The main reason that the abuses described in Lesson 1 continue is the impunity given to the perpetrators. That the police are not held accountable for their actions has led to people having little confidence in the very institution meant to uphold the law and protect their rights, while at the same time giving free reign to the perpetrators to continue their abuse.

This lesson highlights the various factors that contribute to this impunity; before that however, it is essential to understand that in the majority of Asian countries, there is a significant difference between what is known as law enforcement officers and the police. In fact, in most of these countries, maintaining law and order are two different things. While the intellectual or theoretical premise--which may be realized in more developed democracies in other parts of the world--is that all order to be established must be done in lawful ways, this premise means little in the context of Asian society. The reality is that order must be established at any cost, with or without the law. Rule of law is thus sacrificed under the pretext of maintaining order.

Order enforcement vs. law enforcement

1.    The concept of order-enforcement is not derived from that of the rule of law. The concept of law-enforcement, on the other hand, is based on that of the rule of law.
2.    Law enforcement mandates criminal investigations to prove that crimes have been committed, undertaken through the submission of evidence. Order enforcement, however, does not require investigations or proof according to the law. This distinction has huge implications for the understanding of policing functions.
3.    Criminal investigations require training, which requires basic education. Investigations also require facilities, such as forensic labs. These are not required by a police force designed to keep order through whatever means.
4.    Law enforcement makes the elimination of use of torture and degrading punishment a possibility. Among order-enforcers this is not possible, and such officers have even been used to commit extrajudicial killings-sometimes on a large scale.
5.    In law enforcement, policing is a function subordinated and controlled by the judiciary and prosecutors. Officers who are mobilised simply to maintain order, however, are free from such controls.
6.    Law enforcement presupposes equality before the law. Order enforcement has no such prerequisite, and in fact unequal treatment is inherent in the system.
7.    Order enforcement is associated with impunity while law enforcement is not.
8.    Law enforcement can be a transparent process, and transparency can be maintained by procedural means, such as by keeping the required records. Order enforcement does not have such a requirement. Indeed, often an order enforcement officer is discouraged from keeping records.
9.    Communication between the hierarchy and subordinates in a law-enforcement agency is usually based on written codes of ethics and discipline. Order enforcement does not require such codes, either written or unwritten [Basil Fernando, 'An Overview of the Police and Rule of Law in Asia', Monitoring The Right for an Effective Remedy For Human Rights Violations, (Hong Kong: AHRC, 2001) pp. 9-10].

This distinction between law and order enforcement helps to understand the factors granting impunity to the majority of police officers in Asia, seen as 'order enforcement officers', described in detail below.

Politicization of the police

Authoritarian regimes and corrupt politicians will use the police as a tool for their own ends. In this case, they will do everything possible to ensure that the law is not followed. This can even involve getting rid of police officers who insist on doing their jobs ethically and lawfully, as in Pakistan, when a police officer was transferred for investigating an honour killings case.

District Police Officer Fida Hussain Mastoi, the officer dealing with the murder case of two teenage girls Aabida and Tahmeena, killed on the pretext of honour killing for visiting their grandparents without permission, was given notice of his transfer on 12 August 2004. It was alleged that Mr Ghous Bux Mahar, a national assembly member (MNA) from Shikarpur, present Cabinet Minister and a landlord of the Mahar tribe, was instrumental in getting District Police Officer Fida Hussain Mastoi transferred as was another MNA from Shikarpur, Dr Muhammad Ibrahim Jatoi.

Mr Ghous Bux Mahar had been supporting the primary accused, Abdul Rasheed Bhutto from the beginning of the case, and headed the jirga that established the murder of the two girls as 'honour killings'. It is essential to note that the jirga in this case was called after Abdul Rasheed Bhutto and his eight accomplices killed the two girls. At the jirga meeting, the murder of the two girls was labeled as honour killings through an agreement among all the perpetrators, six of whom have yet to be arrested by the police: Abdul Rasheed, Younis, Jamaluddin, Hajji Abdul Karim, Ghulam Sarwar and Sanaullah.

An FIR was lodged regarding this case on 4 May 2004, the day after the two girls were killed. It was registered under sections 302, 201, 147, 148, 149 and 506.2 of the Pakistan Penal Code. All these sections are bailable. (Later, the case was registered at the Anti-Terrorist Court). Only three of the nine accused were arrested on May 7 and are currently still being detained without securing bail: Hajji Nazeer, Hajji Shafi Mohammad and Sulaiman.
 
