Part 1
A very dear friend of mine [he wants anonymity] has forwarded a draft lambasting the so-called Police Reforms thrusted down the throats of Pakistanis by General Musharraf, General Tanveer Naqvi and their cohorts.
"QUOTE"
THE POLICE ORDINANCE A CRITICAL ANALYSIS INTRODUCTION:
Drafting a piece of law may appear to be a simple phenomenon. Proposing one may prove be an affair still simpler. But developing the concept of a piece of law that is coherent with the social reality, national experience & the framework of other prevalent legal dogma is not a simple or easy affair at all. The draft ordinance at hand, The Police Ordinance 2002, has probably been conceived & drafted considering it to be a simple & easygoing affair, and that is precisely why the Draft Ordinance in its entirety seems to be out of time and a bit out of focus. The assumptions & inferences whereupon the provisions of the ordinance rest are out of tune and out of the general policy & legal framework envisioned by the present government. The ordinance is distorted unto itself insofar as there is a lot of inherent contradictions between the "objectives" it proudly boasts of and the actual "realities" that it seeks to create. At many a places, it appears even to a plain reader, that the foremost objective in the minds of the drafters of the Ordinance was the promotion of the police department, and not the legal integrity of document or wider public interest. As a result of this enthusiasm, at some places wide gaps have been found to exist between the objectives and provisions of the Ordinance. On the whole the document visibly seems to be engineered to meet particular objectives and hence a piece of `motivated legislation'. Were the document designed and drafted by legal experts, ex-judges of superior courts & professionals, these distortions could have been avoided. In this backdrop, the most significant touchstone that is be used to study the impact of this Ordinance on the working, efficiency, ffectiveness, behavior, attitude, outlook & output of police force is this contradiction between the `heavenly objectives' and `worldly motives' hidden therein.
THE DISCOURSE:
This part of this paper seeks to analyze the Police Ordinance on the touchstones of logic, rationality, legal principles, concepts of jurisprudence, our Pakistani social experience & reality, the faûze of current police force and above all the Constitution of Islamic Republic of Pakistan. Special reference requires to be made to the objectives of this Ordinance that have been highlighted in the Preamble. Similarly, the public aspirations relating to the very concept of "Police Reforms" have to be considered, and it has to be inquired as to whether the Ordinance conforms thereto or not. The analysis is made in the form of questions that have been answered in detail on the basis of analysis of the provisions contained in the Draft Ordinance. These answers would themselves point towards the changes & amendments that this paper seeks to get incorporated into the Draft Ordinance.
The questions that have been designed for the sake of analysis and put to the Ordinance are enumerated as follows:
1. Whether or not the police force created by this Ordinance shall come up to the self-proclaimed objective of functioning according to requirements of Constitution of Islamic Republic of Pakistan 1973?
2. Whether or not the police force created by this Ordinance shall come up to the self-proclaimed objective of Firstly, satisfying democratic aspirations of people of Pakistan, Secondly, being people friendly, Thirdly, restoration of public confidence in police force, AND lastly, coming up to the peoples' expectations regarding the exercise of police reforms?
3. Whether or not the newly constituted police force shall be able to be professionally more competent, as has been vehemently promised by the new legislation? And similarly, whether or not the new ordinance provides any mechanisms or safeguards to improve the training & personnel quality of the police force?
4. Whether or not the Police-2001-Edition shall be able to behave in a non-authoritarian manner or act non-politically, as has been proudly outlined by the Preamble to the Ordinance?
5. Whether or not the Ordinance is in accordance with the concept of "Devolution of Authority & Responsibility" as envisaged by the BNPS Local Govt. Ordinance 2001 and Chief Executive's seven point agenda? Similarly, whether or not this draft ordinance conforms to the principle of "Decentralization of Power & Executive Authority" that underlies the Seven-point agenda or Local Govt. Ordinance?
6. Whether or not the newly proposed system offers elaborate & effective mechanism of civilian control of police?
7. And last but not least, whether or not the newly erected police forces would be having more authority & be more power-wielding than that of today's police forces?
8. Whether or not the Provincial Government would be able to perform its constitutional obligations, after the Police Ordinance 2001 is put to force?
