Tuesday, September 18, 2012

Police Corruption and Accountabilty

This paper was written for Asia Society. My thanks to the society for editing and improving it for publication.

Police Corruption and Accountability
Afzal Ali Shigri

The police in Pakistan are perceived to be corrupt as a matter of course, and are thought to be largely, if not solely, responsible for the breakdown of law and order in the country and for the steady erosion of the criminal justice system. Apart from its effect on law and order, police corruption is also responsible for the weak prosecution of criminals, the failure of trial prisoners to appear in court, flawed court processing, and an alarmingly high rate of acquittal. Some have argued that police corruption merely reflects the corruption of Pakistani society at large. They contend that in a sea of corruption it is impossible to create islands of honesty and integrity. However, the truth about endemic corruption is more complex than this reductive explanation would imply.
This chapter will address the key internal police practices that contribute to corruption and propose solutions to deal with the issue. The police leadership in Pakistan so far has made minimal efforts to thwart the alarming rise of corruption within its ranks, the untrammeled proliferation of which has paralyzed society. Thus far, solutions to police corruption have been short term and invariably have relied on the promulgation of harsh laws and rules to deal with police misconduct. Such a strategy is futile as a means to root out police corruption. A closer look at the organization and functioning of Pakistan’s police force suggests that these actions not only have failed to produce any positive results, but in fact have been counterproductive.
Solutions to police corruption should not entail blaming the police for societal problems or justifying corruption. Rather, the issue must be addressed rationally, looking at the root causes of corruption, and should be supported with the utmost political commitment. Otherwise, a prosperous and progressive Pakistan will remain a dream.

Political Interference in Policing
Among the factors working against transparent and honest policing in Pakistan, political interference is particularly pernicious. In the name of political expediency, successive Pakistani governments have used the police as a tool to suppress political opposition, while military rulers have used the police to stifle dissent. Corruption thrives in such an environment, in which the police are used as an instrument of suppression rather than a service to the people. The government not only tolerates corruption but actually encourages it, with an eye on short-term gains. Command-level officers are often chosen on the basis of their willingness to comply with illegal orders, flout the law, or harass political opponents. In exchange, the same officers are given license to indulge in corruption, with their illegitimate gains shared among fellow officers and their political masters. This mindset must change, and all political parties must agree not to use the police for political score settling.
In order to put an end to the cycle of political inter­ference in policing and the corruption that it breeds, political intrusion in decisions concerning key police appointments should be eliminated. The selection of professional officers for key posts must be closely monitored through a transparent and accountable system in which civil society and all political par­ties play a role. Although such an arrangement was outlined in Police Order 2002, by diluting the force of the law through successive amendments and failing to comply with even the diluted terms of the law, the government has damaged the process.1 These amendments have retarded the process of police reform by restoring unchecked discretionary power to the executive in controlling police establishments.2
Presently, police officers are posted to key command appointments mainly on the basis of political con­siderations.3 This decreases the possibility of any future accountability among officers working at the management and command levels in these establishments. Internal accountability under the command of a person who is the instrument of political manipulation is impossible, and as a trickle-down effect, cor­ruption flourishes in the rank and file of the police establishment. The few honest officers in key positions are unable to make any difference. Appointing officers to key positions on the basis of merit would be a significant step toward reducing corruption in the police force.

Lack of Career Advancement Prospects
Beyond the vital issue of political will to establish a neutral police force, there is a critical need to review the archaic police structure, which stifles professional advancement. In its existing form, it is defective, unequipped to deal with modern day challenges, and alien to a democratic governance system. There are three facets to this issue: (1) professional stifling in the lower ranks, (2) abuse of the lower ranks, and (3) political manipulation in hiring.

