Tuesday, November 4, 2008

Comedy of Musharraf's Police Ordinance - 2

Part 2

Criminal Silence of Elite Class in Pakistan


Whether or not the Police-2002-Edition shall be able to behave and act non-politically or apolitically, as has been proudly outlined by the Preamble to the Ordinance? Independence breeds partisanship. One chooses only when one is free to choose. An institution takes sides only when it can afford to have one. An institution that is clipped strongly within a framework of law, regulations & organizational structure cannot take sides easily as an institution. This contention would be clear once a demarcation is made between taking of political sides by an individual or by an institution. To take sides politically, individuals have to be weaker than the rest of the lot, while institutions have to stronger than the rest of the lot to align themselves politically. Now after these general principles have been enunciated, let us examine the issue of politicization of existing police. It is sad to notice that while the Police, as an institution has not politicized itself, the individuals have miserably fallen victims to this trend in the past. The police as a force has never barged into the gates of a Chief Minister's House or into the corridors of any legislature, while various police officers have invariably individually colluded with their political masters in implementing illegal political-cum-personal agendas. Hence it is apparent from this argument that the core issue is not "the de-politicization of police force", rather put precisely it is the "de-politicization of individual police officers". When this phenomenon is studied in the existing police setup, it is found out that because of strict rules, regulations, departmental hierarchy, chain of command & subordination to government, even a politicized police officer cannot use his police force to meet his own political agenda in `open'. He has to collude. Stretching this line of argument, we find that once the police force as an institution is granted operational autonomy, financial independence, more powers & authority without any civilian checks, the Police department may become even bigger than the government! As of now, a politicized police officer has to collude, subsequently he may just throw his weight on one of the sides of the political battle, as there would be no political or civilian control on his working or decision making. These are the inherent dangers & risks involved in granting operational independence to the police force. A striking case study, incidentally, in available at hand in the form of recent events that have happened in Indonesia. The President of Indonesia removed the Police Chief of Jakarta in exercise of his lawful authority. The Police Chief refused to comply with the orders and retained his office in total defiance of the President's orders. This instance clearly shows the extent of authoritarian attitudes that can develop in an armed-&-uniformed force when it gets used to functional autonomy & operational independence more than what is warranted. There can nothing be more bizarre than a civil servant defying & mocking publicly the orders by the Head of State of his country! Another aspect of this case study is more interesting. The Police of Jakarta has defied the orders by the President not on the grounds of illegality or irregularity of the orders, but only because of his intention to put himself and his weighty organization to the side of Ms. Megawati, a contender of presidency. Nothing can be more instructive in terms of effects of independence on the ideal of de-politicization of police department!

Hence, it is shown that police department is not to be given an operational autonomy on the lines of armed forces. Even armed forces are responsible to the Chief Executive of the country. In each & every country, the armed forces report to a certain ministry of Government. Many financial checks are also available to the Governments vis-?is armed forces. The Police Ordinance conversely suggests altogether a different status to the police force. In that scenario, they are neither responsible to Government nor to any public office directly. The Police are themselves recruiting, training & maintaining their force, taking disciplinary actions, making their own inspections, listening complaints against them and regulating routine daily public life. This sort of an institution may backfire, and once it does so, there is no legal check or practical remedy to the situation. Be it as it may, we find that the Ordinance tries to rectify the problem of politicization of police by empowering it and making it independent of all direct political influences. We have also examined that this arrangement may prove to be counterproductive, and a very recent instance has also been studied in this very context. Now the question arises as if grant of independence may itself become a problem subsequently, then what are the probable solutions to this dilemma of politicization of police force. Through out the world, police is always put to the civilian checks & controls. These controls are not toothless or bureaucratic, but are duly empowered & effective. What is required to achieve neutral, unbiased & apolitical functioning of police department is the effectiveness of these controls & checks. No department or institution can be relied upon to inspect & exercise control upon itself. This rule is all the more important in respect of a uniformed-powerful-armed force like that of police. Hence what are more important in this context are the integrity, strength, and de-politicization of the checks & control mechanisms. The Public Safety Commissions have been assigned the responsibility to supervise and to control the police department in the widest possible terms. To cut a long story short, it can be safely argued that the external control mechanisms over police need to be strengthened, if its functional integrity is to be preserved. The available controls are the newly proposed Commissions. Both of these institutions need to be empowered in terms of legal authority & enforceable strength. In addition to this, any visible growth of political tendencies in the individual police officers can be checked & discouraged through the strict departmental disciplinary mechanisms & actions.


