Saturday, February 9, 2013

Agenda for Reform





Mr. Tariq Khosa is a distinguished officer of Police Service of Pakistan who is known for professional excellence, courage to speak the unpleasant truth to the political bosses and commitment to reform the law enforcement structure in Pakistan. He wrote this paper for Asia Society that was published in their report “STABILIZING PAKISTAN THROUGH POLICE REFORM” and with their permission I am placing it on my blog for the benefit of police officers of Pakistan.  Afzal A Shigri



Agenda   for Reform
Tariq   Khosa
The current state of Pakistan‘s police force is indicative of a weak and fragile state in which the “law of the ruler” takes precedence over the rule law. As will be explained, successive political and military government is largely responsible for the situation, in which the misuses of authority and poor governance have effectively led to the paralysis of the state.
Historical Background           
Mughal rule across the India Subcontinent was based on the principle of benign dictatorship, whereby kings subjugated communities through war or the threat of violence and ruled through edicts. Citizens were protected by the kotwal, similar to a modern-day police commissioner or sheriff, who was responsible for maintaining law and order. An archaic form of community policing was the order of the day, with community leader collectively enforcing punishments for crimes committed within their jurisdiction. In cases of serious breaches of peace or heinous crimes, the qazi [judge] would resort to summary trial. People also could seek justice directly from the king by petition or by appearing outside his court. Although the justice system, by and large, was egalitarian, the king did not tolerate revolt or conspiracy. This was the period of the gallows and the guillotine, during which the king’s party ruled the Subcontinent. 
British Rules        
For many years, the British East India Company pursued mercantile interests and trade in the vast but unexplored territories held by the Mughals. As Mughal rules weakened in the nineteenth century, the British Empire saw an opportunity for India to become a jewel in its Crown. In 1857, the last symbolic hold of the Mughals king was abolished, and the British began to directly rule India as its colony. During the century that followed, until India and Pakistan achieved independence, various developments shaped the course of future police on the Subcontinent.   
Modern policing owes its origin to the London Metropolitan police Act of 1829, which established the separation of power between the executive and independent judiciary. The aims of the Raj forced the British Empire to adopt a different style of administration on the India Subcontinent, however. Governance was centered on the collection of revenue and the maintenance of order, both of which came at the expense of justice. This expediency resulted in the concentration of revenue, police, and judicial function under one agent of Crown known  at various stages of colonial rules as the district officer, deputy commissioner, or district magistrate. The responsibilities of this representative included collecting revenue from India subjects, doling out favors to loyal subjects, and using the coercive powers of the police to suppress the natives. The district magistrate and district superintendent, two key district functionaries of the police, were normally English officers charged with protecting the interests of the Raj.        
This administrative design was sustained by a loyal class of feudal landowners established by the British to provide men and material to British administrators.
Revenue collectors and local police were so oppressive and corrupt that in1855, the British were forced to form a commission (commonly known as the Torture Commission) to reform the administration of justice in India. Through the commission recommendation and the subsequent debate in the British parliament, the rulers decided that the arbitrary nature of the local administration of justice needed to be curbed through a system of rule of law and separation of powers. In 1856, Calcutta, Madras, and Bombay were declared metropolitan town where operationally autonomous police commissioners reported to an independent judiciary. The push for reform suffered a serious setback with the Sepoy Rebellion of 1857 which was ruthlessly quashed. Following this, the India subcontinent came under direct British colonial rule for the next 90 years.
In the wake of the Sepoy Rebellion, the British focused on suppressing dissent, and to that end, it introduced the Irish Constabulary model of policing. The colonial power had intended to adopt this military model of police as an expedient but temporary step.   However, it soon developed into the preferred system of governance by rules both before and after independence in 1947. After 1861, the police functioned as a military arm of the ruling elite. As such, the police were perceived as a force ruling over the population rather than a service provided to the community. Military ranks, discipline, drills, and standard operating procedures defined the policing ethos well after Pakistan independence.  
Military Rule after the Birth of Pakistan
Pakistan’s founding father, Mohammad Ali Jinnah, was a firm believer in the rule of law democracy, impartial and apolitical administration, civilian control over military matters, and the separation of power in the administration of justice. In fact, one of the first decisions that he took as leader of new state in 1948 was to approve a metropolitan system of policing in Karachi modeled on that implemented by the British in Calcutta, Madras, and Bombay in 1856 and in Hyderabad Deccan in 1939. Unfortunately, Jinnah died on September 11, 1948, and the bureaucracy, which was all-powerful in the initial period after independence, failed to implement his plan to police Karachi in a professional and apolitical matter. Subsequent political leadership failed to institute the founding father’s dream of Pakistan as a liberal enlightened, and democratic nation.   
