Role and Responsibility of Institutions in Post Colonial Democratic Reform with focus on Police, Judiciary, Executive and Enforcement ……Police Perspective

By Afzal A Shigri

Role of Police in a modern society

A well trained and professional civilian police is an essential part of a modern criminal justice system. It is the police that set the entire system into motion in providing justice to the aggrieved person and to hold the offender accountable before an independent judiciary and to maintain peace. To carry out its duties police is given vast powers including the power of arrest. The exercise of these powers by the police and by the executive controlling them is inherently prone to be misused. The dilemma of empowering the police and then controlling it through an institutional arrangement therefore poses a unique challenge for any society. While no one disputes the need for ’policing the police’, it is equally important that it has the professional autonomy to perform its duties effectively. Developed countries have found viable solutions by creating independent institutions with representation from all the stake holders to subject police to external oversight by the civil society and also to insulate it from extraneous interference. This paper gives a brief historical background of police in the Indo Pak subcontinent under the colonial ruler, post independence developments and the recent initiatives that culminated in the Police Order 2002. The paper also examines the subsequent amendments briefly and the impediments in establishing an institutional arrangement of law enforcement with check and balance.

Historical Perspective

When East India Company after the grant of Dewani of Bengal, Bihar & Orissa, was transformed into a revenue collecting agency, the district collector of revenue became the most important functionary of the company and in order to maximize the collection of revenue he was armed with magisterial and police powers as well. Since the sole responsibility of the administrative structure was the collection of revenues, police under the collector resorted to oppressive practice of realising revenue by torture that ttracted the notice of even the British House of Commons where the matter was debated in 1854.

To enquire into these allegations of torture, the ”Torture Commission” was constituted in 1855 in Madras. Condemning concentration of all administrative and judicial functions in one hand, the Commission recommended a distinct organisation of police completely independent of the revenue administration. Based on this principle, the metropolitan police was reorganised in 1856 in the Presidency town of Calcutta and later in Bombay and Madras. This was followed by the enactment of Madras District Police Act, 1859, which was framed on the principle of the separation of judiciary from the executive.

For the rest of India, the Police Commission of 1860 proposed a draft on the model of the Madras District Police Act of 1859. However, the events of the War of Independence of 1857 had transformed the entire policing perspective of the British government. It was first organized armed resistance against a foreign rule that united large section of Indians across the religious and ethnic divide. This event shook the empire and forced the British to re-examine their methods of dealing with the locals. The uprising had been suppressed ruthlessly but the ferocity and the wide spread involvement of large population of different creed and ethnicity created a fear and insecurity in the minds of the rulers. It was with this mindset that Police Act 1861 was introduced and the district revenue officer with magisterial powers as DM was again included in the chain of command. This arrangement was meant to suppress the local population effectively and protect the interest of the Empire. The system that had no institutional arrangement to safeguard the public interest worked efficiently for eighty six years for the empire through two world wars and maintained order with an iron hand. The office of the District Magistrate gave a false facade of an external check on police while in reality it worked to protect and cover up their highhandedness.

Post independence developments for reforms

Unfortunately after independence successive governments and the vested interest found this law very useful in dealing with the political dissent and perpetuation of their rule. The public interest was thus conveniently ignored. Politician also found bureaucracy a willing and useful partner in maintaining the status quo, In order to justify this unjust system the myth of civilian control through the DM was propagated and even today efforts are afoot to revive this arrangement.

This nexus of the executive and the bureaucracy can be gauged from the fact that introduction of Metropolitan Police System in Karachi through a legislation passed by the Sindh assembly in 1948 was not notified on some flimsy grounds of typographic mistake. That typing mistake was never corrected and the law was never implemented. The colonial structure of a police in the country therefore remained intact with extremely negative impact on any meaningful free and fair political development. For the political as well as the military rulers the perpetuation of this archaic and outdated structure was immensely useful for their immediate gains at a great cost of stunting the growth of a democratic culture in the country.

There was however a realization to change and reform the police after 1960 and the governments set up commissions, committees of local and foreign experts to come up with a plan for reforms. These bodies produced twenty five reports on the subject but it was at the implementation stage that the political expediency and the desire to maintain a strangle hold on the police always prevailed and except some cosmetic and peripheral changes nothing was done to address the fundamental concern of creating a force that is answerable only to the law of the land, is professionally independent, accountable and subject to civilian oversight. The police establishments in the country thus continued to be prisoner of its past and followed the colonial system designed for an empire of nineteenth century. We therefore have a police that is devoid of any dynamism and unable to deal with the daunting challenges of 21^st. Century.