QUESTION NO. 1
Whether or not the police force created by this Ordinance shall come up to the self-proclaimed objective of functioning according to requirements of Constitution of Islamic Republic of Pakistan 1973? Following points need to appreciated before this question is responded to in definite terms:
a. The question of law & order along with the constitution of police forces has been traditionally, customarily and constitutionally dealt with by the Provincial Governments. The Police Act has been a provincial law. The enactment, implementation & enforcement thereof have been a responsibility of Provincial governments in the legal & constitutional history of Pakistan. Would it not amount to a de facto intrusion into the Provincial Autonomy granted & guaranteed by the Constitution of 1973, if the Federal Government enacts the Ordinance and imposes it throughout the country. The question needs to be dealt with great caution & attention, as the issues involved are extremely sensitive & provocative historically & politically.
b. The status of a Presidential Ordinance, having a limited time frame and being promulgated to meet a contingency as opposed to an act of legislature that had been duly enacted & promulgated needs to be investigated carefully. This care & caution is recommended so as to ensure the vital input from the public representatives. Such input from public representatives at the Provincial level is going to be all the more critical and important for many reasons. The Police Ordinance is going to affect each and every aspect of normal public life, and hence the heightened interest of the Provincial Governments in the working & operation of the police department. Moreover, in view of the fact that Provinces' political machinery is nearly dead at the moment, caution becomes all the more important. In future, when this machinery is again fired into motion, many complications, functional snags & legal hassles may arise. All these aspects have to be considered before taking any concrete step in this behalf.
c. The Constitutional stipulation of separation of executive from the judiciary has been totally ignored and rather is violated by the proposed Ordinance. Reference has to be made in this context to the powers of the Police to regulate public. All of these powers prima facie appear to be administrative-cum-judicial powers. But, it must be appreciated that the exercise of all of these regulatory & individuals'-rights-determining powers is essentially judicial in color. On the basis of the commonplace observation regarding current misuse of lawful powers at the hands of police at institutional or individual level, it is not difficult at all to extrapolate and to envision the fate of public when these massive regulatory powers are vested in the local police! It is moreover quite difficult to conceive that only one authority is responsible for the determination & definition of an offense, for arresting the offenders thereof, for prosecuting the offenses, collecting the fines and then appropriating them for its own use at its own discretion. So many principles of constitution and jurisprudence are violated in this concept that it is difficult to summarize them in a few lines. One should not judge his own cause, the Common Law stipulates. On the other hand, as is proposed, the local police officer is being given the authority to not only to judge (i.e. to prosecute or not to prosecute OR to arrest or not to arrest), but also is being granted the power to define his causes. Similarly, the involvement of Chief Justices of Pakistan & of the respective High Court and Sessions Judges for the selection of Federal, Provincial & District Public Safety Commissions respectively is inherently unwarranted. This involvement of these supreme judicial offices in the selection of a person who is later expected to perform executive functions is misleading. The conceptual basis of this provision of the Ordinance negates the very roots of the separation of judiciary from the executive.
d. The Police Ordinance 2002 fails the "Test of Repugnancy", as provided in the Constitution of Islamic Republic of Pakistan. This contention is based on the assumption that the enforcement of this Ordinance shall prevent the Provincial Government from the fulfillment of their constitutional obligation of maintenance of law & order. The Ordinance is bound to create serious imbalances in the balance of authority & resultant responsibility between the Provincial Government, the District Government & the Police department itself. On one hand, the powers of recruitment, appointment, postings, transfers, disciplinary actions, even development of allied rules & procedures and financial control are proposed to be taken away from the Provincial Government. On the other hand, though ironically, all of these powers are being vested in the Police Department itself. It must be accepted though, that a figurehead control is being granted to the respective Public Safety Commissions & the District Governments. But at the same time, it must be conceded that this control is toothless, powerless, motionless & sterile. Hence, it may be suggested in view of this genuinely-feared-logical-upshot of the Ordinance, that the constitutional responsibility of maintenance of law & order and administration of criminal justice, vide a constitutional amendment, be either ? Handed over to the Police department, as an organ of state; or ? Handed over to Public Safety Commissions, as a constitutionally erected body; or ? Handed over to the District Government; as a third tier of Government; or ? Shifted to Federal List from the Concurrent List. Adoption of at least one of these extreme measures is necessary to avoid the fatal failure from the test of repugnancy, that this Ordinance is bound to face in its current version. The purpose of these suggestions is obviously not to widen the scope of this discussion into the realm of the Constitution. Rather this suggestive form of argument is meant only to point towards a fatal legal & constitutional lacuna in the Ordinance, and to show that the Provincial government needs to be empowered & face-lifted vis-?is the Ordinance.
