Force to serve
Draft presented at the half-day consultation highlighted the need for police reforms and its impact on citizens at large
By Waqar Gillani
Pakistan's police system is following the British colonial 'legacy', and is therefore outdated.
The Police Act 1861 was replaced by General Pervez Musharraf in 2002 to bring revolutionary reforms in the police system. However, there was no positive outcome, unfortunately. There have been more than 100 amendments in the Police Order 2002 by the provinces since its promulgation, especially after the 2002 assembly was elected.

While gathering information about the endangered archaeological marvels in our frontier province, especially near Chilas, I find a Facebook group named "Save The Buddha Relics Found In Diamer-Bhasha Dam". I join the group in order to find out more about the rock artworks and their significance. I start a discussion with a member who candidly suggests, "It would be wonderful if you take a trip there (Diamer) and see for yourself the latest developments in the area." Making my travel plan, he informs, "It will be a 10-12 hour journey by road, or if you fly to Gilgit it'll take 2-4 hours to reach Chilas."

The mental journey has already begun and so has the quest.

In his research piece History Through The Centuries, Professor of archaeology Dr Ahmed Hasan Dani highlights how man in this region worked on micro quartz and chert or flint and produced tools like arrows, knives, scrapers and blades. He hunted the fleeing deer and ibexes with bow and arrow. This hunting scene is well-illustrated on several rock carvings, particularly near Chilas in the Northern Areas of Pakistan along the Karakoram Highway.

It is feared that with the construction of the Diamer-Bhasha Dam, west of the village of Chilas, all the art works will be flooded and eroded by the reservoir.

According to an article Big Rivers, Big Dams, by anthropologist and researcher Ron Canter, a review of disastrous dam projects around the world, Diamer-Bhasha dam "will destroy one of the world's largest collections of rock art, carved on boulders along the upper Indus and ranging in age from Neolithic to 16th century. Approximately 50,000 carvings and 5,000 inscriptions are being documented by a German team, but the boulders are too big to be moved. They will either be inundated by Bhasha Lake or destroyed in reconstruction of 100-km of the Karakoram Highway." The carvings are pecked or chiselled into the dark brown varnished surface of the boulders scattered on the river banks and the terraces of the valley.

 "There are extensive rock carvings in this area and the prehistoric carvings in general show animals, hunting scenes and demon-like creatures in different styles," says eminent travel writer Salman Rashid.

Rashid further says there are illustrated records of the Buddhist activity in the area that began around the 1st century AD. Main representations in the carvings are stupas, Buddhas and other Buddhistic symbols. Inscriptions, mostly compartmentalising personal names and dedicational phrases, are executed in Indian scripts like Brahmi, Kharosthi and Proto-Sarada.

Old paths along the Indus valley constituted a branch of the Silk Road system. Hence travellers like merchants and pilgrims from Central Asia, China and India executed many of the carvings of this period. But there are a lot of carvings obviously made by the inhabitants of the region as well.

At the beginning of the first millennium BC the Silk Road attracted the Scythians - a heavily-armed, horse-riding people that scalped their enemies. German ethnologist Karl Jettmar believed that today's Pashtuns, who live in the border region between Afghanistan and Pakistan (and from whom the Taliban have emerged), are descendants of the Scythians.

Rehmat Nabi, President Tour Operator Gilgit-Baltistan, tells TNS, "By building this dam we are just letting go of the history and the narrative that the Chilas rocks embrace. I dread the day when all these huge Buddhist rock inscriptions will go down the dam water. With the initial construction, it has already started happening. I still cherish the moments how at Thalachi, a junction en-route Gilgit and Skardu, tourists from all parts of the world would sit and view Nanga Parbat."

Nabi fears the locals aren't much bothered about the archaeological remains in the area. They don't value geology or history for that matter. "Their concerns are different - they fear being displaced."