As the case was challenged in the District Sessions Court of Shikarpur and as there was more attention given to the case by the press and human rights groups, DPO Mastoi constructed a Special Investigation Cell consisting of five police officers, strictly directed at recovering the dead bodies of the victims and arresting the perpetrators.

The police found that the bodies were buried in Abdul Rasheed Bhutto's fishpond and after obtaining permission for the exhumation and post-mortem inquiry of the bodies, on May 14 the bodies were exhumed from the identified location and handed over to the victims' relatives after the autopsy.
 
The victims' families have been given about Rs. 20 0000 and ten acres of cultivation land as compensation, and are continually being pressured to withdraw the case and to seek reconciliation by the perpetrators. This pressure and the transfer of the DPO does not bode well for the obtainment of justice for the victims' families. Unless those agencies and individuals working towards implementing the April 2004 decision of the Sindh High Court banning all jirga trials as illegal are resolutely supported and interference in their work prevented, progress will not be made in improving Pakistan's justice mechanisms and human rights situation [See further: AHRC UP-46-2004, 17 August 2004; UP-23-2004, 27 May 2004; FA-12-2004, 11 May 2004].

In many instances, politicization of the police force takes a much more overt tone, as described in the Concerned Citizens Tribunal report regarding the Gujarat pogrom of 2002.

The police

Evidence before the Tribunal clearly establishes the absolute failure of large sections of the Gujarat police to fulfil their constitutional duty and prevent mass murder, rape and arson--in short, to maintain law and order. Worst still is the evidence of their connivance and brutality, and their indulgence in vulgar and obscene conduct against women and children in full public view.
 
To start with, the Godhra incident would not have taken place had the police taken due precautions right from the beginning. Once the Godhra tragedy had occurred, the Gujarat police made no preventive arrests.
 
It was obvious that the situation was tense and could get out of hand. The minimum that the state does in similar situations is to effect preventive arrests of persons who are likely to cause violence. Section 151 of the Criminal Procedure Code (CrPC) permits preventive arrests by the police…

On February 28, former Congress MP, Shri Ashan Jafri from the Gulberg society in Chamanapura, made repeated frantic calls pleading for police assistance against a huge mob in a murderous mood. He kept calling the control room for several hours, until, finally, with no one to check the mob, he was charred to death along with 65 of his relatives and neighbours. Pleading anonymity, police officials who met the Tribunal confirmed that Shri Jafri had also made frantic calls to the Director General of Police, the Police Commissioner, the Chief Secretary and the Additional Chief Secretary (Home) among others. Three mobile vans of the city police were on hand around Shri Jafri's house but did not intervene… It was only nine hours later that the Rapid Action Force (RAF) of the central government intervened, by which time it was far too late.
 
"The police tried their best, but they couldn't stop the mobs. They were grossly outnumbered when the mobs grew," Ahmedabad's Police Commissioner, Shri P C Pandy had pleaded. But in most cases, inadequacy of forces is a mere excuse touted by serving police officers who fail in their primary duty. Even in Gujarat this time, in several cases where good officers held out against political pressure, the same small deployment was enough to act decisively and control the situation. In the vast majority of cases, however, the police either did not act or acted on behalf of the mob.
 
The Gujarat police force has finally admitted that it killed more Muslims than Hindus in its ostensible attempts to stop what was clearly targeted Hindu violence against Muslims. Of the 184 people who died in police firing since the violence began, 104 are Muslims, says a report drafted by Gujarat police force itself.
 
Apart from targeting sections of the Muslim population with bullets, the Gujarat police have further blackened their conduct by indiscriminate arrests of innocent young Muslims all over the state. The Tribunal has recorded details of these arrests and we estimate that at least 500 innocent Muslims languish in police lock-ups and jails of the state.
 
The overtly partisan behaviour of the Gujarat police can be assessed from the language contained in the charge sheets related to the major incidents of mass massacre. For instance, the charge sheet filed in the Gulberg society killings, where no less than 60-70 persons were brutally killed, virtually begins with a defence of the accused and paints the victims as instigators.
 
In a similar misrepresentation, the Tribunal records with horror the way the Naroda Patiya charge sheet reads: "The unruly crowd at Naroda Patiya went on the rampage after a mini-truck driven by a Muslim ran over a Hindu youth and the mutilated body of a Hindu was recovered from the area… the crowd was anguished by the incident." …

Police conduct after the Gujarat carnage, with regard to the registration of crimes, conducting of investigations etc., has been marked by a desire to please political bosses and an utter disregard for the law of the land. The Tribunal has evidence of the police bullying victim-survivors into filing First Information Reports wherein only mobs are mentioned, without naming the assailants and mob leaders whom the victim-survivors had clearly recognised during the incidents of violence ['Genocide in Gujarat: Government and police complicity', (ed) article 2, vol. 2, no. 4, August 2003, pp. 35-7].

