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1973 constitution did away with this anti-people monstrosity, but allowed five years for the judicial function to be withdrawn from the executive magistracy.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.

Share

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 façades 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.

1 comment:

jahan Khan said...

The concept of district government had one big flaw. The funds the district government were to be distributed by the Provincial Government. A government which does not have to generate its own resources can not be called a government. It can at best be called a board or committee.
Second, it retained the union and tehsil councils but abolished town and municipal committees.
The union and tehsil councils were the creation of Ayub Khan, the outcome of a military mind's concept of chain of command. These two units had no utility but they effectively disempowered the village community. Both of them were transferred funds by the district council or the province and ultimately were run by corrupt local government functionaries.
The town and municipal committees had there own revenue resource which was property tax and they should have their own elected councils running them. But Naqvi's plan disempowered them and their source of income was given to the district government via the circuitous route of the provincial government. The district headquarter towns/cities benefitted but smaller towns suffered.
The concept of local government is to empower people in running their own affairs. Naqvi's model did not do this. The election to three tiers and selection of Nazims did not empower people. The dependence on provincial government for funds did not empower the district.
Lastly, it is doubtful if the model was intended to empower the people. It seemed like an attempt at devolution of powers without empowering the people to hold their representatives accountable. That it was the latter is proved by the massive rigging of district government elections that was allowed by Musharaf in 2005. The people were not allowed to hold accountable the representatives they had voted for in 2001.
This last action has severely damaged the district government system and it will forever be looked at with suspicion.
Asad