In 1958, martial law under General Ayub khan set the stage for a situation in Pakistan in which the law of the ruler rather than the rule of law prevailed. Bureaucratic control over the police by the district magistrate, as laid out in police Act 1861, continued to be the governance model for the administration of justice throughout the 1950s and 1960s.  
The fall of General Ayub in 1969 and then General Yahya Khan in 1971 was followed by the dismemberment of East Pakistan and the beginning of democratic civilian rule under Zulfiqer Ali Bhutto. In 1974, Bhutto created the Federal Investigation Agency (FIA), which was modeled on the Federal Bureau of Investigation (FBI) in the United States. Bhutto also created the Federal Security Force (FSF), which was modeled on the India Central Reserve Police. Bhutto then used the FSF, led by officers of Pakistan police service, as an instrument for political persecution and revenge. This force, as well as the politically motivated murder of the father of a Pakistan people’ party dissident, contributed to the downfall of Bhutto ushering in the third period of law under General Muhammad Zia- ul- Hag beginning in 1977.    
The 1980 can be described as a period of decadence in Pakistan’s history .It was during this period that the mullah- military alliance was forged in the body politic of the country. in the wake of the 1979 Soviet invasion of Afghanistan and the Iranian Revolution that same year, the country witnessed a surge in state patronage to military , a rise in sectarian violence, and unprecedented bloodshed. During this period, the police played fiddle to the military, whose leader provided patronage to sectarian outfits and military mujahedeen fighting the Russians in Afghanistan. The endgame in Afghanistan and the fall of the Soviet Union was followed by the demise of the military ruler in post 1988 Pakistan. 
Political Interference in the 1990s
The 1990s were characterized by a game of political of ping-pong between Benazir Bhutto and Nawaz Sharif, both elected Prime Minister twice for incomplete terms. This period institutionalized political interference with the police to a far greater extent than at any other time in time Pakistan‘s history. For the first time, there was a large number of officers on special duty in the bureaucracy and police service on account of political interference. These officers were divested of their regular jobs and made to sit at home while receiving salaries. Survival in office became the name of the game, resulting in sycophancy and a culture of pandering to the illegal demands of politicians.  
At the same time, however, Prime Minister Sharif introduced an initiative that proved that honest and professional policing was not an altogether elusive dream. In an experiment worth emulating, Sharif created the National Highways and Motorway Police, which was tasked with the enforcement of traffic laws on the new, state-of-the-art motorway running between Lahore and Islamabad. Existing police officers were trained afresh by U.K police, while new ones were recruited based on merit. Motorway police were paid three times more than the provincial police and their service conditions and facilities were at par with police in Western countries. Above all, the police were given complete autonomy to enforce traffic discipline on a 400- kilometer motorway. These combined measures produced an honest and operationally autonomous police service that quickly earned public acclaim.   
Post-9/11 Attempts at Reform
The beginning of the twenty-first century found Pakistan at a crossroads in the global war on terror following the September 11, 2001 attacks on the United States. Like military dictators before him, General Pervez Musharraf began his term with a reformist agenda, but he soon fell victim to the game of political expediency and survival.  
One of Musharraf’s initial reform measures was a plan for police reform that culminated in the promulgation of Police Order 2002. The goal was to institute a politically neutral, highly accountable, and extremely professional police organization. Substantively, the Police Order focused on a number of issues: the misuse of authority, the arbitrary use of power, political interference in police operations and administration, the lack of service orientation, corruption, misbehavior, and the ineffective command and control of the police force. Structurally, it replaced political control of the police with democratic institutional control through the mechanism of public safety commissions at the district, provincial, and national levels. This concept was borrowed from the United Kingdom, where authorities - both citizens and elected officials - maintained oversight of policing. Musharraf chose to follow the U.K. model over the Japanese model, in which the commissions were made up of only nonpolitical representatives.     
To address police accountability, independent police complaints authorities (PCA) were to be created in the capital city and throughout the provinces. In order to make the police operationally autonomous, the tenures of all of the heads of federal and provincial police departments were fixed at three years (on the model of military commanders in the army). 
Eventually, however, politics took primacy over public concerns, and in 2004, Musharraf, along with his supporting political parties, drastically altered the face of the Order, effectively stripping it of all of its progressive reform. The composition of public safety commission was changed in favor of the ruling party. Additionally, independent PCA abolished in the provinces, and the three –year fixed tenure for police chief was revoked. In short, the amendments buried the very basis of the reform; to create a politically neutral, highly accountable, and fully autonomous police. As a result, since 2004, police reform has remained an elusive dream in Pakistan, as public interest has been sacrificed at the altar of political expediency.           