Action by the government of Gen. Pervaz Musharaf

There was a need to bring certain fundamental changes in the police structure. There was also a requirement to take bold decisions and to experiment with the modern concepts of depoliticizing police forces in the country, redefining their role, making them service oriented and providing a credible system of their accountability. It was also imperative to create a bridge for fostering a healthy relationship between police and community to deal with the complex internal security issues of modern times that have international ramifications. Ironically it was a military ruler who realized the importance and need for de-politicization of state institutions and addressed the fundamental issues through its devolution plan. This envisaged a complete departure from the past in reforming the police as a part of over all redesigned governance structure at the local level. In order to develop a modern system with strong institutional structures it took the following steps.

Formation of the Focal Group in the Interior Ministry - December, 1999. This group visited all the provinces and held extensive consultations with all the stake holders. Based on this feed back the focal group submitted a report in February, 2000 that was the starting point for the reforms that followed.

Think Tank on Law Enforcement established in the NRB - March, 2000 (included two officers from the Interior Ministry). This think tank after extensive consultation with the stake holders and meetings with the concerned provincial governments and ministries produced a report that gave a detailed frame work for redesigning a police force as a part of the over all devolution plan.

The Government approved Local Government Plan including Police Reforms - August, 2000

Based on this report draft Police Law was prepared by NRB comments of all stake holders were invited which were discussed and finally Police Order 2002 was promulgated replacing the Police Act of 1861. It would be interesting to note that this law was drafted more than thirty times before its promulgation as after in-depth discussions of the views expressed by different segments of the society amendments were made in the law. The purpose was to address the concerns all the stake holders without compromising the operational capability of a police force that is being called upon to deal with complex problems of crime and law and order in a dangerous world that continues to pose daunting challenges to the law enforcement agencies globally.

Police Order 2002 Salient features

Article 4 of the Constitution of Pakistan gives the right to an individual to be dealt in accordance with law: ”To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.” Sub clause 2 (b) of this article elaborates: ”no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”.

It was in this spirit that the Police Order 2002 was promulgated and in the preamble it was categorically stated: ”Police has an obligation and duty to function according to the Constitution, law and democratic aspirations of the people”. Police Order accordingly redefined the role, duties and responsibilities of police, breaking free of the past and a colonial legal system.

In order to protect the rights of citizens and every individual in the country, elaborate and transparent structures were created in the Police Order. The law was so crafted that all actions and exercise of the authority by police was subjected to close scrutiny by the internal command, judiciary and the civil society. The misuse of police by the executive was specifically identified and effective check and balance provided at every operational tier to ensure that the rights of the citizens and the individuals were protected. This was in line with the promise that the President made in his first address to the nation as Chief Executive to ”depoliticize state institutions” and ”dispense speedy justice”.

In order to create an institution that insulates the police as well as subjects it to civilian oversight a system of Public Safety Commissions at all the operational levels were created i.e. district, provincial and the national. These Commissions comprise independent members from civil society and from the elected assemblies/councils and have the most important responsibility to oversee functioning of police in their own sphere of jurisdictions.

In the Police Order 2002 the constitution of these Commissions was designed to equip them with enabling mechanism for ensuring neutrality and transparency in police working. Half of the members of the Commissions are from civil society of known integrity and imbued with a sense of public service. The selection process for these members is through a system in which all stake-holders are represented so that the persons finally selected are not obliged to any single authority for their selection. The rest of the members at the national and provincial levels are nominated equally from the assemblies by the treasury and the opposition. At the district level, the nomination by the district councils has been so provided that all shades of opinion are represented in the Public Safety Commission. It was expected that an institution with representation of the civil society and equal representation of the opposition, due its very structure, will be an effective check on the executive and will ensure decisions on merit.

The Provincial and National Public Safety Commissions had a say in the appointment and premature transfer of the heads of police establishments in the country. The police officers at various levels also had recourse to the appropriate commission in case of motivated or illegal orders issued by any authority and the orders of the Commission were to prevail. This provided much needed protection to an honest and up-right police officer.

The Commission is required to monitor and assess the implementation of annual policing plan to ensure professionalism and a focused attention on the issues identified by the police in consultation with all the stake holders in advance. Pre-determined realistic bench marks and targets ensured the police are held accountable for their performance by the major stake holder i.e. the civil society.

