Modern states exercise their coercive powers both externally and internally through legal craft. The external use of coercive state power attracts principles of public international law that govern the use of force. For internal use of force and coercive state power, municipal criminal law is invoked. Thus, municipal criminal law becomes central insofar as the human and fundamental rights of the citizens are concerned. In Pakistan, municipal criminal law emanates out of constitutional law that breaks it down into criminal law, criminal procedure and law of evidence; these three areas of law are then stated to be concurrent in terms of articles 142 and 143 of the Constitution of Pakistan, 1973. The scheme thus provides that the law of policing (that deals with criminal justice processes) and the law of police (that deals with organizations of police) remain shared areas of legislative and executive competence for both the federation and the provinces. In the instant exploratory essay, the system of policing in Pakistan is being sketched out; this effort may inform the discourse on justice sector reform and provide better insights into the system that needs to be understood before it is improved and reformed.
Distinct points are enumerated:
First, it may be noted that, as stated above, the policing system deals with criminal justice processes that are employed while using a state’s coercive legal power. Against the popular conception, policing is not only done by provincial police organizations but by agencies like the National Accountability Bureau (NAB), the Federal Investigation Agency (FIA) and the Anti-Narcotics Force (ANF). Likewise, the function of policing is carried out by many provincial government departments like the food department, the health department (through drug inspectors), by price magistrates and by the provincial and the federal tax authorities. Though there is proliferation of police organizations/agencies, all these organizations/agencies use same criminal justice processes that constitute the policing law of the country. These same set of criminal justice processes are contained in the Code of Criminal Code, 1898 (Cr. P. C). Special legislations, however, do tailor these criminal justice processes as per their own requirements by following the overall scheme of the Cr. P. C.
Second, the policing system is extremely formal. The law provides that every information of a cognizable offence is to be converted into a formal criminal case styled as First Information Report (FIR). This domain is hyper technical. The terms ‘cognizable’ and ‘offence’ have specific legal connotations. The definition of the term ‘cognizable’ is not reason-based; in every case, one has to refer to Schedule II to the Cr. P. C to check against the black lettered standard to determine whether a case is cognizable or not. In common parlance, a cognizable case is a police case, and the cognizance by police and cognizance by courts are then differently treated under the Cr. P. C. Likewise, the term ‘offence’ is defined in section 40 of the Pakistan Penal Code, 1860 (PPC) as ‘anything prohibited and punishable under the law’ implying a legalistic definition that is broader than the concept of crime, thus: all crimes are offences but all offences are not crimes. Unfortunately, the stranglehold of the FIR strengthens the control of police on the criminal justice system. The police charge offenders by applying penal sections of law on the FIR. This charging determines the court where the accused has to be tried. The accused remains at the mercy of police as they decide that whether an offender is to be overcharged or undercharged or justifiably charged. The pre-trial procedures of bail and remand also get determined by the contents and charging stated on the FIR. This excessive control of the FIR on the criminal justice processes is considered the bane of the criminal justice system.
Third, the initiation of criminal action by non-police organizations is more opaque and much dependent on courts. The opaqueness flows from the law of inquiry and hyper technical nature of court’s cognizance regime. This is particularly acute in cybercrime where out of twenty three cybercrimes, only three (cyber terrorism, offences against modesty of a person and child pornography) are cognizable by the FIA. For the rest of offences, the court driven process is required that may not be very congenial for victims who might have to enter a legal battle (at par with a criminal trial) before their grievances are addressed.
Fourth, coercive actions of search, seizure and arrest are exercised in slipshod manner. Under the law, every coercive action especially arrest must be fully justified on the grounds of necessity and evidence collection; however, in practice, owing to weak supervision and feeble legal framework for accountability, the coercive powers are often abused with impunity. The constitutional safeguards against such abuses are often ignored. This is primarily because of two reasons: one, the philosophy of policing is colonial in nature and police and non-police organizations look at citizens with suspicion; second, the criminal law and criminal procedure are archaic and the modern legal standards have not been embraced fully by the legal system of Pakistan.
Fifth, the criminal law and procedure are trial-centric and not victim-centric. The legal and criminal justice frameworks only look at prosecutions and not towards alternate dispute resolutions, restorative justice and diversions. The modern approaches of reassurance policing and role of community in expanding safety and prosecution nets are not imagined at all. The ‘square of crime’, in terms of left realism of criminological theoretical perspective, that implores public policy practitioners to look at criminals, victims, formal controls and informal controls is simply not part of criminal justice processes and policing in Pakistan.
Sixth, specific policing strategies vis-à-vis vulnerable groups of children and women have not been envisioned. The adversarial model of criminal justice that is expensive, time consuming and based on assumption of parity between the accused and victims must be revised in dealing with cases of juveniles, children victims and gender based violence. The extant legislation on rape, witness protection, confidentiality of victims and protection of children must be adequately funded through gender and vulnerability sensitive budgets.
