Public interest and amendments in Police Order
Afzal A. Shigri
Article 4 of the Constitution of Pakistan gives the right to an individual to be dealt in accordance with law: "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan." Sub clause 2 (b) of this article elaborates: "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law".
It was in this spirit that the Police Order 2002 was promulgated and in the preamble it was categorically stated: "Police has an obligation and duty to function according to the Constitution, law and democratic aspirations of the people". Police Order accordingly redefined the role, duties and responsibilities of police, breaking free of the past and a colonial legal system.
In order to protect the rights of citizens and every individual in the country, elaborate and transparent structures were created in the Police Order. The law was so crafted that all actions and exercise of the authority by police was subjected to close scrutiny by the internal command, judiciary and the civil society. The misuse of police by the executive was specifically identified and effective checks and balances provided at every operational tier to ensure that the rights of the citizens and the individuals were protected. This was in line with the promise that the President made in his first address to the nation as Chief Executive to "depoliticise state institutions" and "dispense speedy justice".
Persistent complaints of abuse and maltreatment of those in police custody call for swift, transparent and effective mechanism for accountability of the force; the existing legal provision was not satisfactory. Once arrested, a person was at the mercy of police and had to endure harsh treatment. An aggrieved person could take his complaint to senior police officers or the District Magistrate who was essentially part of the executive responsible for law and order. Under section 176 of the Criminal Procedure Code, Magistrate enquiry was due only in the extreme case of death in custody.
The magistracy till recently was part of the executive answerable to the District Magistrate who as part of the executive had a collusive relationship with the Superintendent of Police. The District Magistrate, in true tradition of a "colonial justice system," mostly used such enquiries to cover up the misdeeds of the police. A victim was given relief in very rare cases. This practically gave a license to police to maltreat people in their custody. Allegations of death, rape and serious injury in police custody provided an opportunity for NGOs to take to the streets with reference to specific cases without really addressing the fundamental legal issue.
Allegations of false police encounters, death, gang rape and serious injuries to people in police custody made sensational stories in the press and the image of police continued to be tarnished, at times unjustifiably. The NGOs held their seminars and workshops on these issues while politicians gained political mileage from them. But the aggrieved was denied any meaningful redressal of his/her grievance and the police either got away with serious crime or due to the pressure of the NGOs, junior level functionaries were made the scapegoats, at times unjustly. The magisterial enquiry was fundamentally an administrative process to defuse a situation and was never meant to dispense justice.
In order to address this very vital issue, important provisions were introduced in Police Order 2002. A neutral and professional structure of Police Complaint Authorities at the Federal and Provincial levels was created (articles 97 to 107 Police Order 2002). These complaint authorities specifically provided for immediate action in case of report or information of death, rape or serious injury to any person in police custody, and also had the authority to request the Chief Justice of the High Court to appoint a judge not below the District and Sessions Judge for judicial enquiry. The complaint authority was also required to take steps to preserve the evidence related to the incident. Article 36 of the Police Order made it the duty of the Head of District Police to inform the relevant Police Complaint Authority of any incident or a complaint of rape, death or serious injury to any person in police custody.
These legal provisions established a mechanism to put the law into motion to address an important issue of public interest. Judicial enquiry by a District and Session Judge was no longer a favour to a complainant and no intervention at the senior level of the government was required. A credible and transparent institutional arrangement was put in place and all incidents and allegations of death, serious injury and rape in police custody were subject to a formal judicial scrutiny. As a safeguard against frivolous and vexatious complaint, it was again the duty of the Police Complaint Authority to initiate legal action against the complainant. The system so devised not only provided for accountability of police on this serious issue but also created a check on false allegations against the police.
Yet, in the name of public interest and good governance, Police Order 2002 was hastily amended on November 25, 2004. The entire law was changed so that it negated the very fundamental concept of this enactment. Provincial governments across the political divide collaborated to destroy the Police Order that curtailed and checked their unbridled executive control of police and denied them the option of using it against their opponents. Those involved in distorting the Police Order seem to have gone overboard, as they have introduced changes that even compromise the basic public interest provisions dealing with death, serious injury and rape of a person in police custody.
The provinces did not want a neutral Police Complaint Authority, as they feared that the executive would then be accountable for giving illegal orders to police. Therefore, police functions were combined with the Punjab Public Service Commission (PPSC) that has now been restructured with a tilt in favour of the party in power. Provinces were not prepared to trust even this partisan Complaint Authority and have excluded the provisions that empowered the authority to request the Chief Justice of the High Court for judicial enquiry on the complaint of death, serious injury or rape in police custody. This is a tragic development with the governments of religious parties as well as the so-called moderate and enlightened parties ganging up to stifle a people-friendly law that is likely to hold them and police accountable in cases of serious infringement of the right of life, liberty and honour of the common man. These amendments are a sad reflection on the mindset of the so-called champions of democracy who have chosen to destroy a people-friendly law ironically given to the country by a military ruler.
Amendments in Police Order 2002 is now before the National Assembly for legislation and one can only hope that these blatant violations of the rights of the common man, presented in the garb of legal provisions, are examined closely and struck down, and the mechanism for a credible system of accountability, as provided in the original law, is restored. The public representatives owe this to their voters, the future generations and the silent majority of Pakistan who have suffered too long and deserve a better deal.
The writer is former IG Police
Article Published in The News on June 18, 2005
It is still relevant and needs the attention of the Political Parties who will now form the new government.
The News International, Pakistan
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