Monday, November 20, 2017

Police’s political restructuring

Afzal Ali ShigriNovember 14, 2017

AN organisation with large human resources can only function proficiently if a proper service structure has been provisioned for its members. This factor attains greater importance if the organisation supervises a disciplined force responsible for law enforcement. For such an institution, induction at different levels is determined by its size and the nature of the duties of the members of the organisation along with sound career progression.
The police departments in Pakistan perform important functions. Therefore the establishment of a structure based on internationally recognised standards is essential for their efficacy as a force. The police that we inherited at the time of Independence met the benchmarks of that period. To maintain order in Pakistan at the time of its inception, it was, therefore, possible to revive police functionality with the existing colonial structure, although this was not an ideal arrangement.
The police structure that was inherited had multiple layers of induction at three levels. At the entry level, a constable with elementary education was recruited and put through rigorous militarised training with the basics of policing and criminal law.
The middle level allowed the selection of educated candidates at the rank of assistant sub-inspector/sub-inspector. At the mid level, they were recruited through a selection process of candidates who possessed specified educational quali­fications.
At the senior level of supervision, assistant superintendents of police (ASPs) were recruited centrally from amongst the cohort of graduate candidates through a countrywide competitive examination. The bulk of the force comprised the lowest rung of the structure, performing routine duties of maintaining order and preventing the commission of offences. Only selected literate members of this level were imparted in-service training for promotion to higher levels, and the system allowed these police officers to rise to the rank of inspector.
The situation will take decades to reset even if such inductions are stopped.
A combination of these directly inducted officers and promoted officers from the lower level formed the backbone of the police department. They were directly involved in day-to-day and on-ground policing. They manned the police stations, supervised the constabulary, investigated the cases, performed watch-and-ward duties and maintained order.
At the third and highest tier, the assistant superintendents of police (ASPs) were recruited for command and control assignments of the police department.
This three-tiered induction had evolved on the basis of experience that called for the provision of a smooth promotion system that did not create distortions or conflict. For instance, lower-tier officers would be nearing retirement when they were promoted to the next level.
This was a neat arrangement for police officers progressing through various levels of induction and who did not end up in posts that were principally meant for officers recruited for a specific level of responsibility. It not only ensured a smooth transition but also combined fresh blood with experience at different levels.
Before Independence, there were some exceptions with the direct recruitment to the level of inspectors and deputy superintendent of police (DSPs) from the public at large. This was done purely out of political considerations, but the number was so restricted that it did not have any impact on the structure of the police department. These officers were absorbed by the system and accepted by their colleagues; as such, these inductions did not create any serious distortion or anomalies in the department.
The need to enact structural reforms to meet the new challenges of changing environments prompted governments of the time to exploit the system for furthering political opportunities rather than improve it. Governments with the stated intention of reforming the police started making exceptions to existing functioning police structures.
In the name of changing the thana culture, recruitment was done at the level of inspectors, and for engineered shortages DSPs were inducted. Then in the name of special requirements, officers from other institutions, including the armed forces, were inducted as superintendent of police and even deputy inspectors general. The results of these whimsical decisions caused opaque induction, violation of merit, conflicting/ competing claims on vacancies and administrative distortions with promotion blocks for juniors and groupings at command levels.
These also gave rise to litigation and a number of rulings that had a very negative impact on the discipline of the police forces. Some of these politically motivated decisions were set aside by the courts, but continuing multiple inductions have damaged the department, which is now facing very serious challenges in maintaining discipline within the force.
The situation will take decades to reset even if such inductions are stopped. The political leadership must understand the implications of interference in human resource management and realise that the key to good governance lies in merit-based human resource management for every department/ institution of the government, and more so for the police force that has the vital responsibility of maintaining order.
Police Order 2002 was an attempt to address this problem and provided induction through a transparent procedure. Its provisions ensure transparency and recognise the importance of harmony in an organisation that exercises the coercive powers of the state. Unfortunately, this attempt was frustrated in the name of the 18th Constitutional Amendment, and this law stands repealed by three provinces, with Punjab set to change it.
Police forces all over the world have a unique status as each is answerable to its own hierarchy, but each member of the force also has an inherent role that is independent of this hierarchy and all officers have legal powers that they exercise for which they are answerable to the courts.
This exclusive status of the police presents a complex and challenging dilemma vis-à-vis its management structure. This peculiar position, therefore, needs to be managed, supervised, guided and controlled through an intricate process.
Political interference in such a delicately calibrated management system can be fatal as the outcome will be chaos and anarchy that inevitably derails democratic governance. We are in the midst of such a chaotic situation, thanks to tinkering with the police organisation and the equally unwise decision to ask the army to take up policing. It is no surprise then that complaints of ‘institutional conflict’ follow when policing powers are given to other security forces.
The writer is a former IGP Sindh.
Published in Dawn, November 14th, 2017

