Monday, September 12, 2011

General (R) Tanvir Naqvi on Police Reforms

Devolution the saviour – I

By Tanwir Naqvi | From the Newspaper

August 10, 2011 (2 days ago)

A TUMULTUOUS month ago, Sindh was pushed back a century and a half to a system of bureaucratic rule through antiquated laws that the British had used for ruling their colonies for two centuries.

The motive of Sindh’s politico-bureaucratic elite for taking this regressive action obviously was to facilitate and perpetuate arbitrary rule over their own people. The Police Act 1861 remaining intact makes it evident that this remains the motive, despite the misleading impression being given that by disbanding the divisions and their commissioners the local government system under the SLGO has replaced the so-called commissionerate system introduced a month ago. This makes it imperative for people to acquire a clear awareness of what had necessitated its replacement a decade ago with the Police Order 2002 and its integration with the Local Government Ordinances 2001.

The colonial system was built around extreme centralisation of authority under six separate laws in one officer who had four titles — collector (of land revenue), district magistrate, deputy commissioner, and controller of local governments — and the concentration of 10 management functions spread across the political, administrative and criminal justice spectrum of governance.

The system’s colonial character was founded on the empowerment of a single officer, the district magistrate, with administrative authority along with the judicial authority to even hold trials in his criminal court, thus making him the arraigner and the prosecution, as well as the judge and the jury in his court. The 1973 constitution did away with this anti-people monstrosity, but allowed five years for the judicial function to be withdrawn from the executive magistracy.
However, it took nearly three decades to get implemented through the Local Government Ordinances 2001 and the Police Order 2002. Violations of the constitution inherent in restoring this executive magistracy, partially or wholly today, pose a stark challenge to our independent judiciary.

The police, headed by the superintendent of police of the district, functioned under the Police Act 1861 for performing three core functions: maintenance of public order; investigation of crime; and prosecution of criminals in courts of law. The ethos of the police under this law was not of policing the district as a service to the people; instead, the police was meant for protecting the colonial state and pro-state people against opponents of the state. Selective justice through tyrannical behaviour was thus inherent to the system.

The Police Rules 1934 placed the police under the ‘general supervision and control’ of the district magistrate. Yet when police excess called for judicial enquiry, the provincial government deputed the district magistrate to conduct it, despite the latter being a party to it as the boss of the police. This, in essence, is the conflict-of-interest ridden criminal justice system, deliberately built to respond to political requirements as opposed to the needs of justice, which the Sindh government has chosen to reintroduce.

This DC-SP based system of rule was all that the pre-Independence governments considered necessary for governance; because their aim was ensuring absolute control over the people, and the maintenance of public order, both mainly in pursuit of the twin colonial interests of maximising production, and optimising collection of revenue for its repatriation to their mother country.

The Devolution Plan sought to replace this system with an integrated governance system based on two new laws: the provincial Local Government Ordinances 2001 to enable 99 per cent of the people to solve 99 per cent of their problems within the district; while the federal Police Order 2002 laid the foundation for establishing a pro-people criminal justice and policing system. Good governance is possible only through cohesive functioning of these two laws.

The Police Order 2002 subordinates the district police directly to the district nazim for all policing functions except the internal administration of the police, investigation of crime and the prosecution of criminals in courts of law. Very deliberately, authority over the police was not decentralised to any other political leader or bureaucrat in the local government. To infuse professionalism in the planning of all policing functions, Police Order 2002 requires the district police officer to develop a formal policing plan every year for approval by the district nazim.

Taking away the ‘general supervision and control’ over the police from the district magistrate, it vests the police directly with the responsibility of protecting the state and its citizens against crime, as a service to the people, and gives it the authority to measure up to its new role. To balance this autonomy of the district police, and the authority of the district nazim over the police, the Police Order 2002 created and tasked public safety commissions at the district and provincial levels to prevent misuse of the police by the district nazim, as well as misuse of authority by the police itself. The law requires these civil society institutions to be manned by a combination of meticulously selected citizens of eminence and integrity, and elected representatives at both levels.

