Sunday, July 20, 2008

Force to Service: Towards Better Policing for Pakistan

From Force to Service: Towards Better Policing for Pakistan

Inaugural Address for Consultation organized by Commonwealth Human Rights Initiative and Consumers Rights Commission of Pakistan on 17th.July, 2008
By Afzal Ali Shigri

Ladies and gentlemen, I would like to thank the Commonwealth Human Rights Initiative and Consumer Rights Commission of Pakistan to give me this opportunity to address this august gathering on the subject of From Force to Service: Towards Better Policing in Pakistan. In order to examine the subject in its historical perspective I would briefly give the history of policing in Pakistan.

When East India Company after the grant of Dewani of Bengal, Bihar & Orissa, was transformed into a revenue collecting agency, the district collector of revenue became the most important functionary of the company and in order to maximize the collection of revenue he was armed with magisterial and police powers as well. The police under the revenue collector resorted to oppressive practice of realizing revenue by torture that attracted the notice of even the British House of Commons and to enquire into these allegations of torture, the “Torture Commission” was constituted in 1855 in Madras. Condemning concentration of all administrative functions in one hand, the Commission recommended a distinct organization of police completely independent of the revenue administration. Based on this principle, the city police was reorganized in 1856 in the Presidency town of Calcutta and later in the cities of Bombay and Madras. This was followed by the enactment of Madras District Police Act, 1859, which was framed on the principle of the separation of judiciary from the executive.For the rest of India, the Police Commission of 1860 proposed a draft on the model of the Madras District Police Act of 1859. However, the events of the War of Independence of 1857 transformed the entire governance perspective of the British government. It was first organized armed resistance against a foreign rule that united large section of Indians across the religious and ethnic divide. The uprising was suppressed but the ferocity and the wide spread involvement of large population of different creed and ethnicity created a fear and insecurity in the minds of the rulers. It was with this mindset that Police Act 1861 was introduced and the district revenue officer with magisterial powers as DM was introduced in the chain of command. The system worked efficiently for eighty six years and safeguarded the interest of the empire through two world wars.
.Even after independence the successive governments found the law very useful as it effectively stifled any dissent and in the short run was an ideal tool for perpetuation of their governments. Control on police not only enabled them to effectively suppress any agitation but was also very useful for future elections. However the highhandedness of the police at the behest of the executive gave rise to severe criticism by the people, particularly the opposition political parties that were at the receiving end. Tragically these very parties when in power were reluctant to reform the system as they too felt secure with repressive machinery at their disposal.

It is rather ironic that it was a military ruler who genuinely initiated police reforms to bring about fundamental changes in law enforcement along with the devolution of governance at the local level. A blueprint for police reforms was approved in August 2000 that was followed by the Police Order of 2002. This new law comprehensively addressed all aspects of policing. It was hoped that after the promulgation of the new law the common man will get some respite, policemen will be held accountable for their misdeeds and there will be an effective check on political interference in the functioning of the police and the nexus between the politicians and the police will be broken ushering in the elusive dream of rule of law. Six years down the road there is no change. Harassment of innocent citizens has not stopped, persecution of political opponents persists and the police continue to be a tool of repression in the hands of the executive.

The Police Order 2002 addressed four major areas to reform the police namely

1. Redefining the role of police from enforcement & regulatory to service and to be answerable only to the law
2. A neutral external check on the police to insulate it from extraneous interference by the political and other influential segment of the population,
3. A credible system of accountability of police and
4. Professional/operational autonomy to ensure efficiency.

Police Order 2002 clearly lays down the fundamental changes in the role of police and states in the preamble as under.
“An order to reconstruct and regulate the police;
WHEREAS the police has an obligation and duty to function according to the Constitution, law, and democratic aspirations of the people;
AND WHEREAS such functioning of the police requires it to be professional, service-oriented, and accountable to the people;
AND WHEREAS it is expedient to redefine the police role, its duties and responsibilities;
AND WHEREAS it is necessary to reconstruct the police for efficient prevention and detection of crime, and maintenance of public order;”

This clear and loud statement spells out the intention of transforming the police from a regulatory & enforcement agency to a service oriented establishment that must act strictly within the parameters of law and be answerable to the people.