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? The Ordinance apparently seems to be out of line of aforementioned policy instruments. Both of these documents, viz. the BNPS Local Government Ordinance 2001 (Final Draft version) & Chief Executive Pakistan's Seven point agenda prescribe implicitly or explicitly, the following ingredients as `must' for local administration & governance:

a. Devolution of authority to the grass roots level

b. Devolution of resultant responsibility to the same level

c. Decentralization of power & authority from superior tiers of administrative hierarchies to the lower ones

d. An increased orientation towards public-control of public officials

e. An increased element of public accountability When the given ordinance is tested on these parameters, it becomes apparent that it fails all of them.

This finding is based on the following grounds;

1. The Ordinance vests with the police department as much authority & power as possible & available, and the whole set of such authority has been vested into the superior offices & ranks of the force. The police chief has been made an all-powerful officer, who controls not only each & everything related to his force, but also regulates the public life by even determining as to which banner is to be displayed where or what kites are to be flown at what places at what times and by whom and so on and so forth? This tendency is by far antagonist to the themes of the Devolution Plan & Seven-Point-Agenda as identified earlier. Rather than dragging the superior ranks down to lower posts coupled with investiture of authority at lower tiers of hierarchy, the Ordinance has opted the other way round. It has up-graded posts and has amassed these offices with disproportionate authority.

2. The Devolution Plan suggests that for the sake of devolution of power & authority only three tiers would be retained, viz. Federal, Provincial and District levels. The divisional tier of administration would be abolished. Similarly, the Local Government Ordinance implies that within the police hierarchy, only the tiers of Provincial & District Headquarters and that of the Station House would be functional. Conversely, the Ordinance not only retains the divisional (police range) tier but also has created new ones, like sections & regions etc. These levels of police management are in clear contrast to the system and structure envisaged by the National Reconstruction Bureau or by the Chief Executive of Pakistan.

3. A critical reading of the Ordinance would lay bare the cosmetic nature of the Commissions & Authorities created therein. Materially, the powers to appoint, transfer, remove, and hold or to take disciplinary action have been reserved more or less within the police department itself. No public office from the District Government is directly involved with these procedures. Further introspection would reveal that the procedures at the Complaint Authorities & Commissions are designed to be too bureaucratic & red-taped, and hence the effectiveness of these institutions would be marred. This functional undermining of these relatively public-oriented bodies would thus undermine the over all objectives of the devolution plan.

4. The regulation of these aspects of public life, as has been described earlier, is a judicial-cum-administrative function, and as such has nothing to do with actual policing. Concentration of these powers in the hand of District Police officer along with wide powers of criminal administration is obviously out of tune of the Devolution Plan.

5. It is strange that the powers to regulate movement of arms and of disposal of unclaimed property have also been vested with the Police officer. These functions are thoroughly judicial and absolute-executive authority cannot as such be vested with these powers, not only in view of the principles of Devolution but also in light of general principles of the law. It is clear from this brief presentation that neither in wider terms nor in a closer view, the Police Ordinance 2002 conforms to the general principles & parameters of the whole Devolution plan itself.


Whether or not the newly proposed system offers elaborate & effective mechanism of civilian control of police? This question has been dealt with briefly while various aspects of the Ordinance have been discussed. But in view of the importance that this question carries, this writer believes that the issue of control mechanisms deserves special attention & treatment. For the sake of simplicity & better comprehension of the issue, it would be better to study various ingredients of the issue one by one, as;

a) Why a control mechanism is required at all?

b) What are the essential characteristics that such control mechanism should bear?

c) What such mechanisms are available in the Ordinance itself?

d) What are the mechanisms that the Ordinance probably assumes would play their role in controlling the police; the judicial control?

