DISTRUSTED AND INCOMPETENT: THE BROKEN POLICE FORCE

Law and arbitrary power are in eternal conflict, said Edmund Burke at the trial of Warren Hastings on Feb. 16, 1788.

Fast forward to the 21st century, this dilemma still haunts Pakistan. In a polity increasingly contemptuous of law and careless of order, citizens will get the police force that they deserve. Pakistan has reached a stage where comprehensive justice sector reforms cannot be ignored by the state and society.

Terrorism, insurgency and organised crime pose daunting challenges to the writ of the government.

One of the key points of the National Action Plan was to reform the criminal justice system, including policing, prosecution services, the judiciary and prisons.

Even after two years of expression of national resolve to combat terrorism effectively and professionally, the results reveal a mix of sporadic initiatives and attempts at capacity-building of civilian law-enforcement agencies.

The resultant void is being filled with excessive reliance on civil armed forces, such as the Rangers in Karachi and the Frontier Corps in Balochistan.

Military operations are a short-term remedy to recapture territorial spaces like Fata; and the security bubble must be consolidated with effective criminal justice processes and civilian governance institutions.

This year, the IG Punjab received 10,253 complaints for the non-registration of FIRs; 1,283 complaints for the registration of false cases; 861 for seeking bribes

Far-reaching reforms should be the main goal of all the state stakeholders wanting peace and order to be truly restored in the country.

The question is where to begin instituting reform.

Undoubtedly, a starting point should be an institution which is the first point of contact with citizens seeking redress of their grievances as victims of crime, injury or insult.

When citizens are insecure, they turn to institutions tasked by law to protect them – institutions that they trust.

However, admittedly, the police have failed to inspire that confidence and as this paper has correctly pointed out editorially on December 1, “the image that prevails in Pakistan is of a corrupt, inefficient force that preys on the citizenry and is beholden to its political masters”.

In other words, the police are perceived as a professionally inept, politicised, brutal and corrupt force.

It is, therefore, crucial to reform this instrument of law and order if justice and security are to be achieved.

To begin with, it is imperative to address strategic issues and then focus on matters that deal with public concerns and complaints requiring the attention of the police leadership.

Firstly, the police command and supervisory ranks are generally subjected to political interference and extraneous influences in their administrative and operational domains.

It is only KP that has set a trend to depoliticise the police, not only through a legislative and administrative framework but a combination of strong police leadership and political will shown by the ruling coalition – the latter must be given credit for this initiative.

Secondly, security of tenure of police chiefs as well as regional and district police officers is a crucial factor in planning and executing policies as well as ensuring their continuity.

Credit must be given to the Punjab and KP governments for ensuring stability of tenures to their present police chiefs, both of whom have been able to initiate some meaningful reforms to address issues of public complaints as well as professional matters regarding training and capacity building.

Then, the issues of corruption, misuse of authority and highhandedness have not been dealt with through effective internal and external accountability mechanisms.

The Punjab government’s decision this April to establish an independent police complaints authority as per the Police Order, 2002, has not been implemented.

Good governance and accountability remain hollow slogans all over Pakistan.

Coming to the major issues of public concern, here is the sample of complaints received in the office of the Inspector General of Punjab this year so far: 10,253 complaints for the non-registration of FIRs; 4,540 complaints for inefficiency/slackness in duty; 1,771 cases for faulty investigations; 1,283 complaints for the registration of false cases; 861 for seeking bribes; 269 complaints for arresting innocent persons; 153 complaints for illegal detentions; and a large number of 5,333 other miscellaneous complaints that have not been categorised.

Apart from a surprisingly small number of grievances pertaining to graft against public perception, these tabulated public complaints are reflective of the malaise afflicting the police system that must be addressed with vigour by police commanders to regain public trust.

Therefore, the agenda and priorities for police reforms are suggested as follows.

One, the police must respond immediately when citizen’s call in distress.

The so-called Dolphins (in Punjab) and rapid response squads should be minutes away to rush to help those in need.

Two, free registration of cases must be given the highest priority.

Citizen’s complaints should be recorded – whether received telephonically or reported personally.

