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The Long Remonstrance: Pakistan’s Receding Writ of the State in Light of the Federal Law and Order Commission Report of 1993
Published online by Cambridge University Press: 02 March 2015
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1. To cite just one example, in Islamabad, the Capital Development Authority (CDA) is responsible for launching official real estate schemes and preparing the groundwork for new residential sectors. For the past twenty-five years, due to political interference and administrative corruption, the CDA has failed to develop and hand over a single residential sector. The result is that while in the past CDA real estate schemes were regarded as safe investments and oversubscribed, while private schemes were regarded with suspicion by investors, today the situation is reversed. The CDA no longer has the ability to enforce its ownership of the land, meaning that it cannot maintain standards of construction, zoning, or provide utilities. In October 2013, the CDA advertised four hundred plots for sale, and, in spite of a nationwide advertisement campaign, it received only thirty-seven applications. Ikram Junaidi, “Investors Losing Interest in CDA Plots,” Dawn, Islamabad, 10 November 2013, 17. Even ten years ago, the CDA was viewed as an effective organization by Pakistani standards, though now, in spite of a large number of staff, it is barely functional. This is the situation in the federal capital, which is a planned city and takes priority on account of its special status as the seat of government.
2. Between 1 January 1 and 30 May 2014, some 210 bomb blasts occurred in Pakistan according to data compiled from newspapers.
3. For an overview of the militant obscurantist flora and fauna cultivated in Pakistan, see Rana, Amir, A to Z of Jihadi Organizations in Pakistan, trans. Ansari, Saba (Lahore, 2004).Google Scholar
4. Riaz Mohammad Khan, arguably Pakistan’s most cerebral Foreign Secretary (2005–8) and a career Pakistan Foreign Service officer, writes: “In dealing with the Mujahedin and then the Taliban, the Pakistanis’ empathy with their clients made them more willing to get converted to their clients’ point of view than the other way round. Intellectually weak, the midlevel officials, especially those from the ISI, were often impressed and overawed by the certitude of conviction and faith the Taliban demonstrated.” Khan, Riaz Mohammad, Afghanistan and Pakistan: Conflict, Extremism, and Resistance to Modernity (Karachi, 2011), 91.Google Scholar
5. A basic feature of modern state authority in the West is that it defines crimes in relation to the state’s laws and then seeks to punish transgressions to inculcate obedience to the law by creating a deterrent effect. Compensating the victim of a transgression of the law is of inferior importance in a modern state. In a premodern state, such as Mughal India, transgressions were defined in relation to the ruler’s orders, which may take the form of a legal code, and the apparatus sought to punish those in violation of the ruler’s wishes so that it led to others submitting without resistance to the personal writ of their ruler. In a prestate society, such as one in which tribalism reigns, the object of justice is to compensate the victim. This sounds ideal in some respects but actually translates into the Sophistic advantage of the stronger because of the stronger parties’ ability to offer greater compensation to avoid serious punishment as well as their ability to intimidate and harass the weaker party into accepting a settlement. For a fine analysis of the differences between the traditional and the modern, see Diamond, Jared, The World Until Yesterday: What Can We Learn from Traditional Societies? (London, 2012), esp. 79–118.Google Scholar
6. In Pakistan, the Qisas and Diyat Ordinance of 1990, passed by Parliament as an act in 1997, gives the heirs of a victim the right to seek retribution (qisas) or compensation (diyat) from the transgressor. Thus, if the parents of a girl who elopes engage their relatives to carry out the honor killing of their daughter they can “forgive” the killers in exchange for compensation. In effect, the law privatizes responsibility for murder or any other heinous crime. Two high-profile instances help demonstrate how this law works: the Raymond Allen Davis case and the Shahrukh Jatoi/Shahzeb Khan case. In the first case, Raymond Davis, a CIA contractor, shot dead two armed men who allegedly threatened him in Lahore (27 January 2011). Employing the Qisas and Diyat law, the families of the two murdered men dropped charges in exchange for compensation amounting to over U.S. $2 million. In the second case, Shahzeb Khan was shot dead by Shahrukh Jatoi, a scion of a prominent Sindhi political family, in December 2012, when he intervened to stop the harassment of his sister at the hands of one of Jatoi’s associates. Shahrukh Jatoi’s fate hung in the balance until September 2013, when Shahzeb’s family filed, under the Qisas and Diyat law, that they had forgiven their son’s murderer in exchange for compensation to the tune of Pakistan Rupees 350 million (about U.S. $3.5 million). In Pakistan, not only has the state regressed into the pre–British Indian framework, but, having thus regressed, it is now, in the name of Islam, in the process of reverting to an antediluvian condition.
