Policing the police

The US Supreme Court in the Olmstead case observed: “Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law. To declare that in the administration of the criminal law, the end justifies the means would bring terrible retribution. We think it a less evil that some criminals should escape than that the government should play an ignoble part”.

Last week, the entire nation was reduced to tears when officials of the Punjab police’s Counter-Terrorism Department (CTD) indiscriminately sprayed a car with bullets in Sahiwal, killing four people – including a couple, their daughter and driver. Immediately after the incident, the CTD issued contradictory statements, first declaring the deceased as child kidnappers, then dubbing them as terrorists, and later claiming that the driver (Zeeshan) was a member of a banned outfit.

To probe the matter, the Punjab government formed a JIT. The team concluded that the couple and their teenage daughter were innocent, but sought more time to offer a conclusive finding on Zeeshan. It recommended that a case should be registered under the Anti-Terrorism Act 1997 against CTD officials directly involved in the operation and suggested that the officers who supervised the operation should be de-seated.

Judicial duels (trial by combat) were an ancient method of settling accusations in the absence of evidence or confessions in broad daylight. It appears that our police have also adopted the practice of judicial duels – though in a slightly modified form as the Sahiwal massacre involved disproportionate collateral damage. The bloodshed has reminded us that the Punjab police uses disproportionate force, and operates unsympathetically and unlawfully while dealing with suspected criminals.

Our police system is marred with shortcomings. However, the most critical issue is its authoritarian audacity and the absolute impunity with which it eliminated suspected criminals by resorting to extra-judicial killings. As per the Human Rights Commission of Pakistan, 3,345 people have been killed in police encounters from January 2014 to May 2018.

To determine why the police are extensively violent and callous in its working, we need understand how the police operated during the British Raj. The Police Act 1861, introduced in the aftermath of the War of Independence in 1857, was enacted to keep natives on a stiff leash, stifle their rebellious proclivities, muzzle dissent, and glorify the British Raj.

It gave the police the carte blanche to rely on the excessive use of force, torture and state-sponsored terrorism to advance the interests of the colonial empire. Though the model envisaged under 1861 act served colonial interests, it had no relevance in an independent democratic country that was based on rule of law.

After Independence, our ruling elite continued to adhere to the draconian 1861 act as it wanted the police to remain under political patronage to preserve their interests in the same manner that they used to guard the interests of colonials rulers. Our police failed to disentangle themselves from the shackles of vicious colonial heritage. Therefore, they still excessively relies on violence, often resulting in extra-judicial killings.

The Sahiwal butchery is a crime of an unpardonable nature. Even if Abu-Bakr Al-Baghdadi was driving the car in Sahiwal, the law in Pakistan would demand his arrest and the safety of the other passengers in the car. Criminal jurisprudence emphasises that it is not the duty of the police to kill the accused merely because he is a feared criminal as the police cannot assume the role of the judiciary. By violating all constitutional guarantees, statutory laws and standard operating procedures, the CTD resorted to disproportionate violence.

In a country governed by rule of law, police excesses cannot be countenanced in the name of curbing crime. Rule of law has been placed on a pedestal ever since the time of Aristotle. It is expected that all modern democratic jurisdictions accept rule of law as a shield against arbitrary police actions. The impregnable right to life and a fair trial are constituents of rule of law and are embodied in the chapter on fundamental rights in our constitution. When the police are dealing with an individual, it means the state is dealing with an individual. Therefore, the protection of fundamental rights is the constitutional obligation of the police.

The police are the people’s agent of justice. not totalitarian operators or tin-pot tormenters who use unchecked violence to punish potential outlaws. While dealing with suspected criminals, the sinister methodology of flagrantly infringing fundamental rights deserves strong condemnation. The police must adhere to the law of the land, stand by probity and refrain from abusing their powers. Resorting to unlawful means for curbing crime, ie, extrajudicial killings, is itself an act of despicable criminality, which jolts the public’s trust in the criminal justice system. In democracies, means justify ends, not the other way round. If ends could justify means, then Americans could justify slavery on the grounds that it provided value for a majority.

There is a dire need to humanise the police and review the oppressive police laws. Although the legal framework of the police improved after the Police Order 2002 came into force, the 18th Amendment jeopardised the validity of the order. While Sindh and Balochistan reverted back to the 1861 act, Punjab and Khyber Pakhtunkhwa adopted the 2002 order after making some amendments.

The KP Police Ordinance 2016 made the IG completely independent and delinked the police from the executive within the domain of accountability. However, the PTI-led governments in the centre and in Punjab, have so far failed to emulate the successful model adopted in KP. Nasir Durrani’s resignation and the transfer of the Pakpattan DPO, the Islamabad IG and the Punjab IG reflect that political patronisation in the affairs of the police remains prevalent.

Paradoxically, the colonial rulers who gave us the 1861 act envisaged a sophisticated and people-friendly police system for its citizens in the UK. Robert Peel, the architect of the London Metropolitan Police, believed that the police should use physical force to the extent necessary to secure observance of the law, and only when the exercise of persuasion and warning is found to be insufficient. He was of the view that the test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with them.

To stamp out the flagrant use of violence, and the abhorrent practice of judicial duels or extra-judicial killing in Pakistan, our lawmakers need to institutionalise the system in line with Peel’s principles to police the police.

The writer is a Lahore-based advocate of the high court.