To promote specialisation, the law de-concentrates the three prime functions of the police by leaving just the maintenance of public order with the main elements of the district police; and creating a separate department within the police to handle investigation of crime; while a separate prosecution department was created in each provincial government for the prosecution of criminals in courts of law. But to ensure that all district functionaries dealing with functions relating to crime and criminals, including prisons and the district courts, function harmoniously, a criminal justice coordination committee, headed by the sessions judge of the district was brought into being.

For internal administration the police was placed under its own district and provincial police officers, but continued to be answerable to the judiciary. Yet the province was given a professional police complaints authority to discipline police functionaries who were reported upon by the public safety commissions for neglect or excess in the performance of their policing functions.

The Police Order also created independent police forces and public safety commissions for each city district, so as to enable the heads of the provincial police to focus on the host of common districts of the province without the massive distraction that crime in the populous city districts causes.

The bureaucracy supported by the political elite introduced regressive amendments to the law and impeded its implementation for keeping alive the case for restoring the executive magistracy and bureaucratic control over the police.
The police itself was not assertive enough to precipitate the implementation of the Police Order despite the support of some progressive elements from among the politico-bureaucratic elite. Coupled with insufficient investment in the police during a decade of rising terror-related crime, this dynamics kept the mutilated law partially implemented leaving the police with its traditional ungainly image largely unchanged.

For the police to emerge as a people-and-state-friendly governance institution, replacing the Police Act 1861 with the Police Order 2002, along with restoring this law and the Local Government Ordinances 2001 to their original state, followed by their prompt and thorough implementation, are the prime needs of durable good governance through a pro-people democracy.
Given the wisdom and the will to weave a prosperous future for the people, Sindh can now lead the nation towards the attainment of this goal.

— To be concluded

The writer was the founding chairman of the National Reconstruction Bureau and pioneered the reconstruction of the institutions of state during the period 2000-2002.


Devolution the saviour — II Devolution the stabiliser

By Tanwir Naqvi | From the Newspaper

August 11, 2011

THIS second article focuses on highlighting the essence of the people-serving local government system that has (fortunately for the people of Sindh) been reintroduced, as well as how governance will be seriously hampered when this pro-people governance system will inevitably clash with the authoritarian anti-people colonial Police Act 1861.

The DC-SP based governance system discussed in the first article had evoked in the people the feeling of being left out from governance. The British therefore introduced powerless local ‘bodies’ in 1909, 1919 and 1924 responsible only for municipal functions in just the large urban areas.

These laws were cloaked in superficial national fa├žades in the Ayub and Ziaul Haq eras up to 1979. And yet, even these municipal entities remained subordinated to the deputy commissioner or commissioner empowered as controller of local governments to countermand any executive order, resolution, byelaw, or budget of the local ‘bodies’.

The local government system devolved the deputy commissioner’s latent political power formally to elected leaders of the people. It de-concentrated the functions of most provincial departments, as well as the 10 functions of the deputy commissioner.

It decentralised these functions to officers of the district, tehsils and unions, who were empowered with the authority to enforce laws within the sphere of their respective responsibilities, and placed them under elected heads of their local governments. It created a system of formula-based transfer of financial resources to each local government along with mechanisms for both internal and external audit.

The law embodied a potent system of dual control over the local governments — the first by the people through their local councils empowered to legislate as well as to monitor their governments; and the second by the province through its local government commission and the provincial assembly.

The local government system thus empowered three-tier local governments, headed by approachable elected leaders, mandated to deliver or face censure or dismissal; and thus trained in wielding political and legislative power coupled with administrative and financial authority for shouldering higher leadership responsibilities.