Seventh, the coordination of different components of criminal justice system amongst themselves and with other governmental institutions is an area where no or little emphasis has been laid in the legislation and in practice. To fill this gap, article 109 of the Police Order, 2002 provided the forum of the Criminal Justice Coordination Committee (CJCC), which has only partially been implemented. The mechanism is underutilized and has the potential of providing synergy within criminal justice system at district level. There is need to upscale this mechanism to Divisional/Range, provincial and federal levels besides integrating it with the National Judicial Policy Making system that has now evolved since last two decades by utilizing the statutory framework of the Law and Justice Commission of Pakistan.
Eighth, in terms of crime detection and prosecution, the quality of investigation must be improved by making it more scientific, professional and systemic. There is a propensity of clubbing crime scene management with forensics. It may be noted that these are two different functions as the crime scene management is to be done by police and the lab work is to be carried out by scientists. Full advantage of the Punjab Forensic Science Agency (PFSA) established under the Punjab Forensic Science Agency Act, 2007 may be taken by organizing dedicated crime scene units with personnel having optimal knowledge of law and science. The model may be replicated by the federal and other provincial governments.
Ninth, on preventing crimes, the criminal justice processes enabling effective policing, are almost naught. There is a set of legal provisions about preventive legal criminal processes in the Cr. P. C, but it is not implemented. It may be noted that these legal provisions were written for an executive having magisterial powers. After the separation of executive from the judiciary as per article 175 of the Constitution, the law has remain largely dormant. In the same manner, the criminal law related to abetment and inchoate offences has been interpreted as contingent on substantive criminal law by the courts leading to sparse use of these important provisions of law. Specific and new criminal offences may be added that may criminalize attempt of different offences and that must provide legal basis to check increasing and new anti-social behaviours. The safe city projects that have now been rolled out through provincial legislations must be linked to preventive police and emergency responses to ensure that online monitoring supports the crime prevention effort by field units of police on ground.
Tenth, recidivism is on the rise in Pakistan. Repeat offenders especially in relation to offences against property, children and gender based violence are often found committing the same offence over and over again. The outdated Restriction of Habitual Offenders Act, 1918 should be rewritten to include organized crime, crime against women and children. Its punishments should also be enhanced and non-corporals punishments be added to the law. In addition, data backed registries of sex offenders and habitual offenders may be established and the employers be bound down to get antecedent clearance before employing any employee.
Eleventh, technology must be introduced in policing and criminal justice processes. The police have already established crime record offices that collect data of accused in criminal cases. These data sets must be covered under the data protection law to provided legal basis for usage of the data in courts. In addition, reporting and logging of criminal processes like arrest, remand, issuance of warrants and proclamations should also be legislated upon to satisfy legal requirements of service of criminal processes.
Twelfth, though not ideal, but still there are training directorates, colleges and schools for training of police officers; for non-police departments/organizations/agencies, the training component is not much developed. As policing is subject to court review, the police are most suited to take sustainable policing actions by using criminal justice processes as against non-police agencies, which find it extremely difficult to enforce law that is continually subjected to appellate and review mechanisms of courts. In addition, each component of the criminal justice system trains in silos and there are few or no occasions fostering team work, coordination and cooperation amongst them. An incentive based scheme of accreditation of investigation officers and training staff may be introduced as a starting point to make sure that only accredited officers perform these duties.
Thirteenth, the policing of organized crime in urban spaces, inter-district and inter-provincial ungoverned, unlegislated and unregulated places is particularly tricky and understudied. The organized crimes (human trafficking, money laundering and placement of proceeds of crimes) covered in the domain of the United Nations Convention on the Transnational Organized Crime (UNCTOC) are being policed by multiple agencies. Like terrorism, these offences are highly specialized and require joint interrogation and joint investigation efforts to be prevented and prosecuted. Interestingly, instead of following special criminal processes, these organizations also use conventional criminal justice processes to deal with highly complex organized crime.
Fourteen, international and national cooperation for policing through criminal justice processes is gaining traction due to international imperatives and local compulsions. The international legal order is pursuing this cooperation as part of its extension. In Pakistan, in the context of the Financial Action Task Force (FATF), the Mutual Legal Assistance (Criminal Matters) Act, 2020 was passed and new types of criminal investigation techniques including controlled delivery were introduced in criminal justice framework of the country. These international and national cooperation efforts can yield effective results in checking spread of narcotics and in interdicting funding channels of organized crime.
Policing is a highly specialized area of the modern world and is often confounded with governance and regulation. It establishes the writ of a state and also leverages the use of force and coercive legal state power in a civilized accountable manner. The legal protection conferred by human and fundamental rights law can best be extended to people by mainstreaming quality policing to all areas in Pakistan.
