Thursday, March 14, 2013

The Criminal Justice System



Mr. Mohib Asad is one of the most well read and articulate officer of Police Service of Pakistan. His analysis of the criminal justice system in the historical context and the recommendations should be taken seriously by policy makers. This excellent paper was included in the report of the Asia Society that is being published on this blog with their permission. Afzal A Shigri


The Criminal Justice System

Mohib Asad


A malaise pervades the administration of criminal justice in Pakistan. Islamabad appears to be under siege; Punjab is replete with criminal activity in its town and country; citizens of Sindh suffer from organized crime; Khyber wakes up to daily acts of terrorism; an insurgency  continues to unfold in Baluchistan; and sectarian killings are rampant throughout the country. Some 93 percent of Pakistan believes crime to be the country’s number-one problem

To fully appreciate the present-day snapshot of Pakistan‘s criminal justice system, it is useful to review the evolving political history of the Subcontinent over the last two millennium.

A Brief History

Initially, Hindu rulers established codes to govern the region’s many disparate states. While these codes were based mainly on the injunctions found in religious book, they were ultimately subject to the ruler’s personal imperative. Because all land as well as its products, mineral resources, and analogous assets were the personal property of the ruler, the people enjoyed only such right over these and their own lives as the king allowed.


The beginning of Muslim political ascendancy in the country commenced in the eighth century, when Arab generals and scholars began to make forays into the eastern province, and by the thirteenth century, Muslim rulers had established their base in much of what is today’s Pakistan. By the mid-fifteenth century, Muslim had become major actors in the Indian power play. By the sixteenth century, Muslim dynasties had established Delhi as their stronghold, where they ruled as sovereigns over lesser Hindu states that paid homage to them. At the height of the most significant Muslim empire, the Mughal Empire (1526-12857), some four –fifths of all of the land and its people belonged to the emperor. Aside from Sufis, other religious personages closely followed the Muslim conquerors and brought with them an agenda for the conversion of local to Islam. These rulers brought their contemporary brand of sharia with them, and a new strand of criminal justice was interwoven with the existing system for dispensing criminal justice.

The vastness of the Subcontinent was such that until the mid-twentieth century, there were hundreds of princely states with their own potentates and administrative oddities. Even at the zenith of the Raj, the central British government found it more expedient and economical to live with princes, nabobs, khans, and the like, each administering criminal justice in his own way within his state. While in Europe, some form of the “social contract” started to take root in the eleventh century, this was not case in the Subcontinent, where different shades of hereditary rulers continued to enjoy residuary privileges and temporal powers over the lives of their subjects until the nineteenth century.

The first formal police institution was the office of kotwal in or around the seventeenth century, which was located in the town where the ruling family resided. As there was no standing army, the kotwal was generally a noble and had power of arrest, search, and seizure. Judicial power were invested in the qazi (or qadi), who usually came from a family of scholars trusted by the ruler and whose adjudications were based on local usage, culture, and religious injunctions. There were no prisons except those intended for political detainees. This system is notable for the fact that it was essentially the embryo of the “separation of powers” theory later followed by a large number of modern –day constitutions.

Sweeping change came with the spread of British rule from the seventeenth to the nineteenth century, first by the face of the East India Company and later by the proclamation of the empire in 1858, as the British imported the concepts inherent to European common law. The colonial power instituted legislation in the criminal justice area, notably the Criminal Procedure Code of 1898, the Evidence Act of 1872, and police Act 1861. Lesser laws governing prisons followed. When Pakistan was formed in 1947, it inherited English common law, with its emphasis on due process through an intricate system of appeals as part of a tiered court system. Various informal dispute resolution system, such as the jirga, the panchayat, and the fatwa continued to coexist, as they do in the present.

Since 1947, Pakistan has had rulers of all kinds, including lawyers, bureaucrats, politicians, and army officers. On the whole, the law and order situation has continued to deteriorate, according to public perception, media reports, and expert opinion. To appreciate the chaos in which Pakistan’s criminal justice system finds itself at the moment, it is essential to understand this historical backdrop.