Professional Stifling in the Lower Ranks
The police structure in Pakistan is still modeled on the system created under British colonial rule. Designed on the pattern of the Royal Irish Constabulary, its focus was to control and subdue the population, not to provide public service. To that end, uneducated and semiliterate personnel were recruited into the lower ranks. About 90 percent of the force was in the lower ranks, with the title of constable or head constable.4 Most officers in the junior ranks had no prospects for advancement, and because experience was required for policing, these men—unlike those in the army or civil armed forces—were retained in the department until retirement age (60 years). They remained in the same rank for decades with no prospects for career advancement. Direct recruits in the middle (assistant sub inspector or sub inspector) and higher levels (assistant superintendent of police) formed a very small part of the total police establishment.
Presently, police forces comprise mainly lower-rank constabulary, despite some increases in the middle and higher ranks of the police hierarchy. Aggravating this uneven dispersal of personnel is the practice of sporadically creating standalone specialized units without a proper cadre—for instance, elite police units in the provinces, traffic wardens in Punjab, or the Highway Patrol Police in Punjab—at times in blatant violation of laws and rules. The members of these units find themselves stifled professionally, with little prospects for advancement or merger into the mainstream police force. The result is frustration, litigation in court, and, most significantly, a general attitude of economic desperation that drives officers to resort to bribery and exploit their positions of authority.
An analysis of Pakistan’s largest civil police force, the Punjab Police, is instructive. The province’s police force numbers 177,635 in all, of which 144,699 are among the lower ranks (head constables and con­stables).5 The remaining 26,084 recruits are positioned in the middle and higher ranks. Annual attrition attributed to retirement, death, and disciplinary action amounts to 9 percent in the middle and higher ranks.6 This leaves 2,347 vacancies for direct recruitments and promotion. If we factor in the 25 percent reservation for direct recruitment of assistant sub inspectors (stipulated in Article 7[3] of Police Order 2002), we are left with 1,761 annual vacancies. Deducting 9 percent attrition among junior-rank officers, we are left with about 131,677 officers who compete for promotion. Hence, there are disproportionately large numbers of officers in the lower ranks with few prospects for career advancement. This dismal situ­ation persists in spite of recent improvements. The foregoing figures do not even include the 6,850 traffic wardens at the rank of sub inspector who do not fit into any category, and so constitute a standalone force.
Experts on human resource management hold that one of the major drivers in employee motivation is career advancement. There is little prospect for job motivation and commitment from a mass of officers with such dismal career prospects. The natural outcome is a force of officers who are inclined to misuse their authority. Court practices exacerbate the situation: policemen who are dismissed for corruption are often reinstated through legal loopholes. They then return to active service, empowered to continue indulging in corruption with impunity.

Abuse of the Lower Ranks
The harsh treatment meted out to lower-ranking police officers by supervisors, and conversely, the lack of punitive action against higher-ranked officers is likewise demoralizing. An analysis of disciplinary ac­tions in Punjab illustrates the disproportionate focus of departmental censure on lower-ranking officers. It is rare that an officer of the rank of assistant/deputy superintendent or above is punished under the tough laws and rules. In the Punjab Police, within a single year, 54,800 personnel were given punish­ments. Out of these punishments, 34,061 were given to officers in the lower ranks, while 18,820 officers at the assistant subinspector and subinspector rank were punished. Against this, only 32 officers at the assistant/deputy superintendent rank were given punishments.7 Not a single senior police officer at the rank of superintendent of police or above was punished. The core issue here is that management practice in the police force is generally of the military style “man management” rather than the modern model of human resource management.

Political Manipulation in Hiring
Finally, promotions, postings, training, and rewards are subject to outside influence at every level, exac­erbating an already flawed structure. Out-of-turn promotions and postings to higher positions form the basis of such patronage, resulting in the marginalization of honest and efficient officers. Further, officers at the command level are censured for refusing to comply with politically motivated or illegal orders. Thus, for the members of the police force, self-survival requires courting patronage. As a natural corollary, officers’ loyalties shift from the state to patrons, whose motives are rooted in self-interest. If we take into consideration the practice of appointing officers to key positions on the basis of political influence, we are confronted with an incendiary situation in which little can be done to prevent predatory police from indulging in corruption. It is unrealistic to expect police personnel who are given short shrift to display empathy toward common citizens. For most of them, citizens in trouble are sources of illegal gratification, and any punishment incurred as a result is a part of the prevailing routine.