Under the principle of subsidiarity, the service delivery function of the provincial government was decentralised to local governments, thus freeing the provincial governments to perform five major functions: interacting with the federal and other provincial governments; formulating policies and strategies; enacting new laws and modernising old laws; directly managing only trans-district functions; and exercising control over local governments through the local government commission.

After the empowerment of the provincial governments through the recent elimination of the Concurrent Legislative List under the very same principle of subsidiarity, the fruits of devolution were expected to ripen in the form of even better service delivery by the provincial and local governments.

To lend focus to those municipal functions that affect every citizen perpetually, LGO 2001 narrowed down the scope of the municipal role by excluding education, training and health from municipal responsibility; and assigned this pruned municipal function to the town/tehsil municipal administration (TMA) of each city/common district.

Functions relating to education, training and health were consequently assigned to the district governments. The responsibility for all schools and colleges, whether established by the provincial governments or the erstwhile municipalities, thus passed to the district governments, leaving specialised colleges within the domain of provincial governments. Similarly, all health facilities from dispensaries to general hospitals were decentralised to district governments, leaving specialised hospitals with the provincial governments.

LGO 2001 converted the ‘tehsil’ into an integrated rural-urban municipal entity with its urban as well as rural population enjoying municipal facilities as a fundamental right. Its TMA has a planning office to plan and manage its coherent urbanisation. It was envisaged that gradual modernisation of agriculture, and establishment of industry, would create new businesses and jobs in each tehsil. This, along with the growth of municipal, health and education facilities, was expected to promote rapid urbanisation of the whole tehsil, and its evolution into a coherent city district.

This countrywide phenomenon would enable the people to stay in their home tehsils and districts instead of migrating to the few existing cities. This trend of ‘urbanisation of rural areas’ would thus gradually arrest the unabated ‘ruralisation of the urban areas’.

Police Order 2002 was designed in harmony with this local government system. The two systems — local governance and policing — were integrated through authority over the head of the district police being given under both the systems to the district nazim, and to no other elected leader or bureaucrat; and both the district nazim and the head of the district police placed under the oversight of public safety commissions.

With the reintroduction of the district magistracy in any form empowered with authority over the police, the district nazim is likely to experience insubordination by the executive magistracy as well as the police; and he, along with the rest of the political leadership, could even feel threatened by both, especially in the absence of public safety commissions.

With the police not exclusively responsible for policing the district to the satisfaction of the district nazim and the people, incompetence and tyrannical behaviour of the police will return, thus leaving the people as helpless before the police and the executive magistracy as they used to be. With the whole district government thus undermined, the governance system could soon border on collapse.

With the return of the local government system Sindh is halfway back to good governance already. Restoration of Police Order 2002 will complete the virtuous circle. If elections within this year can restore political leadership to the system, these July-August hiccups might even be forgotten, and 2011 remembered as the year in which the political elite truly set the stage for the establishment of a stable people-and-state-serving democracy from bottom to top.

If this does not happen, the consequences for democracy could be grave; because it will convince the people that politics is not about improving the lot of the people, or preventing what looks to them like a ‘failing’ state turning into a ‘failed’ state; but only about an oligarchy having fun at the expense of the people, generation after generation.

— Concluded

The writer was the founding chairman of the National Reconstruction Bureau and pioneered the reconstruction of the institutions of state during the period 2000-2002.

Observations of Honourable Chief Justice on Police Law


Startling disclosures made in ISI briefing to SC: CJ

Jamal Khurshid
Saturday, September 10, 2011

KARACHI: Chief Justice Iftikhar Muhammad Chaudhry on Friday said some startling disclosures were made in the ISI’s in-camera briefing to the court about the city’s situation. However, he added that the court could not reveal the revelations.

The CJ was hearing the suo moto case into the Karachi violence. Expressing concern that all cases of killings had been disposed of as untraceable, he said the police were capable of performing their duties but simply did not want to do so.

