The police versus the people, By I.A. Rehman

The police versus the people

By I.A. Rehman

Several recent incidents including the police handling of demonstrations in support of Mr. Zardari and excesses on human rights and women activists who wish to run a short distance, have again brought into sharp focus the deterioration in norms that should guide the police in their treatment of citizens. These matters need to be debated and resolved in a civilized manner otherwise increasing abuse of powers by the police and their defiance by citizens will plunge Pakistan into a state of utter lawlessness.

The first question concerns the use of section 144 of Criminal Procedure Code. To impose restrictions on citizens exercise of their rights and freedoms. This omnibus section has been the most frequently used provision of law in both colonial period and since independence it has been used to prevent the sale of cut fruit when epidemic is feared to prevent tenants from collecting crops before they sought out matters with landlords and to meet a thousand other contingencies. But the most frequent application of this section during the colonial period was to ban assembly of more than two persons and the legacy has been honoured by the governments of independent Pakistan with diligence worthy of a noble cause. The former rulers generally tried to remain within the four letter of law and the people could circumvent the prohibitory order by moving in processions in formations of four or meeting in mosques or graveyards where this law didn’t apply. The post independence governments of Pakistan have never been afraid of public meetings inside mosques or any other enclosure but there have been many instances when processionists have been barred from walking in rows of fours or even two. Worst of all the people have got so used to enforcement of section 144 almost on permanent basis and challenges to its application have become extremely rare.

More often than not section 144 is used to curtail the peoples fundamental right to assembly and movement in a manner contrary to the spirit of the law. The section says: 144 Power to issue order absolute at once in urgent cases of nuisance or apprehended danger. (1) In cases where, in the opinion of [Zila Nazim upon the written recommendation of the District Superintendent of Police or Executive District Officer], there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable.

Balochistan Amendment-For the words “the District Superintendent of Police or Executive District Officer” the words “District Administrative Officer or Assistant District Administrative Officer” the words “District Administrative Officer or Assistant District Administrative Officer” Subs by bal. Ordinance XXXII of 2001 dated 6.10.2001, PLD 2002 Bal St. 19.

[Zila Nazim] may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if [Zila Nazim] considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.

(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

(4) [The Zila Nazim] may, [either on his own motion or on the application of any person aggrieved,] rescind or alter any order made under this section by himself or by his predecessor in office.

[(5) Where such an application is received, the [Zila Nazim] shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and if the Zila Nazim rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two [consecutive days and not more than seven days in a month] from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs.]

It is obvious from the text that:

1.Restrictions under this section can be imposed when sufficient evidence of a specific threat to peace is available;

2.That the main purpose of the law is to prevent an individual from harming life or disturbing peace;

3. That an ex parte order against a person can be passed only in a situation when he could not be given a notice or chance to be heard;

4. The reference to general public appeal in sub-section 3 and the public visualized is a crowd, ”frequenting or visiting a particular place” and not to a population at large;

5.When an application is made from exemption from restrictions imposed under section 144 the Zila Nazim will not pass an order without hearing the applicant and will give reasons in writing for rejecting the application.

6 And finally an order under section 144 can be valid only for two consecutive days and not more than seven days in a month. The provincial government can direct otherwise. In once sense this sub-section is extremely defective in that the period for which the provincial government can direct otherwise is given. At the same time it is clear that extension of section 144 beyond seven days in a month is possible only “in cases of danger to human life, health or safety, or a likelihood of a riot or an affray”. It is easy to see that these threats have to be seen within a small territorial context. There may be a threat of rioting in Mughalpura but that will not justify imposition of section 144 on the whole of metropolitan Lahore.

The government is known to have advanced many excuses for imposing section 144 that could not be admitted in any decent society. For instance 144 is justified sometimes on the ground that a political party wants to take out a procession. The assumption is that the political party in question has no right to organize an assembly even if it has not been proscribed. Sometimes women are told that they cannot demonstrate or run in public because the conservative elements do not approve of such things. These are untenable arguments while dealing with the implication of a law, what needs to be considered is whether the law is being used to enforce a right or whether it is being used to deny a right. Nobody seems to ask the administration whether those opposing the appearance of women in public have a right to interfere with their freedoms.

It is time the notorious piece of legislation described as section 144 CrPC was subjected to intensive scrutiny and revision and the possibilities of its use by unpopular authorities to suppress articulation of legitimate concerns of the people are plucked. This will involve a radical reconciliation of the state outlook and its legal theories in a way that the foremost objective of law becomes defence of the fundamental rights of people and not their curtailment.