Working Conditions
Working conditions for Pakistan’s police are deplorable. Officers lack facilities for boarding, lodging, and conveyance. They are required to perform their duties for long, uncertain hours and under high risk, as they are at the frontlines of the fight against terrorism and organized crime. Politically manipulated police leadership naturally fails to appreciate these sacrifices and, as a result, sets unrealistic targets for its officers. Among frontline personnel, this results in low morale, low self-esteem, a defensive attitude, and a proclivity to corruption.
In Islamabad, officials have confirmed that residential accommodations for the constabulary do not consti­tute even 5 percent of the housing facilities needed for the total force. The case is the same, if not worse, in other big cities. In a costly capital city, police are forced to live in slums on the periphery.This not only is demoralizing, but also exposes them to the influence of the criminal elements in the neighborhood, foster­ing a nexus with criminals at the lowest operational level and planting the seeds of police involvement in crime. Although a community-friendly policing system throughout the world favors personnel living in proximity to the people they serve because of poor living conditions and low wages in Pakistan, such a system has worked conversely, polluting the police.
It is critical to invest in better working conditions and basic facilities with good living wages in order to stem the tide of corruption. To ensure a certain level of integrity among police personnel, it is imperative that they be given competitive living wages and decent living conditions.

Feudal Mentality
The feudal mindset that exists within the police force and which arises from the enforcement of the diktat of a police leadership that is subject to patronage. Each officer posted to a key senior assignment as a result of political patronage creates his own space of influence, in which the parameters of functioning do not involve normal laws and rules, but rather the will of the political patron. This fosters corruption and graft and converts illegal earnings into wholesale dealings, creating an informal structure that works at cross-purposes with the formal system. This informal arrangement eventually connects with organized crime. It is imperative that these negative trends be halted in order to prevent the emergence of strong mafias fighting for control.

A Model for Reform: The National Highways and Motorway Police
Reforms can be implemented effectively, as demonstrated by the successful model of the National Highways and Motorway Police (NH&MP). Success of the NH&MP reform program is attributable to the presence of the political will to do the following:
• Allow the new department to function independently without any outside interference.
• Post department heads and officers to key positions based on merit.
• Pay market-based wages and provide improved working conditions.
• Create a service structure with reasonable chances of career advancement.
• Introduce a transparent system of punishment and rewards.
• Exhibit dignity and respect by enforcing traffic laws without any discrimination.
The most conspicuous aspect of the NH&MP’s working environment is the absence of any interference in the performance of officers’ duties. Officers have license to follow the law and initiate proceedings against an individual irrespective of his or her status. These officers issue tickets to ministers, generals, senior police officers, and bureaucrats without repercussions. Political will in this instance stemmed from the leadership of Prime Minister Nawaz Sharif, whose work was unaltered by his successors in office. However, it remains to be seen whether such political will is possible when the stakes are much more severe than traffic violations (e.g., murder, land grabbing, and organized crime).

Unfortunately, the current attitude of Pakistani politicians and policy makers is not encouraging. The External Oversight Committee and credible independent accountability system introduced by Police Order 2002 have not been implemented. In fact, some efforts are under way to design laws that would ig­nore the legal provisions of Police Order 2002 and instead draw from the old, outdated law. The provinces of Sindh and Balochistan, for instance, have adopted Police Act 1861 with only some changes.
Police Order 2002 was a step in the right direction, but its effectiveness was eroded before it could be fully implemented. If the national leadership wants Pakistan to have a reformed and honest police force, it must move beyond piecemeal and symptomatic measures. Barring minor adjustments that may be necessary given the current situation, Police Order 2002 provides model legislation that safeguards the fundamental concept of a politically neutral and accountable police and provides a blueprint for effective and honest policing. The issue is whether there is political will to implement a reform agenda without reducing the integrity of the model’s vision.
In order to be effective, police reform must be comprehensive, taking into account the core issues discussed in this chapter:
• Appointments to key police positions must be executed through a transparent procedure that is free of political interference.
• The police structure must be reformed to ensure reasonable opportunities for career advancement.
• An independent police complaint authority should be created that enshrines balanced rules for strict punishment, checks on arbitrary decision-making by the police leadership, and provides a credible accountability system for all ranks.
• Depoliticization of the police should be encouraged through the increased involvement of civil so­ciety. This can be done by reviving the practice of including members of civil society in police safety commissions at the district, provincial, and national levels, and by establishing citizen police liaison committees in every district.
• Efforts should be made to improve the living and service conditions of police.
• Training must emphasize service and the rule of law. Courses should contain case studies of instances in which human rights violations have brought suffering not only to victims, but also to perpetrators who blindly carry out illegal orders.

Saturday, September 8, 2012

Dispute Resolution in Pakistan

This is a very interesting article that addresses the core issue of the role of police in Pakistan and its failure to be converted into a service instead of only regulation and enforcement with very limited role in 'dispute resolution' under the existing laws. Comments on this article will be of help in addressing the issue of 'dispute resolution' that  has not been addressed and calls for the attention of the legislature and the executive.