The political responsibility for the actions of the police thus ensures that police officers themselves are not held accountable. As the government wanted to incite communal violence, the police not carrying out their duties effectively was necessary.

Similarly, the Thai government used rewards and punishments to ensure the police cooperated with its 2003 drug war. The Thai police were directed to organize murder through policy memos.

Between February and April 2003 the Thai government incited police and public officials to organize and endorse murder in the name of ridding the country of drugs. Through a series of official orders and public statements, the government pushed officials to massively overstep their normal authority. It also set up numerous positive and negative incentives, including promises of financial rewards and promotions, and threats of transfers and dismissals. By May, more than 2000 persons were killed, and the country's key institutions for the protection of human rights were seriously compromised.

Administering murder

On January 28 the Prime Minister of Thailand, Thaksin Shinawatra, set the anti-drug crusade in motion. Prime Minister's Office Orders 29/2546, 30/2456 and 31/2546, effective from February 1, aimed to combat the enormous drug manufacture, trafficking and use in Thailand "quickly, consistently and permanently". They ordered the establishment of the National Command Centre for Combating Drugs, chaired by Deputy Prime Minister Chavalit Yongchaiyuth, to oversee the "Concerted Effort of the Nation to Overcome Drugs" campaign. They set out its basic responsibilities, including planning, coordination and reporting, and established an administrative structure and tasks throughout the country. The orders gave the programme the "highest priority", indicating to officials that they would be closely monitored, and that the government was prepared both to reward high performers and punish laggards. The Prime Minister boosted incentives in two sets of regulations issued on February 11. One of those was the Prime Minister's Office Regulations on Bonuses and Rewards Relating to Narcotics (No. 3). This document amended two earlier reward regimes, and effectively encouraged the murder of drug suspects by providing grades of bonuses where the most efficient and expedient means for officials to be rewarded was simply to kill the accused…

At later dates, certain rewards were increased so that, for instance, a state official seizing property that had been purchased with drug money could get up to 40 per cent of its value.

Public statements enabled and encouraged what was on paper. The Prime Minister consistently portrayed drug dealers as sub-humans deserving to die. He also played down the deaths relative to the apparent successes of the campaign, wondering aloud why the killing of thousands of people who had not yet been proven guilty of any crime should be worthy of public attention or scrutiny. Even in reiterating the official line, that most deaths were just cases of "bad guys killing bad guys", or "killing to cut the link", he stated that the government had no responsibility to protect these undesirable citizens. This position, however, was already quite a step-down from remarks he reportedly made to senior government officials from across the country at a meeting in the lead-up to the campaign on January 15. "We have to shoot to kill and confiscate their assets as well, so their sinful inheritance will not be passed on," he is reported to have said, adding, "We must be brutal enough because drug dealers have been brutal to our children. Today, three million Thai youths are into drugs and 700,000 are deeply addicted. To be cruel to drug dealers is therefore appropriate." The Prime Minister's remarks were supported at all levels of government, not least of all by the Interior Minister, Wan Mohamad Noor Matha, who remarked memorably that drug dealers "will be put behind bars or even vanish without a trace". The language used by the Prime Minister and his officials throughout the campaign also sought to evoke a feeling of being at war, such as in a March 2 address when he said, "Don't be moved by the high death figures. We must be adamant and finish this war... When you go to war and some of your enemies die, you cannot become soft-hearted, otherwise the surviving enemy will return to kill you." He also referred to drug dealers and their accomplices as "traitors". Over time, this language found its way into policy documents, such as Prime Minister's Order No. 60/2546, which states in its preamble that "the 'Concerted Effort of the Nation to Overcome Drugs' is specifically regarded as a state of war".

Provincial governors and police chiefs were motivated to act according to a strict timetable. Their performance was measured by statistics on drug dealers 'removed' from society on a month by month basis, starting with 25 per cent of the total by the end of February, 50 per cent by the of March, and 100 per cent by the end of April. The final figure was later reduced to 75 per cent, and a plan drawn up to deal with the remaining 25 per cent at a more leisurely pace by the King's birthday in December. Underachieving provinces were announced publicly and senior officials openly threatened with the sack or transfers. Clearly an enormous amount of pressure was applied to meet unreasonable and arbitrary targets. And it was not enough for officials merely to present figures of arrests, convictions and deaths of dealers: they had to target thousands of specific persons, whose names were on lists [Nick Cheesman, 'Murder as public policy in Thailand' article 2, vol. 2, no. 3, pp. 30-1].