Persistent complaints of abuse and maltreatment of those in police custody call for swift, transparent and effective mechanism for accountability of the force. The existing legal provision was not satisfactory. Once arrested, a person was at the mercy of police and had to endure harsh treatment. An aggrieved person could take his complaint to senior police officers or the District Magistrate who was essentially part of the executive responsible for law and order. Under section 176 of the Criminal Procedure Code, Magistarial enquiry was due only in the extreme case of death in custody.

The magistracy till recently was part of the executive answerable to the District Magistrate who as part of the executive had a collusive relationship with the Superintendent of Police. The District Magistrate, in true tradition of a ”colonial justice system,” mostly used such enquiries to cover up the misdeeds of the police. A victim was given relief in very rare cases. This practically gave a license to police to maltreat people in their custody. Allegations of death, rape and serious injury in police custody provided an opportunity for NGOs to take to the streets with reference to specific cases without really addressing the fundamental legal issue.

Allegations of false police encounters, death, gang rape and serious injuries to people in police custody made sensational stories in the press and the image of police continued to be tarnished, at times unjustifiably. The NGOs held their seminars and workshops on these issues while politicians gained political mileage from them. But the aggrieved person was denied any meaningful redressal of his/her grievance and the police either got away with serious crime or due to the pressure of the NGOs, junior level functionaries were made the scapegoats, at times unjustly. The magisterial enquiry was fundamentally an administrative process to defuse a situation and was never meant to dispense justice.

In order to address this very vital issue through an institutional arrangement, an independent professional structure of Police Complaint Authorities at the Federal and Provincial levels was created (articles 97 to 107 Police Order 2002). These complaint Authorities were given vast powers to initiate enquires against police that could lead to criminal proceedings or departmental action. In case of any undue leniency by the department they could also intervene for enhancement of punishment. For immediate action in case of report or information of death, rape or serious injury to any person in police custody, it was specifically provided that the complaint authorities would request the Chief Justice of the High Court to appoint a judge not below the District and Sessions Judge for judicial enquiry. The complaint authority was also required to take steps to preserve the evidence related to the incident. Article 36 of the Police Order made it the duty of the Head of District Police to inform the relevant Police Complaint Authority of any incident or a complaint of rape, death or serious injury to any person in police custody.

These legal provisions established a mechanism to put the law into motion to address an important issue of public interest i.e. a credible accountability system. Judicial enquiry by a District and Session Judge was no longer a favour to a complainant and no intervention at the senior level of the government was required. A credible and transparent institutional arrangement was put in place and all incidents and allegations of death, serious injury and rape in police custody were subject to a formal judicial scrutiny. As a safeguard against frivolous and vexatious complaint, it was again the duty of the Police Complaint Authority to initiate legal action against the complainant. The system so devised not only held police accountable but also provided a check on false allegations against police.

Police was given functional autonomy and enabling provisions were made in the new law to delegate all necessary powers to the police command that was now fully responsible for its actions. IGP of a province was made the ex-officio secretary to the government that eliminated the interference in the professional matters by the secretariat officers and gave administrative and financial autonomy to police command. Functionally police was made completely independent with total flexibility of deployment of its manpower and the resources to meet the operational requirement without any interference. With the separation of judiciary police became solely responsible for maintenance of public peace and crime control. Police Order 2002 clearly lays down that ’the police has an obligation and duty to function according to the Constitution, law, and democratic aspirations of the people;’ and ’functioning of the police requires it to be professional, service-oriented, and accountable to the people;’ Police was made accountable to the people and is solely responsible for all its actions and must face the consequences of carrying out any unlawful orders. The authority and the responsibility were combined to remove any ambiguity in holding police accountable who under the old Police Act shared this responsibility with magistracy and that arrangement was inherently flawed and had persistently failed to deliver.

Present status after the induction of elected government

In the preceding paragraphs only three salient features of Police Order 2002 namely, civilian oversight, accountability and professional autonomy has been examined that were critical for redesigning police that could meet the emerging challenges of a modern state in the twenty first century and provided a viable legal structure to protect public interest and achieve the elusive goal of good governance.

