Wednesday, March 5, 2008

Making the police even less accountable

Thursday February 24, 2005-- Muharram 14, 1426 A.H. Published in The News Pakistan
ISSN 1563-9479


Making the police even less accountable

Afzal A Shigri

The police in Pakistan is seen as an instrument of coercion in the hands of the executive, to suppress the opposition and stifle any voice of dissent. Since it is controlled and is also answerable to the executive, it is immune from any accountability as long as it carries out the orders of the executive, without questioning the legality or propriety of that order. This is not a problem peculiar to this country. All countries have gone through this process and found solutions to the problem of the accountability of the police. Our leaders continue to lament the highhandedness of the police and promise to change the "thana culture" that has come to represent the repression and maltreatment of the public at the hands of the police at the behest of the high and mighty of the area. The Chief Minister of Punjab pointed out in his recent address to senior police officials that it is not the figures or the crime graphs that give a true picture of the performance of the police; it is the sense of security that people feel. He vowed once again to hold police officers answerable and change the thana culture. But can it be done without the introduction of a meaningful and credible accountability system?

The Police Act of 1861 was enacted for the specific purpose of safeguarding the empire, and it did this effectively. After the politicians and military rulers replaced the foreign rulers, they found in the police force a useful instrument to control their political opponents and silence any opposition to their rule. This law created a facade of accountability through bureaucratic control of the District Magistrate (DM) that was essentially a collusive relationship between the SP and the DM to the detriment of the public interest. This system continues to plague the Northern Areas, Islamabad, Azad Kashmir and areas of Balochistan. The system failed to maintain peace and safeguard people's rights. Ironically, it was a military ruler who made a genuine effort to correct the situation and tasked the NRB to come up with a new police law that comprehensively addressed the question of accountability of police to the public. The Police Order, 2002, was enacted. It provided a trustworthy mechanism for police accountability. This law, on one pretext or another, was not allowed to be implemented and the institutions that were provided to bring a check on police were not established. The explanation for this apathy is simple; any meaningful accountability of the police would have weakened the hold of the executive to misuse it, since a neutral institutions would have pointed out interference and stopped it.

The amendments in the Police Order, introduced in indecent haste through Ordinance No. V of 2004, have hit at the heart of the basic premise of insulating the police from political interference and holding it accountable to the people. The amendments have brought about changes that remove all checks on the police and have effectively placed it under politicians and converted the institutions of accountability as collaborators for providing protection to the policemen who are prepared to carry out all orders of the executive without questioning their legality or bona fides. This will in turn compromise the entire criminal justice system with devastating impact on law-enforcement in this country. It will also convert a regular police force into a glorified private militia that will be unable to deal with any serious situation of disorder, organised crime or terrorism. The amendments are explained in the succeeding paragraphs, highlighting the real intent of the present political set-up and their negative impact on the system.

Security of tenure of officers in key positions is of vital importance to ensure that the officer can perform his duties impartially without being summarily replaced in the name of "public interest." For this purpose, in Article 12 of the Police Order, agreement of the Provincial Public Safety Commission (PPSC) and the National Public Safety Commission (NPSC) was provided for the premature transfer of the Provincial Police Officer (PPO) and the Capital City Police Officer (CCPO). This check has been removed in the new amendments. In case of premature transfer of these officers for "unsatisfactory performance" by the provincial government, even the right of being heard before such action has been deleted from the law. The consequence of this amendment is that the security of tenure is again denied to the PPO and CCPO and he is placed at the mercy of the executive, extinguishing all hopes of political insulation at the command level.

Again in Article 34, the provision where the Head of District Police could challenge a motivated and illegal order and approach the appropriate Public Safety Commission has been deleted and the police, instead of being accountable to law, is answerable to political bosses and will be required to carry out their orders without questioning their validity. As a trade-off he will get immunity against any action. The District Public Safety Commission (DPSC) that was designed as a neutral body comprising members of the civil society and members of the district council has been dismantled and recreated -- it includes one-third members of the parliament nominated by the government. The independent members have been reduced to one-third of the total strength. This highly politicised body has also been given all the functions of the Police Complaint Authority. This arrangement has effectively eliminated any chance of accountability of an errant police officer, but it will be used to harass any officer who dares to question the intentions of any order of the political government. Once this arrangement takes root, the hapless people of this country will yearn for the much criticised thana culture as policemen will turn into gangs of thugs.

Again, at the provincial level, the Provincial Public Safety Commission (PPSC) has been restructured and representation of the elected members from opposition MPAs has been reduced from three to two and those of the treasury enhanced from three to four. This commission has also been given the powers of the Provincial Police Complaints Authority. Even this highly partial body has not been allowed to intervene in case of any unlawful order given to the police by the executive and overrule it.

While vesting this body with the powers of the Police Complaints Authority, the changes in its functions are also reflective of a mindset to control the police for ulterior motives and not give relief to the public. An in-depth analysis is not possible in these columns, but it is interesting to note that the provision that made it mandatory in the original Police Order for the Police Complaints Authority to request the Chief Justice for a judicial enquiry in cases of death, rape and serious injury to any person in police custody has been deleted in the amendments. There is no logical explanation for this amendment, except the desire to protect rogue cops and use them to terrorise opponents.

Not satisfied with creating a police without accountability, the "experts" involved in changing the Police Order have also tinkered with the definitions of different words, giving them a meaning to vest disciplinary and administrative powers in the members of these highly politicised bodies to interfere and intervene in police functions and secure implementation of their orders under threat of action against the officers. The words "direct" and "responsible" have been linked to Section 155 of the Police Order that was primarily provided for internal discipline. In a novel way, these powers have now been given to politicians and civilians. This indeed is a unique legal experiment.

These amendments were incorporated without any public debate or consultations with the stakeholders. Not even one of these amendments is meant to protect the public. These are designed to strengthen the hold of the politicians in power on police and in a dubious way provide immunity to the compliant police officers and marginalise the ones who stand for the people.

Those who are in power now must remember that when they find themselves on the opposition benches they will find these provisions extremely unpleasant and painful. Introduction of such an unjust system is bound to lead to tragedies. If the party in power fails to take corrective steps now it will live to regret the day when its leaders listened to sycophants and committed this folly of destroying a people-friendly law that was a major step in reforming the criminal justice system in the country.

The writer is a former police inspector-general