By Mr. Asad Jehangir 

Peace in society depends to a great degree on the capacity of society to resolve disputes of a petty nature which are of daily occurrence. In all democratic societies police assists society in resolving such disputes. Dispute resolution plays a very important role in prevention of offences and is, consequently, essential for peace in society. If this mechanism does not exist, people would take law into their own hands and criminality would increase. Let us, therefore, see what mechanism exists presently for resolving disputes in Pakistan.

Prevention of crime and treatment of offenders has gone through changing ideas. The eighteenth century method was based on exemplary punishments and exile to penal colonies. The nineteenth century revolved around the doctrine of reform and rehabilitation of the offender and humane punishments. The twentieth century embraced the idea that prevention is better than cure and policing lay stress on zero tolerance. No matter what the theory of criminology, the police plays a pivotal and most important role in prevention of crime and treatment of offenders.

In Pakistan, however, the police has a very minor role to play in prevention of crime and treatment of offenders. This is very clear from the criminal law of the land. In the matter of arrests the police is given extraordinary powers. The Officer-in-Charge of the the police station (SHO) can arrest anyone who is lurking with a view to committing an offense; anyone who is a vagabond; or anyone who is by repute an habitual robber, house-breaker or thief (Section 55, CrPC). However, police are not empowered to conduct investigation into every offense and even where such power has been given it is restricted to a designated officer.

It is interesting that the first three sections of the chapter on Investigations in the Criminal Procedure Code (CrPC) prohibit police from taking complaints and investigating crime.

According to the first the authority to entertain a complaint is vested only in the “officer-in-charge of the police station”. Every police officer has not been empowered to hear complaints. This is laid down by Section 154 CrPC which states as follows:

Every information relating to the commission of a cognizable offense, if given orally to an officer-in-charge of a police station, shall be reduced in writing by him or under his direction, and be read over to the informant; and every such information whether given in writing or reduced in writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf, ...”

The designation “officer-in-charge of the police station” is defined by CrPC as follows:

Officer-in-charge of a police station” includes, when the officer-in-charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the Provincial Government so directs, any other police officer present.

Secondly, Section 156 CrPC empowers only the SHO to investigate cognizable offenses. Where a subordinate officer is deputed to investigate offenses (Section 157 CrPC) he has to be above the rank of constable and he has to report his findings to the SHO. All reports regarding the investigation are also to be submitted to the magistrate by the SHO and no one else (Section 158 and 173 CrPC) and he must follow the directions of the magistrate.

It is very clear from the above that the law does not give powers generally to the police to conduct investigations but only to one designated officer, the SHO, in every police station. The SHO cannot decide the fate of untraced cases or cases in which evidence is lacking. This power vests with the court.

The above provisions of law show that only one officer is empowered to deal with complaints and investigations in cognizable offenses. The second provision of this chapter is even more categorical. Section 155 CrPC absolutely prohibits police from probing “non-cognizable offenses”. The SHO is merely required to direct the victim to the magistrate after recording the gist of the complaint in the ‘roznamcha’. The offences that fall in the non-cognizable category are those in which the police cannot arrest without warrant and are enumerated in the Second Schedule to the Criminal Procedure Code.

According to a report (Dawn, August 23, 2012) in Karachi 22,416 cases of assault and affray were reported to the police in 2011. In addition 19,946 reports related to domestic and family disputes. These offenses fall under the non-cognizable category which cannot be dealt by police. One can imagine the feelings of the victims when they are referred to the magistrate according to  law.

A major cause of disputes and friction in society is public nuisance. Chapter X of the CrPC defines public nuisance and lays down procedure to handle it. In this the role of SHO is limited only to a report of the public nuisance to the ilaqa magistrate. The solution is to be arrived at by the magistrate according to laid down procedure which also empowers him to pass prohibitory orders or other directions during the proceedings.

Thus, whether it is a cognizable offense, a non-cognizable offense or a public nuisance, it is the magistrate who is responsible for the ultimate fate of the case. This means that disputes can be resolved only through court proceedings. This may be the right forum for serious crime but for minor offences of daily occurrence, like assault, minor disputes or public nuisance this method is not very appropriate. One must look at the history of British rule in India to understand the reason for this legal design.

