Owing to the centrality of police in the criminal justice system, the term ‘Police Reforms’ has been used as a shorthand for larger criminal justice reforms. In this expanded connotation, the phrase tries to address both ‘police’ (as an organization) and ‘policing’ (as a function).
In this larger context, the extant literature on police reforms in Pakistan did not conceptualize Alternate Dispute Resolution (ADR) as a possibility within the formal criminal justice system.
With general disapprobation for non-formal devices like Jirga and Panchayat, the concept was not mainstreamed into criminal justice discourse, notwithstanding individual officers’ efforts to introduce alternate mechanisms of resolving disputes in criminal matters.
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The formal landscape, however, started changing in 2015, when on 10th August, the Khyber Pakhtunkhwa Police Order (Amendment) Act was passed. The provincially amended Police Order, 2002 (as it was then applicable to the KP) added a new article 168-A into it that enabled IGP/Provincial Police Officer to constitute Dispute Resolution Council (DRC) at provincial, district, sub-division, and police station levels.
The ideation of ADR in Criminal Justice
The DRC members had to include at least one female member and its mandate extended to cases of ‘petty nature’ which included less important cases that affected the amity in the society. The amendment set a strong momentum for ideation of ADR in criminal matters and was also seen as a tool that could facilitate the then would-be merger of Federally Administered Tribal Areas (FATA) into KP.
Later on, section 73 of the KP Police Act, 2017 retained the concept of DRC. In the same year, the Alternate Dispute Resolution Act was passed and provided an ADR regime in criminal cases in chapter II.
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The ADR Act, 2017 is a useful first step but remains limited in its impact due to its applicability only to Islamabad and that too in compoundable criminal cases. This linking of compounding with ADR excluded the possibilities of conceiving a scenario where ADR could be employed in the pre-registration of a criminal case by the police. Nonetheless, Pakistan was still very much on the path to the ideation of ADR vis-à-vis policing and criminal justice.
Findings by the PRC
On 15th May 2018, the Law and Justice Commission of Pakistan (LJCP) notified the Police Reforms Committee (PRC) comprising serving and retired police officers. The terms of reference of the PRC included, inter alia, ‘recommending Alternate Dispute Resolution (ADR) mechanism’.
The PRC submitted its report to the Chief Justice of Pakistan on 14th January 2019. It covered the subject in detail in its chapter 5 where it took stock of the applicable legislation on the amicable settlement on both criminal and civil sides of the law.
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The PRC report examined the legal concepts contained in the Arbitration Act, 1940, the Conciliation Ordinance, 1961, the local government laws, the Small Claims and Minor Offences Courts Ordinance, 2001, and amendments in the Code of Civil Procedure. It also collected data on the working of DRCs in KP and Baluchistan. It opined:
“The comparison between the ADR through DRCs and ADR through Courts clearly evinces the pros and cons of the two approaches. The upshot of the comparison is that the DRC approach is much easier and cheaper to implement. The Report, however, cautions that whereas societies of KP and Baluchistan are more comfortable with the idea of DRC, the provinces of Punjab and Sindh need due adaptation of this concept.”
The PRC report highlighted four areas (taken from the working example of KP Police) that must be covered in rules framed to regulate discretion and to ensure the proper functioning of ADR. These areas are: (a) merit-based selection, (b) administrative support (like a dedicated room in Police Station, etc.,), (c) transparent procedure with review panels, and (d) dedicated police convening and coordination.
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EASE OF DOING BUSINESS AND ADR
Doing Business Report, 2020 places Pakistan at 108 out of 190 economies. The report measures, amongst other things, contract enforcement. Within the contract enforcement paradigm, one of the main strategies is to offer ADR options.
Following this approach, the recently promulgated Punjab Commercial Courts Ordinance, 2021 also offers an ADR regime. Likewise, the World Bank Group treats ADR as an integral part of its assessments while perusing its investment climate agenda.
It regularly, therefore, provides technical assistance and carries out research activities to support the agenda. It also issues guidelines and implementation tools that inform upon the design of ADR systems.
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The World Bank Group guidelines on ADR define it as any procedure used to resolve disputes without resorting to adjudication. It also provides three conceptual types of ADR which are, Adjudication based, Recommendation based, and Facilitation based. Nonetheless, the concepts developed for ADR in civil and commercial sides may be used to operationalize the ADR regime in criminal matters as well.
Protecting the police
In a country of Pakistan’s size which has a growing population and increasing justice system problems, no one can take exception to the concept of ADR in criminal matters. Even at an international level, the global police reforms agenda is redefining itself.
Alex Vitale, for example, in his book ‘End of Policing’ argues that the role of the police be minimized in society by decriminalizing behaviors. The extreme thinking of the likes of Alex resulted in police reforms agenda in the US that advocated defunding the police.
Likewise, the safeguards to police officers in the US are under discussion following the Black Lives Matter Movement; hence, we saw the introduction of the draft Justice in Policing Act, 2020 that aimed to do away with the concept of ‘qualified immunity’ for police officers.
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Contrary to this propensity, in the UK, the draft Police, Crime, Sentencing, and Courts Bill, 2021 promises a ‘police covenant’ for more protection for police by the society and for enhanced punishments for attacking police during public order situations.
Reforming Pakistan through ADR
For Pakistan, police reforms agenda must be kept dynamic and evolutionary in nature. It must conceptualize the inclusion of ADR. It is expected that ADR in criminal matters will lessen the burden on the formal criminal justice system as it is already dealing with a lot of financial matters due to its efficiency and effectiveness as compared to civil justice.
Indicative evidence to this effect was recorded by the Global Rule of Law Index Report, 2020 that ranked criminal justice (98/128) in Pakistan twenty-two notches above civil justice (120/128). In view of this state of affairs, ADR must be introduced as a primary strategy of police reforms especially in cases of financial and family purport.
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Presently, much of the time of police officers is being spent on cases having financial and family sides, but the matter is seldom highlighted. Besides, in the discretion-oriented environment with no avenues for legally channelizing such cases to ADR, police exercise impulsive discretion leading to corrupt practices and excesses.
This all can be changed by empowering senior leadership of police to constitute ADR streams compatible with areas where they operate. A rule-based ADR framework with the right accountability mechanisms can yield quick dividends for all sections of society and for all stakeholders of the criminal justice system.
Kamran Adil is currently serving as Deputy Inspector General of Police. He studied law at Oxford University and writes and lectures on international law. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.