Another matter that has attracted attention is the use of persons in plain clothes for police functions. The special branch of the provincial police forces as well as the federal intelligence bureau have always employed officers and constables in plain clothes for specific tasks, such as making notes of speeches at public gatherings, identifying people who organize protest demonstrations, or who order or instigate resort to violence, or who indulge in acts resulting in loss of life or property, but traditionally such plainclothesmen were not asked to directly interfere with the freedoms of a citizen, whether he was alone or in a crowd. They had no more authority than an ordinary citizen had to apprehend and report against wrongdoers.

The rule in bad old times was that the coercive authority of the state could be exercised only by persons who could be recognized by their uniform/insignia/number/name. Different branches of security forces had different uniforms and colours and citizens could recognize the force facing them. Each foot constable could be identified by the number on his belt-an essential part of his uniform (which could also be used as weapon of defence and torture.) The officers that most police stations used to be few- a sub-inspector, an ASI, one or two head constables-and they could be identified by the stars/stripes on their shoulders/arms. Except for metropolitan cities, an ordinary citizen rarely saw a Kaplan police. The proliferation of officers at police stations led to the introduction of name-plates to be worn on starched tunics.

The reason for stipulating that the coercive functions of the state should be performed by persons who can easily be identified is easy to understand. A state establishes the majesty of law by displaying its presence and not necessarily by wielding its authority. A lone constable facing a crowd represents-the who state apparatus. The signal his presence sends out is clearer than the impact of a whole group of plainclothesmen would make. More important than that it is necessary to assure the citizen who is restrained that the authority proceeding against him enjoys a lawful mandate.

Over the years, the constraints on the use of plainclothesmen on coercive assignments have become largely extinct. That these plainclothesmen arrest people, beat suspects rough up political detainees, and make examples of journalists is common knowledge. Unfortunately the dangers embedded in such practices are generally not recognized. The most important factor is that the impersonal majesty of the state and law is compromised; the victim is not always sure that the plainclothesmen twisting his arm is a duly appointed state functionary and whether he is one of the tough touts SHOs are known to surround themselves with. The nexus between plainclothesmen and private detention/torture centres is obvious. The proceedings involving plainclothesmen-arrest, detention, torture, extortion-need not be recorded. A victim of tormentors in plain clothes has no means of finding out whether they are acting under lawful authority. In many cases use of plainclothesmen for coercive tasks may be a citizen’s first introduction to state corruption.

A most unwelcome result of enjoying plain clothes personnel to curtail citizens freedoms can be that an impersonal matter may get dangerously personalized. When a police officer tells a citizen to do or refrain from daily something there must be nothing personal about it. But if a citizen reacts harshly or violently to an unwelcome intrusion by a plainclothesman, whom he does not recognize as a state functionary, the matter becomes personal. What may then happen to the poor citizen is known.

It is therefore essential to enforce a rule that all actions against citizens involving curtailment of their freedoms must be taken by identifiable personnel and the duties of plainclothesmen should be limited to observation and non-custodial functions and these too truthfully, if that is at all possible now.

Arrest-the third major issue is the method of apprehending citizens who are believed by the police to cause disorder or about to do so. The police certainly have powers to arrest people without judicial warrants, but arrest only means telling a person that he or she cannot proceed freely because of having been taken into custody. The fact of being taken into custody can be demonstrated through a verbal order or by simply putting ones hand temporarily on the shoulder of the detainee. The use of handcuffs is not mandatory and is recommended only when the detainee is genuinely expected to escape. Unfortunately in the process of vulgarization of law to suit feudal capitalists putting of steel bracelets on citizens hands has become favourite mode of punishing and humiliating rivals. Police officers are paid handsomely for just putting a rival in handcuffs and more handsomely if the handcuffed person can be paraded in public. Likewise money can be made for granting the favour of the removal of handcuffs.

The most unpardonable innovation to the process of arrest is the practice of lifting citizens-including women, old men and children-and throwing them into police vehicles and subjecting the victims to violence in the process. Many decades ago when an arrest was made even for a brief period the person arrested had to be told he was under arrest, now one finds carrying out arrests without disclosing this fact to the victims. The possibility of using force to effect arrest is not denied but it has to be a measure of last resort and not the first option.

