Whither rule of law?

State effectiveness, by most definitions, has been waning in Pakistan. The ability of the law enforcement agencies and institutions to deliver services and entitlements is dwindling.

Ultra-nationalists resent the ‘failed state’ branding but what else can describe a dysfunctional apparatus that is unable to provide a basic entitlement, i.e. security? After 1973, the state has undertaken no serious civil service reform and the top-down reform under former president Pervez Musharraf has failed.

Therefore Pakistan has, among other things, witnessed a near-collapse of its institutions especially the criminal justice system where the police and prosecution have lost their efficacy and millions of cases are pending in courts.

Terrorism is often viewed in the country as the handiwork of ‘anti- Pakistan’ elements. However, rarely has it been noted that our criminal justice system is unable to cope with the spiralling phenomenon called terrorism. Cases are registered but proper investigations never take place. The overstretched prosecutors, lacking incentives to deliver, seldom pursue the cases in the courts. Consequently, the courts acquit most of the accused due to lack of credible evidence.

In 2001, the Musharraf regime embarked on an ambitious agenda of restructuring the police, investigation and prosecution services. A police order was drafted and imposed on the four provinces in 2002. Hailed as a revolutionary departure from the colonial Police Act of 1861, the new law was meant to create citizen-police liaison mechanisms, introduce public safety commissions, make the police independent of political interference and separate the policing and investigation functions at the thana level.

However, these unprecedented efforts did not reach the lowest tier the dilapidated police stations. The separation of the investigative and policing functions was sabotaged by the minions of the police ranks, who viewed this reform as dilution of powers and rents. Moreover, with the abolition of the district magistrate’s office, control over the local police was shifted to higher ranks, leaving a vulnerable district Nazim.

The transition towards the new system took years and before such changes were institutionalised, the newly elected governments in 2008 launched a major reversal policy. The silver lining in recent years has been a robust lawyers’ movement, which has culminated in the unprecedented independence of the judiciary.

The question remains: will the capacity of the Pakistani state to manage a criminal justice system improve in the future or not? The portents are not too good if the developments over the last two years are taken into account.

The police remain a patronage instrument that the provincial elites will hardly give up unless there is sufficient citizen pressure to reform. Already, favourites have been placed at key posts within the provinces and there are few signs of robust police accountability. The recipe of the political elite is simplistic: restore the offices of the district magistrate and deputy commissioner, and ‘law and order’ will improve.

Balochistan (de jure) and the NWFP (de facto) have already done this and Punjab and Sindh are expected to restore district magistrates. While major debates are being held in India to reassess the effectiveness of this institution, our governance paradigm is taking a step backwards.

The US wants to invest in this area due to its short-term strategic interests, but Pakistani electoral politics based on patronage and coercion will inhibit any significant changes in the policing culture and structure. External support to reform will fail if there is no domestic commitment.

Moreover, there is little evidence to suggest that the populist rhetoric of judicial independence and capability has filtered down to the thousands of courts where pendency and corruption prevail as before. If this trend is arrested, there is a chance that increased activism and monitoring by the superior courts may result in systemic improvements. But that may not be enough as the criminal justice system is dependent on the police and the prosecution. The rule of law is a distant goal as the political elites have yet to forge a consensus on institutional reforms. Hopefully, increased provincial autonomy under the 18th amendment will enable the provinces to rethink their governance arrangements. But the ailing public sector requires resources, political commitment and vision; and all three are in short supply in 2010.