Police brutality. By I.A. Rehman

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Police brutality. By I.A. Rehman 

The affair of the lawyers is likely to be disposed of as such matters often are but the wider issue of police brutality demands serious attention

The bar-bench clashes in Lahore over the past several days can only be regretted. These incidents are, however, symptoms of a deep-rooted malaise that could erupt in much uglier forms.

No sane person will condone the failure of any section of society, lawyers in particular, to treat the courts and members of the judiciary with due respect. At the same time the need to respect the independence and dignity of the legal profession cannot be exaggerated. Thus, use of excessive police force against lawyers should be condemned as vehemently as lawyers’ attacks on policemen and journalists.

The Lahore incidents do not seem to fall wholly in the category of the lawyers-judges confrontation and an intra-bar contradiction is quite obvious. The leaders of the lawyers’ movement (2007-2008) should ascertain whether the young black coats, who were the mainstay of that movement, feel frustrated at being denied realisation of their part in the movement’s agenda. Maybe the young lawyers need to be convinced that their demands for independent and fair-minded presiding officers of courts are legitimate only when higher echelons of the judiciary are under attack from a predatory executive.

In a way the young lawyers’ mood is a reminder of what has often followed the success of mass struggles. The rank and file have discovered in such situations that their leaders, after having secured their objectives, have forgotten the foot-soldiers’ expectations. This has happened in revolutions, national liberation forces, political parties (the Muslim League 1947-54) and every time leaders of a trade union settle for much less than what they had mobilised their members to struggle and starve for.

It is better to put off a discussion on the sensitive issue of lawyers-judiciary relations till passions have cooled down. At the moment we are concerned with the other aspect of the situation under discussion, namely, the police culture of brutality.It is common knowledge that the police force in Pakistan, especially in Punjab, is the biggest violator of the citizens’ right to inviolability of the dignity of person, the only fundamental right (Article 14-A) that has been inscribed in absolute terms, that is not subject to law. This tradition has a long history.

The colonial regime gave the police powers not only to deal with law-breakers but also to deter the monarch’s subjects from breaking the law. It knew that excessive use of violence by the police could trigger off greater violence by the more numerous natives. Therefore, except for emergencies (1919, 1942 and the periods of terrorist activity in Bengal and Punjab) it made the use of any violence against protesters, including a baton-charge, subject to magisterial sanction. It also laid down the principle of the use of force being proportional to the threat to peace.

Pakistani governments, the authoritarian regimes more blatantly than the quasi-democratic ones, chose to embrace the oppressive parts of the colonial legacy and permitted a steady erosion of its safety provisions. As a result the police have been freed of constraints on the use of force against the people.

While Pakistan remained stuck with the Police Act of 1861 the international community adopted a number of measures to define police powers, especially to limit their use of violence to the minimum possible. For instance, the UN code of conduct for law-enforcement officials says “that, like all agencies of the criminal justice system every law-enforcement agency should be representative of and responsive and accountable to the community as a whole”. It requires the police to follow the rule of minimum use of force, and not to use or justify torture even in exceptional circumstances, such as war, a threat to national security, internal political instability or any other public emergency.

Based on the UN guidelines, Amnesty International developed 10 basic standards for law-enforcement agencies. One of these standards says that force must not be used except when strictly necessary and as little as possible, another standard says use of force should be avoided while policing unlawful but non-violent assemblies, and while dispersing violent assemblies the use of force must be only to the minimum extent necessary. Further, it is laid down that lethal force should not be used except when strictly unavoidable.

When the time to replace the Act of 1861 with the Police Order of 2002 came the authors of the new law showed little awareness of the international norms relating to police conduct towards the people, including use of force against them. This finding is supported by any fair reading of sections three (‘Attitude and responsibilities of police towards the public’), four (‘Duties of Police’) and 118 to 125 (‘Powers to issue orders’) of the Police Order. Besides, the Order transferred many of the district magistrate’s powers to manage processions and protest assemblies to police officers. Even in the chapter on penalties for police officials guilty of misconduct the question of brutality on processions/protest rallies was not covered.

This Police Order has never been debated by the country’s elected lawmakers and as such suffers from lack of democratic sanction. Further, through Musharraf’s ordinances, especially the one of 2004, it has been denuded of the few protections it had offered the police force against irregular or unlawful interference by federal and provincial executives.

In 2008 the Police Order lost the bar to provincial governments’ authority to amend or replace it (that had been created by Musharraf by putting it in the Sixth Schedule) and nearly all provincial governments indicated their resolve to replace the Order of 2002 with their own laws, a pledge none of them has cared to honour.

The Punjab Police did draft a provincial law which would have been called the Punjab Police Act, 2010, that is still under consideration. This draft retains the police officers’ powers to issue orders (under newly numbered sections 59 to 73) but does not envisage any restrictions on the use of force, including lethal force, against public assemblies/processions/protests, non-violent or violent. Far more significant is the proposed deletion of sections 155 to 157 of the Police Order that provide for penalties for misconduct by police officials. Additionally the procedure for filing suits against police officials for wrongdoing (sections 103 to 107 of the draft) has been made difficult.

What this discussion brings out is the fact that over the years the umbrella of impunity over the police has been made stronger and the culture of brutality left unchallenged.

The affair of the lawyers is likely to be disposed of as such matters often are but the wider issue of police brutality on people airing their grievances, such as clerks, factory workers, peasants, power-loom operators and ordinary citizens protesting against power outages or deaths in custody, all of them less privileged than lawyers, demands serious attention. All provincial governments have a duty to expeditiously frame laws to establish a people-friendly police service and to ensure that while dealing with crowds and protesters the police treat the citizens in accordance with the internationally recognised norms of civilised conduct.