7. With reference to Pakistan’s first three decades, The Report of the Law Reform Commission, 1958–59 (Karachi, 1959) and The Report of the Law Reform Commission, 1967–70 (Karachi, 1970) stand out as outstanding secular documents on the modernization of Pakistan’s legal-administrative framework. The latter, in particular, argued against proposals to introduce traditional, tribal, or religious principles and practices into the legal system and contended that it would “be a retrograde step to revert to the primitive method of administration of justice” as a way to deal with deficiencies in the existing system, which, for all its faults, had evolved gradually and commanded legitimacy derived from experience, logic, and a reasonable level of efficiency. The Report of the Law Reform Commission, 1967–70, 102. After 1972, the reforms introduced in Pakistani law have steadily conceded more and more legitimacy and space to “primitive” methods, while politicization of the law-and-order machinery and its subjection to subversion and arbitrariness by the rulers of the day have greatly reduced its capacity to deliver. Having reduced its capacity, it is argued that the way forward is to go backward and introduce tribal, traditional, and religious reforms in the working of the legal system.
8. The military bureaucracy has benefited from the deterioration and from the breakdown of its civilian counterpart in several ways. One is that aggrandizement in the form of acquisition of land and assets to be redistributed through institutionalized corruption has gone unchecked on the military side. Another is that the weakening of civilian bureaucratic institutions has enhanced the value of the military as an administrative reserve. And then there is the advantage gained in the form of the delegitimization of civilian governments due to their inability to deliver. For a critical look at the military’s acquisition of wealth, see Siddiqa, Ayesha, Military Inc.: Inside Pakistan’s Military Economy (Karachi, 2007), esp. 112–28Google Scholar. For a look at how the military was able to regularize its intervention in the civilian bureaucracy, see Baxter, Craig and Wasti, Syed Razi, eds., Pakistan Authoritarianism in the 1980s (Lahore, 1991)Google Scholar. By the mid-1980s, there was a regular annual induction of some thirty military officers into the higher bureaucracy through a special High Powered Selection Board.
9. On 2 October 1993, Abdur Rauf Chaudhry, joint secretary in the Ministry of the Interior (currently federal tax ombudsman), submitted a summary to the cabinet recommending the creation of a Federal Law and Order Commission. On 4 October 1993, the cabinet approved the recommendation of the summary and the Federal Law and Order Commission was notified on 30 December. Major General (retired) Naseerullah Khan Babar, the minister for the Interior, was the nominal chairman of the commission, though the record indicates that he chaired the first meeting, came late for the second, and then didn’t show any further interest in the deliberations on this matter. In order to expedite the writing of the report, the interior secretary, Zafar Iqbal Rathore, was notified as the vice chairman of the Federal Law and Order Commission on 14 February 1995. The report of the commission was submitted to the government on 30 April 1995. Other members included Syed Afzal Agha, Shafiullah Khan, Syed Naseer Ahmad, A. B. Awan, Justice (retired) Sardar Fakhar Alam, Justice (retired) M. A. Rashid, Ms. Asma Jehangir, Abdul Razzaq Soomro, and I. A. Imtiazi.