The current situation

The root of the problem facing the criminal justice system is that control over the power structure in Pakistan has consistently passed into the hands of politicians with a feudal mentality, aided first by bureaucrats and later by the army .Additionally, Pakistan has seen the emergence of right-wing religious groups that, over time, have become major powerbrokers in the balance of power. Populist aspirations have been cast aside, and the ruling elite have found it useful to weaken all state institution and thus keep a stranglehold on power. The country has gone through three martial law regimes spanning about half of its national age.

These regimes executed various political experiments. Government servants maintained constitutional guarantees safeguarding their terms and conditions of service for decades until the 1973 Constitution deleted the provision, opening the door for much greater government control over the civil service. By contrast, this did not happen in India, where the civil service is trusted by the public and is, by and large, free of politician’s control.


In Pakistan, the entire criminal justice system has been adversely affected by politically motivated policies and practice designed to weaken its structure. It has been noted that “officials who try to follow rules often face resistance and humiliation by being immediately transferred, disallowed from completing their tenures, made officers on special duty or subjected to baseless proceeding of a disciplinary nature [sic]”.


The continuation of the imperial mindset among law makers and top governors has resulted in a criminal justice system in which institution are weak and corrupt and are seen by public not as service for the community, but  as the strong arm of the status quo. The untidy situation requires comprehensive reform that addresses all of the institutions that make up the justice and security sector, with a focus on the processes and mechanisms for performance audit, oversight, transparency, accountability, and redress of public grievances related to state institution. This can be done only through an integrated reductive approach, on the one hand, and the reinstatement of public confidence in law and order machinery, on the other. Because the public image of “good” law and order is based more on a perceived sense of security than the reality, it is of the utmost importance that civil society be brought on board in this national effort.


The structure of the criminal justice system

As it currently stands, Pakistan’s criminal justice system lacks the capacity to fulfill its mandate. This problem is exacerbated by the crisis/post-crisis cycles through which the country has passed in the last four decades as a result of insurgencies, international terrorism, sectarian strife, organized crime, and corruption. To make up for the shortage of competent performance, there is widespread intimidation, harassment, torture, and violation of the fundamental right of the civilian population by the police and other law enforcement agencies such as the civil armed force a classic example of conflict creation in which the official agencies are both a symptom and a cause of ongoing strife.


The half million strong police force in the four provinces of Pakistan has its origins in a constabulary staffed by former army officers during the Raj. The face was altered after the empire was established in 1858 and the Indian police service was instituted; in practice, the service remained the political strong arm of the viceroy. In 1947, the state of Pakistan inherited the system based on police Act 1861 and the 1934 Punjab police Rules. To reorient the body, several police commissions were formed, beginning were formed, beginning with the Cornelius commission in 1959 (report submitted in 1962) and ending with, most recently, Police Order 2002. Notable among these was the Mitha commission of 1969, which truly addressed the core issues.

Challenges facing the system

The Mitha commission recommended an upgrade of the technical aids to investigation improved logistics career planning of police officer, and official, greater freedom for supervisory officers in operational matters, and overall control of the Inspector General over the allocated budget. The commission also called for the reorientation of the police to become a service provider rather than a force. The President of Pakistan General Muhammad Zia-ul –Haq approved nearly all of the commission’s findings, but sadly, none was implemented principally because the no police bureaucracy resisted any changes to the status quo in which civil secretariats controlled the police through an intricate system of budgetary control and annual evaluation reports on police officers. Many of the provisions of Police Order 2002 reflected the commission’s recommendations. 

Further, political elites interfere in the institution, investigation, and prosecution of cases. The tenure of postings of all ranks from Inspector General to the lowest rank is at the discretion of the Chief Minister. Police order 2002 was enacted with a view toward diminishing political influence on the police and making the institution answerable to bodies. Unfortunately, the major salutary provisions were diluted by amendments in 2004, and even the watered –down version has not been followed.