Egypt faced the same situation in the late 1950s when the Aswan Dam raised similar archaeological concerns. Major historical sites were about to go under water and a rescue operation began under UNESCO. Sites were surveyed and excavated and 24 major monuments were moved to safer locations or taken by countries that helped with the work.

Is there any possibility of Unesco coming to our rescue in Chilas? Or maybe, on a similar blueprint, make a heritage site which also becomes a tourist attraction just like in Aswan.

"In 2004, the concerned authorities came up with a report which had a few major findings. It was suggested the rock carvings from Chilas to Gilgit could be saved if the water level was decreased and carvings at Raikot could also be preserved if the maximum water reach, currently at 7,500,000 acre feet, could be brought down," says Mohammad Hassan, an archaeologist who has extensively worked with the German team at Diamer.

Some of the easy boulder carvings are being moved while some are being sliced and moved. But the heavy petroglyphs will die under water. The rest would end up in the Chilas open-air museum being made by the Federal Culture Ministry.

However, Director Federal Archaeology Department Kasim Ali Kasim highlights that Unesco can only help if the monuments are listed in the World Heritage Sites -- which in this case is impossible for the 50,000 petroglyphs, "because 99 percent of the art is not even named in the National Heritage List."

Asked about Unesco's role in the matter, Incharge Culture sector Unesco, Farhat Gul, says, "Unesco cannot take any initiative on its own unless requested by the federal government. We cannot interfere in the governmental matters. Mention of the Aswan Dam is relevant here where the Egyptian government sought Unesco's help and it was included in the World Heritage Sites."

Gul further says, "The last national dossier was prepared in 1998 and this site was not listed in it. To be included in the World Heritage Sites, countries have to follow a long process where sites are judged on a certain scale. It takes almost two years for the process to complete whereas Diamer is already under construction."

Unesco also has an Under Water Heritage, but the Diamer-Bhasha artefacts don't fall under this category either, because after construction of the dam everything will be submerged and no one would be able to go under the water.

The affectees of Diamer-Bhasha Dam clashed with police situation at Chilas, headquarter of district Diamer, last week.

The rally, organised by Diamer Action Committee (DAC), was joined by hundreds of local people demanding compensation for their land acquired by the federal government for the multi-billion project.

According to available statistics, the project will displace approximately 30,000 households besides submerging about 1500 acres of agriculture land along the Karakoram Highway towards Gilgit.

What happened in the ensuing hours after last Thursday's incident in Chilas is now known to all and sundry. Two people in the course of events lost their lives while four others sustained injuries after police opened fire on them apparently to stop the mob from damaging public property. The property could not be saved though as enraged protesters torched the Wapda Employees Hostel and several other government buildings in the violence that followed, forcing Wapda officials to flee from the area to avoid public backlash.

The protesters blame police for the violence, saying it was the firing that provoked the otherwise peaceful demonstration a stance later vindicated by the suspension of the Diamer's deputy commissioner, assistant commissioner and the superintendent police. On the other hand, the superintendent police at Diamer, Bashir Ahmed, who was suspended later in the day, told reporters the other day that some charged persons in the rally ran amok, torching the Wapda staff hostel before opening fire at the police and the FC personnel present there. He said the law-enforcement officials returned the fire only after the situation deteriorated.

Gilgit Baltistan Chief Minister, Mehdi Shah, had ordered suspension of the officials besides ordering an inquiry into the incident. In a special visit to the region the other day, the chief minister, accompanied by Chief Secretary Gilgit Baltistan Fateh Mohammad, delivered cheques to the victims assuring them of strict action against those found responsible.

Federal Minister for Kashmir and Gilgit-Baltistan Manzoor Wattoo also took serious note of the situation and ordered a judicial inquiry into the incident of firing.