10. Social contract theories popular in the West, which, while varied, basically posit that state order emerged from some kind of agreement among people to end chaos and establish the rule of law, have practically no basis in history. Ibn Khaldun’s perspective on order, that it emerges from an amalgam of religious motivation and tribal upsurge that leads to the birth of a dynastic empire, is far more relevant to the South Asian experience. Khaldun, Ibn, An Introduction to History (The Muqaddimah), trans. Rosenthal, Franz, ed. Dawood, N. J. (London, 1978).Google Scholar
11. For more on the historical experience of governance in South Asia, see Niaz, Ilhan, The Culture of Power and Governance of Pakistan, 1947–2008 (Karachi, 2011).Google Scholar
12. “First Report of the Federal Law and Order Commission” (Islamabad, 1995), 3.
13. Ibid.
14. For a collection of Jinnah’s statements on the civil service, see Iqbal, Rana Saleem, ed., The Quaid on Civil Servants: Speeches and Statements, October 1947 to August 1948 (Islamabad, 2007).Google Scholar
15. “First Report of the Federal Law and Order Commission,” 4.
16. U.S. patronage in the 1950s and 1960s saw some twelve hundred officers gain “direct contact with American public administrative technology” and “the most noteworthy characteristic of American-induced administrative training in Pakistan is the manner in which it has become accepted at the highest level of government, attracted some of the best talent, and has been absorbed by the elite cadre [Civil Service of Pakistan] as an important part of its functions.” Braibanti, Ralph, ed., Asian Bureaucratic Systems Emergent from the British Imperial Tradition (Durham, 1966), 330–31Google Scholar. This “administrative technology” regarded law and order as a relic of the colonial past and recommended that the existing general administrative setup be tasked with carrying out primarily development functions. It worked for a while during the Ayub Khan era, when large amounts of external funding were available, but crumbled in the late 1960s.
17. “First Report of the Federal Law and Order Commission,” 5.
18. Ibid.
19. That said, under emergency laws, such as Act IV of 1915 (Defense of India Act), civil liberties and normal judicial procedures as well as rules of evidence could be set aside on the authority of the governor general. For more, see Collection of the Acts Passed by the Governor General of India in Council in the Year 1915 (Calcutta, 1916), esp. 14–20.
20. For a fine account of Pakistan politics between 1947 and 1958 that explains the sources of polarization, see Parveen, Kausar, The Politics of Pakistan: Role of the Opposition, 1947–1958 (Karachi, 2013), esp. 54–104.Google Scholar
21. “First Report of the Federal Law and Order Commission,” 7.
22. Ibid.
23. Ibid.
24. Even in the West Punjab, where many of the settlers from the East Punjab settled after Partition, distinctions remain between the settlers and older inhabitants, even though the political ramifications are nowhere near as severe as in Sindh. For two fine historical analyses of migrations and their effects on the territories now comprising Pakistan, see Nichols, Robert, A History of Pashtun Migration, 1775–2006 (Karachi, 2008)Google Scholar, and Chattha, Ilyas, Partition and Locality: Violence, Migration, and Development in Gujranwala and Sialkot, 1947–1961 (Karachi, 2011).Google Scholar
25. “First Report of the Federal Law and Order Commission,” 7–8.
26. Ibid., 8.
27. Ibid.
28. Ibid.
29. Ibid.
30. Ibid., 9.
31. One is reminded of the exchange between Anacharsis and Solon on the matter of law in ancient Athens: “This was at a time when Solon was already involved in politics and was drawing up his laws. When Anacharsis discovered this, he laughed at Solon for supposing that his countrymen’s injustice and greed could be kept within bounds by means of written laws, which were more like sipders’ webs than anything else; he said that they would hold the weak and the small fry who might get entangled, but would be torn to pieces by the rich and the powerful. To this Solon replied, we are told, that men abide by their agreements when neither side has anything to gain by violating them, and that he was framing his laws for the Athenians in such a way as to make it clear that it would be to everybody’s advantage to keep rather than to break them. However, the results turned out much more in accordance with Anacharsis’s forecast than with Solon’s hopes. It was Anacharsis, too, who remarked, after attending a session of the assembly, that he was amazed to find that in Greece wise men spoke on public affairs, but fools decided them.” Plutarch, The Rise and Fall of Athens: Nine Greek Lives, trans. Ian Scott-Kilvert (London, 1964), 47. The Federal Law and Order Commission of 1993, and many other exercises in remonstrance and pieces of advice submitted to Pakistan’s leaders, bears eloquent testimony to the fact that in Pakistan wise men have repeatedly tendered sound advice to foolish rulers, while the deterioration in the state of order has left the country in a condition in which the law and its enforcers are very much like spiders’ webs, brushed aside by the powerful, and capable of ensnaring only the weak and wretched.
