POLICING AND PROPOSED
In the absence of national accounting of crime and justice sector factors, international indicators have to be used. In the realm of the rule of law, the Global Rule of Law Index is being used as a presumptive indicator. The latest Global Rule of Law Index of 2021 has ranked Pakistan at 130 out of 139 countries. It measured eight factors: constraints on government power, fundamental rights, absence of corruption, open government, order and security, regulatory enforcement, civil justice and criminal justice. Its details reveal that Pakistan’s criminal justice is ranked at 108/139 whereas civil justice is ranked at 124/139. This shows that there is an urgent need to reform both the civil and criminal justice systems in the country. Accordingly, successive governments tried to introduce law reforms, which essentially focused on substantive law and focused less on procedural law. In contradistinction, the incumbent government tried to introduce law reforms at the procedural side that was the real bane of the justice sector in Pakistan. In this regard, civil justice reforms in the form of the Code of Civil Procedure (Amendment) Act, 2020, and its provincial mirror legislation were introduced. Likewise, the Letters of Administration and Succession Certificates Act, 2020, and its provincial counterpart legislation was passed. Like all efforts to challenge the status quo, these initiatives faced conventional inertia from different stakeholders. While it is true that no piece of legislation is perfect, the very initiative to challenge the entrenched status quo by applying a problem-solving attitude instead of perpetuating and fortifying the existing forces of the status quo needs to be applauded and supported by the citizenry.
Proposed Criminal Law Reforms
The proposed criminal law reforms were prepared by a committee headed by federal law minister Dr Farogh Naseem on 14th September 2021 and were approved by the cabinet in January 2022. These legislative proposals suggest amendments to five existing legislation and plan to introduce four new laws for the Islamabad Capital Territory (ICT). The amendments are proposed to be introduced in five pieces of legislation: the Code of Criminal Procedure, 1898 (Cr.P.C.), Pakistan Penal Code, 1860 (PPC), Qanoon-e-Shahadat Order, 1984 (QSO), the Control of Narcotic Substances Act, 1997 (CNSA), and the Railways Act, 1890. The new legislation for ICT relate to establishment of prosecution service, forensic science agency and safe city authority; these new pieces of legislation will bring the ICT at par with provinces where there are dedicated provincial laws for prosecution service, forensic agency and safe city authority. It must be recalled that the federal government is obliged under articles 142 and 143 of the constitution to introduce law reforms related to criminal law, criminal procedure and law of evidence as these subjects are to be dealt as concurrent and the federal government is required to take lead in these areas of legislation that affect human and fundamental rights of the public at large.
Policing and Proposed Law Reforms
Policing is the function of using the lawful coercive power of the state by different state organizations whereas criminal justice is the larger response of the criminal justice system to crime. The proposed law reforms attend to many an area. Some thematic salient features affecting policing are discussed hereunder:
1. Redefining Officer In-Charge of Police Station
Police station is a basic organizational and functional unit of police and policing in Pakistan. Aggrieved persons approach police stations for redress of their grievances; in this way, the police station and its in-charge become central to access to justice and to opening the door of criminal justice formally. Hitherto, the officer in-charge was defined loosely. The proposed amendment redefines officer in-charge of a police station in its section 4(1) (p) of Cr.P.C. by stating that he shall not be below the rank of sub-inspector with a degree of bachelors or its equivalent. For ICT, it proposes that officer in-charge shall be an Assistant Superintendent of Police (ASP). The rank-based reform of police organization is not new. It was introduced earlier for investigation of different types of offences like hudood and blasphemy laws. Owing to the scale of populace and scarce supply of officers to police organizations, rank- based reform has limitations. Police Reforms Committee Report of 2019, which was mandated by the Supreme Court of Pakistan, has argued for functional specialization instead of rank-based expansion, which is likely to consume more resources by making police organizations top heavy and less effective at grassroots level.