Such explicit instructions to the police show how those in power expect the police to become their tools in achieving their policy aims. When these aims are met through unlawful means, or when the aims themselves are unlawful, the complicity of the police seriously undermines the principles of justice and human rights.

Similarly, the recent comment on national television by a senior Thai police officer that torture is acceptable, is an affront to the same principles. Police Lieutenant-General Amarin Niamsakul, the Commissioner of the Immigration Bureau, said on a popular talk show in 2004 that the police everywhere beat up people or torture them to extract information and confessions, so it is alright for this to be the practice in Thailand. He also said that more important than the law itself, is the ability of the police to punish bad people, for which torture is again necessary. While the Minister of Justice spoke out against his remarks, it is obvious from the number of police torture cases that occur throughout Thailand that there exists an underlying acceptance of torture and forced confessions.

Furthermore, if the police were ever to be held accountable for their abuse, their superior officers--including politicians and government officials--would also be implicated. To prevent this, the police are granted impunity.

Militarization

Political manipulation of the police can even lead to a blurring of lines between the police and security forces, which is common when a government is preventing 'terrorism' and protecting 'national security', or when the country is under a state of emergency. In these situations, what happens--linked to the above mentioned 'order enforcement'--is that the police, who are meant to be a civilian force, become para-military institutions. They either become intelligence agencies for the military, or undertake some of the functions of the military, thereby using greater force and weapons than normal for a civilian institution. In the South of Thailand and Nepal for instance, the police operate together with security forces under joint command units. In these circumstances the roles to be played by respective police and military officers become confused.

In a recent special report, 'The mathematics of barbarity and zero rule of law in Nepal', article 2, vol. 3, no. 6, December 2004, the Asian Legal Resource Centre documented numerous cases of abuse by the Nepalese security forces, including the joint units.

While many of the arrests, torture and disappearances are ostensibly aimed at addressing the insurgency, these cases speak to the fact that in many instances people are taken at random, and--particularly in cases of torture in urban areas --often on accusation of involvement in conventional crimes. The victims are also taken without discrimination: they include children, elderly, women and the handicapped…

Criminal suspects are routinely tortured. The methods of torture described by victims speak to the fact that they are totally institutionalised in policing in Nepal. Additionally, as the lines between various security agencies have been blurred, the army also engages in horrific torture of detainees who are accused of ordinary crimes, like Narayan Nepali, who was electrocuted on the forehead. The blurring is also evidenced by the fact that the police are reported to carry out arrests on instruction of the army, without knowing for what purpose, such as in the case of Upendra Timilsena ['The mathematics of barbarity and zero rule of law in Nepal', pp. 15-6].

Narayan Nepali was arrested by Royal Nepalese Army soldiers on 31 March 2004 and taken to the Jagadal Barracks, where they beat him with pipes and sticks and gave him electric shocks. Only on April 23 was he taken to the district police office and then on April 26 produced before the court on drug charges. It was also found to be common for the army to thus brutally torture a victim and then send them to the police station for bogus legal proceedings, usually after the external effects of torture had gone.

Another aspect of joint operations is that it is unclear which group or department the security officers belong to, thereby having nowhere to place responsibility for the actions committed. This further encourages abuse.

Those governments that are military in nature will have a greater effect on civil society such as in Pakistan, where the military continues to dominate all public institutions;

 Apart from the president's refusal to step out of uniform, the increasing number of serving and retired military officers being brought into the civil service is sabotaging efforts at participation by the civilian public. The hand of the military is seen increasingly in the work of the police, prosecution and judiciary. Recent incidents in Okara, where people were brutally assaulted and tortured into signing agreements to hand over land for a military farm speak to the extent of control the army now feels free to exercise over the country [AHRC AS-60-2004, 8 December 2004].

The impunity granted to the police thus comes with the manipulation of the police by other actors; it is necessary to ensure the police are not held accountable in order not to implicate those giving the orders. This serves to legitimize any violence committed by the police, be it ordered from above or not.

Questions For Discussion

1.    How do you think ordinary people would describe policemen in your country?
2.    What is the most significant factor influencing police behaviour in your country?
3.    Discuss the greatest obstacle preventing the police from upholding the law and protecting the rights of the people. How can this be overcome?