		The police versus the people By I.A. Rehman Several recent incidents including the police handling of demonstrations in support of Mr. Zardari and excesses on human rights and women activists who wish to run a short distance, have again brought into sharp focus the deterioration in norms that should guide the police in their treatment of citizens. These matters need to be debated and resolved in a civilized manner otherwise increasing abuse of powers by the police and their defiance by citizens will plunge Pakistan into a state of utter lawlessness. The first question concerns the use of section 144 of Criminal Procedure Code. To impose restrictions on citizens exercise of their rights and freedoms. This omnibus section has been the most frequently used provision of law in both colonial period and since independence it has been used to prevent the sale of cut fruit when epidemic is feared to prevent tenants from collecting crops before they sought out matters with landlords and to meet a thousand other contingencies. But the most frequent application of this section during the colonial period was to ban assembly of more than two persons and the legacy has been honoured by the governments of independent Pakistan with diligence worthy of a noble cause. The former rulers generally tried to remain within the four letter of law and the people could circumvent the prohibitory order by moving in processions in formations of four or meeting in mosques or graveyards where this law didn’t apply. The post independence governments of Pakistan have never been afraid of public meetings inside mosques or any other enclosure but there have been many instances when processionists have been barred from walking in rows of fours or even two. Worst of all the people have got so used to enforcement of section 144 almost on permanent basis and challenges to its application have become extremely rare. More often than not section 144 is used to curtail the peoples fundamental right to assembly and movement in a manner contrary to the spirit of the law. The section says: 144 Power to issue order absolute at once in urgent cases of nuisance or apprehended danger. (1) In cases where, in the opinion of [Zila Nazim upon the written recommendation of the District Superintendent of Police or Executive District Officer], there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Balochistan Amendment-For the words “the District Superintendent of Police or Executive District Officer” the words “District Administrative Officer or Assistant District Administrative Officer” the words “District Administrative Officer or Assistant District Administrative Officer” Subs by bal. Ordinance XXXII of 2001 dated 6.10.2001, PLD 2002 Bal St. 19. [Zila Nazim] may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if [Zila Nazim] considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte. (3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place. (4) [The Zila Nazim] may, [either on his own motion or on the application of any person aggrieved,] rescind or alter any order made under this section by himself or by his predecessor in office. [(5) Where such an application is received, the [Zila Nazim] shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and if the Zila Nazim rejects the application wholly or in part, he shall record in writing his reasons for so doing. (6) No order under this section shall remain in force for more than two [consecutive days and not more than seven days in a month] from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs.] It is obvious from the text that: 1.Restrictions under this section can be imposed when sufficient evidence of a specific threat to peace is available; 2.That the main purpose of the law is to prevent an individual from harming life or disturbing peace; 3. That an ex parte order against a person can be passed only in a situation when he could not be given a notice or chance to be heard; 4. The reference to general public appeal in sub-section 3 and the public visualized is a crowd, ”frequenting or visiting a particular place” and not to a population at large; 5.When an application is made from exemption from restrictions imposed under section 144 the Zila Nazim will not pass an order without hearing the applicant and will give reasons in writing for rejecting the application. 6 And finally an order under section 144 can be valid only for two consecutive days and not more than seven days in a month. The provincial government can direct otherwise. In once sense this sub-section is extremely defective in that the period for which the provincial government can direct otherwise is given. At the same time it is clear that extension of section 144 beyond seven days in a month is possible only “in cases of danger to human life, health or safety, or a likelihood of a riot or an affray”. It is easy to see that these threats have to be seen within a small territorial context. There may be a threat of rioting in Mughalpura but that will not justify imposition of section 144 on the whole of metropolitan Lahore. The government is known to have advanced many excuses for imposing section 144 that could not be admitted in any decent society. For instance 144 is justified sometimes on the ground that a political party wants to take out a procession. The assumption is that the political party in question has no right to organize an assembly even if it has not been proscribed. Sometimes women are told that they cannot demonstrate or run in public because the conservative elements do not approve of such things. These are untenable arguments while dealing with the implication of a law, what needs to be considered is whether the law is being used to enforce a right or whether it is being used to deny a right. Nobody seems to ask the administration whether those opposing the appearance of women in public have a right to interfere with their freedoms. It is time the notorious piece of legislation described as section 144 CrPC was subjected to intensive scrutiny and revision and the possibilities of its use by unpopular authorities to suppress articulation of legitimate concerns of the people are plucked. This will involve a radical reconciliation of the state outlook and its legal theories in a way that the foremost objective of law becomes defence of the fundamental rights of people and not their curtailment. Another matter that has attracted attention is the use of persons in plain clothes for police functions. The special branch of the provincial police forces as well as the federal intelligence bureau have always employed officers and constables