Wednesday, 25 January 2017
Crime of extra judicial killing, MUHAMMAD ALI NEKOKARA
“deaths of suspects in police shoot-outs are an acceptable part of routine life today”.
Let us put it directly: extra-judicial killing is a crime; it is a murder and a cognisable offence under the law of the land. However, the response of society and the state to extra-judicial killings is different to an ordinary murder or crime. The societal response to staged encounters, substantially dictated by fear of crime, roughly borders on a general indifference to or the stated or unspoken approval of such police tactics, with occasional condemnation by some civil society members and media persons.
In official circles, it still largely remains the elephant in the room.
The proponents of due process condemn extra-judicial killings for legal, moral and social reasons. It is a murder pure and simple; the police officers are supposed to arrest criminals and produce them before the court; they should not betray the trust of the state; violence begets violence and leads to the brutalisation of society, and hence is counterproductive.
Advocates of staged encounters maintain that ‘extraordinary times warrant extraordinary measures’. They give examples of the security environment in the country as well as of ruthless criminals and terrorists, involved in hundreds of killings, bailed for lack of evidence. They argue that Lashkar-i-Jhangvi’s Malik Ishaq remained in prison for 12 years and Asif Chotoo for seven, and although it was public knowledge that they were involved in brutal killings of hundreds of people they were bailed out in the courts.
Often lacking willing witnesses of serious, violent crimes, and working under the double burden of poor investigation skills and limited support, the police investigators’ capacity for effective prosecution of ruthless criminals and terrorists remains limited. The disconnect within the criminal justice system (CJS) where its various critical components such as police, prosecutors, lawyers and judges are struggling to have a functional relationship further complicates the prosecution of dangerous criminals.
Within the police, the house is divided on the issue of staged encounters. There are police officers who strictly oppose extra-judicial killings; there are others who support it directly or indirectly. The latter category can be broadly divided into three sub-categories: a) greedy/rogue elements who support the killings for personal gains such as more power, authority and material gains in service (at times they become more potent than their IGs due to their political connections); b) ‘moral righteousness’ — the killings are justified on the basis of their own interpretation of ‘crime control responsibility’, ‘religious edicts’ and ‘morality’; c) passive obedience to authority — Stanley Milgram’s experiment on obedience to authority reasonably explains the ordeal of this category.
How do we respond to the problem of staged encounters? Punish police officers for the crime? Absolutely! Would that be enough though?
In a society like ours where the gap between the powerful and the weak is large, people are habitually reluctant to lodge complaints against the police; it is difficult to produce or sustain witnesses/evidence against the police and quite exacting to pursue the case all the way as they lack the requisite means in a system where the odds are already stacked against the weak. Labelling extra-judicial killing as a crime is also not a firm stance in our society, as popular opinion is divided over the nature and extent of criminal liability in such cases.
Formal controls over the police to check deviant and unlawful tactics are in the hands of the political executive and judiciary and, under Police Order, 2002, need to be supported by police complaint authorities (yet to be constituted). Informal controls include those developed through individual experiences and conditioning in families, schools, socialisation and communities. Controls, both formal and informal, remain weak. Although in a number of cases judicial inquiries into police encounters have resulted in the prosecution of police officers, so far no clear message has been sent to deviant police officers regarding staged encounters.
Indeed, the police are the public face of this problem. However, police alone cannot be blamed for the problem of extra-judicial killings. All the relevant actors need to demonstrate their commitment to addressing the problem. The approach needs to be corrective rather than penalising. Training of investigators, a functional and professional relationship between police and prosecutors, and a leading role for the judiciary would significantly help reduce the use of illegitimate and violent tactics by police to control crime.
The provincial justice committee established by the Law and Justice Commission of Pakistan in each province is a useful forum at the provincial level to deliberate and find solutions to such serious problems. The Lahore High Court chief justice recently expressed his resolve to make this important forum functional. His visit to the Central Police Office of Punjab on Jan 20, and meeting with the police leadership along with his fellow honourable judges, is a positive development.
In addition to emphasising the need for building a CJS data warehouse, the chief justice also decided to appoint focal persons in order to improve coordination within the CJS. Moreover, he has offered training to police investigators at the Punjab Judicial Academy. Police must avail themselves of this opportunity to improve the capacity of investigators and to deepen their understanding of judicial needs vis-à-vis investigations.
In the words of Kofi Annan, “leadership arises not from your position but from your actions”. CJS leaders need to exercise such leadership to improve efficiency and fairness in the system and, importantly, to do justice to their own respective roles. Fearful minds throw reason, justice and mercy to the wind. A dysfunctional CJS accentuates fear of crime and lends support to high-handed policing tactics. A functional CJS would help reduce fear of crime, and check deviant and brutal practices such as extra-judicial killings.
The writer is a former police officer.
Published in Dawn, January 25th, 2017