code of Criminal Procedure (CrPc) and the Evidence Act, which were drafted by great minds that foresaw all possible eventualities. This vision formed an all-encompassing legal foundation for the criminal justice structure in India. Despite its colonial antecedents, it was an efficient system lasting for more than 100 years. The continuation of these laws in all the South Asian countries bears testimony to its legislative efficacy.
However, as the laws were not amended to address the evolving challenges of a changing world, the very institutions created and empowered by these laws were instead used to serve the political elite coveting regional dominance.
The role of the judicial magistrates is critical for thorough investigations and as a check on police.
This negligence in improving basic structures prefaced the breakdown of societal law and order and the fractured CJS found it difficult to deal with the emergent threat of terrorism. As a result, the government began to rely inordinately on the army in a strategy that was tantamount to firefighting without any comprehensive plan.
In this context, the National Action Plan was essentially adopted to address mounting public pressure for action. Yet even on the NAP agenda, the most vital topic of improvement of the CJS was relegated to the bottom of the 20 points. As feared, little was done to improve the system, for the outcome would have also been politically awkward.
In addition to hearing important cases against political governments in Karachi, and carrying out situation hearings and reports on the Quetta Civil Hospital bombing, the superior judiciary took note of the negligence in reforming the CJS, intervening proactively to force the executive to address the issues related to its functioning.
Undeniably, terrorism can only be confronted through an effective CJS, wherein the weakest link is the investigative process. If purged of political influence and closely monitored by the institution mandated to do so, positive results can be expected. However, no one wants to undertake this. Even the special and draconian legislation enacted in recent years has been of little help.
In this regard, a careful examination of the CrPc shows that the role of the lower judicial magistrates is critical for carrying out thorough investigations and as a check on police. This basic law has provided a delicately calibrated balance that defines the role of the magistracy in the investigation without its direct involvement in the process. In this way, it ensures the independence of the investigation.
For instance, Chapter XIV of the CrPc defines the role of the concerned magistrate by creating a fine balance of oversight and soft intervention in the process. For the investigation of a non-cognisable offence, the permission of a magistrate is mandatory under Section 155 CrPc. Section 156 (3) holds that a magistrate empowered under Section 190 can order a police officer to investigate a cognisable offence and under Section 157 it is binding for the police officer to send to the magistrate concerned a report of any information regarding the commission of a cognisable offence. Similarly, under Section 158, the investigating officer has to send the reports of every case investigated by him under Section 157 to the magistrate for his perusal.
Moreover, Section 159 empowers the magistrate to order an investigation and, if required, either proceed himself or depute a magistrate junior to him for preliminary enquiry. It is again the magistrate who has to give physical remand of an accused to the police for investigation after determining the need for extending the remand. This is a very potent tool in the hands of the magistrate for monitoring the investigation. Yet again, the closing of a case against an accused under Section 169 is subject to review by the magistrate. During the investigation, Section 164 empowers the magistrate to record the statements related to a crime or confession.
After the separation of the judiciary from the executive and the abolition of the executive magistracy, judicial magistrates are reluctant to play the proactive role provisioned in the procedural law. In the light of the worsening law and order situation and the emergence of the threat of terrorism, it is important to revert to the basics and strictly adhere to the provisions discussed above.
The higher judiciary should provide the guidelines on considering the CJS as a package that can only deliver if the functioning of its many arms is synchronised. The example of Britain in the wake of the 2011 London riots is illuminating, where the judiciary played a leading role by instituting double shifts of court hearings and punishing the offenders.
Of course, the situation in Pakistan is far more serious. That makes it even more imperative that the investigators be not only supported but also monitored in bringing the offenders to book. Responsible institutions must work together towards this goal, with the higher judiciary guaranteeing the active participation of all the players and the transparency of CJS’s functioning.
Oft-repeated recommendations for resuscitating the old system of executive magistracy as a panacea for contemporary challenges will prove futile, for it has outlived its utility and serves but to attenuate the judiciary and distort the entire criminal justice system.
The writer is a former IGP Sindh.
Published in Dawn, June 19th, 2017

Sunday, May 29, 2016

Transparency in custodial investigations

This article was published in Express Tribune on May 19, 2016
By Afzal Ali Shigri