Talking to TNS, Bashir Ahmed Khan, member Legislative Assembly who won a seat from Chilas on PML-Q ticket, condemned the incident and held the Wapda chairman responsible for the unrest. "If the Wapda chairman had given timely consideration to our demands, the situation couldn't have gone so bad," he says, warning if the demands of the Diamer people aren't met, they would be forced to act like what people did in the case of Kalabagh dam.

He explains the affected people had presented a charter of demands to the government for which the federal government had constituted a six-member committee consisting of federal ministers to determine compensation for those who would be displaced. The PML-Q leader informs TNS the chief minister of Gilgit Baltistan has also been included in the committee, hoping his inclusion would help settle the issue in a more friendly way.

Pakistan Muslim League-Nawaz also lashed out at the government, saying the government is making a settled matter controversial. In a press briefing, PML-N leader Siddiqul Farooq had said the government should pay the price of land which had been fixed by the Gilgit-Baltistan administration and provide alternative land to the affected people. The briefing was also attended by the provincial president PML-N Gilgit-Baltistan Hafiz Hafeezur Rehman, members of the legislative assembly Haji Janbaz Khan and Mufti Mohammad Abdullah, and president of the party's Diamer chapter Haji Abdul Waheed.

According to statistics gathered by TNS from various authentic sources, an estimated amount of Rs27.824 billion is required for the acquisition of land and resettlement of the people who would be dislocated in the wake of construction of the dam. In addition, Rs10.76 billion will be spent for the acquisition of land, trees and nurseries while Rs1.638 billion to be utilised for properties and infrastructure. An amount of at least Rs8.8 billion will be required for establishment of nine model villages for the people while Rs62.119 million will be required for pay and allowances for administrative arrangements.

The project also includes an escalation cost of Rs2.234 billion at the rate of 6 per cent per year for five years and interest of Rs4.309 billion during the implementation at the rate of 9 per cent.

Following assurance from the government, the Diamer Action Committee (DAC) softened its stance and opened roads for traffic in Chilas before entering into negotiations with the government. The DAC had earlier announced closing of all businesses in the district as part of three-day mourning.

A recurring judicial/constitutional crisis is a sign of our times. The contemporary newspaper narrative and discourse attempts to explain it within an individualistic framework; presuming that if some 'trouble makers' mend their ways or if they simply disappear, the crisis will end. This discourse assumes that the path to constitutional peace lies in these 'trouble makers' turning into born-again-true-constitutionalists or, else, being sent to the gallows for their un-constitutionalism.

Judicial/constitutional crisis is a permanent phenomenon in the post-1973 Pakistan, regardless of the individuals involved at various stages of our constitutional history. In the 1970s, Zulfiqar Ali Bhutto-judges conflict led to the fourth and fifth constitutional amendments which eliminated judges by constitutional force and curtailed their judicial review powers. In 1981, Zia-ul-Haq clashed with his 'own' judges (who had taken the martial law oath in or after 1977), which led to the removal of some of the judges through the PCO, 1981, including the removal of his favourite judicial martial law administrator, Chief Justice Anwarul Haq. In 1995-1996 came the judicial crisis of the Benazir government on the issue of the appointment of judges. In 1997, the judicial crisis under the Nawaz Sharif government led to the criminal attack on the Supreme Court. In 2000, the judges were removed through PCO, 2000, by Musharraf. The March and November, 2007, judicial crises of the Musharraf era finally led to the ouster of the military dictator.

Primarily, the cause of the recurring judicial and constitutional crises does not lie in any particular evil or misguided individuals or institutions but rather in the structure of the modern constitutional state itself that envisages and creates a contradictory relationship among the judiciary, the legislature and executive. It is this contradictory relationship underlying our constitutional structure/scheme which creates the possibilities of constitutional conflict, depending on specific historical circumstances, and which constitutional conflict sometimes leads to constitutional deadlock and breakdown. The point is to understand the distinction between constitutional contradictions, constitutional conflict and constitutional deadlock and breakdown because constitutional contradictions are a constitutional requirement, constitutional conflict is an un-avoidable constitutional condition but constitutional deadlock and breakdown is, most of the times, an avoidable historical phenomena.

