By Afzal A Shigri
Article 4 of the Constitution of Pakistan gives the right to an individual to be dealt with in accordance with the law: "To enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan." It was in this spirit that the Police Order 2002 was promulgated and in the preamble it was categorically stated: "The police has an obligation and duty to function according to the constitution, law and democratic aspirations of the people". The Police Order accordingly redefined the role, duties and responsibilities of the police, breaking free of the colonial past and the Police Act of 1861. The Police Act 1861 was very focused as it emphasized the maintenance of order above every other consideration. This law served the empire well for 86 years and saw it through two world wars during which time maintenance of order and suppression of dissent was of paramount importance for the war effort. Even after independence the successive governments found the law very useful as it effectively stifled any dissent and in the short run it was an ideal tool for perpetuation of their rule. However the highhandedness of the police mostly at the behest of the executive invited a lot of criticism from the political parties that were at the receiving end and the civil society at large. 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 initiated police reforms and brought about fundamental changes in law enforcement and Police Order 2002 was promulgated. This new law comprehensively addressed all aspects of policing and for the first time introduced modern concepts of an external check on the law enforcement agencies.The salient features of this law are;
- Depoliticization of police by insulating it against all extraneous interference
- External oversight through Public Safety Commission
- Functional and operational autonomy
- Swift and credible system of accountability through independent Police Complaint Authority
The Police Order addressed three major areas to reform the police namely:
· a neutral external check on the police, credible accountability and its professional/operational autonomy. 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 to ensure professionalism and focused attention on the issues identified by the police in consultation with all the stakeholders in advance. Honest and professional police officers at various levels also had recourse to the appropriate commission in case of motivated or illegal orders issued by any authority and the orders of the commission were to prevail.
· Persistent complaints of abuse and maltreatment of those in police custody called for swift, transparent and an effective mechanism for accountability of the force. The existing legal provision was not satisfactory. Once arrested, a person was at the mercy of the 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. 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 redressal of his/her grievance. The magisterial inquiry 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 enquiries against the police that could lead to criminal proceedings or departmental action.
· The 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 as a consequence of 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.
In addition to these major structural reforms the following issues specific to the woes of a common man who comes in contact with police were addressed.
— Change in Thana culture through code of conduct and punishment for misbehavior
— Registration of FIR
— Improvement in investigation
— Habeas corpus writ jurisdiction at D & SJ
— Swift Accountability and Stringent punishments of police officers
— Enquiry in death, rape or serious injury in Police Custody by D&SJ
— Independent prosecution and jail reforms
Once the political governments were installed 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 new law while the credit for any successes was owned and trumpeted by the provinces.
There are three major players who had the responsibility to implement the Police Order 2002 namely politicians, bureaucracy and the police. Everyone had its own agenda to demolish this law for different reasons. Politicians without the exclusive control over police 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, and the bureaucracy without the control over the police through a system of executive magistracy was uncomfortable and considered the functional autonomy to police an impingement on their authority and the police just did not like the stringent provisions of swift and meaningful accountability without the magisterial cover to whitewash their sins.
Massive changes were introduced in the law in 2004 through an ordinance by the political government that practically hit at the foundation on which this law was conceptually structured. Sadly police officers at the command level barring a few honorable exceptions collaborated to destroy this people-friendly law that was completely changed at the provincial level even before its implementation. Although with lapse of the ordinance that was repeatedly issued till 2009 the Police Order 2002 stands restored. This law is constitutionally protected but the Government of Sind has replaced it with the old Police Act 1861 and a new Police Act 2011 has been enacted repealing Police Order 2002 by the government of Baluchistan. The other two provinces are in the process of working on new police laws.
Police Order 2002 is dubbed as remnant of Military rule therefore fit to be repealed. It is not a question of Police Order 2002 but the concept of a police force that is
- subject to external oversight
- accountable through a transparent and credible system
- professionally efficient with complete internal functional autonomy and geared to meet the challenges of the 21st century.
If the government chooses to legislate they have every right to do so but it must meet the benchmarks of public interest provided in Police Order 2002 and keep before them the constitutional provisions on the subject. Country must have uniform law for the country to meet the life threatening wave of terrorism in the country. While the world is moving towards consolidating and have common law enforcement structure we in the middle of unprecedented law & order crises are fragmenting the system.
This note was drafted and read in the seminar arranged Ms. Marvi Memon on 3-11-2011at Islamabad.