Yet, in the name of public interest and good governance, Police Order 2002 even before its full implementation was hastily amended on November 25, 2004. The amendments in the law hit at the fundamental concepts of providing a check by civil society on the unfettered powers of the executive and a transparent accountable structure. Provincial governments across the political divide teamed up to mutilate the Police Order that curtailed and checked their unbridled executive control of police and denied them the option of using it against their opponents. Those involved in distorting the Police Order seem to have gone overboard, as they introduced changes that even compromise the basic public interest provisions dealing with death, serious injury and rape of a person in police custody.

The new amendments have serious implication for all three areas examined in this paper. Civilian oversight through a neutral body has been compromised by changing the composition of the district and provincial public safety commissions. New provisions has included members of the national and provincial assemblies in the District Public safety Commission through nominations by the Chief Minister while in case of he Provincial Public Safety Commission the number of the members of the Provincial Assembly from the opposition has been reduced to two from three and that of the treasury has been increased from three to four. The restructuring of these commissions with majority of members from the government party has seriously compromised its capability to act independently and will certainly be unable to provide the much needed insulation of the police from extraneous interference.

A credible system of accountability was done away with when Provincial Police Complaint authority was eliminated and it was combined with the Provincial Public Safety Commission which has the overbearing presence of four members of the assembly and is chaired by the Chief Minister. The provinces did not want a neutral Police Complaint Authority, as they feared that the police due to the presence of such an institution will be reluctant to carry our any politically motivated orders of the executive. Provinces were not prepared to trust even this partisan Complaint Authority and have excluded the provisions that empowered the authority to request the Chief Justice of the High Court for judicial enquiry on the complaint of death, serious injury or rape in police custody. Unfortunately the provincial governments of religious parties as well as the socalled moderate and enlightened parties collaborated to stifle a people-friendly law that is likely to hold them and police accountable in cases of serious infringement of the right of life, liberty and honor of the common man. Professional autonomy of police has been neutralized indirectly through twisted definitions of words that open the door for the executive and the bureaucracy to interfere with the professional and operational duties of police and posting of the !GP of the provinces has again been reverted to the old system of pick and choose without any transparent process of selection.

These amendments are a sad reflection on the mindset of the so-called champions of democracy who have chosen to destroy a people-friendly law ironically given to the country by a military ruler.

Tragically even this mutilated law that restores lot of unrestrained powers to the executive has not been implemented. Institutional arrangement of public safety commissions and empowerment of the police command has been specifically targeted by the vested interest. The Provincial Public Safety Commissions have been notified but they have not been made functional, as they have no staff support or other resources and the chief Ministers have yet to call the meeting of these commissions. District Public Safety Commissions were initially set up but were not given any resources. These commissions were therefore unable to make any impact but after the new elections of local bodies these commission continue to remain inoperative the members of the district councils for these commissions have yet to be elected. No steps have been taken to put in place any credible accountability system of police that continues to follow the orders of the executive blindly as its autonomy has been taken away and it is only answerable to the executive. Police command for survival must follow the orders of the executive. Even in matters of internal administration of police illegal orders are being implemented without question. We have the glaring example of recruitment of officers in the Traffic Police with a new designation bypassing the Provincial Public Service Commission and posting of non-local officers in the lower and middle ranks in the districts in contravention of the law. These unlawful orders have been implemented without any protest by the police command. Provinces instead of addressing, the fundamentals pointed out in the National Reconstruction Bureau Report, have resorted to expensive and illegal experiments by creating new structures and forces with overlapping jurisdictions adding to confusion at the operational level.

Players and their role

Any meaningful implementation of Police Reforms as contained in Police order 2002 has been frustrated because there was no ownership of these reforms. The political parties across the board do not want any reforms that curtail their powers to control police through an external institutional check. The political governments that came into power after the last election did every thing to stop this process and it started with criticizing the law for the flaws that even did not exist.

Police was wary of a strong and neutral accountability system and oversight by the civil society. Police command trained and accustomed to follow the executive without asserting its inherent right to question the legality of orders was not comfortable with the concept of oversight by civil society or a transparent accountability system. Barring a few exception they generally supported the amendments in the Police Order 2002 even at the cost of surrendering their professional autonomy.

Civil bureaucracy that had lost the all powerful post of District Magistrate that combined in it judicial and administrative powers with no responsibility considered these reforms instrumental in diminution of this office. They erroneously continue to think that reversal of police reforms can be instrumental in revival of the office of the District Magistrate therefore the provincial and the federal secretariat continues to create all impediments in implementation of police Order 2002. With such powerful vested interest trying to undermine these reforms, it is a miracle that slowly and steadily in bits and pieces some change is taking place.