in plain clothes for specific tasks, such as making notes of speeches at public gatherings, identifying people who organize protest demonstrations, or who order or instigate resort to violence, or who indulge in acts resulting in loss of life or property, but traditionally such plainclothesmen were not asked to directly interfere with the freedoms of a citizen, whether he was alone or in a crowd. They had no more authority than an ordinary citizen had to apprehend and report against wrongdoers. The rule in bad old times was that the coercive authority of the state could be exercised only by persons who could be recognized by their uniform/insignia/number/name. Different branches of security forces had different uniforms and colours and citizens could recognize the force facing them. Each foot constable could be identified by the number on his belt-an essential part of his uniform (which could also be used as weapon of defence and torture.) The officers that most police stations used to be few- a sub-inspector, an ASI, one or two head constables-and they could be identified by the stars/stripes on their shoulders/arms. Except for metropolitan cities, an ordinary citizen rarely saw a Kaplan police. The proliferation of officers at police stations led to the introduction of name-plates to be worn on starched tunics. The reason for stipulating that the coercive functions of the state should be performed by persons who can easily be identified is easy to understand. A state establishes the majesty of law by displaying its presence and not necessarily by wielding its authority. A lone constable facing a crowd represents-the who state apparatus. The signal his presence sends out is clearer than the impact of a whole group of plainclothesmen would make. More important than that it is necessary to assure the citizen who is restrained that the authority proceeding against him enjoys a lawful mandate. Over the years, the constraints on the use of plainclothesmen on coercive assignments have become largely extinct. That these plainclothesmen arrest people, beat suspects rough up political detainees, and make examples of journalists is common knowledge. Unfortunately the dangers embedded in such practices are generally not recognized. The most important factor is that the impersonal majesty of the state and law is compromised; the victim is not always sure that the plainclothesmen twisting his arm is a duly appointed state functionary and whether he is one of the tough touts SHOs are known to surround themselves with. The nexus between plainclothesmen and private detention/torture centres is obvious. The proceedings involving plainclothesmen-arrest, detention, torture, extortion-need not be recorded. A victim of tormentors in plain clothes has no means of finding out whether they are acting under lawful authority. In many cases use of plainclothesmen for coercive tasks may be a citizen’s first introduction to state corruption. A most unwelcome result of enjoying plain clothes personnel to curtail citizens freedoms can be that an impersonal matter may get dangerously personalized. When a police officer tells a citizen to do or refrain from daily something there must be nothing personal about it. But if a citizen reacts harshly or violently to an unwelcome intrusion by a plainclothesman, whom he does not recognize as a state functionary, the matter becomes personal. What may then happen to the poor citizen is known. It is therefore essential to enforce a rule that all actions against citizens involving curtailment of their freedoms must be taken by identifiable personnel and the duties of plainclothesmen should be limited to observation and non-custodial functions and these too truthfully, if that is at all possible now. Arrest-the third major issue is the method of apprehending citizens who are believed by the police to cause disorder or about to do so. The police certainly have powers to arrest people without judicial warrants, but arrest only means telling a person that he or she cannot proceed freely because of having been taken into custody. The fact of being taken into custody can be demonstrated through a verbal order or by simply putting ones hand temporarily on the shoulder of the detainee. The use of handcuffs is not mandatory and is recommended only when the detainee is genuinely expected to escape. Unfortunately in the process of vulgarization of law to suit feudal capitalists putting of steel bracelets on citizens hands has become favourite mode of punishing and humiliating rivals. Police officers are paid handsomely for just putting a rival in handcuffs and more handsomely if the handcuffed person can be paraded in public. Likewise money can be made for granting the favour of the removal of handcuffs. The most unpardonable innovation to the process of arrest is the practice of lifting citizens-including women, old men and children-and throwing them into police vehicles and subjecting the victims to violence in the process. Many decades ago when an arrest was made even for a brief period the person arrested had to be told he was under arrest, now one finds carrying out arrests without disclosing this fact to the victims. The possibility of using force to effect arrest is not denied but it has to be a measure of last resort and not the first option.		The state of media at the time of independence, too, was not wholly conducive to the growth of a strong, independent and transparent media. There were only a few newspapers that catered to a small minority of readership in a country where literacy was around 12 percent. The newspapers were divided into a small English press and a larger press in indigenous languages. In one part of the country (East Bengal) Bengali language newspapers commanded much greater audience than newspapers in English. Similarly in West Pakistan newspapers in Urdu quickly acquired larger leadership than newspapers in English. The radio in public sector covered a small area and was strictly controlled by the government. Relations between government and the press started becoming bitter soon after independence as a result of the conflict between the central leadership, that wished to concentrate powers in its hands, and the units of the federation, that demanded respect for pre-independence pledges that the constituent units of the federation would be autonomous. With the passage of time these conflicts grew more and more serious until the country was dismembered in 1971 and its more populous part (East Bengal) broke away to establish the Republic of Bangladesh.
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