POLICE REFORM IN PAKISTAN

POLICE ORDER 2002- WILL IT LEAD TO POLICE REFORMS IN PAKISTAN?


The police forces in the South Asian countries, like India, Pakistan, Bangaladesh and Sri Lanka are generally known to be highly oppressive, corrupt, rude, apathetic towards the poor people and highly subservient to people in positions of power. Through out history, they have functioned as “defenders of establishment” and not as catalysts of positive social change.

The countries in this region inherited regime police forces as part of their colonial legacies. The type of police system established in these countries was governed more by considerations of maintaining the colonial rule rather than providing sensitive and people friendly policing. Unfortunately, even after the countries became independent, the police system was not changed. The same Police Act of 1861 or legislation modeled on that Act continued to govern the policing in the region. What suited the colonial rulers matched the interests of the new ruling classes too. They realised that as long as the executive exercised total unquestioning control over the police, it would be easy to misuse the police to further their own interests.

Initiatives to reform the police were taken. For instance, in India, a The National Police Commission (NPC) was set up in 1977. It made numerous recommendations to insulate the police from outside illegitimate control. The Commission recommended that though the superintendence over the police force should vest in the state government, the power of superintendence “should be limited for the purpose of ensuring that police performance is in strict accordance with law.” For this purpose, they recommended the establishment of a State Security Commission. At the district level, the Superintendent of Police should not be subject to the general control and direction of the District Magistrate. The NPC also recommended that the selection of the Chief of the State Police Force should be made from a panel of not more than three Indian Police Service officers of that cadre prepared by a Committee headed by the Chairman or member of the Union Public Service Commission. Another recommendation was that the chief of police in a state should have a fixed minimum tenure of four years so that he can function independently without fear. These recommendations of the NPC fell on deaf years. Neither the central nor the state governments in this country acted upon them.

It is in this context that the initiative taken by the Government of Pakistan by promulgating the Police Ordinance in 2001 to replace the Police Act of 1861 must be considered highly laudable. As per its Preamble, the Police Ordinance 2001 promulgated by the President of Pakistan aimed at organising a police system, which is “independently controlled, politically neutral, non-authoritarian, people friendly and professionally efficient.” Even though the text of the Ordinance (2001 Ordinance) has been significantly altered since then, firstly by the Police Order of 2002 (the 2002 Order) and again by the Police Order (Amendment) Ordinance of 2004 (2004 Amendment), the initiative still retains a blueprint for police reforms that is worth a try. If implemented earnestly, it can beacon others to follow. The Government of Pakistan has definitely stolen a march over other governments in the region by replacing the old archaic Police Act of 1861 with a piece of legislation that can help in changing the regime police force of the colonial times into a democratic modern police service.

Some major changes proposed to be introduced through the Police Order of 2002 can be discussed under the following heads:

Superintendence over the police force

Though the Order still vests the superintendence of the police force in the government, it clearly prescribes that the power of superintendence “shall be so exercised as to ensure that police performs its duties efficiently and strictly in accordance with law.” In addition, the Order fills a very important gap in law by defining the word ‘superintendence’ to mean “supervision of Police …through policy, oversight and guidance” and specifying that while exercising it the government shall ensure “total autonomy” of the police officer in “operational, administrative and financial matters.” In other words, if the superintendence of the government extends beyond policy prescriptions, oversight and guidance and impinges on the total autonomy of the police in certain matters, it is illegitimate exercise of superintendence.

Public Safety Commissions

To ensure that this does not happen, the 2002 Order proposes the establishment of Public Safety Commissions at the federal, provincial and district levels. The composition of the commissions, particularly those at the provincial and district levels, has of course been changed and their charter significantly modified by the 2004 Amendment. For instance, Article 80 (b) of the original 2002 Order required the Provincial Public Safety Commission to “prevent the police from carrying out any unlawful or malafide orders or directions from any authority to any functionary of the police” and in case such orders or directions come to the notice of the Commission, it “shall have the powers to intervene and its decision shall prevail”. The clause authorising the Commisson to intervene has been dropped in the amended version and the other clause has been significantly watered down. However, even in its diluted form, Article 80(b) is substantial enough to help in reducing police vulnerability to outside pressures and influences as it still requires the Commission to “take steps to prevent the Police from engaging in any unlawful activity arising out of compliance with unlawful or malafide orders.” In addition, this provision has been added to the charter of the Commission at the district level too through Article 44 (e) - a provision that did not exist in the original 2002 Order.