The situation in lower criminal courts and the newly created prosecution deparment is similarly deficient. The National judicial policy, an attempt at reform, thus far has not had any visible impact. The higher judiciary is working overtime to respond to incidents of notoriously overt bad governance and the miscarriage of justice, but their number and time are in short supply. The Law and Justice Commission of Pakistan has been able to correct pay scales and other provisions for judges, but not overall performance. The Chief Justice of Pakistan, speaking to a bar association in March 2012, expressed his severe displeasure at the delay and expense that the common litigant / plaintiff must endure to secure his legal rights through court. He went on to hold lawyers and lower courts equally responsible for the sad state of affairs.

Additionally, there is widespread corruption in those lower courts that are not in the ambit of either the National Accountability Bureau or the Anti-Corruption Establishment of the province. Recent amendments in the law have produced a situation in which civil judges are also the authority for criminal cases. The resulting situation is truly hodgepodge. Under earlier dispensation, police officers were prosecutors in court too, but new prosecution service are in the making in the province. Senior police officers are dissatisfied with this new arrangement, as they see conviction rates, already low, falling even further. It is commonly observed that the prosecution service is yet another tier of corruption; it is staffed by cronies of the elite. The situation is indicative of a turf war between the prosecution and the police.


Recommendations

As a holistic, reductive approach, the following steps should be considered:


  • Oversight of the criminal justice system by parliament and the provincial assemblies should be increased.

  • Greater emphasis should be placed on law and order and on the increased outlay of resources during annual budget allocations.


  • Closer networking is needed between the subsystems of the criminal justice system.

  • Reliable and real-time statistical information covering all aspects of the law and justice system through modern information technology management information system is needed.

  • A “commissionerate” system of policing should be introduced in all major cities with population of one million or more. Such a system would create units within provincial jurisdictions in which the commissioner would have magisterial power to enforce local and special laws within his area of command.

  • The civil armed forces, such as the Rangers from Sindh and the Frontier Corps from Baluchistan, should be removed form law and order duties.


  • The police should be audited by the Ministry of Justice on an annual basis. Programs should  be implemented to improve the quality of life for inmates so as to make prisons more comfortable, humane, and useful

  • The role of civil society organization and nongovernmental organization working in the human rights arena should be fostered, thereby creating for lobby for citizens’ right.


  • Increased oversight by international donors is needed. These donors must revisit the quality of their interventions in Pakistan’s justice system. Millions of dollars spent over the years have not made things any better; on the contrary, the situation continues to worsen.

4 comments:

jahan Khan said...

Basically there is a need to move away from the territorial concept of ilaqa magistrate to that where jurisdiction is defined by the powers to punish vested in the different class of magistrate. The ilaqa magistrate concept perpetuates the 18th century police model so aptly defined by the Bow Street Runners and which was introduced in Bengal by Warren Hastings. This system has been retained by the CrPC and it has been the bane of all that is wron with the criminal justice system. The district judiciary should operate under the D&SJ and work should be distributed according to powers vested in the Magistrates and by rotation to keep work load in mind. This is in keeping with 'function-based' concept. Territory based concepts tend to be subverted by political interference and by threat and corruption.

Afzal A Shigri said...

For some odd reason we have failed to break from the past. It is time that we revisit the entire criminal justice system and bring it in line with the modern cocepts that ensures transparency. The "tested and tried" system has failed to address the challenges of a new urbanized world.

jahan Khan said...

Let us get together and put up a paper for the Law Commission (which, incidentally, does not have any police officer as its member) and bring to its notice that the CrPC is based on the concept of community (read Zamindar) responsibility for prevention of crime and arrest of offender which is a feudal concept. Let us show them the many chapters of CrPC that are meant to legalize this while at the same time disempowers police from providing policing services to the society which it urgently requires it.

Afzal A Shigri said...

I will request you to work on it. You can associate Dost Ali Baloch who has very of criminal law and can be of help.