The district magistrate is a tortoise, as Ramsay MacDonald had once said, on whose back stood the elephant of the government of India. We could not survive it and had many white elephants in place that burdened the government.
The National Assembly Standing Committee on Law and Justice had, in its 29th meeting, approved a constitutional amendment bill, introduced by the government, on the recommendations of the Council of Common Interests (CCI) to empower the deputy commissioners as district magistrates to take decisions on the spot.
But the parliament recently passed an act to strip the judicial powers of the officers working in the federal capital Islamabad. The Code of Criminal Procedure CrPC 1898 will, finally, be amended to clip these powers. Senator Irfan Siddiqui had introduced the bill in the Senate. It may be added here that Siddiqui was sent behind the bars by a magistrate for violating house rent laws. The apex court is also hearing a case on the restoration of magistracy in all provinces.
Tariq Mirza Advocate, while talking on the subject, said that there are provisions in the law in which the officers may be conferred special judicial powers that impede the administration of justice.
He said that administrative officers had the legal authority in dispensing justice to resolve minor offences. Moreover, the magistracy was an external check over the police as the magistrates used to visit and monitor the performance of police stations. Mirza further said that magistrates used to share the burden of the judiciary at the district level. He said that the judges, who deal with criminal justice, usually complain that with the abolition of magistracy, an undue burden on them had increased.
Quoting a Transparency International report, he said that the executive magistrates usually move in the city and know the ground realities. They were the mobile courts. He said that the masterminds of the abolition of the magistracy had deprived the common people of the common good. He said that not only the writ of the state was compromised but the law and order situation was also under threat. Referring to the Transparency International’s report, he said, “It is just a revaluation of the separation of powers between judiciary, police and effective executive; the need was to know where we had gone wrong.” Tariq said that nobody considered the unintended consequences of abolishing the magisterial system.
Though the magisterial powers are no more in the scene, yet it is claimed that bureaucracy will not let it go.
Former dictator General Parvez Musharraf had in 2001 stripped the magisterial powers vested in the babus.
The purpose of the act was, arguably, the separation of powers between judiciary and executive. There was an apprehension that some close aides of the dictator had misled him that powerful bureaucrats could be a hurdle to his rule. So, he had decided to strip off the powers rested with them in haste.
After the Supreme Court of Pakistan ruling that there should be a separation between the executive and judiciary, it was indispensable to do it.
It was done successfully in 2001 but the gap that surfaced after abolishing the magistracy could not be filled till now. Nobody ever thought about the effects on the state, the governance system and the common man would be after these powers were divided between judicial magistrates and police. An immense burden of the tiny cognizable offences was shifted on the judiciary while police got free from any external checks that led to free fall encounters and extra-judicial killings.
After the promulgation of Police Order 2002, an external check on police, in the form of Public Safety Commissions, was introduced but that dream could not materialise in the true spirit. At present, the police force was in a state of free fall. They are at the mercy of political or hierarchical bosses to obey their orders, whether legal or illegal. The Model Town massacre and crackdown on marchers in Islamabad are some of the distressing examples of the highhandedness of the lawless police.
After the lapse of two decades, the provinces and people realised that there was a need for the restoration of the magistracy as the state had badly failed to implement its writ. There are procedural delays and complicated ways to pursue the course of law to get justice so people, usually, avoid it. The government has established consumer courts to act against those who violate consumers’ rights but they have been found counterproductive as naive people, usually, don’t approach this system.
Moreover, the federal and provincial governments had also mulled over the revival of the old colonial system.
Shah Nawaz, a political activist, was of the view that the district magistrate was a symbol of colonialism to subjugate the local population. He said that British imperialism came to an end in 1947 but bureaucracy continued to exercise the colonial psyche. He said that the district magistrate had all the powers to exercise. Not only the police but all the institutions were answerable to him. He said that with the judicial powers attenuated, the civil officers wanted the revival of the old system.
Shahid, a police officer, was of the view that with the restoration of the magisterial powers, the independence of the police would be at stake. He said that the district administration was already enjoying multiple powers including the MPO and 144 CrPC.
Responding to a query, he admitted that police were never interested in establishing independent safety commissions.
The Punjab Home Department had in June 2020, conferred the magisterial powers of special magistrate first class to all deputy commissioners, all additional deputy commissioners and all assistant commissioners of the province. The officers were empowered to carry out raids, conduct trials of offences and other ancillary matters relating to price control, hoarding prevention, forests, mines and minerals, food adulteration, food safety, encroachments on lands owned by the government, canal and drainage, dangerous driving and violation of route permits, safety and design of buildings land use and municipal services under any provincial or federal law in vogue. However, again the police force was not answerable to the civil administration. Incumbent Chief Secretary Kamran Ali Afzal, after the Murree tragedy, has empowered the DCs to have counter-signing authority in the performance evaluation reports of all officers except the police.
To sum up, it can rightly be narrated that there is no question about the separation of the executive from the judiciary. The only matter of concern is empowering the field formations to restore the writ of the government. The need is for the judicial magistrates to do summary trials of the offences related to land grabbing, maladministration, adulteration, food safety and security-related issues etc.
191,911 acres of state land worth Rs485 billion had been retrieved in Punjab during the PTI’s government under the former Senior Member Board of Revenue Babar Hayat Tarar. It included over 4,200 acres of urban lands worth Rs67 billion and 187,666 acres of rural lands worth Rs420 billion. Did the police or judicial magistrate take notice of the illegal occupation of lands? A good number of powerful politicians were involved in this heinous offence. Had the district magistrate been in office, he would have dealt with such state land grabbers with an iron hand.
As failure to do administrative justice leads to more litigation in the courts, the need is to empower field formations. Either the judicial magistrate should have surveillance of the police stations or special judicial magistrates should do the same to ensure supervision of the unbridled police across the province. The police force should also respond to the orders of the principal representative of the government in the district or a separate administrative or municipal force should be set up to ensure acts against the mafias, land grabbers, cartels and those involved in food adulteration or price hikes. Otherwise, the country would continue to be pillaged away by the mafias and the consequences would be too dangerous for nuclear-powered Pakistan.
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