e. Many general principles of law & jurisprudence upheld by the Constitution have been mutilated by the Ordinance. Most significant of these include, ? Violation of fundamental rights of an individual, that have been granted by the Constitution & various Superior Courts rulings ? , Basic constitutional principles related to the procedures of Audit & Accounting have been ignored. Resultantly, the integrity of financial procedures & probity thereof is feared to be severely severed. ? The principle embodied by section 176 of the Police Ordinance 2002 is against the Code of Criminal Procedure, and at the same time undermines the spirit of Constitution. Usually, prosecution of certain offenses under various acts of legislature is declared to be a pre-requisite for subsequent cognizance by courts. But, the underlying principle is invariably the `nature of the offense', rather than being the `status of the offender'. This provision of the Ordinance just seems strange & bizarre. This grant of immunity to the police officers is unwarranted and does not seem to be based on any logical argument. f. Last but not least, the Police Ordinance 2002 seemingly confers upon the police department a status that is uncalled for, unjustified, unprecedented, extra-constitutional & unfounded. The opening sentences of the preamble arrogantly create an impression whereby it seems that the Police force is an instrument that has been imported from somewhere else for its use in Pakistan, and that an ordinance is required for the use of this instrument in order to meet the requirements of the Constitution & aspirations of the people. It seems that the police itself is not part of people or requirement of Constitution, and is rather being asked to cater for these requirements only for the benefit of the Constitution & people of Pakistan themselves. From the preamble, it appears that police requires the Constitution and the public so that it may police around! It is apparent that on the one hand, the Police Department is seeking the near-autonomous status like that of Pakistan Army, and on the other hand is trying to get rid of all controls whatsoever in the garb of `de-politicization'. It is not difficult to visualize & to understand the future working of the police force of 21st Century (as created by the Police Ordinance 2002). The police department would not be functionally subordinate to either of the Federal or Provincial or District government. There would be no financial or judicial control available over police. The supervisory bodies (like Public Safety Commissions, Police Complaint Authority or Directorate of Inspections) would only be toothless bodies that would only be by far recommending, suggesting, advising, making policies, guidelines etc. This picture, it must be emphasized, is in respect of the relationship of Government with the police. The public-police interface is yet to be analyzed.
QUESTION NO. 2:
Whether or not the police force created by this Ordinance shall come up to the self-proclaimed objectives of Firstly, satisfying democratic aspirations of people of Pakistan, Secondly, being people friendly, Thirdly, restoration of public confidence in police force, AND lastly, coming up to the peoples' expectations regarding the exercise of police reforms? A right away cover-to-cover perusal of the Police Ordinance 2002 would induce the reader to answer this not-too-complicated question in a big NO. Logically, this negative response can be reached at through examining certain aspects of the question. For instance, it needs to be investigated as to what are the grievances of public with respect to the existing police. On the basis of these public grievances, it is simple to deduce the public aspirations & expectations from the new Ordinance Once these aspirations have been discovered and self-proclaimed objectives of the Ordinance have been perused, it is not difficult to test the Ordinance against the aspirations of people on one hand and objectives of the Ordinance on the other. The grievances of a common man against the police force he comes across on every nook & corners are no secret at all. A simple list can be made out as follows;
i. Frequent disregard of individual human rights
ii. Incidence of arbitrary arrests
iii. False implication of innocent persons into criminal cases
iv. Fabrication of criminal cases against innocent persons
v. High incidence of illegal detention & informal approval thereof by the superior officers
vi. Physical & mental torture, manhandling, disrespectful attitude
vii. Extortion of money, corruption, bribery
viii. Refusal to register an FIR
ix. False & motivated FIRs
x. Excessive & uncalled for use of power & force
xi. Custodial & extra-judicial killings
xii. Patronage of organized crime, like gambling houses, sale of liquor, gun-running, drug-trafficking, prostitution etc
xiii. Defective & delayed investigation
xiv. Attitude & behavioral problems
xv. Non-prosecution of cases As has been described earlier, it is quite easy to deduce public aspirations & expectations from this extensive list. Naturally, after the police reforms have been affected, the people of Pakistan would expect the police to be;
1- More people friendly
2- Honest, dedicated & dutiful
3- Nice in outlook and disposition
4- Professionally competent
5- Effective & efficient
6- Not demanding in terms of public subservience & money
7- Not arrogant & trigger-happy
8- Prosecuting cases rather than killing whimsically
9- More humane, urbane & less profane