Inspector General, Sindh Police, Wajid Ali Durrani, told the court’s five-member bench that police faced operational problems due to political links of officers in the force. “Thirty to 40 percent police officers are affiliated with the MQM; this creates problems in police operations,” Durrani told the SC larger bench headed by the CJ. “Action is being taken against police officials who are deceiving the forces but I will admit I don’t have the power to take action against officers above the rank of DSP due to procedural requirements and the revival of the Police Act.”

The chief justice directed the IG to take across-the-board action against all culprits involved in lawlessness, observing that all stakeholders of the city, including the MQM and PPP, had admitted before the court that they wanted peace in the city. Justice Iftikhar observed that the court wanted to strengthen the police department and asked Durrani to inform the court if he was facing any political pressure in the discharge of his duty, since this was a matter of national interest.

The chief justice observed that the Police Order 2002 had Constitutional backup under the 17th Amendment and protected the order that envisaged special powers for the IG Sindh to deal with the affairs of the police. He observed that the Police Order could not be abolished through an ordinance. He said Rangers had also been given full powers and asked the IG to make changes in the police and take action against criminals.

The Attorney General of Pakistan filed a report from the Intelligence Bureau (IB) in compliance of the court’s August 24 order. The CJ expressed displeasure over the poor investigation by the police of the Chakra Goth police van attack case.

“What will happen to the morale of the police if this goes on,” the chief justice asked the police chief observing that the SHO had made two false arrests in the case, and the suspects were subsequently released by the administrative judge of the anti-terrorism court. He observed that the main culprits of the offence were not nominated in the case, which showed inefficiency on the part of the investigators.

AIG Sindh Saud Mirza said an inquiry had been conducted against the delinquent officer on the recommendation of the administrative judge of the ATC and he was removed from the post. Justice Amir Hani Muslim wondered what the fate of other cases would be if police could not investigate the killing of its own officials, observing that such circumstances showed that “police are patronising the culprits”.

Justice Sarmad Jalal Osmany observed that the IG should be given complete powers as far as the police department was concerned. Wajid Durrani said that police had no problem in taking action against any party and that they would do their best to control the law and order situation.

AIG Saud Mirza told the court there were hurdles in getting requisite information from cell phone companies as well as evidence from banks in respect of the ATC cases. He said police have to face difficulties in getting mobile phone records from mobile phone companies. He also suggested that the import of such mobiles that do not contain the IMEI number and necessary directions be issued to customs authorities.

Chief Justice Iftikhar Chaudhry observed that had customs authorities performed their duties honestly, the smuggling of over 10,000 containers from the country would not have been possible.

The IG Sindh suggested that a police officer of SSP rank be assigned to gather information from mobile phone companies. The chief justice asked the IG how such a facility could be delivered to a police officer when he himself admitted the presence of politically affiliated officers in the force. However, he suggested that AIG Saud Mirza be made a focal person regarding the collection of such information.

The federal government’s counsel, Babar Awan, submitted that the Pakistan Telecommunication Authority was a mere regulator and had nothing to do with service providers that controlled the operation of the cellular network.

The court directed him to submit such problems in writing and hand over a copy to the attorney general to seek instructions from concerned quarters to expedite the arrest of the accused persons involved in terrorism, target killings, bhatta collection etc in Karachi. The court directed the AGP to submit the report on the next date of the hearing.

The court also took exception to the continuation of shoulder promotions in the police department despite a court order declaring such promotions as void. The AIG (Legal) submitted that the Supreme Court had stayed the order in this regard. The court directed the police to file an application which the court will hear and decide on September 13.

In compliance of the court order of September 8, Advocate General, Sindh Abdul Fatah Malik, filed the progress report. He said that in case of the murder of advocate Fahimul Haq and two others, progress was likely to be made. However, he said that at this stage, the investigation officer did not want to disclose information and claimed privilege. The court subsequently granted the request.