Our constitutional structure does not envisage a "relationship of reconciliation or harmony" among institutions. Judiciary's institutional relationship with the executive or legislature is such that the judiciary has been appointed as the legal and constitutional adjudicator -- to decide disputes between the legislature, executive and citizens and also to police the constitutional violations by them. In other words, it is the judiciary's role and duty to tell the legislature and executive about their legal or constitutional violations and, if necessary, to restrain them from further violating the constitution.

Can anyone theoretically imagine this relationship to be anything but contradictory? In addition to this institutional power, the superior judiciary has won the battle over the custody (monopoly of interpretation) of the constitution. The constitution becomes what the Supreme Court says it is. The distinction between judicial interpretation and the constitution has disappeared and the judicial interpreters are more powerful than the constitution-makers. This is the hermeneutical power of the judiciary. Will the executive and legislature praise the judiciary if they are treated as constitutional novices and even told that the meaning of any law is not what the legislature and the executive (as far as subordinate legislation is concerned) intended it to mean but rather what the superior judiciary interprets it to mean?.

These institutional and hermeneutical powers of the judiciary are constitutionally safeguarded because the appointment and removal procedure of superior court judges includes a dominant role of the judiciary and sub-ordinate role of the executive. This is structural power of the judiciary. In short, this contradictory relationship between the judiciary and the legislature or executive is a constitutional good and requirement. But this also creates the contradictory pitch on which conflicting constitutional matches are played out.

But, as in life, not all contradictions become conflicts. Contradictions become conflicts because of historical circumstances and strategic moves by the persons involved. The ruling elite, whether it is the establishment or the political elite, is conscious of the abovementioned enormous power of the judicial organ and the dangers it poses to its rule. But the judicial organ is equally conscious of its enormous power and also its limitations. It is this interaction based on fear and potential which gives rise to judicial abdication or judicial defiance or judicial defection. Like the ruling elite, judges and courts also engage in strategic behaviour of judicial abdication, defiance or defection, depending on the constitutional and political space available to them at a particular period of time, in order to increase and preserve their judicial power.

For instance, Justice Haleem, who heroically dissented in the judicial murder case of Zulfiqar Ali Bhutto, decided to become the chief justice of Pakistan in 1981 under Zia-ul-Haq after the unconstitutional removal of Justice Dorab Patel and Chief Justice Anwarul Haq. Between 1981 and 1986, the Pakistani Supreme Court appeared to have gone into a deep constitutional sleep. But in 1988, the same Chief Justice Haleem and his supreme court gave a landmark judgment in the 'Benazir Bhutto case' [1988]. How do we explain the judicial abdication of 1981 and the judicial defiance of 1988 by the same chief justice and his supreme court? The simple answer is that the historical circumstances were different: In 1981, Zia had absolute power but in 1988, after the dismissal of the Junejo government, the political order was unsettled and divided.

If the Chief Justice's stand on March 9th, 2007, and the Supreme Court's judgment on July 20th, 2007, restoring the Chief Justice, were acts of judicial defiance par excellence, the judicial revolt on or after November 3rd, 2007, was a period of judicial defection. The signs of a new democratic period was evident after March 9th, 2007, and this democratic revolution was completed by the struggle of the defiant judges and the martyrdom of Benazir Bhutto and other faceless but brave political activists. The strategic defection of the judges was based on their reading and perception of the imminent end of Musharraf era and the birth of a democratic era.

The historic strategic defiance and defection of the superior court judges in the years 2007 to 2009 provided them with the counterweight to any intransigent legislature or unruly executive. When in trouble, the superior courts could call in its own army of fellow judges, mobilised lawyers, small but socially significant civil society, a sympathetic media, a world-famous chief justice and the perceived support of the Awam. This Supreme Court is unlike anything Pakistan has seen because its institutional, hermeneutical and structural power, is now backed up by not simply constitutional and moral force but by the political power of perceived public legitimacy. Therefore, there is no point in praying for constitutional peace because conflict is now an unavoidable Pakistani constitutional condition.

