Executive magistracy

I did not understand the depth of the term ‘executive magistracy’ until very recently. In this two-word term, it is the latter that holds the prime importance. So, what is magistracy or a magistrate? A magistrate as defined by the Black’s Law dictionary is an administrative officer or officer of a civil organisation of the state exercising legal authority in dispensing justice with respect to minor offences. Now add the word ‘executive’ to it; executive magistrates were officers of administration dealing with minor offences like trespassing, road blockage/protest, public nuisance etc. In the case of judicial magistrates, the focus shifts to major offences, usually with a penalty of more than three years.

To put it into context, we will have to go back to the pre-2001 era; officers of district administration back then had the powers of magistracy and were empowered to put on trial upon public complaint or othewise any person involved in creating a law & order situation. For example, a person blocking the road and interrupting the smooth flow of traffic could summarily be tried and punished accordingly; a person or group of persons creating public nuisance could be apprehended without undue delay; a disputed property which could potentially lead to bloodshed and disturb the peace of the area could be attached until its final decision and other such minor but essential matters that played a significant role in the security and peace of the area were dealt with by the executive magistrate.

An executive magistrate could also order the police at any time to act against an offender and could even make arrests on the spot if the situation was threatening enough. In other words, it was a check on police negligence if it did not act against a person due to some other reason. The public could access the executive magistrate and put forward a written request for taking cognizance of certain situations in the best public interest. Moreover, the executive magistrate reported to another executive magistrate (the district magistrate) who kept a check on his/her performance and evaluated performance on a regular basis.

Third, the executive magistracy shared a considerable burden of minor offences with the judiciary where the latter could focus and improve the dispensation of justice in major offences. At present, there exists a school of thought within the judicial service who think that with the abolition of executive magistracy, the judiciary has become overburdened and its performance has deteriorated considerably. The recent Transparency International index, if viewed as an impetus for reform, could become a very good starting point as the executive magistrate’s nature of work allowed him/her to move around, understand the ground realities and become a ‘walking’ court of justice, while acting against minor offences along the way. The nature of work of the judiciary is such that it restricts them to their courtrooms and these restrictions and complicated procedures are usually exploited by people who know the ins and outs of the system to their benefit, thereby depriving the general public of the common good. This is what happens when good intentions are not complemented by the understanding of on-ground realities.

Fourth, the officers of administration are always the principal representatives of the government. It means that if things go wrong, they will be held responsible – for example, if a group of persons are protesting against the government due to some reason and have blocked the main road of a district, the principal representative will bear the brunt whether or not s/he is legally competent to act in such situations. If things are ‘mismanaged’, s/he will be its first casualty and will get posted out as a punishment. The point being, if an officer is supposed to act as the principal representative, she or he shall be given adequate legal cover and human resource, to act in situations where law & order – and more specifically the writ of the state – is under threat. Conversely, if the principal representative is weak legally, it will reflect badly on the writ of the state.

Furthermore, the abolition of executive magistracy was ostensibly based on the doctrine of ‘separation of powers’. From the Greek city states to the Roman republic, and onwards to English civil war and the advent of American democracy, the doctrine of separation of powers was grounded wholly and solely in creating effective checks and balances – holding institutions accountable and interlocking them in such a way that the mandate is not being overstepped; it did not mean holding some institutions more accountable and giving a clean chit to others. Even if some idealised notion of separation of power has reduced the judiciary and police to what the Transparency International has suggested recently, shouldn’t it be reevaluated as to where we went wrong? If a certain doctrine is rendering the state to be ineffective, should we still stick to it irrespective of the outcome?

To the extent of misuse of authority, there were instances of lapses in judgement where one could question the fairness of the entire system. However, it is not a premise that should be used against certain government institutions more than others. Thus after 2001, the entire country embarked upon a journey of unending experimentation. Some undoubtedly praiseworthy reform packages were introduced but the unintended consequence of abolishing executive magistracy was that the state machinery became ineffective and the people who understood the system had foretold the current state of affairs.

To sum it up, if the principal representative of a state cannot act against public nuisance, cannot prevent breach of peace, cannot keep a check on the excesses of police and other institutions, and more importantly cannot hold a person accountable for the wrong s/he has committed then rather than living in a fool’s paradise it is better not to have a ‘principal representative’ at the district level at all.

The writer is a public policy practitioner hailing from erstwhile Fata. He tweets @syedabdullah100