32. “First Report of the Federal Law and Order Commission,” 12.
33. Ibid., 16.
34. Ibid., 17.
35. A point lost on the Access to Justice Program sponsored by the Asian Development Bank (ADB), which saw the salaries and privileges of Pakistan 1,800 or so judges raised considerably above those of the executive arm of the government. Thus, a Supreme Court Justice draws a salary in the range of Pakistan rupees 9 million per year, plus free housing and transport. In contrast, a Secretary to the Government of Pakistan, equal in rank to a Supreme Court Justice, draws maybe one-fourth of that amount as pay, and receives similar facilities in terms of housing and transport. Lower down the ranks, the police officers and subordinates responsible for the actual detection, arrest, and case preparation that goes into the prosecution effort are paid poorly. An Assistant Superintendent of Police (ASP), the junior most officer rank recruited through the Central Superior Services examination conducted annually by the FPSC, receives a monthly take-home salary in the range of Pakistan rupees 25,000–40,000, or about 400,000 rupees a year. A police constable earns about 15,000–25,000 rupees a month (depending on seniority) while an inspector starts off at about 20,000 rupees a month. With inflation running at more than 10 percent per year over the past six years, and the Pakistani rupee having depreciated from 60 to 1 U.S. dollar under Pervez Musharraf (2006) to nearly 100:1 (May 2014), nominal increases in the public-sector wages have barely kept ahead of inflation.
36. Act XIII of 1856 is described as “an Act for regulating the Police of the Towns of Calcutta, Madras, and Bombay, and the several stations of the Settlement of Prince of Wales’ Island, Singapore, and Malacca.” It places the police organization of the stipulated urban areas under a “Commissioner of Police,” who will exercise all powers normally assigned to a Superintendent of Police. The local government, with the approval of the governor general, could appoint and dismiss “Deputies to the Commissioner of Police.” The police force is placed under “the exclusive direction and control of the Commissioner of Police.” The police commissioner possessed the authority to appoint constables as needed and punish violations of discipline. The act contained 118 clauses and dealt at length with problems confronted in the urban areas that the police commissioner was empowered to redress, ranging from curtailing the nuisance from stray dogs to dealing with foreign deserters and issuing licenses for a wide variety of activities. For the full texts of central government legislation passed in 1856, see http://lawmin.nic.in/legislative/textofcentralacts/1856.pdf (accessed 14 November 2013).
37. For the latest version of the 1861 legislation, as amended since 1947 as the Pakistan Penal Code (PPC), see http://www.fmu.gov.pk/docs/laws/Pakistan%20Penal%20Code.pdf. (accessed 14 November 2013).
38. “First Report of the Federal Law and Order Commission,” 22.
39. Ibid. In February 1948, the Sindh Assembly had passed Bill XXV in favor of a metropolitan police structure for Karachi. Mohammad Ali Jinnah, governor general of Pakistan, was unable to follow up on this proposal owing to the terrible upheavals taking place at the time, and after Ali Jinnah passed away in September 1948 the bill lost political support and seems to have been forgotten. For a synopsis of reform efforts, see Police Organisations in Pakistan (Lahore, 2010). The full report can be downloaded from http://hrcp-web.org/publication/book/police-organisations-in-pakistan/ (accessed 31 May 2014).