Constitutional conflicts may be a recurring state but our history tells us that constitutional deadlock and breakdown are rare events. Constitutional deadlock and breakdown is either caused by the imbalance of power relations or the misreading of this imbalance of power relations. The key to avoiding constitutional deadlock and breakdown does not lie in constitutional provisions, laws or rules but in the balance of power between the judiciary and the legislature-executive and each institution's perception of its own limitations and other institution's strengths. It is about power and the reality and perception of power; the constitutional provisions, laws and rules merely being instruments and details to express this reality and perception of power.

The potential of constitutional conflicts becoming constitutional breakdowns is present in the current democratic setup because on one hand, you have the superior judiciary united under one leadership with both a constitutional vision and institutional plan and with the courage to fight for it's institutional rights whereas on the other hand, you have a divided political class unwilling to struggle for legislative autonomy and sovereignty on the judicial issue. Unless the political class rises above its party interest and struggles for legislative autonomy and sovereignty by sending a message of legislative unity, we will see the balance of power tilting against the legislature-executive. Mere constitutional reforms without a shift in the balance of power may simply be struck down by the judiciary as an encroachment on

judicial power because, ultimately, the

judiciary will interpret and validate whatever is legislated.

Once this political class unites on the issue of legislative autonomy and sovereignty, the balance of power will shift in its favour. Thereafter, any constitutional and legal reform vis-à-vis the judiciary would reflect a rational balance of power between the judiciary and the legislature-executive. This may not necessarily bring an end to contradictions or conflicts but would certainly go a long way in, perhaps, avoiding judicial/constitutional warfare.

Pakistan's police system is following the British colonial 'legacy', and is therefore outdated.

The Police Act 1861 was replaced by General Pervez Musharraf in 2002 to bring revolutionary reforms in the police system. However, there was no positive outcome, unfortunately. There have been more than 100 amendments in the Police Order 2002 by the provinces since its promulgation, especially after the 2002 assembly was elected.

"General Musharraf had to surrender many reforms to the political will surrounding him at that time. Resultantly, the police reforms actually failed. The amendments appeased only the politicians," a senior police officer serving at the Interior Ministry Islamabad tells TNS.

When the Police Act 1861 was replaced by the Police Order 2002, some observers saw it as a step forward and expected improvement in the performance of police. Eight years down the road, however, there is no visible improvement that the Police Order and its promoters promised. Rather, crime rate, number of unresolved cases and cases of police excesses have increased. Accountability of police is evasive and non-registration of FIRs (First Information Reports) and political interference persists.

The Police Order 2002 was promulgated without hearing the members of civil society. The provinces, in the absence of a democratic setup, were not taken on board. The reform agenda of the international donors caused the military regime to rush to adopt impractical measures.

As we pass through the first quarter of 2010, the provincial governments are all set to drastically amend or repeal the Police Order, 2002. The nostalgia for the magistracy system abandoned in 2001-02 is obvious and there seems to be an urge to revive it.

But the dilemma does not end here as efforts of the provinces to amend the Police Act 2002 vary according to their needs. The law is in quandary as, according to the Punjab police insiders, as the federal government has conveyed to the provinces that since the Police Order 2002 was promulgated by federal authorities, it is therefore the prerogative of the federal government to amend or reshape it. Provinces can only give their input in the process.

"The Punjab government's committee, set up by Chief Minister Shahbaz Sharif, a few months ago, has prepared a draft for amendments in the police order. It is yet to be determined by Prime Minister Yousaf Raza Gilani whether the provinces have any authority to amend it," Aftab Sultan, Additional Inspector General (Finance and Welfare) of the Punjab Police tells TNS. "However, we have submitted it to the government and we are also getting input from the civil society. We hope the federal government will use this input," he adds.