e) A comparison; drawn with the Japanese Model of Policing

f) Conclusions, inferences & suggestions

Each of these essential aspects of a `control instrument' over police and its working on daily basis is discussed as under.

a) Why a control mechanism is required at all? Police force, because of the historical reality, the nature of its functions, the scope of its powers and magnitude of its public dealing, essentially requires certain checks, controls & superintendence. In order to keep controls over the police activity and to prevent such activity from becoming atrocious and grievous, a continuous check is required on day-to-day working of police. This continuous & daily basis check is to be exerted at the lowest possible level and is inherently different from the grandiose supervision & control exerted by the Public Safety Commissions at various levels. The deficiency of such a check mechanism in very evident in the Ordinance, and as such no such body or instrument is provided which could ensure healthy working & smooth operation of such control.

b) What are the essential characteristics that such control mechanism should bear? Any mechanism that can effectively perform the required function of control over the working of police shall have to have the following characteristics:

i. It should be an extrinsic check. No amount of internal check can bring betterment in the police. Such an internal check will automatically get regimented with the huge and momentous machinery of police department.

ii. The mechanism should operate at the lowest possible level, i.e. at the Police Stations level.

iii. The process should provide people with quick relief.

iv. The mechanism should be able to deliver in terms of day-to-day operations of police.

A few instances of such control would be;

1 - Check against arbitrary arrest

2 - Check against false implication

3 - Prevention of illegal detention

4 - Curbing of torture, extortion & manhandling

5 - Elimination of the tendency of non-registration of FIR

6 - Identification of false FIRs, and action against responsible offiicals
7 - Prevention of arbitrary use of power

8 - Control over the custodial/extra-judicial killing
9 - Effective supervision of investigation

10 - Prevention of violation of human rights Any mechanism that claims to exert an effective control over the police can only be deemed to be a real control or check over abuse of power by police.

c) What such mechanisms are available in the Ordinance itself? Now we move on to next stage of discussion and try to identify the bodies and devices provided by the Ordinance for this purpose. The foremost institutions responsible for the supervision of policing exercise in their respective areas are Public Safety Commissions. They are proposed to be constituted at the Federal, Provincial & District levels. But sadly though, these bodies cannot serve the purpose of supervision of actual & day-to-day policing. This contention is based on the following grounds:

i. The PSC is inherently a distant body, situated many hour-miles away form the source, time and place of public grievances.

ii. The PSC inherently and by definition is a part of police hierarchy, and will with due course of time become regimented into the large police machinery.

iii. The PSC is neither supposed to nor can it actually supervise day to day working of its subordinate police.

iv. The PSC does not have any administrative control over police

v. By the very definition, the PSC is only a reactive body, and is not supposed to act proactively.

vi. The vigilance and control of the PSC is of an occasional nature. The commission is not supposed to be in perpetual session, and at most of the times it may not be accessible or available when it may be required the most.

vii. The PSC will act in unison as a body and its individual members have not been given any specific authority to redress public grievances.

Another institution by the name of Police Complaint Authority is also going to be established by the Police Ordinance 2001. But this institution, like PSC, has got similar functional limitations.

For instance;

i. The PCA is again a reactive body, and cannot as such act proactively

ii. The PCA is a distant institution, and cannot operate effectively at the grass roots level.

iii. The PCA is only a recommending authority in most of the scenarios.

iv. The PCA does not have any coercive authority or any judicial powers attached to it.

v. The inquiries undertaken by the PCA would be conducted by police officers themselves.

vi. The procedures are seemingly extremely tortuous, and are not swift.

Justice delayed is justice denied, the age-old principle is ignored so far as the proposed operations of PCA are concerned. This detailed analysis of these institutions clearly indicates that these bodies may prove very effective in planning the policing exercise, preparing legal frameworks and supervising the police force on a wider plane, but are not fit to be deemed as instruments of day-to-day grassroots level control over police working.