Non-registration of cases is a significant complaint in respect of offences against property, especially thefts and robberies.

False case registration involves crimes against persons where people resort to misuse of police or bribe them to settle their personal scores.

This is where deterrent punishments are called for against wrongful arrests by the police and legal action against false complainants.

Supervisory officers must ensure that no arrests happen without sufficient evidence. This single safeguard against a culture of lies will enhance the image of the police tremendously.

Investigations must be based on circumstantial evidence corroborated by scientific methods of collection of evidence

For this to happen investigating officers must be chosen carefully, preferably constitute a separate cadre of thorough professionals.

Three, instead of placing reliance on ocular testimony and resort to fake witnesses, investigations should primarily be based on circumstantial evidence corroborated by scientific methods of collection of evidence.

Massive retraining is called for to change the culture of investigations that is mostly based on a planned conspiracy through recording doctored FIRs.

Police officers do not determine guilt or innocence; they should confine themselves to collecting evidence and placing it before a court of law.

Four, no illegal detentions, torture, false arrests and fake ‘encounters’ must be tacitly encouraged. These tarnish the institution’s prestige because the police are not supposed to act as executioners and judges.

Sir John Moore’s prescription, that humanity produces better soldiers than harshness, applies to police even more as they are an instrument of justice that must be humane, firm and impartial.

Five, police corruption must be curbed with an iron hand.

There is an argument that you cannot have an island of integrity in an ocean of corruption.

But this cannot be a justification for police corruption; theirs is a leadership role. The police execute a public office under the law, and it is the law that reigns supreme.

Robert Peel, the founder of modern policing when looking for the first-ever police commissioner in Britain in 1829, sought the qualities of “great energy, great activity both of body and mind, accustomed to strict discipline and the power of enforcing it.”

For reforms within, the present police command must come close to this image of leadership so direly needed.

And finally, the police as an institution can only survive through public consent, by the temperate use of its considerable powers and by its ability to walk the hazardous tightrope of public opinion.

The writer is a former IG Police.

Published in Dawn, Dec 19, 2016.

WHEN THE LAW DOES NOT PROTECT WOMEN FROM VIOLENCE

The consistent and apparently rising incidence of violence against women is a sign of both societal degeneration and the inability to understand the crux of the problem.

In the strictly legal and criminal justice system context, there is misplaced belief that solutions to the current morass lie in simply enacting more laws and prescribing harsher punishments.

The policy of prescribing harsh punishments is misguided because there is ample evidence globally that it doesn’t work.

And while more laws for better prosecution may be needed, little to no groundwork is done before new enactments are introduced.

Increasing prosecution for honour crimes will protect women victims of violence

One such example is the latest set of amendments to the criminal law framework – procedural and substantive – meant to increase prosecution of honour crimes.

This move is likely to fail in its objective in more ways than one, and for more than one reason.

For instance, the fundamental lacuna in the law that allows out-of-court settlements or a compromise between private parties, that is the legal heirs of women and the offender who are mostly related in cases of honour crimes, remains in place.

The procedural gaps, which ensure perpetrators go unpunished, were not understood before enacting these amendments, therefore the problem remains unaddressed.

For instance, there’s evidence to suggest that many cases of honour killings are forgiven and the prosecution is disbanded even before the trial begins. These new set of amendments do not address this aspect of the problem.

Conspicuously, therefore, we continue to lose the fight on two important fronts: impunity and the absence of preventive mechanisms.

Consider the following case. In May 2016, Zeenat, a young woman in Lahore who had married nineteen-year old, Hassan, a resident from her neighbourhood, was allegedly burnt alive by her brother with assistance from their mother.

After Zeenat contracted a court marriage of her own free will, she started living with her in-laws. Soon enough, the family was approached by her brother for her to return to her parents’ home on the suggestion that she would be duly married and sent off in a traditional manner.

According to her family, it was being done to rehabilitate the family’s ‘honour,’ as her act of marrying out of the family and without the consent of her brothers and mother had shamed the family.

After Zeenat was killed, Hassan explained that she never wanted to go back to her parents’ home. “Zeenat told me that they [her family] would kill her,” Hassan says.