The present day
The 2008 election were held in the wake of two important events: the so- called Black Coat Revolution, which sought the restoration of the independent judiciary sacked General Musharraf in March 2007, and assassination of former Prime Minister Benazir Bhutto in December 2007. The people voted into power the present government led by the Pakistan People’s Party expecting the maintenance of the rules of law and good government. Throughout the last four year of its rules, However, corruption, poor government, and the misuse of authority have been endemic at both the federal and provincial levels. The loss of the rules of law has been the biggest casualty under the present government.
Counter-terrorism
The police have the primary responsibility for maintaining order in society, with assistance from intelligence agencies, civil armed force, and the military. In Pakistan, however, the police have been forced to abdicate their lead role in internal security and defer to the armed forces; military - led intelligence bodies and the military - led Rangers and Frontier Corps. Even the civilian intelligence agency, the Intelligence Bureau, is led by serving or retired army officers. Consequently, in all major cases of terrorism, the political leadership today looks to the Chief of Army Staff (the army chief) to provide leadership in operations against terrorists and militants in the country.  
At present, Pakistan lacks a thoughtful counter-terrorism strategy, and efforts to create one have been largely ignored. On October 22, 2008, parliament delivered a 14 - point Resolution on National Security. In support of the Resolution, a 17 member parliaments committee produced a 23 - page document laying out a cohesive national security police. The Resolution and its corresponding policy package reflected the will of the people of Pakistan. Sadly, these parliamentary measures have been largely ignored by the government and its departments and agencies.
The creation of the National Counter Terrorism Authority (NACTA) in 2009 was the prime minister’s most significant effort in support of these parliaments’ initiatives. The agency was headed by Tariq Parvez, a former Director General of the FIA, well known for his counter-terrorism expertise. However, this new institution, tasked with producing national counter-terrorism and counter extremism strategies, had its wings clipped soon after its creation. Instead of being logically placed under the command of the prime minister, as are the Intelligence Bureau and Inter- Services Intelligences, it was placed under the Minister of Interior. This placement caused a turf war, and what would have been an effective and important organization was instead left powerless. Thus, Pakistan at present does not have a documented counter-terrorism and counter extremism strategy. NACTA truly embodies the story of inept political leadership in Pakistan.
Corruption                                                                                                                                                          The maintenance of security and order is possible only amid the rule of law and good governance. In Pakistan, these fundamentals are being eaten away by the cancer of corruption. While Pakistan has an independent judiciary and a free media that are trying to take on corruption, this soft power can only do so much. Responsibility for formal investigation against corrupt officials rest with the National Accountability Bureau under the Minister of Law and with the FIA under the Minister of Interior. The National Accountability Bureau has been dysfunctional for quite some time. The FIA is similarly paralyzed; its role is to combat corruption and organized crime, like the FBI in the United States and the Central Bureau of investigation (CBI) in India. In the United States, the Director of the FBI  has a fixed tenure of Bureau of 10 years, and even the President does not have the power to remove him before his terms expires. The Director sits through two and half presidential tenures and autonomous in operations and investigations. Similarly, in India, the Director of the CBI has a fixed tenure of at least two years, and the Prime Minister cannot remove the Director before completion of his or her tenure. In stark contrast, Pakistan is ruled by laws dating back to the Mughal era and the Director General of the FIA has no such security in his post. Rather, he is replaced on a whim based on political expediency. Consequently, the FIA which achieved great public trust from 2005 to 2009 has been made the subject of Public ridicule and national shame by the present government.
Police Order 2002 provides that the President should appoint an independent police complaints authority at the national level. The PAC’s role would have been to look into complaints of misuse of authority, corruption, and transgressions of law, torture, staged encounters, and other complaints against the police. However, the PCA never materialized because of the government’s desire to keep the police under its wing. The federal PCA is to be headed by a retired judge of the Supreme Court, but the Minister of Interior has not moved a summary to the Prime Minister and President to create the authority. These political machinations demonstrate that police reform is not on the agenda of present government, at either the federal or provincial levels.