A suspect is arrested, and in line with the special law, the court gives a 90-day remand to the Rangers to interrogate him for his alleged involvement in criminal activities. On the third day, the man dies while being rushed to the hospital. The media explodes with headlines, and the whole process of investigation is called into question, with even the postmortem report becoming publicized. The reporting and analysis by the media disfavours the very force that has been widely lauded hitherto for restoring peace to Karachi. This is how a single blunder or botched investigation can obscure the months and years of good work done by members of the same force.
A death in police custody is something that cannot be completely eliminated in the same way as death cannot be banished from our lives. What should be addressed is the transparency of the process regulating custodial investigations. In a number of cases, custodial deaths happen because the individual under investigation is placed under a great deal of stress due to the fearful environment existing in police custody. Different methods are employed by the investigators to pressure, confront and scare the accused persons to reveal the truth as to the allegations levelled at them. Admittedly, in many cases, the accused persons may be severely tortured. However, in a larger number of cases, deaths can occur due to heightened anxiety, guilt and fear of being discovered, which can trigger underlying, and in some cases, undetected medical conditions to devastating and fatal effect.
In order to address the problems arising due to such contestable custodial deaths, legal provisions within the Criminal Procedural Law allow the area magistrate to conduct an inquiry to determine the cause of death. In case of torture being proven, the magistrate can initiate legal action immediately. In all unnatural deaths, an inquest report is based on the post-mortem report conducted by an authorised doctor or board of doctors.
With time, this law has lost its efficacy in determining the actual cause of the death. As the relationship between the police and the magistracy degenerated into collusion, the magistracy that was the part of the executive began to be used for covering up facts rather than for ensuring the transparency of findings. The Police Order 2002 specifically addressed this issue of public interest and made a detailed provision that laid down the course of action in case of death, grievous hurt and complaint of rape in custody. In such cases, it was within the remit of the government to automatically request the high court to appoint a session judge to conduct a judicial inquiry in order to determine the facts of the case for possible criminal or departmental action.
Over time, the civilian police in the country has begun to be replaced by the civil armed forces because police personnel have lost their capacity to deal with law enforcement and maintenance of order in society. Due to political interference in police work, encompassing case investigations, arrests, bails, and even internal and administrative matters of appointment, training, promotion and postings, the police supervisory structure has been paralysed. This has completely fragmented the institutional capacity of police to perform its duties. Instead of addressing this malaise, the political government has resorted to inducting the civil armed forces for maintenance of order and crime control. The forces are ideally suited to dealing with a serious breakdown of order or to handle a hard target within a given timeframe. However, they should not be expected to perform regular police duties as they lack a system of internal management based on a mechanism that monitors and records all actions and movement of each policeman. Such a process, which is integrated into the institutional capacity of the police force, ensures effective control for affixing the responsibility in case of a mishap.
The deployment of the Rangers in Karachi has seen some critical reports in the media regarding the purported highhandedness of the Rangers. After the death of the MQM activist in the custody of the Rangers, those with vested interests have attempted to malign the paramilitary force, despite its impressive work at restoring peace to the city. While the military has rightly ordered an inquiry because of the government inaction, even this inquiry, which has been welcomed by the affected party, is being criticised. It cannot be stressed enough that the existing law should be allowed to run its course through an inquest by the magistrate to determine the cause of death and to furnish evidence for further legal action, should a need to hold the Rangers accountable be established in this instance.
The government must deal with law enforcement on priority, and instead of playing politics by deploying the civil armed forces to deal with unsavoury situations, it should assume full responsibility and desist from political interference in policing. Continued deployment of the military for policing functions will not only thin out its resources, it will also unnecessarily embroil it in needless political controversies. The solution consists of ensuring that the rule of law prevails in the operation of a fully accountable and neutral police force, which is insulated from all extraneous interference. As an immediate measure, all police chiefs should have legally ensured tenures with total operational autonomy. This would prevent the government from playing political games by embroiling the military in policing, which is ultimately the function of a civilian force.
Published in The Express Tribune, May 19th, 2016.

Saturday, May 14, 2016

Political Interference at its worst

Shariq Jamal Siddiqi District Police Officer of Bhawalnagar an upright and brave officer took action against the gunman of local MNA who had reported slapped a police constable. This was not acceptable to the MNA because he considers himself and his minions above the law that he legislates. The MNA very graciously offered to allow the officer to stay as the district head of police provided he had lunch at his house and apologized for the affront to him. Shariq is an honorable man and was not prepared to agree to such a humiliating treatment at the hands of a local politician for doing his duties. He refused and was transferred as OSD by the government of Punjab.
Sometimes back another upright officer Mr. Nekokara was also not only transferred for giving professional advice but also dismissed from service. His appeal is pending before the services tribunal. The political governments unfortunately are unable to differentiate between their personal servants and a public servant. Therefore such whimsical and unlawful decisions are being taken repeatedly. Politicians also expect the police to violate laws to meet their every unreasonable demand. It is not limited to petty matters but extends to investigation of the serious criminal cases, their prosecution, arrests and even matters of bail. Most of the elected members of assemblies from the ruling party consider it their right to even interfere in the internal administration of police department. There is no check on their wanton behavior and they have the full support of the government.
Transfer of an officer like Shariq for upholding the law is illegal, unwarranted and deplorable. The Chief Minister and the Prime Minster must understand that such actions are primarily responsible for the ineffectiveness of the police forces in the country. Depoliticize the police and half the problems will be solved in a day. Showcasing fancy forces like Dolphin and elite squads will not address the policing problems they have to address the fundamental issue of treating police as servant of the state and not their private employees.
Comments from the serving and retired officers are sought on this incident. Shariq was given a very good farewell because of his principled stand. He is a hero to his force and has earned their gratitude for standing by them. 

Afzal A Shigri