ANALYSIS OF DRAFT POLICE ORDINANCE, 2007 AND 1861 POLICE ACT AGAINST INTERNATIONAL GOOD PRACTICE. By Sanjay Patil

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2 ANALYSIS OF DRAFT POLICE ORDINANCE, 2007 AND 1861 POLICE ACT AGAINST INTERNATIONAL GOOD PRACTICE By Sanjay Patil

3 Copyright 2012 By Police Reform Programme, Dhaka, Bangladesh Analysis of the Draft Police Ordinance, 2007, and the Police Act, 1861, Against International Good Practice Author: Sanjay Patil Publication Date: July 2012 Concept, Design & Publication: Prochito IMC Ltd.

4 Acknowledgements and Disclaimer This report was written by Mr Sanjay Patil and edited for the Bangladesh Police Reform Programme by Dr Michael von Tangen Page. The Bangladesh Police Reform Programme would like to thank all individuals and organisations that have assisted in the production of this report especially Mr Patil and the peer reviewer Dr Gordon Peake. The views stated in this report, however, are the authors own and do not necessarily represent the views of the Government of Bangladesh, the United Nations Development Programme or the Bangladesh Police. Please notes all references to the draft kenyan legislation is accurate to those drafts published on 31 October, Authors Acknowledgements As with any significant undertaking, the final product is the fruit of many people's labour. Special acknowledgment must be given to everyone at the Police Reform Programme and UNDP-Bangladesh who assisted in the development and completion of this report. In particular, Dr Michael von Tangen Page provided invaluable feedback and suggestions throughout the project, as did Mr Hendrik van Zyl, Mr Andre Redman, Mr Neale Fursdon, Mr Kumar Koirala, Mr Muhammad Nurul Huda, Mr ASM Shahjahan and Mr Peter Stringer. Police Reform Programme The Police Reform Programme (PRP) is a long term and comprehensive capacity building initiative to improve human security in Bangladesh. The PRP supports the transition from a colonial style police force to democratic policing by strengthening the Bangladesh Police s ability to contribute to a safer and more secure environment based on respect for the rule of law, human rights and equitable access to justice. Sanjay Patil Sanjay Patil is a lawyer with extensive experience of working on police reform. He has helped formulate a possible review mechanism for the national security activities of the Royal Canadian Mounted Police and he spearheaded the South Asia Police Reform Programme for the Commonwealth Human Rights Initiative. Currently he seeks to improve police conduct towards drug users on behalf of the International Harm Reduction Development Program at the Open Society Foundations in New York.

5 TABLE OF CONTENTS CHAPTER 1: INTRODUCTION 07 CHAPTER 2: POLICE-EXECUTIVE RELATIONSHIP Superintendence and Operational Responsibility Minimum Tenure Selection of Chief of Police Removal/Transfer of Chief of Police Role of District Magistrate 13 CHAPTER 3: DEMOCRATIC ACCOUNTABILITY Mandate of Democratic Accountability Body Composition of Democratic Accountability Body Need for Transparency and Co-operation Transfer & Promotion Policing Plans & Performance Standards 18 CHAPTER 4: EXTERNAL ACCOUNTABILITY Mandate of External Accountability Body Composition of External Accountability Body Serious Cases of Misconduct Investigatory Powers Power to Initiate Investigations Power to Enforce Findings District-Level Complaints Commission Rights of Complainant 24 CHAPTER 5: COMMUNITY ENGAGEMENT Preamble Community Policing Duty of Police Towards Community & Rights of the Community Beat Constable Working Hours Special Police Officers Special Security Zones 28 CHAPTER 6: MISCELLANEOUS Diversity in the Police Organisation Separation of Law & Order from Investigations Impunity Use of Force 30 Appendix 1: Police-Executive Relations 31 Appendix 2: Democratic Accountability 32 Appendix 3: External Accountability 33 Appendix 4: Community Engagement 34 Appendix 5: Miscellaneous 35