He says that he was unable to do anything or to stop her when the elders of the family agreed that she must return to her family as they ran the risk of reprisal from her brothers. Zeenat was failed by society and the state.

There are no effective means for women in this society to avoid violence when it becomes imminent, or to seek refuge or even help. Had there been a mechanism within or outside state institutions, Zeenat might have been able to reach out for help. It is here that the state needs to make interventions in the system.

Most situations where women are likely to face violence and death can be avoided if the state were to establish institutions that work regularly in communities to prevent violence against women.

Unless the state attempts to address the problem through preventive mechanisms, the rising trend of violence against women cannot be expected to recede just by virtue of improvement in existing laws alone such as the Criminal Law Amendment (offences in the name or pretext of honour) Act, 2016. Take the case of rape.

The prosecution of rape is admittedly and abysmally low. The reason behind it is not that the substantive law is not good enough. Yes, there are issues there too but the main problem is that the circumstances in which women victims of sexual assault have to fight their cause are simply not meant to support her.

Zeenat’s is one in hundreds of cases demonstrating how the system is geared to work against victims of gender violence. In another instance, a 13-year-old girl who worked as a domestic servant in Lahore – and belongs to a poor Christian migrant family from a nearby town – was forced to withdraw a complaint of rape and reach a compromise with the accused after her case dragged on for six months.

The DNA report did not even arrive. In fact, the police had failed to preserve evidence and send it to the laboratory, until it was pointed out, three days after the incident, when negligence or deliberate dishonesty on the part of the police officer was observed.

Then, when I [this writer] visited the district prosecutor’s office requesting speedy progress in the case, the concerned prosecutor cast aspersions on the young girl’s character because she was a domestic servant.

The medico-legal officer who examined the victim did not know that sexual intercourse with a woman under the age of 16 was statutory rape.

The compromise was agreed on by the father of the girl on her behalf, and it was him who received monetary compensation from the accused.

The case was consigned to record even before the charge could be framed. Rape is an offence that cannot be compromised or pardoned under the Pakistani penal law. It carries a harsh punishment of death or life imprisonment upto 25 years.

Yet, lawyers are witness to compromises being filed and accepted in courts.

This clearly shows that lawyers, prosecutors, judges, medical officers and other actors in the system are insensitive to the individual victim’s plight, as well as the destructive nature of such violence in the larger societal context.

Given that no degree of harsh punishments can ensure equality, dignity and justice for women victims of violence, we need to correct the fundamental flaws within the criminal judicial system – before laws are amended.

The writer is a human rights lawyer based in Lahore. He can be reached at asadjamal.aba@gmail.com.

Published in Dawn, Dec 19, 2016.

MISCARRIAGES OF THE JUDICIAL SYSTEM

When Masood Khan agreed to go to jail instead of his employer, Qamaruddin, in exchange for monetary compensation, he didn’t expect to be stripped of his true identity and have to serve a life term at Peshawar Central Prison.

It was his misfortunate that he trusted his employer, jailed briefly for possession of drugs discovered in his car in January 2015.

When Qamaruddin asked Masood to go to jail instead, he told him that he would be financially compensated. In need of money and convinced he’d be released in six months, Masood accepted the offer.

Even though Nadra confirms that he is Masood Khan, son of Gadi Jan, resident of Peshawar, his prison record states otherwise.

Although, when Masood’s counsel presented his identity record before the trial court as evidence in May this year, the judge was not convinced and sentenced him to life imprisonment with a fine of Rs200,000. With his appeal pending before the Peshawar High Court (PHC), it has recently summoned the record of his case.

Masood Khan’s case is one of many where the jailed suffer because of the loophole-infested criminal justice system – especially given chronic delays in litigation.

Under the Code of Criminal Procedure, the police must investigate a case within 14 days of registration and submit a charge sheet

Those accused and even convicted must wait for years in prison before their cases are tried. Even more time will lapse before appeals are heard and judgments decided before different forums, including the high court and the Supreme Court (SC).

