Ali Saleem, Project Coordinator, Asian Legal Resource Centre, Hong Kong
Access to justice has emerged as a top priority and main area of international funding in Pakistan in recent years. Although such campaigns have been promoted and generated great publicity for the current government, they have failed to achieve their goal of bringing justice to the poor of Pakistan.
After the military government assumed power in October 1999, one of its main early initiatives was to devolve power to the local level. The assumption was that accountability at that level would improve service delivery, including that of law and order, and dispensation of justice. Although there have been rampant claims of success from the government and its sponsor the Asian Development Bank, real access to justice remains a far-fetched dream for ordinary citizens.
In a 2001 overview, Dr Shoaib Suddle, Inspector General of Police in the province of Baluchistan, highlighted the constraints in policing in Pakistan as follows:
- An outdated legal and institutional framework;
- Arbitrary and whimsical (mis-)management of the police by the executive authorities of the state at all levels: i.e., police officers are increasingly recruited, trained, promoted and posted without regard to merit and mainly in recognition of their subservience to people with influence and power;
- Inadequate accountability;
- A poor system of incentives;
- Widespread corruption; and,
- A severe lack of resources.
In light of Dr Suddle’s conclusions, the government set about reforming the policing system by way of its Police Order 2002. However, although the order was introduced on the pretext of making reforms, in preparing it the state once again failed to provide a framework through which issues relating to public accountability, institutional depoliticisation, and people-friendly policing could be raised. Feudal lords and their cronies continue to manage police affairs and have ultimate responsibility over which officer is good for their area and which is not. Hence, they control the efficiency and operations of the police force. Ironically, in the name of reforms, the government has handed still more power to local politicians and feudal lords, the very persons responsible for causing gross injustices in the first place.
A May 2003 study sponsored by the United Nations Development Program (UNDP) has suggested that ordinary people in rural areas know very little of the institutional changes that are already being trumpeted as successful from offices in the capital, Islamabad. The survey was designed to assess progress in obtaining access to justice for ordinary citizens, and the role of police in the community after the introduction of Police Order 2002. The findings, under the title A benchmark study on law-and-order and the dispensation of justice in the context of power devolution found that:
Fifty-six respondents had approached the police, and of these, 54 percent thought it was difficult to file an FIR (First Information Report) that is necessary for a case to be investigated. The bulk of those who thought it was difficult said this was the case because the police required a bribe to file the FIR and, as poor people, they had difficulty in coming up with the requisite funds. Moreover, they thought the police generally catered to the rich and influential. Eighty-four respondents said that they had made up to an average of 19 visits (with the maximum in the range cited as 300). Given that the average distance of the police station from where they lived was nine miles, this represented a high time cost. Other expenses, including fee, documents, transportation, and particularly bribes, were also high. Sixty-four respondents claimed to have spent an average of Rs, 95,000 and another 10 claimed to have spent an average of over Rs. 40,000, significant amounts for poor households. Even so, two-thirds said they would go back to the police and 86 percent said this was because they had no other real choice. Only 4 out of 56 who responded to this question said they would go back to the police because they considered the police fair. Only ten respondents mentioned having gone to the local bureaucracy such as the assistant commissioner (5) or the deputy commissioner (1).
So it is obvious that to obtain even a modicum of justice continues to be an expensive affair in Pakistan, and one vulnerable to the whims of the political elite at all levels. But the above findings also speak to the impracticality of expecting to improve the dispensation of justice via devolution without addressing the power structures that impede fair delivery of these services. Apparently, while it was undertaking research with a view to reforms, the National Reconstruction Bureau was very impressed by the accountability and behaviour of Japanese policing. Perhaps it was felt that institutional reorganisation along the lines of Japan would bring a similar desirable state of affairs to Pakistan. What this approach failed to consider is that a system like that in Japan functions because the public is directly involved in police affairs, and have a sense of ownership of the system. That means taking the management of police out of the hands of politicians, and establishing the means for public accountability of the institutions, rather than political accountability.
Sadly, Pakistan seems a long way from such a day: even many legal minds in the country favour the use of feudal methods to resolve disputes, despairing that the judicial system and the courts are not up to the task. It is even openly admitted and used as an argument in the courts that it is the usual practice for feudal lords to put pressure upon the parties in a criminal case to surrender to them and reach a negotiated settlement in order to avoid criminal punishment.
What are some of the things that need to be done?
First, the devolution of power needs to be properly thought through and studied with a view to keeping it properly documented and out of the hands of the feudal and political ruling classes. This is something that international donors must consider with far more seriousness than at present.
Secondly, the government should establish an independent police reforms commission or equivalent to ensure the depoliticising of policing.
Thirdly, as a matter of principle the government must ensure that civilians are given oversight of police work, which is a basic requirement for good governance. This does not mean choosing select civilians to run institutions, but rather, it means involving ordinary citizens in the running of their institutions at national and provincial levels.
Fourthly, the Asian Development Bank and other concerned international agencies must take greater responsibility in encouraging the government to ensure that law and order and policing is considered a central part of social policy in both the long and short term. This would entail bringing all concerned parties to the table, including opening up the discussion to public debate and criticism in a way that has not happened to date.
Fifthly, it must be recognised that no serious reforms can be undertaken without challenging the impunity of state officials. As no independent body yet exists to monitor the police and hold them accountable for their actions, one must be established, and made accessible to the ordinary citizens. Above all, this agency must be absolutely free from the influence and control of politicians and feudal lords. Special measures will need to be considered to ensure that people in rural areas are given opportunities to make complaints.
Sixthly, judicial corruption must also be addressed. One of the reasons for the strong reliance on alternative means to obtain justice is that the courts are widely seen as corrupt and ineffective. For a change in this situation, due recognition must be paid to the dismal state of affairs in the courts themselves.
To the ordinary person in Pakistan, what matters most is that should he require a response from the police he can get it without having to ask his local member of parliament or feudal lord. He also wants that should police officers commit a crime or abuse against him, he or his relatives can seek redress without fear that political heavyweights will get involved. And he requires that if he ends up in police custody, he will be treated as innocent until proven guilty and not summarily killed because a local feudal lord wants it to be so. The ordinary citizen wants that should she enter a police station, she will not be intimidated, tortured, and kept in arbitrary custody. As a woman, she wants special provisions to protect her from harassment. Minorities are also particularly concerned that they will not become the easy targets of fabricated and falsified cases to boost records of police efficiency. These are the concerns of most people in Pakistan, which persist despite the grand blueprints for change drawn up by government bureaucrats and their international partners.
The shame of the recent reforms is that rather than sending the right message to the people of Pakistan, they have sent altogether the wrong one. The changes are incomplete and inadequate, and reinforce popular perceptions that politicisation, corruption, mismanagement and impunity are here to stay. People understand only that their lives are subject to the whims of elite groups and feudal lords and that in fact the power those persons hold is growing. Under these circumstances, it can be said that the Pakistani criminal justice system is no longer serving any purpose. Whereas the aim of punishment under the rule of law is to reform criminals and deter them from further acts, the same cannot be said of the ‘punishments’ awarded by the authorities in Pakistan today, which are intended only to protect criminals and permit more abuse.
