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Wednesday, November 29, 2023

Can Police reforms justify the Use of force by the police?

There has been a lot of debate in Pakistan in and around this issue and often police accountability is wrongly attributed to the magisterial cover model, which is part of the police action and cannot be expected to hold itself accountable for any abuse of power/use of force.

The tone of official/semi-official literature on police reforms in Pakistan shows that it caters to two types of reforms: ‘policy’ and ‘service delivery’. While the ‘policy’ part of reforms alludes to larger systemic issues like police law, its interlinkages with larger criminal justice system issues and organizational governance, the ‘service delivery’ part is more dynamic and affects the public at large, and is expected to be an outcome of ‘policy’ part of the police reforms.

Politically, the ‘policy’ related police reforms generate turf battles and are inward; conversely, the ‘service delivery’ related police reforms are outward in their approach and have stakeholders situated outside governance structures. Owing to these two variant approaches towards reforms, reform-minded police officers find themselves oscillating on a spectrum that lies between the ‘policy’ and ‘service delivery’ sides of the equation of police reforms. The design of police reforms, therefore, can neatly be dissected into ‘policy’ and ‘service delivery’ aspects.

In this backdrop, if one were to attribute weightage to the two types of reforms, one would arguably assign more weight to ‘policy’ reforms as compared to ‘service delivery’ reforms. However, sometimes, the ‘service delivery’ related reforms may outweigh the ‘policy’ related police reforms. One such ‘service delivery’ related reform is the issue of ‘use of force’ by police.

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‘Use of force’

Despite its importance, it has found scant treatment in official/semi-official literature on police reforms in Pakistan. The issue is tricky as well as controversial but has the potential to affect the police image, morale of police officers as well as their working and effectiveness. Legally and thematically, the issue of ‘use of force’ may be appraised in four contexts.

First, in order to discharge their duties, the police may be required to use force to affect an offender’s arrest. The power is authorized by the law with the caveats of necessity and proportionality coupled with jurisdictional and formal requirements. This power is implied in general powers of arrest as stated in the Code of Criminal Procedure, 1898. The law, however, does not state the maximum extent and use of firearms in such situations.

Secondly, the police may be required to use force in the ‘hot pursuit’ of an offender. The power to use force in this scenario is again not unbridled and is put to strict legal and professional tests that find little or no justification of the use of force especially through firearms. It is this type of use of force that has seldom find detailed legal and professional analyses as it borders closely to terrorism controlled measures, which are dealt with warrior-like mentality within police organizations. The law on this power is also not clear and it does not clearly specify the use of firearms as a means to use force in such scenarios. This scenario is again partially legally covered through the archaic Code of Criminal Procedure, which did not envision then the firepower now at the disposal of police organizations.

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Thirdly, the use of force discussion becomes pivotal in cases of private defense (often called ‘self-defense’) that authorize citizens at large, in general, and police, in particular, to resort to using force on grounds of proportionality and necessity. Law of private defense emanates out of substantive law i.e., Pakistan Penal Code, 1860, where it is treated as an exception and defense to general criminal law.

Fourthly, the debate about the use of force by police becomes central when they are tasked to deal with public order situations (styled as ‘law and order situations’ in Pakistan). In this sense, the brutality of a police force is often highlighted in media while dealing with violent mobs/protests. The use of force in this situation is governed by three models. First is the district magistracy model that authorizes a civilian employee of the government having powers of a magistrate to authorize police to use force. The model is part of the legacy of colonial processes of dealing with the use of force in public order situations, where the judge-administrator passes orders for use of force by police. The ‘magisterial’ cover of the public order to police brutality is considered by many as an administrative bulwark in favor of police using force.

As against this ‘magisterial’ cover model, the professional and more progressive model is to entrust the power to use force to police leadership that is required to take a professional decision based on its professional assessment of the situation. The Police Act, 1861 favors the ‘magisterial cover’ model whereas the Police Order, 2002 empowers police leadership to make its professional decisions. A third model requires entrusting the power to use force by police in public order situations to elected civilian administrators like the mayor.

Accountability of the police

All three models have their pros and cons, but professional police officers have largely advocated for the professional models of the use of police force in public order situations. There has been a lot of debate in Pakistan in and around this issue and often police accountability is wrongly attributed to the magisterial cover model, which is part of the police action and cannot be expected to hold itself accountable for any abuse of power/use of force. Nevertheless, the use of force scenarios in which police resort to use of force and especially the use of firearms generate interest in all citizens and human rights organizations, in particular, look at them with skepticism and keenly advocate accountability of police use of force.

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The lawful use of force by police must be counterweighed by viable safeguards in form of police accountability resulting in the determination of both departmental and criminal liabilities of officers using force and those authorizing it. The discourse on this ‘service delivery’ part of police reforms must be informed by research and dispassionate analysis of prominent cases. The benefit of the doubt that police often claim as part of their legitimate use of force can only be extended to them if they advocate and help foster with the help of civil society and government a robust and fair system of police accountability that can decide on police excesses in a timely and effective manner.

Kamran Adil is a senior police officer, currently serving as Additional Inspector General 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.