The uprising in 1857 of the Zamindars of Oudh and Bihar in support of the Bengal army mutineers and, in many places even leading them, gravely alarmed the British. The Zamindars were revolting because they felt that the Company Bahadur had broken the terms of the Permanent Settlement (1793) according to which the Zamindars were left to hold sway in return for land revenue payments which were fixed in perpetuity. The reason for this discontent was the enforcement of laws enacted in the first half of the nineteenth century which were meant to ‘civilize the natives’ (e.g.Abolition of Satti; Prohibition of Child Marriage, etc.). The frequent visits of police, working under the ilaqa magistrates, to enforce these laws adversely affected the sway of the Zamindar. Lord Dalhousie (1848-56) resumed estates for one reason or another under the ‘doctrine of lapse’ which caused further alarm amongst the Zamindars.

It was to redress the grievances of the Zamindar that police were disempowered. Laws were framed to reassure the Zamindar that the arrangement formulated by the Permanent Settlement will be the foundation on which India will be governed.

Police Rule 21.1 explains this as follows:

“The criminal law of India and the police organization which is based upon it, are both founded on the principle that public order depends essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. The magisterial and police organization is set up to enforce, control and assist this responsibility.”

 The Zamindar’s failure was actionable under the Police Act by quartering police in his village at his cost which was recoverable as a charge on land revenue.

Prevention of crime being the responsibility of the Zamindar, resolution of disputes was firmly vested in him within the village boundary. This was changed in 1959 when under the Basic Democracy Order the responsibility for dispute resolution was given to the Union Council. During the next ten years the police and the magistracy interacted with the elected councillors of the union council in resolving disputes and in the process a new vested interest was created. The village was no longer relevant and suffered neglect.

After 1969 there was no local government till 1979 and the affairs of the union council were managed by petty officials who had no capacity to resolve disputes. The villages were left unattended. The 1979 local government law retained this mechanism in the union council although from 1989 onwards the affairs were again managed by petty officials until the Local Government Ordinance of 2001 which has maintained this function in the union council. Since 2008 the local government is being run by government functionaries and the union council is again in the hands of a petty official.

The village community was better served when dispute resolution vested within it. Placing a dispute resolution mechanism outside has led to a system without any village community control over it. Moreover, villages are historical entities having a rich culture of dispute resolution. This institutional memory was lost because the union council being a new entity was beginning from a scratch. This has resulted in the adoption of alien and novel forms of punishment decided by a jirga methodology.

In urban areas disputes and nuisances are dealt according to law. The SHO makes a report of disputes (Section 150 or 151 CrPC) and nuisances (Section 133 CrPC) to the magistrate and it is for him to decide them. In non-cognizable offenses the victim is referred to the magistrate and it is for him to decide how to continue in the matter. With the arrival of union councils, dispute resolution was given to the elected councillors but as elected councils were not present for long periods, the practice is for police to refer disputes to the magistrate.

The above legal dispensation shows that police has no authority to resolve disputes. It is the responsibility either of the union council or of the magistrate. The mechanism available to the magistrate for resolving disputes is court procedure. As the police have not been empowered disputes cannot be dealt through an alternate dispute resolution mechanism.

In conclusion it would not be wrong to say that the dispute resolution mechanism available in the country lacks a positive role of the state. The police are barred from resolving disputes. The magistrate solves disputes through a court procedure which only adds to the woes of the people.

The system designed in the nineteenth century vested dispute resolution squarely in the village. Giving this responsibility to the union council was not successful. Today there is a jirga style of justice in the rural areas with novel and corporal punishments being the norm.

In towns and cities the dispute resolution has continued to be vested in the magistrate and disputes are lost in court procedure. This failure of the state is leading to mob justice generating chaos and lawlessness.

Although police has hardly any role to play in resolution of disputes, the responsibility for prevention of offences and arrest of offenders has been given to police by the Police Order, 2002. It is obvious that police cannot perform this duty as law does not empower police to help resolve disputes. Nor is it empowered to investigate offenses of minor everyday nature. If police cannot investigate crime it cannot bring offenders to justice. If police cannot help resolve disputes it cannot prevent crime. Prohibiting police from resolving disputes and investigating offenses is a complete negation of the doctrine of zero tolerance which is absolutely necessary to establish rule of law. 

Writer is a retired Inspector General of Police.