d) What are the mechanisms that the Ordinance probably assumes would play their role in controlling the police ; the Judicial control? A perusal of the Ordinance may give the reader an impression that the task of controlling day-to-day police working-and-operations has been impliedly assigned to the institution of district judiciary. Even at times, it seems that this impression is made to emerge that police does feel accountable towards the judiciary. This implied contention is based on the wrong assumption that the authority of the judiciary over police force is so complete that no further reinforcement of this aspect is required. Strictly speaking, police is accountable to the judiciary to the extent none whatsoever. The police come into contact with the judiciary only when they appear before the court against the accused as one of the parties in a given case. The function or active role of a criminal trial court starts only when a case is presented (challaned) before it. The vast area of police activities before the trial and a large number of other informal or less formal activities are beyond the judiciary's ambit at all. Another striking case can be marked in this behalf in the very recent series of happenings in District Hyderabad, Sindh. In Hyderabad, the District & Sessions Judge started asserting the legal authority of his subordinate judicial magistrates in terms of excess & illegal confinements in police stations. This assertion on the part of Sessions Judge entailed into a series of hot organizational confrontation between the district judiciary and the district police. Finally, when the matter was taken up with highest echelons of Justice and police department in the Province, ironically the Sessions Judge was got transferred. The matter has been fully reported in the local and national press.

This happening is not to be deemed as an isolated case of personality problems, but it speaks volumes about the extent of subordination of police to district judiciary, the capability of district judiciary to exercise formal civilian control and above all the tendency of police as a department to fortify itself against any authority that purports to check it. Hence the fact that if no effective check mechanism is adopted, the police will remain unchecked & uncontrolled and its power-bred-corruption will definitely harm the wider interest & rights of the public. Traditionally & historically, this role of supervision & control of police working lay with the institution of DM, especially before the ill-conceived separation of executive from the judiciary, whereby most of the executive-cum-judicial powers have been assigned to the district judiciary. The DMs had controlled & supervised the police working since more than century quite effectively. After the separation, as has been mentioned, it was assumed that Courts will take care of the active supervision of police business and would effectively save people from police excesses.

But observations & public perceptions behold that this arrangement has failed to deliver. The reasons for this failure have been ;

i. the courts are distant and literally aloof from the hard realities of the real-world-cases.

ii. The criminal courts, being non-inquisitorial, are not supposed to be proactive.

iii. Neither the courts are supposed to know the general facts relating to the populace or area in general or happenings therein nor do they make any deliberate effort to do so.

iv. The courts are bound to depend strictly upon the evidence and dispose off each & every application submitted to them under strict legal & judicial procedures.

e) A comparison; drawn with the Japanese Policing Model Some lessons are worth learning. One of these lessons in the context of control & supervision of local policing can be borrowed from Japanese criminal justice system. Emphasis is being laid on the Japanese Model, as this system has been inspiring the proponents of police reforms to a considerable extent in the recent past. In the Japanese system, there is a continuous, close and at-hand supervisory check on police working. Police is responsible to an absolutely independent prosecutor at every stage of its working i.e. from arrest to prosecution of case before the competent court. The Japanese system provides a protective office independent of and in addition to the Public Safety Commissions, while the Police Ordinance remains silent after having created the PSCs. In Japan, only the public prosecutors are empowered to determine whether the prosecution in a particular case is required or not. Once police arrests a person, the case is immediately handed over to prosecution department. The prosecutors work under the administrative control of Ministry of Justice Administration, and their working is governed by the rules framed by the Supreme Court. The prosecutors are career civil servants. Many procedural safeguards are also provided in the Japanese policing system. A warrant of arrest is necessary to make an arrest. In case the crime is very serious or the accused is likely to flee, it has to be obtained immediately after arrest from the magistrate. Within forty-eight hours after placing an alleged culprit under detention the police have to present their case before a prosecutor who is then required to apprise the accused of the charges and his rights to have a counsel. The prosecutor has to take the decision within ten days as to whether or not to prosecute against the offender. The prosecution can be denied to the police on grounds of insufficient evidence or on the prosecutor's discretion. This brief overview of the Japanese system clearly instructs that police cannot act arbitrarily at its own discretion. The stronger the action, the larger the check is. Such checks or mechanisms are very strongly missed in the Ordinance 2001. f) Conclusions, inferences & suggestions The aforementioned discussion has established beyond any doubt whatsoever that any extrinsic check on the routine working & functioning of police is a must for any policing system. In our given setup, it is evident that none of the bodies or institutions can provide the required results because of their inherent qualitative limitations. The District Magistrates, before the separation of judiciary from executive, had been controlling the misuse of powers by police through the committal proceedings held by magistrates before regular trials could start in competent courts. The nature, objectives & scope of these proceedings used to be much closer to that of the control mechanisms already described in relation to Japanese criminal justice system. Therefore, it is suggested that even if the DM is not made directly responsible for the maintenance of law & order, police may call upon his good offices to exercise this much-required check and control over excessive and arbitrary use of power