Legal experts believe that an appellant is fortunate, if his final appeal is decided before the completion of his prison term. “Because there are many stakeholders in the criminal justice system, blame can’t be placed on any one for the abnormal delay in litigation,” says SC advocate Noor Alam Khan.

He adds responsibility for these delays lies with the police, prosecution, judiciary, prison and home departments and the lawyers’ fraternity. Another reason is that the judiciary is not taking the issue of inordinate delays in the disposal of cases seriously.

If there is a shortage of judges to clear the backlog, the judiciary must increase its numbers.

While in other provinces appeal hearings in the high court can take years, the situation in Khyber Pakhtunkhwa differs – initial hearings usually occur within a year.

“The superior courts have to strengthen their system of checks and balances so as to make the subordinate judiciary more functional. At the same time, they must address abnormal delays,” says SC advocate, Astagfirullah Khan.

The prosecution service and low conviction rates

Prosecutors must contend with a plethora of obstacles when it comes to criminal trials, such as non-appearance of witnesses, lack of facilities, etc.

“Recently, a doctor who had conducted an autopsy failed to appear during a murder trial as he was transferred to another district. Although it was unethical, I had to ask a relative of the accused to accompany a constable so as to serve a court summon to the doctor in another town,” explains a Peshawar-based prosecutor requesting anonymity.

Lawyers say that most witnesses do not appear to testify, especially in terrorism-related cases, for reasons of security and fear.

The Sindh Witness Protection Act, 2013, stipulating security for witnesses is yet to be implemented

For instance, although the Sindh provincial assembly passed the Sindh Witness Protection Act in 2013 stipulating security for witnesses in criminal cases, this law is yet to be implemented.

Repeated requests for adequate security for judicial officers, witnesses and prosecutors have not been dealt with in most cities.

Witness protection

Most witnesses in criminal cases are apprehensive of the repercussions, preferring not appear – especially before anti-terrorism courts – despite the fact that they might have nominated the accused in FIRs and even identified them before judicial magistrates.

Failure to protect witnesses was evident in a 2014 case in Karachi when an anti-terrorism court acquitted three political activists in an arson attack on a minibus in August 2011.

They were acquitted after the driver and the conductor – key prosecution witnesses – refused to testify because they were threatened by associates of the accused.

Even prosecutors working in Karachi’s anti-terrorism courts have been threatened and forced to leave the country – in 2013, Naimat Ali Randhawa, one prosecutor was killed.

Meanwhile, the legal fraternity believes that improving the conviction rate will require prosecutors to have operational control over investigators, and that prosecuting officers must submit cases where sufficient evidence is present.

To add, appointments in the police and prosecution services made on a political basis can be attributed as a reason for low conviction rates countrywide.

In Sindh, until 2006, the prosecution and investigation departments functioned jointly under the police department, when the former was separated to ensure greater efficiency and independence.

Instead, the provincial authorities undermined the independence of the prosecution department and the powers of the provincial prosecutor general.

This February, the prosecutor general was empowered through amendments in the Sindh Criminal Prosecution Service, but given the increase in cases most prosecutors require training.

Furthermore, the lack of coordination between investigating and prosecuting agencies cause further delays and miscarriages of justice.

The pending numbers of court cases countrywide are staggering in the lower and higher courts.

Sindh’s 27 judicial district courts have 119,677 pending civil, family and criminal cases from Jan 1 to Nov 30 2016 according to the Sindh High Court’s monitoring inspection team.

“The criminal justice system has collapsed due to the incompetence of investigating and prosecuting agencies,” says the Karachi Bar Association president Mahmoodul Hasan.

According to the PHC website, by the end of October 2016, around 33,302 cases were pending before the high court whereas 187,840 cases were pending before the subordinate courts or district judiciary. With 74,816 criminal cases pending before Peshawar’s district courts, 65 were old cases filed before 31 December 2011. Similarly, 1,274,310 cases are pending with district courts in Punjab, and 13, 882 in Balochistan.

In 2009, former chief justice Iftikhar Mohammad Chaudhry introduced the National Judicial Policy with the aim of resolving civil and criminal cases within a fixed timeframe.