Against the backdrop of the Police Order proposed draft by the sitting government, Human Rights Commission of Pakistan (HRCP) and Commonwealth Human Rights Initiative (CHRI) two organisations actively engaged on the issue of police reform for the past many years arranged a half-day consultation on police reforms on February 12.

The purpose of this consultation was to bring together the key stakeholders on the issue of police reform so that the dialogue can move beyond analysis and focus on prescription.

Sultan, who was also part of a consultation on the proposed draft, discloses to TNS that a bench of Lahore High Court, four years ago, had also subjected the Police Order to federal prerogative and no appeal has been filed against this verdict yet. "Provinces rightfully think that it should be a provincial matter," he views, adding, "Till 2004, as many as 78 amendments had been made in the Police Order 2002."

He feels that neutrality was required in promulgating such reformatory laws, otherwise it may succumb to the political pressures, ultimately. He says it is not that easy to bring the changes without proper training, political will and local policing. He cites the example of India which has successfully started police commissionerate system in its many metropolitan cities.

The consultation, held at the HRCP committee room, was attended by various stakeholders including police officials, members of civil bureaucracy, lawyers, human rights activists, journalists and social activists.

Members of civil society were encouraged by the police to comment on the proposed draft. The consultation recognised the crucial need for police reforms and its impact on citizens at large. Therefore, their voices must also be taken into account, because ultimately people would be the beneficiaries of good policing.

The consultation emphasised that police reforms must focus on community policing. The crux was to shift the focus from the police being a force to a service meant for the people.

It was strongly urged that any accountability mechanism must be non-partisan, independent, and accessible to the aggrieved party and must have binding powers to enforce its decisions. The tenure of individuals within the accountability bodies must be fixed and protected.

It was recommended that the government may consider either setting up a provincial institution of police ombudsperson or a commission/authority that must be selected by an inter-party parliamentary committee. Such a body should be mandated to receive all complaints of alleged human rights abuses, offences and misconduct by the police and should have the powers to enforce its decisions in bringing the errant officers to account. This initiative should not be confused with policy oversight or other measures that may be put in place for building the capacity of the police.

It was also pointed out that there can be no accountability unless people have access to vital information regarding the police workings and crime statistics. Accountability should not be limited to the working methods of the police alone, but must also extend to its financial regime so that resources trickle down to the thana (police station) level.

The participants agreed that much of the present flaws plaguing the police lie in its training. It is, therefore, vital that the present training be reassessed and revised to reflect present day policing needs and address concerns over rights of citizens. All promotions and other incentives must be linked to trainings.

The participants were of the opinion that investigation of crimes should not be transferred without compelling reasons. They also suggested that sanctions be put in place for police officers that are found to have deliberately conducted inefficient and biased investigations.

It was agreed that the recruitment method of police suggested in the draft should be made more appropriate, and officers investigating a crime must have the requisite expertise. The draft law is misconceived in suggesting that those making vexatious complaints against the police be punished. Such a provision would discourage an already intimidated citizenry from bringing the police to account. Similarly, proposed penal sanctions for forgery should be deleted as the punishment for it is already provided for in the Pakistan Penal Code, which is far more effective.

The participants were highly critical of the centralised manner in which the provincial police chief is appointed by the federal government. They were of the opinion that in order to grant greater autonomy to the provinces in matters of administration, the provincial police chief should primarily be appointed by the chief minister of the province in a transparent and non-arbitrary manner. All other postings, transfers and promotions should finally be made by the police chief to de-politicise police and make it more autonomous.

The participants acknowledged the constraints under which the police work and called upon the authorities to have humane working hours for them so that fatigue does not compromise their ability to discharge their duty efficiently.

The participants agreed on setting up a working group that would revise and amend the present draft in line with principles of democratic policing.