It may be highlighted at this stage of argument that the Police department has always ironically used their `failure to deliver' to plead their case for more resources and more authority. It is interesting to notice however, that more resources are being demanded without efficient use of available ones, and more authority is being requisitioned while misusing & abusing the existing one. Matter would have been quite understandable, were the demands related only to resources and not authority. The emphasis of Police Ordinance 2001 on grant or acquisition of more & more power & authority into the hands of the Police department is neither comprehensible nor maintainable. It is genuinely feared that the Police may get through with this agenda of `empowerment' & `centralization', as has been the case in the past. The Police department has successfully compelled various governments to adopt measures that could `cover' its functional failures. Examples are not too far to be identified. The establishments of The Speedy Trial Courts, The Military Courts or The Anti-Terrorism Courts are all visible & palpable proof of failure of police to deliver in prescribed manner. In addition to this, allegedly the police had had got their agendas & `lists of criminals' approved from various governments for extra-judicial killings in the past. This Ordinance is once again, it is feared, an attempt to get empowered, regimented & more centralized on the part of Police Department. These themes are obviously antagonist to the concept of `Devolution of Power & Responsibility' and are in contrast with the very concept of reformation of police. Keeping in a single view, the public aspirations, the past tendencies of Police as a department & its `motives' reflected by the Ordinance at hand, it becomes clear that the motives underlying the proposed Ordinance are quite worldly.
The police department is again trying to invoke sympathies at the national scale, on account of its past failures. What the police department is promising the people of Pakistan in return to all that empowerment, strengthening & fortification is a number of cosmetic provisions relating to certain commissions, authorities etc. that could only recommend, advise, suggest or what not. It is na? to believe that if a certain authority misused one unit power, the grant of another unit power would lessen the abuse thereof. Rather, the amount of power & its abuse grow in direct proportions, as history and the plain science of logic instruct us. No safeguard has been provided in 100 pages of proposed Police Ordinance, whereby one can satisfy oneself that a policeman would act & behave according to the "democratic aspirations" or "public expectations". Reference has only been made to these traits, while the Ordinance prescribes some `service-oriented-duties' of a police officer. The only safeguard that seems to have been provided is the word `shall' used by the framers of the Ordinance But if only words would have sufficed, the long list of public grievances that has been already presented, would not have been that long. Vide section176 of the Ordinance the framers of the draft Ordinance have even snatched the meaning of otherwise meaningful words, by stipulating that a police officer would not be called into question in a court of law, unless this has been precisely `permitted' by another police officer.
A discussion on this subject has already been presented in paper. In the nutshell, this provision has literally placed a police officer quite high `above the law'. Even the colonial Police Act of 1861 did not permit this safeguard to the police officers. This discussion implies that while the policeman & the police department have been made more powerful & more intrusive, no assurance as to their attitude towards general public has been guaranteed by the Police Ordinance 2002 in terms of strict police discipline, vivid judicial proceedings, summary trials, departmental actions, disciplinary procedures, public hearings, accountability, punishments etc. As has already been contended, section 81 of the Police Ordinance 2002 is not sufficient at all to ensure a healthy, vibrant & friendly public-police interface. Once it has been established that the only possible response to all ingredients of question no. 2 is supposed to be in the negative, it is not difficult to observe as to why this would happen. Some reasons that are inherent in the Ordinance itself are enumerated here, where their discussion is presented elsewhere in the paper.
The police department is again trying to invoke sympathies at the national scale, on account of its past failures. What the police department is promising the people of Pakistan in return to all that empowerment, strengthening & fortification is a number of cosmetic provisions relating to certain commissions, authorities etc. that could only recommend, advise, suggest or what not. It is na? to believe that if a certain authority misused one unit power, the grant of another unit power would lessen the abuse thereof. Rather, the amount of power & its abuse grow in direct proportions, as history and the plain science of logic instruct us. No safeguard has been provided in 100 pages of proposed Police Ordinance, whereby one can satisfy oneself that a policeman would act & behave according to the "democratic aspirations" or "public expectations". Reference has only been made to these traits, while the Ordinance prescribes some `service-oriented-duties' of a police officer. The only safeguard that seems to have been provided is the word `shall' used by the framers of the Ordinance But if only words would have sufficed, the long list of public grievances that has been already presented, would not have been that long. Vide section176 of the Ordinance the framers of the draft Ordinance have even snatched the meaning of otherwise meaningful words, by stipulating that a police officer would not be called into question in a court of law, unless this has been precisely `permitted' by another police officer.