“Even when the courts were expeditiously disposing cases in the light of this judicial policy, the legal fraternity had objections because often the speed with which pending cases were decided pointed to the haphazard disposal,” explains advocate, Noor Alam in Peshawar.

Further, the frequent transfer of police officials contributes to delays during the trial.

Under section 173 of the Code of Criminal Procedure, an investigating officer must investigate and submit a charge sheet within 14 days of registering a case.

Police officials concede this is an uphill task given that most have multiple duties to perform.

Therefore, the recommendation that law officers must be inducted into the police as investigators to ease the burden makes good sense.

What has emerged in the last decade is that the PHC, for example, has had to contend with hundreds of habeas corpus petitions.

The reason is that the ongoing operation against militancy in Fata and KP that has increased the number of unlawful detentions since 2008. It has been four years since Bukht Sania filed a habeas corpus petition for the recovery of her missing son, Shah Khalid, in the Elite Force in Nowshera.

With the security agencies and law-enforcement agencies unaware of his fate, his mother awaits justice.

It is usual practice for the court to direct the ministries of defence and interior, and the provincial home department to trace a missing person.

If a petitioner is fortunate, the detainee is finally traced, often after several hearings, to one of the internment centres in KP and Fata set up under the Actions (in Aid of Civil Power) Regulation, 2011.

Published in Dawn, Dec 19, 2016.

OVERBURDENED LEGAL INSTITUTIONS: THE CASE FOR REFORM

With 2 million pending court cases in Pakistan to date, this huge backlog clearly indicates weakened criminal and civil justice system delivery mechanisms.

Without more vigorous implementation of existing rules and procedures, say jurists, and extensive judicial reforms, the log jam is unlikely to be settled.

Consider these figures.

According to data collected until Nov. 15, 2016 from the Law and Justice Commission of Pakistan, among the 1,954,868 court cases countrywide, 1,274,310 are pending with Punjab’s district judiciary, 121,180 with Sindh, 188,561 with Khyber Pakhtunkhwa, 13,882 with Balochistan’s district courts and 31,018 cases remain unresolved with the district judiciary of Islamabad to date.

Likewise, the pending cases in the apex Supreme Court (SC) are estimated at 30,970 whereas the pendency in the Federal Shariat Court (FSC) is 661.

An overwhelming majority of pending court cases originate from Punjab: the Lahore High Court and its subordinate judiciary have 159,577 pending cases to date.

And although this is an alarming scenario, it is next to impossible with the existing number of judges, prosecutors and courts that these cases are likely to be resolved in the future.

Even a marginal reduction in these figures is impossible, say legal observers, unless substantial amendments are introduced to the Pakistan Penal Code, the civil procedure code, the criminal procedure code and the Evidence Act.

Another way to reduce the burden on courts and prisons is alternate dispute resolution mechanisms for lesser offences, explains Barrister Zafarullah Khan, the special assistant to the prime minister on law and justice.

When judges are overburdened, they prefer to adjourn cases instead of conducting lengthy hearings which cause further delays. Moreover, certain litigators are known to drag cases for lengthy durations depriving petitioners of justice.

Given that most poor petitioners are unable to bear expenses for lengthy court cases, many stop pursuing their cases and judges dismiss their petitions for non-prosecution.

Cases are known to linger on through three generations as is evident in a case that dates back to 1959. It involves litigation regarding the allotment of land from the government to migrant families moving to Pakistan after 1947.

The case began when the central government allotted 1,700 kanals of land to Syeda and Fehmida after cancelling the title from another individual named, Sardaran. When Sardaran had challenged the cancellation, the court decided in his favour.

Both women filed a petition in the LHC, and then they went onto file an appeal in the SC – in 2003 the apex court remanded the case back to the board of revenue for a decision.

The board decided in favour of Syeda and the others. However, the rival party filed a petition before the LHC. After establishment of the Islamabad High Court in 2011, the case was transferred where it is still pending for adjudication. It is now being pursued by the third generation.

However, delays within the judicial system have impacted certain high profile cases such as the Benazir Bhutto murder case and the Mumbai attack case which remained undecided even after 8 years.

