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With one thoughtless and reckless stroke of pen the PPP-led Sindh Government has repealed the police law of 2002, thus reviving Police Act of 1861.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 Questions are being raised whether Police Order 2002, a federal law, can altogether be repealed by the provincial government instead of introducing some amendments that do not vitiate the basic structure of the law.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)

1 comment:

jahan Khan said...

The Police Act, 1861 reiterated under law a relationship that was first established between the Zamindar and East India Company in 1793(Permanent Settlement).
The Permanent Settlement created a partnership in which the Zamindar was to pay a fixed tax and was left alone to his own devices for collecting it.
The partnership was dented when the Police started enforcing new reformatory laws in the first half of 19th century. The enforcement of these laws interfered with influence of the Zamindar over his 'subjects'.
The consequence of this was that the Zamindar rose up in revolt in 1857.
The Police Act reiterated the relationship in which the Zamindar was made responsible to prevent offences and arrest offenders (see PR21.1) and his failure was punishable. On the other hand the Police was disempowered from investigating non cog offences. The police now depended on the Zamindar in dealing with crime. Crime was reported by him and the offender was produced by him. The Zamindar was required to report all crime but was legally bound under the CrPC to report only a few serious offences (see Sec.45 CrPC).
The Police Order intended to insulate police from outside interference. It also intended to establish an organization which could change from within to respond to new challenges.
But the CrPC was not amended to enable police to carry out new duties assigned to it i.e. prevention of crime and arrest of offenders. This is possible only if police is empowered to investigate non-cog offences, nuisance cases etc.
As shown by history quoted above empowerment of police to investigate all matters will automatically cut at the influence of the Zamindar.
Asad Jahangir Khan