A discussion on this subject has already been presented in paper. In the nutshell, this provision has literally placed a police officer quite high `above the law'. Even the colonial Police Act of 1861 did not permit this safeguard to the police officers. This discussion implies that while the policeman & the police department have been made more powerful & more intrusive, no assurance as to their attitude towards general public has been guaranteed by the Police Ordinance 2002 in terms of strict police discipline, vivid judicial proceedings, summary trials, departmental actions, disciplinary procedures, public hearings, accountability, punishments etc. As has already been contended, section 81 of the Police Ordinance 2002 is not sufficient at all to ensure a healthy, vibrant & friendly public-police interface. Once it has been established that the only possible response to all ingredients of question no. 2 is supposed to be in the negative, it is not difficult to observe as to why this would happen. Some reasons that are inherent in the Ordinance itself are enumerated here, where their discussion is presented elsewhere in the paper.
A. Over-centralization of power & authority in the ranks of police
B. Absence of any civilian control
C. Lack of accountability
D. Toothless supervising bodies
QUESTION No. 3
Whether or not the newly constituted police force shall be able to be professionally more competent, as has been vehemently promised by the new legislation? And similarly, whether or not the new ordinance provides any mechanisms or safeguards to improve the training & personnel quality of the police force? On the strategic issue of enhancement of professional standards as well, the Ordinance provides the reader with certain pledges & assertions. Some critical questions have been left unanswered;
a. What precise changes shall be brought in recruitment procedures & training mechanisms, so as to ensure the quality improvement in the output?
b. What instruments will be used & applied so as to ensure optimal utilization of available resources?
c. Despite creating many specialized departments within the police force, the Ordinance does not provide any branch or section that may plan the financial aspect of the policing exercise. Why is it that despite providing for financial autonomy for certain police districts and emphasizing time & again the need for professional expertise in various branches of police, the Ordinance is absolutely silent on professionalism in financial management? It is quite strange that on one hand the Ordinance rightfully assumes that specialized training is required for every police officer to be an effective `investigator' for example, but on the other hand it assumes that a highly professional senior police officer would inherently be an expert in financial matters, management, expenditure, accounting, budgeting & planning.
d. The Ordinance does not stipulate any concrete measure for the improvement of the training institutions, other than providing for the posting of some very senior police officers as the heads of these institutions.
e. In case of a contention that the Ordinance itself is not supposed to cater for these minutiae, it must be inquired into as to why the development of a professional police force has been specifically charted out in the Preamble? Conversely, a piece of legislation is supposed to be in conformity with its preamble and to provide the means & modes of actual realization of its objectives.
f. Every improvement in the police force, be it qualitative or otherwise, is subjected to provision of resources. The argument itself is flawed. Would there be no improvement, if no additional resources were provided? Is there no scope of improvement in the quality of police personnel & of department itself remaining within the existing resources? Is the lack of resources, the only reason for all the ills that have marred the police performance in the past? And above all, is it required at all to state precisely in the Ordinance that additional resources are required for improvement? All of these questions are extremely important in the sense that they not only relate directly to the question of professional improvement, but also point towards the in-the-making-attitude of the police department towards the Government.
g. The Ordinance does not provide any check on the utilization of resources other than an internal audit of the department, and that of a certificate issued by a director of inspection. Does this mechanism suffice the intricate requirements of modern financial system, management, policy formulation & planning? It must also be appreciated that the Director of Inspection is again proposed to be a `senior police officer', and not a financial analyst or manager or an auditor. Can these mechanisms ensure that the available resources are used and professional competence has increased.
h. The Ordinance is dumb insofar as the provision of statistical tools for quantification of performance of police personnel is concerned. It does not even suggest a legal basis or framework for their subsequent development. This writer believes that such tools need to be developed so as to identify the performance indices and to evaluate the comparative performance data. These mechanisms are required for singling out the personnel on the basis of performance and efficiency. On the basis of this whole range of argument, one can deduce a simple but drastic question; what is that so special in this Ordinance that may ensure quality improvement in police personnel, that this Ordinance is called for in the first stead? What does it provide over & above what is currently available? It must be appreciated that answers to these questions are very critical in order to understand, to comprehend & to implement this piece of law. As the Ordinance itself does not provide answers to any of these questions, hence these have just been left unanswered! Forgive me but for the sake of Human Life i have to paste this article in parts, forgive me again.
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