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.


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