In order to create an institution that insulates the police as well as subjects it to civilian oversight a system of Public Safety Commissions at all the operational levels were created i.e. district, provincial and the national. These commissions comprise independent members from civil society and elected members of assemblies/councils from the treasury as well as the opposition benches. The commissions are required to monitor and assess the implementation of the annual policing plan and attend to the issues identified in the plan and hold the police accountable. They were also to intervene whenever an illegal or motivated order was issued by the executive. Honest and professional police officers at various levels also had recourse to the appropriate commission in case of such orders by any authority and the orders of the commission were to prevail.

Persistent complaints of corruption, abuse and maltreatment of the public and those in police custody called for swift, transparent and an effective mechanism for accountability of the force that has vast powers under various laws. An aggrieved person could only take his complaint to senior police officers or the district magistrate who was essentially part of the executive responsible for law and order or approach the courts for an expensive and time consuming litigation. Allegations of false police encounters, death, gang rape and serious injuries to people in police custody made sensational stories in the media. The NGOs held their seminars and workshops on these issues while politicians gained political mileage from them. But the aggrieved person was denied any meaningful relief. 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 through an institutional arrangement, an independent professional structure of the Police Complaint Authorities at the National and Provincial levels was created (articles 97 to 107 Police Order 2002). These complaint authorities were given vast powers to initiate enquires against the police that could lead to criminal proceedings or departmental action. The district commission and the district Nazim were also empowered to look into the complaints at the local level.

In order to improve the efficiency police was given functional autonomy and enabling provisions were made in the new law to delegate all necessary powers to the police command that was now fully responsible for its actions. Functionally the police was made completely independent but was accountable to the people and solely responsible for all its actions for carrying out any unlawful orders. The authority and the responsibility were combined to remove any ambiguity in holding the police accountable who under the old Police Act shared this responsibility with the magistracy an inherently flawed arrangement that had persistently failed to deliver.

When the political governments were installed in year 2002 in the provinces, the implementation of the police order was stalled and an organized campaign was launched to criticize the new law and attribute the failures in law enforcement to the Police Order 2002.

There are three major players who had the responsibility to implement the Police Order 2002 namely politicians, bureaucracy and the police command. Everyone had its own agenda to demolish this law for different reasons. Politicians without the option of unbridled powers to use the police to deal with their political opponents felt weakened and therefore were averse to external oversight by civil society through Public Safety Commissions or accountability by an independent body outside their ambit of authority. The bureaucracy without the control over the police through a system of executive magistracy was uncomfortable and saw the possibility of restoration of the all powerful District Magistrate through failure of police reforms. Police just did not like the stringent provisions of swift and meaningful accountability without the magisterial cover to whitewash their sins.

Unfortunately through political maneuvering and dubious drafting of the amendments in the police order massive changes were introduced in the law in 2004 that practically hit at the heart of the concept of a people friendly legislature. Sadly police officers at the command level barring a few honorable exceptions collaborated to destroy this law that was completely changed even before its implementation. One third of 187 articles of the Order 2002 were amended through an Ordinance in 2004. The Ordinance was placed before the National Assembly which was referred to the Standing Committee. Reportedly the committee did not accept a number of amendments as these negated the basic concept of reforming the police and the National Assembly never took up this most important public interest law for enactment. The amendments were kept operative through fresh periodical ordinances till in the infamous constitutional amendments in November, 2007 it was given protection and is now a law of the land.

There was no will to implement the Police Order 2002 as all these years no rules, regulations or procedures were issued by the governments or the police command. Executive orders and rules in violation of even this mutilated law are being issued by the provinces to revert to the old system of policing. In violation of the law posting and transfers orders are being issued with impunity by the governments as well as the police command. The structure for the civilian over sight has either not been established or made ineffective. Independent Police Complaint Authority has been merged with a politicized public safety commission in the Provinces while it has not been established at the National level. There was a hope that the new political government that continues to harp on institution building and rule of law will address the issue of reforming the police but there has been no sign of any change and police establishments in the country continue to be treated as a private militia where the criteria for postings is personal and political loyalty instead of merit and competence. This trend extinguishes all hopes of any meaningful police reforms. Instead of depoliticizing the police the federal government is reportedly even trying to institutionalize the political intervention by nomination of two MNAs on the promotion board of senior police officers. If the government is serious in their statements for institution building and rule of law, it should immediately do away with the 2004 amendments in Police Order 2002 and ensure its implementation on ground. Restoration of this law will be a good start to give credence to their repeatedly stated good intention and a way forward for transformation of police from Force to Service and a Better Policing for Pakistan.

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