2. Power to Summon and Arrest
Powers to summon and arrest accused, witnesses and other people connected with criminal cases is an area that was long due for reform. In this regard, the groundbreaking reform was introduced by articles 155 and 156 of the Police Order, 2002, that criminalized vexatious arrest and abuse of lawful powers by police officers. The abuse of such power, however, was not fully checked and much was desired to be done. The new legislative proposals introduce multiple obligations on police officers vis-à-vis their powers to summon and arrest. These powers may be summarized here:
a. Amendment to Sections 46 and 54 of the Cr.P.C
Section 46 Cr.P.C. defines the procedure of arrest by linking it to ‘actual touch’ or ‘confinement’. The proposed law reforms provide that, in case of female accused, the actual touch requirement has been substituted with ‘oral intimation’. This is a welcome addition and will facilitate police working. Likewise, the power to arrest under section 54 Cr.P.C. has been rightfully qualified with recording reasons in case of an arrest based on suspicion and with the condition to intimation to officer in-charge of a police station.
b. Insertion of New Sections 54-A, 54-AA, 54-B to 54-J Cr.P.C.:
New set of legal provisions are proposed to be added to Cr.P.C. that aim at introducing a rule-based regime for summoning and arrest powers of police officers. Section 54-A is proposed to be added that proposes to introduce a right to counsel for an accused in the statute. A new section 54-AA gives power to police to issue notice of appearance to persons connected to criminal proceedings. This is a new power, which must be linked to police accountability to strike the balance between discharging duties and abusing police powers. Rights to inform family of an accused about arrest (section 54-B), establishment of control rooms displaying arrested people (section 54-C), right to counsel for an arrested person (section 54-D), informing grounds of arrest to an arrested person (section 54-E), information to a nominated person of an arrested person (section 54-F), examination of an arrested person by a medical officer (section 54-G), examination of an arrested accused on the request of police (section 54-H), and right to reasonable care of health and safety of an arrested person (section 54-J).
3. Bail by Police
Police were always empowered to admit accused to bail in bailable offences. This power, however, has not been frequently used owing to poor police image and excessive labelling of police as a trouble-prone organization. Section 496 Cr.P.C has been proposed to be amended to empower police to release accused in bailable offences. This power has been clarified further and has been simplified. This is a positive step but is likely to contribute towards overcharging of accused as, more often than not, the society expects police not to let any accused be released in regulatory offences that affect society more acutely due to their prevalence.
4. Crime Registration
One of the complaints against police relate to non-registration of criminal cases. The new law proposes to address this by adding a new proviso to section 154 Cr.P.C. authorizing the Superintendent of Police (SP) to direct officer in-charge of a police station to register a case. In addition, enabling legal provision for electronic registration of criminal cases. The law also proposes to link crime data with database of the National Database and Registration Authority (NADRA). To balance the free registration of criminal cases with fair registration, the law proposes to amend section 190 Cr.P.C. to enable action against person initiating frivolous and vexatious case by abusing the lawful processes.
5. Police Investigation
Criminal justice system is modelled in and around detection-based policing in Pakistan, implying more legal powers after registration of criminal case than before its registration. To further strengthen the investigation processes and to oblige police and prosecution to work closely, the new proposals require:
a. Use of techniques of investigation including the use of modern devices and forensic methods (through new section 155-A Cr.P.C.)
b. Mandatory DNA testing in rape cases (through new section 156-C Cr.P.C.)
c. Preservation of DNA and its database (through new section 156-D Cr.P.C.)
d. Non-summoning of females, juveniles (of less than 15 years of age) and elderly over 65 years of age (by amending section 160 Cr.P.C.)
e. Audio-video recording of statements of persons acquainted with facts of the case under section 161 Cr.P.C. (by adding a proviso to section 160 Cr.P.C.)
f. Audio-video recording of a confessional statement (by adding a proviso to section 164 Cr.P.C.)
g. Increasing and covering in detail police-prosecution cooperation (by amending section 173 Cr.P.C.)
Impact on Policing
Law reforms and societal needs compete with each other perpetually. The present set of policing reforms introduced in the proposed law reforms package is likely to meet mixed reception by police, prosecutors, bar and bench. Nonetheless, these have, at least, once again, spurred the debate about reforming the criminal justice in the country, which must be designed to protect life and property of the citizens that hold high hopes from the state insofar as their rights are concerned and in the best interest of the rule of law.
The author is an independent researcher and has done his BCL from the University of Oxford. Email: firstname.lastname@example.org