Two points about the composition of the commissions are strikingly noticeable. One is the heartening mandatory provision that one third of members of commissions at all three levels shall be women. The other is the provision about the selection of independent members. The Order provides for the constitution of a Selection Panel to select independent members and prescribes criteria for selection.

Police Accountability

One would have of course preferred the Police Complaints Authorities at the district and provincial levels to retain their separate status as envisaged in the original scheme. Unfortunately, these have now been merged with the Public Safety Commissions through the 2004 Ordinance. The logic of this amalgamation is not clear, probably guided solely by economic considerations.

Police accountability has two facets. One relates to the performance of the police organization and the other to the behaviour of the individual police person. While the Public Safety Commission can be considered as a mechanism to promote the efficiency and integrity of the organization, the Police Complains Authority is essentially meant to ensure that the complaints of the citizens against individual police misconduct or negligence are inquired into speedily, impartially and effectively. Merging the two functions into one body would make the accountability mechanism somewhat unwieldy and weak. It also goes against the worldwide trend to establish multiple mechanisms of accountability and setting up separate independent commissions to inquire into public complaints against police personnel.

In any case it is not clear why the Police Complaints Authority has been retained in its original form at the federal level. It is mainly at the provincial and district levels that people interact with their police closely and it is at that level that most complaints against police personnel arise. The citizens’ interactions with the federal law enforcement agencies are comparatively few and far between. If the government has considered it necessary to have a separate Police Complaints Authority at the federal level, one fails to understand why the two bodies have been merged at the provincial and district levels.

The Provincial Public Safety and Police Complaints Commission is authorised to receive complaints, inquire into them itself or get the inquiry done by the government officers. Based on the results of the inquiry, it can recommend action to the competent authority for departmental action or registration of a criminal case. The 2002 Order, however, does not make it mandatory for the Commission to conduct its own inquiries even into those complaints, where it is obligatory for the head of the District Police to inform the Commission, as in “any incident or a complaint of rape, death or serious injury to any person in police custody” (Article 36). The silence of the Order as to how the Commission will deal with such complaints or incidents tells its own tale. In India, the National Police Commission had recommended that there should be a mandatory judicial inquiry into complaints of rape, death or grievous hurt caused while in police custody and death of two or more persons resulting from police firing in the dispersal of unlawful assemblies, but the recommendation was never accepted by the government.

Control at the district level

The system of dual control at the district level established by the Police Act of 1861 has been abolished by the Order. The administration of the district police is vested solely in the head of the district police, who is no longer subject to the “general control and direction” of the district magistrate. However, Section 33 of the 2002 Order makes him responsible to the Zila Nazim for “police functions,” except in respect of “administration of the district police, investigation of criminal cases and police functions relating to prosecution.” There are two worrying signs. One is clause 3 added to Article 33 in the Order by the 2004 Ordinance, by which the Zila Nazim has been authorized to write the Performance Evaluation Report of the head of the district police, “which shall be taken into consideration at the time of promotion of the officer.” The Nazim’s assessment has to state whether the officer is suitable for promotion or not. Anyone familiar with the system of performance evaluation in the government knows how subjective such assessments sometimes are and how menacing is the invisible influence that the system exerts on the will of officers. Two, the provision that existed in the 2001 Ordinance that except the head of the district police force no other officer of the district police shall be answerable to the Zila Nazim has been removed. The 2002 Order in fact authorizes the Zila Nazim to visit a police station and issue directions in appropriate cases concerning unlawful detention. Article 35 of this Order further authorizes the Zila Nazim to direct the head of the district police to take remedial measures in cases of “police neglect, failure or excess” There is nothing wrong about these provisions, provided it can be ensured that these do not lead to (i) politicizing the police at local level, (ii) breaking the departmental chain of command and (iii) building up of an unholy nexus between the Nazim and the police in the districts. If Indian experience is anything to go by, the chances of this happening cannot be ruled out fully.

