Law and Order

Published: September 17, 2012

The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. He can be reached on Twitter @laalshah. The views presented in the article above are not those of his firm

“Law and Order” was the single longest running crime drama in the history of American television. When it was finally cancelled in 2010, it left behind not only legions of disappointed fans, like myself, but also a template for all future such serials. It is a template from which our politicians and our policymakers can learn much.

Each episode of  “Law and Order” thus consisted of two parts; the “order” part in which a crime would be investigated and a “law” part in which the crime would be prosecuted. The message that this structure sent was in fact made very clear by the intro to each episode: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.”

I was reminded of this wonderful television series recently by a report titled “Stabilising Pakistan through Police Reform” (Hassan Abbas ed.) issued by the Asia Society.

The Asia Society report is an ambitious and generally successful effort to provide an overview of the major issues in the area of police reform. The 25 authors whose contributions make up the report are sub-divided into five different topics so that the reader is provided with a comprehensive picture of a large number of topics, ranging from the role of the private sector and NGOs to accounts of police reform in Balochistan and Khyber Pakhtunkhwa to analyses of police issues and women’s rights.

Reading through the report is thus a wonderful introduction for the general reader. It is, for example, important that people learn the Police Act of 1861 deliberately set out to create a paramilitary force on the basis of the Royal Irish Constabulary rather than a modern investigative, service-oriented force. Similarly, I found it heartening that so many authors recognised that the Police Order, 2002 was a brave and well-meaning effort that got scuttled by political cowardice and vested interests.

At the same time, I do wish the report had been more comprehensive. As the intro to “Law and Order” notes, the criminal justice system has “two separate yet equally important” parts — the police, who investigate and the lawyers, who prosecute. The Asia Society really only deals with the first half of that equation. Thus, one could implement each and every recommendation of the report and while it would undoubtedly produce a better police system and one more capable of identifying criminals, it most likely would not produce a system significantly better at convicting criminals.

The simple fact is that the criminal justice system is just that — a system. It cannot be reduced to the sum of its parts, let alone one part of that whole system. As such, if the system is to be reformed, one has to look at the entire system and not just isolated elements.

Let me elaborate. As some of the scholars in the Asia Society report explain, the British decision to opt for a paramilitary police force was driven primarily by colonial insecurity. In other words, the 1857 War of Independence convinced the British that (a) there were sizable numbers of Indians who did not regard British rule as an unmitigated blessing; (b) those restless natives needed to be thrashed into submission at regular intervals; and (c) a paramilitary police force was an efficient way of thrashing unhappy subjects into silence. The British knew full well even back in 1861 that the police force being set up would not be very good at solving crime. And while they tried to mitigate this through a different police system in the largest cities, they were content with this compromise so far as the majority of their territory was concerned.

My point is that there is a ‘deep structure’ buried in the other elements of the criminal justice system, just like there is in the Police Act of 1861. Thus, the design of the Criminal Procedure Code, 1898 reflects not just the fact that it was enacted by the British at a time when they ruled India but also the racial divisions of that time as present within the administrative structure of the British Empire. Or to be less polite, the criminal justice system concentrated power in locations where the personnel were generally white (higher judiciary, district administration officers) and took away powers from people who were generally brown (police, subordinate judiciary).

Take a look, for example, at how our system handles bail and FIR matters.

In modern Western systems, the police have tremendous discretion on how to deal with criminal complaints, including deciding who to arrest, who to release, who to investigate and who to try. Our system, however, robs the police of this discretion.

In brief, the law requires the police to register every report of every cognisable crime in the form of an FIR. However, once an FIR is recorded, the standard practice is for the police to arrest everybody named in the FIR because failure to arrest someone named in an FIR is normally seen as good grounds for judicial interference. The police are then also required to investigate every named person and while again, they have the discretion to drop charges, the standard practice is for the investigative report (challan) to be lodged in court and for the court to then determine the guilt or innocence of everybody.

To summarise, modern Western systems are set up so that the police and the prosecution decide who to arrest, who to release and who to subject to trial. In our case, the judiciary makes most of these decisions. This is because historically the judiciary was white (and presumptively smart) while the police were brown (and presumptively stupid).

My further point is that these systems — repeat, systems — need to be rethought. Currently, we are trying to beat 21st century terrorists with a 19th century criminal justice system. It’s the equivalent of trying to stop a high-rise fire with a bucket of sand. And if we don’t figure out how to reform our systems, we will soon learn how ineffective that approach can be.

Published in The Express Tribune, September 18th, 2012. 

Reader Comments (14)

  • Neutral
    Sep 17, 2012 - 9:57PM

    First try to depoliticise the police dept…..only than we can think of re-structuring our police dept…that is the reason police ordinance of 2002 was not successful….

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  • Alucard
    Sep 17, 2012 - 10:55PM

    @Neutral:
    First let’s depoliticize the judiciary ….. And force them to give up powers to other institutions. Let’s also take away the power of the executive to appoint police chiefs by instituting parliamentary and committee oversight. Finally let’s establish a department of public prosecution at provincial and federal level whose sole job is to liaise with police detectives in prosecuting crimes against the state. High flying ideas are aplenty in Pakistan, but the will to work for the greater good is lacking in all selfish institutions.