Legal experts explain that over-worked judges are not the only contributing factor but the excessive filing of applications by the counsel of the accused puts hurdles in the way of trial proceedings.

When an application seeking relief is filed, the court stops trial proceedings to start hearing the application.

The trial remains stagnant until the court reaches a decision on the application. This not only happens in the high profile cases, but is said to be a routine occurrence in civil matters. Traditionally, when one changes counsel, the court adjourns proceedings for the lawyer to prepare his case.

In criminal cases, reasons for delays are similar to those in civil matters. Around half of the 2 million pending cases are criminal cases; a majority of these cases are pending in Punjab.

According to an additional prosecutor general of Punjab, Rana Abdul Majeed, the numbers are high in Punjab because the police arrests accused persons for minor offences such as petty theft, files a charge sheet before the court and the government is compelled to spend millions on trials.

There are thousands of such cases pending in the district judiciary of Punjab which not only burdens judges but is a waste of resources, he tells Dawn.

He explains that the Punjab prosecution department has recommended certain amendments to the Punjab Prosecution Act empowering the prosecutor general to withdraw those cases where convictions are unlikely to happen when the evidence is weak.

The secretary for the law and justice commission, Sarwar Khan believes that cooperation between the police, prosecution, judiciary and prisons will ultimately improve the criminal justice system.

A recent incident in which the Supreme Court acquitted an accused who had already died two years ago is a stark reminder of the efficiency and coordination among these institutions.

Published in Dawn, Dec 19, 2016.

QUETTA'S LEGAL EAGLES: THE AFTERMATH OF CHAOS

More than 50 lawyers were killed in Quetta on Aug 8 this year as they gathered to mourn the death of the Balochistan Bar Association (BBA) president Bilal Anwar Kasi in a gun attack earlier that day.

In the aftermath, 2,000 clients remain without legal representation, causing unprecedented delays in the high court and lower trial courts – both previously strained with increasing civil and criminal cases. At present, 40pc of court cases in the province are pending.

Out of 32 districts, almost 26 have no legal representatives.

This implies that Quetta-based lawyers must defend clients by travelling long distances.

Consequently, 13,000 cases remain pending in the district courts and around over 6,000 in the Balochistan High Court (BHC) and two circuit benches in Sibi and Turbat.

Frequent strike calls allow the BHC and lower trial courts to barely function for two days a week, with certain senior lawyers over-burdened with work.

With clients searching for senior lawyers to hire, it is becoming challenging for those already dealing with an overload of cases, says a BHC lawyer, adding that one senior lawyer who died in the attack was handling more than 700 cases.

However, with 11 judges, including the chief justice, there is no dearth of judges, unlike in other provinces. Furthermore, with additional district, sessions and civil judges in the subordinate and lower trial courts since August, there is access to more legal representation.

But even this increase is unable to keep up with the rise in the number of civil and criminal cases that requires increasing legal expertise. “Almost all clients who lose cases in the lower courts approach the superior courts, increasing the burden,” explains Raja Rub Nawaz, a former deputy attorney general of Pakistan.

It is humanely impossible for lawyers to meet growing client demands. Observing the state of the justice system, Hadi Shakeel, a former president of the BHC Bar Association, recommends that lawyers must manage their time efficiently to represent as many clients as possible.

For now, this may appear as a stop-gap solution, but long-term plans such as expanding the judiciary and establishing more courts are in the interest of both lawyers and their clients.

To add, Balochistan has yet to appoint a prosecutor general (PG) – the position has remained vacant since November 2015. It is imperative that a strong prosecution service, and independent and trained police investigators are brought into the system so that cases are dealt with professionally.

A former PG, Tariq Mehmood Butt, disclosed that the previous PG was removed due to political reasons.

“There is no qualified prosecutor in this position,” Mr Butt tells Dawn, adding that in 2014 the Balochistan Public Service Commission conducted exams to select ten prosecutors, but none qualified.

Furthermore, the monetary incentives are unattractive because all prosecutors except the additional PG in the Balochistan high court are paid on a daily basis,” he claims, adding that the prosecutor appearing in the apex court receives Rs1,500 per day for his services.

Published in Dawn, Dec 19, 2016.