Selection and Tenure of the head of the Police Force

For the health of the police force in the province, it is important that the prescribed process of selection must produce the right man to head it. The 2001 Ordinance envisaged the existence of three parties in the selection process. According to Article 8 of the Ordinance, selection would be done by (i) the provincial government (ii)“with agreement of the Provincial Public Safety Commission,” out of a panel of three police officers prepared by (iii) the National Public Safety Commission. The original 2002 Order removed the Provincial Public Safety Commission from the scene. The Provincial Government would do the selection out of a panel of three police officers recommended by the National Public Safety Commission from a list provided by the Federal Government. The 2004 Amendment did away with the National Public Safety Commission too and now only two parties are left to manage the selection process- the federal government would recommend a panel of three and the provincial government would appoint one from that list. None of the two commissions, the federal or provincial, is left with any role to play in the selection of the provincial police chief.

Once a person is selected to head a police force, his tenure must be secured so that he can function without fear or favour. The legislation recognizes this principle and fixes a term of three years for the head of the provincial police force, but allows his transfer before the expiry of the term. Article 9 of the 2001 Ordinance authorised the Federal Government to transfer a provincial police chief before the expiry of his term, but “with agreement of National and Provincial Public Safety Commission.” The original 2002 Order gave this authority not to the Federal but to the Provincial Government and they could do it only with “agreement” of the Provincial Public Safety Commission. The 2004 Amendment once again got rid of the Commissions and specified that only the governments would do this. The Provincial Government would have to do it with the “approval” of the Federal Government, while the latter could do it on its own.

Thus the decision to select the chief of the provincial police force or to remove him from that post rests solely with the governments and the public safety commissions will have no say in the matter.

Transfer of Officers

The 2002 Order, in fact, prescribed a fixed tenure of three years for the head of the police force not only in the province but also in the district. The District Police Officer could of course be transferred before the expiry of his term on grounds of inefficiency and ineffectiveness but this would have to be done with the (i) concurrence of both the Zila Nazim and the (ii) District Public Safety Commission and that also (iii) after he has been heard in person by the Commission. The 2004 Amendment has prescribed that the head of the district police can be transferred before the expiry of his term “under exceptional circumstances due to exigency of service or on grounds of misconduct and inefficiency which warrant major penalty” but this has to be done “with the approval of the Government." Thus while the 2004 Ordinance has removed all the three conditions laid down by the 2002 Order, it has added ‘misconduct’ as a ground for premature termination of tenure. However, the disquieting feature of the amended scheme is that the decision to terminate involves only two parties now- the chief of police and the government in the province.

An important addition to law is the provision introduced by the 2004 Amendment. It has added a proviso to the clause (4) of Article 21 of the 2004 Order, thereby stipulating that officers posted in the district like the heads of the police division, sub division and the police station will all have a fixed term of 3 years in their posts. Any transfer before the completion of term can be done only due to “exigency of service or misconduct warranting major penalty.” All this is fine on paper, but now that the role of the public safety commissions has been eliminated in matters relating to postings and transfers of police officers, one will watch with interest the implementation of scheme in practice. “Exigency of service” cannot have a cut and dried definition; it can always be interpreted to mean what the head in the government or department considers to be expedient.

According to Article 22 of the 2002 Order, the government can transfer any police officer from one ‘general police area’ to another. This clause, though perfectly valid, can always be misused if the rules framed under this Article do not provide enough safeguards to prevent the misuse of this power or they are not implemented in right earnest. In India, one of the most prominent reasons for the vulnerability of the police to illegitimate pressures from the executive is the threat of transfer that always hangs like a sword of Damocles on the head of the police chief and other officers, particularly when they try to resist pressures. Transfer is one weapon frequently used by the politician to bend the police down to his will. It is not always easy to take statutory punitive action against police personnel under the disciplinary rules, but transfers can be effected on grounds of administrative expediency without difficulty.

Summing Up

To what extent the new legislation succeeds in turning the police in Pakistan into an independent, neutral and people friendly force, only time will tell. It will depend partly upon the type of institutions set up, how well led and resourced they are and how independently and transparently they function; and partly on how the police organizations respond and take steps to change their culture and ethos from within.

A legislation is only as good as it is enforced; otherwise it is only a piece of paper. Let’s hope that the Government of Pakistan shows the same foresight and will in implementing it earnestly as they did in legislating it. With all its shortcomings and inadequacies, it is still the only piece of legislation of its kind in a region that badly needs reform in the police forces. Most governments in the region are yet to realize that police reforms are too important to neglect and too urgent to delay.