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  • Not of your tribe
    Sep 17, 2012 - 11:06PM

    emphasized textIn modern Western systems, the police have tremendous discretion on how to deal with criminal complaints, including deciding who to arrest, who to release, who to investigate and who to try. Our system, however, robs the police of this discretion.

    Sir, though our system also aims at teaching Police some lessons in decency yet at the same time the discretion that police and other agencies stretch to in our system gives them immense power on who to beat, who to kill, who to turn criminal, who to release, who to disappear, who to obey, who to oblige, who to rough up, who to arrest and who to set free after filling their pockets. Sir, more than Asia society’s simplistic and biased vision, it is you, a man with full grip on the law and the dilemma of our over-all system, who surprised me with a very plain reading of our system.

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  • gp65
    Sep 17, 2012 - 11:14PM

    “In modern Western systems, the police have tremendous discretion on how to deal with criminal complaints, including deciding who to arrest, who to release, who to investigate and who to try. Our system, however, robs the police of this discretion.”

    You seem to imply that this is a bad thing. But when the police is corrupt to the core and ideologically driven, such discretion if granted would make the system worse than it laready is for the poor and the minorities.

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  • Zain
    Sep 17, 2012 - 11:36PM

    @Alucard

    Who do you think represents the state in criminal cases right now? The chat waala outside the district courts? Prosecution departments already exists. Here is the website of the Punjab Criminal Prosecution Service http://prosecution.punjab.gov.pk/ – all provinces have a criminal prosecution department.

    The Prosecutors for the Punjab Prosecution Department appear everywhere from the Supreme Court to the District and Special Courts. It performs functions other than that of the Attorney General’s office..

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  • Parvez
    Sep 18, 2012 - 12:51AM

    Call it what you will, the bottom line is that the system has failed and failed miserably.
    Calling on those who benefit from this ‘system’ to change it is a waste of time.

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  • Nadir
    Sep 18, 2012 - 1:43AM

    Police is poor because of corruption! We should ignore excuses like poor training, poor wages, delayed wages, 12 hour shifts with no relief, no uniform allowance, delayed pension payments etc. These are all excuses, for if the police were a disciplined institution they would be efficient and hardworking for their love of Pakistan!

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  • Shehzad Kurd
    Sep 18, 2012 - 2:01AM

    Institutions are politcised and People have become de-politcised.Recommend

  • Mirza
    Sep 18, 2012 - 2:44AM

    I agree with the writer. Once again a truthful and meaningful Op Ed. In most countries there is an accused (prosecuted by the govt and AG), a defense lawyer to represent the defendant and the neutral judge who has no connection with either party. This is the basic structure and condition of justice in most democratic countries. Judges do not and cannot bring the cases in the court nor prosecute them. If they do then how could they be the judge or provide justice except in Pakistan?
    From crown prince Arsalan to Memo case the PCO Judges prosecute (oppose the AG’s participation) the cases via their own chosen friends and decide on their basis and call it justice! Where does the constitution allow these judges to be a party and appoint prosecutors? Sorry I forgot these judges are PCO and not taken oaths under constitution.

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  • commart
    Sep 18, 2012 - 3:12AM

    “To summarise, modern Western systems are set up so that the police and the prosecution decide who to arrest, who to release and who to subject to trial.”

    American police are not perfect, but where discretion is appropriately applied, as it is most of the time, it is integrated with embedded values having to do with fairness, rightness, and good path or best action under the law — not licensed malignancy and prejudice.

    That such internalized values have not transferred well worldwide tell about the evolutionary nature of language cultures and the inability of legislation to create a more just society without having first broadly inspired and created a more ennobled constituency.

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  • Palu
    Sep 18, 2012 - 5:29AM

    But that then is the problem with our most state structures: twenty-first century challenges treated with a twentieth century foreign policy; a 20th century polity huffing and puffing against this century’s needs; an antiquated Defence Strategy unsuited to the 21st century needs. Law and Order, Policing, politics, economic policy or it’s absence, all need to change. The only question: Does anyone realize this? Has politics learnt? This might be the only key to what will become of this nation.

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  • Lahori
    Sep 18, 2012 - 10:27AM

    But the question remains that WHY are our legislators so slow in bringing new legislation? Recommend

  • Ali Wali
    Sep 18, 2012 - 1:37PM

    Major law and order issue is Takfiri Sepa Sahaba and Lashkare Janghvi, it is due to them that precious resources are used to combat their terror by employing more people in police and security forces and increasing their wages about the inflation rate, which has effected every facet of our society.

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  • What?!
    Sep 18, 2012 - 4:14PM

    very nice article. good to see some sensible thoughts on our police structure. It is only the vested interest (which works against the country’s interest) which keeps the Police Order 2002, local bodies system and other DEMOCRATIC reforms to be undertaken in the country. Instead, we seem to favour colonial set of laws – essentially Pakistan has passed from the British to a new set of ‘rulers’ over the last 65 years who have tried to use the colonial laws to maintain power. The idea of democracy is to give power to the people and not a selected few – We are yet to be liberated from our colonial masters!

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