And last but not least, whether or not the newly erected police forces would be more authority- & power-wielding than that of today's police forces? This writer is yet to find a single person who could hold that police in Pakistan is failing in delivery and coming up to its legal obligations, for it is too weak a force and too meek an organization to perform its functions. That is to say that the reason of police's failings does not lie in its powerlessness. The majority clauses & concepts of Police Ordinance 2001 have been borrowed from the Bombay District Police Act that was enacted in late nineteenth century and was abolished before the middle of 20th century. The then Bombay District Police Act defined and put the District Magistrate the executive head of the police force. All regulatory functions were assigned to the DM. The Ordinance 2001 at hand suggests that all the powers that colonial District Superintendent of Police exercised coupled with those of the DM be handed over to the Police Chief of the district at the start of twenty first century. The devolution plan of the present government is meant to eliminate the colonial tendencies in our administrative system, while the Police Ordinance 2001 is leading us back to at least more than a century ago. It is not only that the powers envisioned in the colonial era are being rejuvenated, but also they are also being handed over to the police in a much more concentrated and centralized form. As has been explained earlier, the discrete sets of powers that used to be exercised by more than one office are now proposed to be enjoyed by one single person. On the basis of this brief analysis, a simple and general question can be posed in this behalf to test the Ordinance; Whether the police that was created by Police Act 1861 is more powerful or not than the police proposed to be created by Police Ordinance 2002? It is believed that the response to this question can be easily made out on the basis of the argument put forth in the last many pages.

Whether or not the Provincial Government would be able to perform its constitutional obligations, after the Police Ordinance 2001 is put to force? The proposed Police Ordinance 2001 envisages weak or rather weakens the Provincial Governments. No precise authority or control over the policing effort in general or over the maintenance of law & order operations in particular has been granted to the Provincial Government. The draft ordinance places operational control in this regard on the District Government.

1 - In precise terms, the actual responsibility of maintenance of law & order is being assigned to the District Police Officer, who in this respect would be responsible to the Zila Nazim. The Constitution of Islamic Republic of Pakistan, on the other hand assigns this responsibility to the Provincial Government. A critical examination of the working and position of Zila Nazim and that of District Police Officer is studied in the wider setup proposed by the Devolution Plan or the Police Ordinance 2002, it is found that neither of them lies within active administrative control of Provincial government. The Nazim is supposed to head the District Government, independent of any control by Provincial or for that matter, the Federal Government. Similarly, the District Police Officer is put under the organizational control of his department and various commissions, but not of the Government directly. Hence the vital link that is to connect the actual exercise of maintenance of law & order at the local level to the Provincial Government is altogether missing in the new setup. This situation would amount to a grave constitutional lacuna. The new Police Ordinance, thus, does provide a mechanism for the maintenance of law & order at the local level, but fails to link this setup with the Provincial Government.

2 - Similarly, on the administrative plane, a very serious imbalance between authority & responsibility in respect of the Provincial Government shall be encountered. The existing balance would be severely distorted. One the one hand, there would be a Constitutional stipulation and obligation of maintenance of law & order, and on the other hand there would only be `helplessness' and `weakness' on the part of the Provincial Government. The Provincial Government cannot, even if it intended to do so, do away with its responsibility of maintenance of law & order. But conversely, the Government would not have much authority & control so as to enable to define the parameters of the maintenance of law and order. In the existing setup, it is the Provincial Government that performs the vital function of maintenance of law and order in its constituent districts. . The Police Ordinance assumes the abolition of this office right away, and hence loses not only the balance of authority and responsibility at the Provincial level, but also fails to hook up the district administrative structure with that of the Province.


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