The AG said that a torso found from Pakistan Bazaar area was not identified but the case had been registered under the anti-terrorism law while the body recovered from the Sachal area was identified as being of an ANP activist and activists of the All Pakistan Mohajir Student Organisation had been nominated in the case by the complainant. He said that a policeman was killed in Malir when he was going to perform his duty.

The court also directed the AG to submit details regarding the killings of five footballers who were kidnapped from Zainab Market, Saddar, and whose bodies were later found from the Preedy, Ferozabad and PECHS areas.

The court expressed dissatisfaction over the police investigation regarding the kidnapping of a student Sharif who was released by the criminals after torture. Police said that the victim was recovered from Malir and told police that he was kidnapped and tortured by the kidnappers who later threw him in Badin from where he returned home. The police officer said that the victim said he could not identify the culprits who had kidnapped him.

Regarding the murder case of a man whose tortured body was found on August 5, SSP Central Asim Khan informed the court that a suspect had been arrested in connection with the murder of Waheed, who had married the ex-wife of the suspect in July. The court took notice over the delay in the investigation by the police and observed that investigation should have been initiated prior to the Supreme Court directives and directed the SSP to submit a comprehensive report in this regard.

Justice Iftikhar said that the court wanted to improve the investigation system of the police and that this could be done only if the police wanted it also. The court also directed all respondents to file para-wise comments on petitions of the Watan Party and Tariq Asad since they will likely be taken up next week. The hearing of the case was adjourned till September 13.

APP adds from Islamabad: Chief Justice Iftikhar Chaudhry directed the IG Sindh to ensure the arrest of the absconding accused involved in the murder case of advocate Ali Muhammad Dahri. In an earlier directive, the IG Sindh was ordered to submit a progress report within seven days over the murder.

The chief justice issued the direction after taking notice of a resolution passed by the District Bar Association, Nawabshah. The bar, in its resolution, had stated that the investigation agency was not cooperating in the arrest of the nominated accused involved in the brutal murder of Dahri.

Friday, July 15, 2011

Repeal of the Police Act: Sindh steps back to 19th Century

The News

Repeal of the Police Act: Sindh steps back to 19th Century

Tariq Khosa
Friday, July 15, 2011

With one thoughtless and reckless stroke of pen the PPP-led Sindh Government has repealed the police law of 2002, thus reviving Police Act of 1861. This is a huge leap backwards that revives military model of Irish constabulary as well as bureaucratic control of the police.

The so-called democratic government has walked into the trap laid by devious baboos and their political patrons who do not want a politically neutral, democratically controlled and highly accountable police service. By a single notification, the police in Sindh have been turned into an oppressive force rather than a public service. It is time to rise against this retrogressive step.

This executive order may have been given under political compulsions but its implications have not been carefully examined. Revival of 1861 law is not only unconstitutional but also violates the principle of separation of the judiciary from the executive. It is aimed at undermining the independence of judiciary, removing the democratic control of elected Nazims over the local government, ensuring bureaucratic control over the police through executive magistracy, and diluting the command of the police chief over his own force. In other words, the executive by one stone has tried to kill three birds, i.e. independent judiciary, elected mayors, and professional police commanders.

This patently illegal and unconstitutional directive is all set to be challenged before the High Court and may even go before the Supreme Court. Questions are being raised whether Police Order 2002, a federal law, can altogether be repealed by the provincial government instead of introducing some amendments that do not vitiate the basic structure of the law. The question whether police law could be promulgated by the federal government came up before the Lahore High Court in 2002. Mr Justice Tassaduq Jilani of Lahore High Court ruled that policing is an extension of the Criminal Procedure Code and therefore the federation can promulgate police law. This question therefore was settled by the High Court and has not been undone by the Supreme Court.

The question of separation of powers between the executive and the judiciary is bound to be raised in this unilateral action of the Sindh Government. The institution of the executive magistracy stands abolished in accordance with the constitutional requirement in all the four provinces.