40. “First Report of the Federal Law and Order Commission,” 23.
41. Pakistan Police Commission, 1969–70 (Rawalpindi, 1970), 81.
42. Appraisal of Police Administration in the Islamic Republic of Pakistan by Romanian Police Experts (Rawalpindi, 1976), 2.
43. Giles, A. J., “Final Report of Chief Superintendent A. J. Giles, British Police” (Islamabad, 1984), 24Google Scholar.
44. “First Report of the Federal Law and Order Commission,” 23–24.
45. Ibid., 24.
46. Ibid.
47. Ibid.
48. Ibid.
49. Ibid.
50. Ibid., 26.
51. Ibid., 28.
52. Ibid., 26.
53. Ibid., 27.
54. Ibid., 31.
55. Ibid., 32–33.
56. Ibid., 28.
57. “Enlightened opinion in the country is all in favour of the separation of the Executive and the Judicial functions of Government. There should be no identity between persons who have to apply the law in the executive sphere and those who have to interpret it, if the protection of elementary human rights is to have full significance.” Report of the Law Reform Commission, 1958–59, 22.
58. “First Report of the Federal Law and Order Commission,” 37.
59. Ibid., 35.
60. Ibid., 38.
61. Ibid.
62. Ibid., 40.
63. Ibid.
64. Ibid.
65. Ibid., 41.
66. Ibid., 42.
67. Ibid.
68. Report of the Committee for the Study of Corruption, 1986 (Islamabad, 1986), 61.
69. “First Report of the Federal Law and Order Commission,” 42.
70. Ibid., 44.
71. Report of the East Bengal Police Committee, 1953 (Dacca, 1954), 47.
72. Ibid., 7.
73. In terms of constable recruitment, except in the Punjab, the procedure is to make appointments on the basis of nominations and patronage by politically powerful people. In the Punjab, the procedure is much better because recruitment is handled by a committee of police officers that conducts the endurance test/written test/final interview. That said, even with better recruitment practices, the Punjab police is more or less as politicized as the police in other parts of Pakistan because it is subjected to the same arbitrary transfer regime.
74. “First Report of the Federal Law and Order Commission,” 44.
75. Ibid.
76. Ibid., 46.
77. Ibid., 49.
78. Ibid.
79. Ibid., 50.
80. Ibid.
81. Ibid., 52.
82. Ibid.
83. In 1972, the government was advised that prosecution be in the hands of an independent agency and that the prevailing system of combining police and prosecution be phased out. The separation of police and prosecution functions could be accompanied by the creation of a Federal Police and that subordinate police officials ought to be disciplined by a harsher set of rules that made dismissal for certain offenses (such as corruption and oppression) easier to attain under the law. Improvement in the pay and service conditions of the police were also recommended, especially with regard to take-home salaries (which, by 1972, were only about half of those that prevailed in India for police officials), and greater investment in fuel, stationery, and infrastructure. Since political interference in the day-to-day functioning of the police was not yet a major problem, it went unnoticed in the 1972 advice. “Mr. G. Ahmad’s Committee on Police Organization and Reforms in Pakistan” (Islamabad, 1972), 11–13.
84. The official website (English language) of the National Police Commission of Sri Lanka is: http://www.npc.gov.lk/npc/index.php?lang=en (accessed 16 November 2013).
85. “First Report of the Federal Law and Order Commission,” 57.
86. Ibid., 58.
87. Ibid., 60.
88. Ibid., 59–60.
89. Ibid., 59.
90. In 2013, Karachi saw 2,700 reported killings and more than forty thousand reported incidents of heinous crimes, making it the most crime-saturated city in Pakistan and one of the fifty most violent cities in the world. For more, see http://tribune.com.pk/story/653889/karachi-2013-the-deadliest-year-of-all/ (accessed 31 May 2014). To put this figure in some context, the entire Indian state of Maharasthra, which includes Mumbai, reported some 26,650 cases of violent crime in 2012. For more, see http://archive.indianexpress.com/news/mumbai-tops-in-murder-cases-in-state/1151597/ (accessed 31 May 2014). This said, conviction rates are low in both India and Pakistan, normally less than 10 percent, owing in part to arbitrary transfers and the poor quality of prosecutors.