Political Influence
The police force cannot provide cannot security to citizens if there is no political will to provide for an impartial, autonomous, and professional police command. The responsibility here lies with the Prime Minister, as well as the Chief Ministers who appoint the inspector general of police, as his leadership frames the competency of the entire organization. In police Order 2002, a secure tenure of three year was provided for the inspector general, as in the case of the army chief. This provision was eliminated by amendment in 2004, and since then, inspector general have been appointed and transferred nonchalantly on the whims of the ruling party. It is interesting to note that the chief executive has appointed deputy inspector general at Grade 20 as inspectors general of Islamabad, Azad Jammu and Kashmir, Gilgit- Baltistan, and the Railway Police, when the posting, of junior officer past cadre posts of Grade 21 is a violation of rules and norms. It is this type of manipulation that makes any prospect of promoting rules of law and good governance obsolete.
The time is ripe for the officer of Pakistan’s police service to muster the courage to resist the illegal demands of political influence. The police force is legally accountable for its investigation only to the judiciary, which can read case diaries and ask questions. No other official can interfere in the process of investigation. Supreme Court rulings require the police to carry out investigational without fear or favor. The people of Pakistan would like their police to be politically neutral, operationally autonomous, and highly accountable. If the Black Coat Revolution of 2007—2009 resulted in the independence of the judiciary, than a “rule of law revolution” in Pakistan will be required for the emergence of the accountable, autonomous, and highly professional police service.               
Recommendations
The framer of police Order 2002 wanted the police to function according to the Constitution, existing law, and the democratic aspirations of the people. However, Pakistani rules, both political and military have mostly paid lip service to constitutionalism, while the rules of law has repeatedly been sacrificed at  the altar of the law of the rulers. In this environment of hypocrisy and double standards, the police cannot be expected to be an island of excellence espousing the spirit of the Constitution and enforcing the rules of law. This is an issue of political will. It is for the government - that is, the Prime Minister, Chief Minister and their cabinets - to lead the way by ensuring that the rule of law reigns supreme.
Apart from being a system, is also a state of mind - an attitude that cannot thrive in a milieu fraught with arbitrary aspirations and nepotism promoting a culture of corruption in which merit is the biggest casualty. Institutions will exist in name only if they are filled with leaders who fail to follow the letter and spirit of the law.
The following measures can help the police improve service delivery and earn the good will of the public:
·         Because liberty is a fundamental right of citizens, the police should never arrest a person unless there is solid proof or evidence. Officer should shun the temptation to arrest an innocent person because of interference by interested parties.
·         Police officers should professionally and faithfully collect evidence on behalf of both the parties and present it before the court. Moreover, they should avoid becoming a judge or executioner, declaring the accused guilty or innocent. This is not the mandate of the police, nor does the law permit it.
·         At a basic level, prompt and professional response in distress situation will win laurels for the police. When an individual reports a crime, he or she should not be called into the police station; the police should travel to the incident site and fill out complaint forms, sending a copy of the First Information Report or daily diary report (used to formally initiate investigations) by post or by hand. Investigation officers should visit and record evidence at the shops, offices, and houses of witness rather than summoning the interested parties to their office and stations. By adopting these measures and altering the structure of public interaction, the police can drastically transform their public image.
·         Women and children represent a disadvantaged and vulnerable section of society. No women or child under 18 years old should be arrested without prior approval of a superintendent or assistant superintendent of police. Female police officers should handle their custody. 
·         Mechanisms of internal accountability are far more effective than those external accountability. The police should welcome this through the judiciary, media, parliaments, and public safety commissions, but should also be prepared to set their own houses in order. Ultimately, the police service is accountable for its own operation.

The people and police service of Pakistan require a new deal that will ensure that the rule of law determines the peaceful, progressive, and prosperous future of the country. When moving forward with police reform, the following recommendations deserve priority: 
·         The federal governments must establish an independent police complaints authority under the leadership of the reputable retired Supreme Court judge as a means of establishing external accountability. The issues within the authority’s domain will include, but not be limited to, corruption, misuse of authority, high- handedness, and violation of human rights. The provinces should also establish independent police complaints authorities as envisaged in police Order 2002.
·         Independent police commissions should be established for police oversight composed of nonpolitical members, to both prevent political interference and check extraneous influences on police administration and operation.
·         Tenure security must be ensured for all federal and provincial police chiefs. Arbitrary and premature transfers should be discouraged, as it is for military commanders in Pakistan.
·         NACTA should be given a functional legal framework and be placed under the Prime Minister, like the Intelligence Bureau and Inter-Service Intelligence, so that it can effectively coordinate and formulate national counter-terrorism and counter extremism strategies.
·         Working conditions and salaries for police should be brought in the line with those of the National Highways and Motorway Police, so as to enhance their self –esteem and minimize corruption in the rank and file.