The Criminal Procedure Code was duly amended and all the magistrates are judicial magistrates under the High Courts. Any executive functionary who is required by the executive to perform the functions of magistrate has to have the prior approval of the High Court. Police Act of 1861 revolves round the District Magistrate and the executive magistracy. Local Government Act of 2001 and Police Order 2002 abolished the institution of the District Magistrate and gave his judicial functions to the District and Sessions Judge, his regulatory administrative functions to the elected Nazim and his police functions to the District Police Officer.

The bureaucrats have played a fast one and the democratic political government has agreed to erode the authority and responsibility of the District Judges, Nazims, and District Police Officers. Hurrah! What a smart move!

Repealing a police law without even trying to implement it in letter and spirit is grossly unjust. And replacing it with draconian 19th century law that was enforced in the Indian sub-continent after war of independence of 1857 amounts to revival of colonial mindset. Police Act of 1861 was promulgated on the recommendations of Sir Charles Napier, who as Governor Sindh, wanted to emulate the Irish Constabulary model used for military-like suppression. The intent was to suppress the Indian natives, especially the Muslims, so that they dare not think of mutiny against the British Raj. It is ironic that Napier lover Government of Sindh has revived the instrument of oppression in the 21st century. It took us a century and a half to repeal the colonial law after recommendations of more than 24 commissions and committees for police reforms since independence.

Police law of 2002 wants the police to be politically neutral. Why not? Is it not the desire of 170 million Pakistanis? Should a coterie of vested interests desiring to have political and bureaucratic control over police defy the will of the people? Political neutrality of the police was to be ensured through democratic control by National, Provincial and District Public Safety Commissions. Half of the Members are to be non-political persons and half are the elected Members of National Assembly, Provincial Assemblies, and District Assemblies. While a half-hearted attempt was made by the provincial home departments to notify district public safety commissions, they were not allowed to function since August 2001.

Provincial Public Safety Commissions were considered a threat by the chief ministers and never took off. A half-baked National Public Safety Commission was appointed but it worked mostly without the MNAs. This too has now become redundant. These commissions were to have equal representation of the government and the opposition. However, in 2004, amendments were made with four members from government and two members from the opposition, thus tilting the balance in favour of the government. The functions of oversight and recommendation for appointment of police commanders were taken away from these commissions and they were made toothless tigers. The executive and bureaucracy exerted its control and influence and practically buried the concept of political neutrality of the police.

Police law of 2002 wants independent and external accountability of the police through an independent Police Complaints Authority. Since 2002, the federal government has not created this independent instrument of police accountability. While everyone loves to hate the police for its excesses, corruption, misuse of authority, torture, and violation of human rights, there is no political will to establish an independent police complaints authority, which may be headed by a retired judge of the Supreme Court. The rulers do not want the police to be purged of corrupt, sycophant cops. Why blame the law when political will to reform the police is absent?

Police law of 2002 wants the district judiciary to oversee police investigations, prosecution of criminal cases, trial of cases and their progress, inspection of prisons, and issues related with parole of prisoners. The Sessions Judge heads district Criminal Justice Coordination Committee. Police, prosecution, and prisons heads of the district are members of this committee. Through re-enactment of the Police Act of 1861, the Sindh Government wants to usurp these judicial and investigative functions from the judiciary and hand them over to the bureaucrats. Do the people see these machinations of the executive to undermine the independent judiciary?

Police in Pakistan is a victim rather than a villain. It has been victimised and tamed by the executive so that law of the ruler should prevail rather than the rule of law. Let citizens of Pakistan and respected judiciary take note of the conspiracy of the executive to undermine the will of the people by invoking the 19th century colonial law to suppress rule of law. It is even more surprising that followers of Zulfikar Ali Bhutto and Benazir Bhutto are leading this campaign that goes against the concept of separation of judiciary from the executive as well as metropolitan and professional system of policing that Bhuttos stood for.

(The writer is a retired police officer and a former head of FIA)