91. In 1976, the Subcommittee on Law and Order “agreed” that “the average” Superintendent of Police was no longer able to pay enough attention “to his crime control function” due to growth of “miscellaneous, general and protocol work.” Report of the Subcommittee on Law and Order, 1976 (Islamabad, 1976), 7. The subcommittee also conceded that the “very frequently stated complaint that too many transfers and postings of working level officers were ordered on political considerations at the cost of partial/complete sacrifice of service requirement . . . was genuine.” Ibid., 18.
92. One aspect of Pakistan’s political landscape was the practical elimination of the left as an organized voice for reform and progress in Pakistan during the 1950s. The left’s brief revival in the 1970s under a cynical and opportunistic center-left party (PPP) was followed by a comprehensive and near-fatal collapse from which it has never recovered. For an overview of Pakistan’s left, see Toor, Saadia, The State of Islam: Culture and Cold War Politics in Pakistan (London, 2011).Google Scholar
93. Ibn Taymiyya is often credited with articulating the foundations of the worldview that animate modern-day Islamic militant movements. For more on this thirteenth- and fourteenth-century Muslim thinker, see Rapoport, Yousef and Ahmed, Shahab, Ibn Taymiyya and His Times (Karachi, 2010).Google Scholar
94. The population of the territories that comprise Pakistan was 32 million at the time of independence and at present is estimated in the range of 180 million to 200 million, which is to say a sixfold increase over sixty-seven years. http://www.worldbank.org/en/country/pakistan (accessed 16 November 2013).
95. In 1997, Pakistan’s parliament repealed the controversial provisions of the Eighth Amendment, thereby taking away the president’s power to dismiss elected governments in the national interest. In October 1999, the army overthrew the elected government, citing the national interest when the premier (Nawaz Sharif) attempted to dismiss the Chief of Army Staff (COAS) General Pervez Musharraf and install a successor perceived to be more politically loyal. Musharraf ruled Pakistan until his overthrow in August 2008.
96. In 1970, the Pakistan Police Commission was “horrified to find that most thanas [police stations] in West Pakistan get only two rupees per annum for stationery. The result is that complainants are requested to provide their own stationery or money for it.” Pakistan Police Commission, 1969–70, 31. This situation continues and the majority of police stations in Pakistan receive no funds other that those required for salaries. In addition, funds that are collected from fines and taxes, such as on motor vehicles, are not invested back into the police infrastructure and localities from where they are collected. Office equipment like photocopiers, fax machines, computers with Internet connections, as well as fuel for vehicles, stationery, allowances for providing adequate food to policemen on duty, etc., are either nonexistent or are concentrated in a few offices and not really available at the working level.
97. Syed Kalim Imam, a Police Service of Pakistan officer, observed that in 2008–9, out of a total of 180,000 policemen in the Punjab police, 6,000 were deployed in or around the residences (official and private) of the chief minister. Imam, Syed Kalim, “Police and the Rule of Law in Pakistan: A Historical Analysis,” Berkeley Journal of Social Sciences 1, no. 8 (2011): 17.Google Scholar
98. A major problem is that policemen are often assigned nonpolice duties or put on the personal security detail of businessmen, judges, and civil servants, leading to a situation in which the declared number of policemen under the command of an officer is significantly greater than the actual number available for police work. If a police officer tries to recall these policemen, the result is political interference designed to prevent the recall from taking effect.
99. Report of the Taskforce on Reform of Tax Administration, April 14, 2001 (Islamabad, 2001), 172.
100. In fact, the 1993 Federal Law and Order Commission refrained from submitting to the government a wish list of equipment and funding and insisted that protecting the police from interference by the politically connected was far more important than material investment.