Friday, August 11, 2017

Judiciary & Investigation

By Afzal A Shigri

UPON independence, we inherited a functional criminal justice system (CJS) that delivered and maintained peace in the country until the late 1960s. However, as Pakistan became embroiled in regional issues, the system faltered and the country paid a heavy price in the form of the virtual annihilation of the CJS’s fundamental structure, one that had evolved over decades.
Against this backdrop, attention shifted from institution building/improvement to fulfilling the onerous responsibilities of the newly assumed role of ‘regional leader’. Every institution was sacrificed at the altar of local political expediency to the point where its purpose and function were rendered obsolete. It goes without saying that in the absence of strong institutions to control arbitrary decision-making by the government, which legitimises its actions through a questionable political process, the hope for just governance is likely to remain a chimera.
The British rulers established the structure of the CJS around the Indian Penal Code, the Code of Criminal Procedure (CrPc) and the Evidence Act, which were drafted by great minds that foresaw all possible eventualities. This vision formed an all-encompassing legal foundation for the criminal justice structure in India. Despite its colonial antecedents, it was an efficient system lasting for more than 100 years. The continuation of these laws in all the South Asian countries bears testimony to its legislative efficacy.
However, as the laws were not amended to address the evolving challenges of a changing world, the very institutions created and empowered by these laws were instead used to serve the political elite coveting regional dominance.
The role of the judicial magistrates is critical for thorough investigations and as a check on police.
This negligence in improving basic structures prefaced the breakdown of societal law and order and the fractured CJS found it difficult to deal with the emergent threat of terrorism. As a result, the government began to rely inordinately on the army in a strategy that was tantamount to firefighting without any comprehensive plan.
In this context, the National Action Plan was essentially adopted to address mounting public pressure for action. Yet even on the NAP agenda, the most vital topic of improvement of the CJS was relegated to the bottom of the 20 points. As feared, little was done to improve the system, for the outcome would have also been politically awkward.
In addition to hearing important cases against political governments in Karachi, and carrying out situation hearings and reports on the Quetta Civil Hospital bombing, the superior judiciary took note of the negligence in reforming the CJS, intervening proactively to force the executive to address the issues related to its functioning.
Undeniably, terrorism can only be confronted through an effective CJS, wherein the weakest link is the investigative process. If purged of political influence and closely monitored by the institution mandated to do so, positive results can be expected. However, no one wants to undertake this. Even the special and draconian legislation enacted in recent years has been of little help.
In this regard, a careful examination of the CrPc shows that the role of the lower judicial magistrates is critical for carrying out thorough investigations and as a check on police. This basic law has provided a delicately calibrated balance that defines the role of the magistracy in the investigation without its direct involvement in the process. In this way, it ensures the independence of the investigation.
For instance, Chapter XIV of the CrPc defines the role of the concerned magistrate by creating a fine balance of oversight and soft intervention in the process. For the investigation of a non-cognisable offence, the permission of a magistrate is mandatory under Section 155 CrPc. Section 156 (3) holds that a magistrate empowered under Section 190 can order a police officer to investigate a cognisable offence and under Section 157 it is binding for the police officer to send to the magistrate concerned a report of any information regarding the commission of a cognisable offence. Similarly, under Section 158, the investigating officer has to send the reports of every case investigated by him under Section 157 to the magistrate for his perusal.
Moreover, Section 159 empowers the magistrate to order an investigation and, if required, either proceed himself or depute a magistrate junior to him for preliminary enquiry. It is again the magistrate who has to give physical remand of an accused to the police for investigation after determining the need for extending the remand. This is a very potent tool in the hands of the magistrate for monitoring the investigation. Yet again, the closing of a case against an accused under Section 169 is subject to review by the magistrate. During the investigation, Section 164 empowers the magistrate to record the statements related to a crime or confession.
After the separation of the judiciary from the executive and the abolition of the executive magistracy, judicial magistrates are reluctant to play the proactive role provisioned in the procedural law. In the light of the worsening law and order situation and the emergence of the threat of terrorism, it is important to revert to the basics and strictly adhere to the provisions discussed above.
The higher judiciary should provide the guidelines on considering the CJS as a package that can only deliver if the functioning of its many arms is synchronised. The example of Britain in the wake of the 2011 London riots is illuminating, where the judiciary played a leading role by instituting double shifts of court hearings and punishing the offenders.
Of course, the situation in Pakistan is far more serious. That makes it even more imperative that the investigators be not only supported but also monitored in bringing the offenders to book. Responsible institutions must work together towards this goal, with the higher judiciary guaranteeing the active participation of all the players and the transparency of CJS’s functioning.
Oft-repeated recommendations for resuscitating the old system of executive magistracy as a panacea for contemporary challenges will prove futile, for it has outlived its utility and serves but to attenuate the judiciary and distort the entire criminal justice system.
The writer is a former IGP Sindh.
Published in Dawn, June 19th, 2017