6 1. INTRODUCTION It has often been posited by both the Bangladesh Police themselves and independent observers that the shortcomings of the Bangladesh Police are, in part, attributable to the fact that it continues to function under antiquated colonial legislation rooted in the militarised Irish Constabulary model of policing rather than in the spirit of the more civilian-minded Metropolitan Police. Enacted in 1861, the Police Act remains the governing statute for the police in Bangladesh. Entering its 150th year of operation, critics contend that in order for law enforcement to improve and modernise, the Bangladesh Police require an updated law. Taking into account these considerations, the Caretaker Government (CTG), along with the support of the UNDP and DFID-sponsored Police Reform Programme (PRP), initiated a process in 2007 to revise policing legislation in Bangladesh. As part of that process, the Bangladesh (Draft) Police Ordinance, 2007 (DPO 2007) was first published in June On 12 August 2007, the Bangladesh Police submitted it to the Ministry of Home Affairs (MoHA), which later asked the former to resubmit it after translating it into Bengali and to indicate the differences between the Draft and the 1861 law. Police officials resubmitted the DPO 2007 to the MoHA at the end of 2007, which then forwarded it to the Chief Adviser s Office (CAO). The CAO sent a letter to the MoHA on 16 January 2008, asking for consultation with stakeholders at the thana, district and divisional levels. On 29 January 2008, the MoHA forwarded the order to Police Headquarters with an additional order to submit proven information and papers of the consultation workshops 1. The PRP and Bangladesh Police arranged for thousands of copies of the DPO 2007 to be made available to the general public. Consultations were subsequently held in upazillas, districts and divisions throughout Bangladesh. These consultations were completed by June 2008 and the findings were forwarded to the MoHA. However, subsequent events resulted in the CTG s failure to promulgate the DPO 2007 before winding down in December Since that time, the current government has not undertaken any measures to pass the DPO 2007 or propose new legislation. During this period the Police leadership and civil society groups have called for the DPO 2007 to be released by MoHA but thus far the ministry has been deaf to these calls. In light of the perceived need for Bangladesh to have updated police legislation, and current attempts to reignite a debate regarding the same, this report seeks to analyse the DPO 2007 by comparing it against the international better practice of India (including Kerala and West Bengal), Pakistan, Northern Ireland, South Africa and Kenya. These jurisdictions have been selected because they all share a colonial history of being policed by some version of the Irish Constabulary model and they have recently enacted new police legislation or have drafted a bill/model act in an attempt to reform the police. In considering a new police act, it may be useful to recall some key questions raised by Patten when he set about suggesting reforms for the police in Northern Ireland. 2 1 Shariful Islam, Ministry Asks Police HQ for Further Consultations, The Daily Star, 5 February 2008: (accessed on 12 July 2011). 2 A New Beginning: Policing in Northern Ireland, The Report of the Independent Commission on Policing for Northern Ireland, September 1999, at paragraph

7 1. Does the proposal promote effective and efficient policing? 2. Will it deliver fair and impartial policing, free from partisan control? 3. Does it provide for accountability, both to the law and to the community? 4. Will it make the police more representative of the society they serve? 5. Does it protect and vindicate the human rights and human dignity of all? On the basis of these standards, the DPO 2007 does a reasonably good job of addressing the deficiencies of the Police Act, It charts out a modern approach to policing that is encouraging. However, the DPO 2007 does possess some weaknesses and is also silent on some key issues. Through a comparative analysis of international good practice, this report will identify where the DPO 2007 is strong and suggest ways in which the draft can be improved. 3 The four heads of analysis used in exploring their respective efforts to reform the police have been selected because each one addresses a central element to what constitutes better policing. The fifth section, Miscellaneous, captures those elements that do not fit neatly into the four broader categories used in this study. 3 The version of the Bangladesh (Draft) Police Ordinance, 2007 that is used for analysis in this study is the one that was published in June

8 2. POLICE-EXECUTIVE RELATIONSHIP 2.1 Superintendence & Operational Responsibility One of the greatest shortcomings of the Police Act, 1861 is that it does not define superintendence or control of the police. Its use is so vague and non-descript that it provides very little guidance on how to set out, in a democratic context, the parameters of the police-executive relation. The fact that superintendence is such a poorly understood word has permitted those governments that follow the 1861 Act to use the police to serve the partisan interests of the regime in power. 4 The DPO 2007 attempts to address this issue with its inclusion of Section 10: 10. Superintendence of Police. (1) The superintendence over Police Service shall vest in the Government and except as authorized under provisions of this Ordinance, no person, officer, authority or the court shall be empowered by the Government to supersede or control any police functionary. (2) Direct or indirect influence or interference into police investigation, law enforcement operation, recruitment, promotion, transfer, posting or any other police function in an unlawful manner shall be a criminal offence. (3) The power of superintendence under sub-section (1) shall be exercised only to ensure that the Police perform its duties strictly in accordance with the Constitution and law. (4) The superintending authority shall also include the responsibility to oversee that any request made by any governmental body or official to Police is in accordance with law. This provision criminalises political interference. For those found guilty of committing an offence under Section 10(2), the penalty is for a term from six month up to two years or with fine, up to a maximum of two hundred thousand Taka, or with both. 5 It is a positive move that the DPO 2007 seeks to limit political interference in the police since this is one of the more significant bars to police professionalism in Bangladesh. The DPO 2007 attempts to set out the operational subject matters that the IGP will have control over. First, Section 7(3) indicates that the IGP shall have the full management, administrative and financial powers as ex-officio Secretary to the Government and shall exercise such authority as provided in any relevant law or rule for the time being in force including other powers under this Ordinance. Second, Section 11(1) states, Subject to the provisions of this Ordinance, the entire management of the Police Service including financial, human resources, administration, transfer, deputation within or outside the country, foreign cooperation and issues related with United Nations Peace Keeping Operations shall vest in the Chief of Police. Third, Section 32 establishes, Subject to this Ordinance and rules made there-under, Chief of Police, Heads of Units and District Police Officer, as the case may be, shall within their respective spheres of authority, direct and regulate all matters of recruitment, training, posting, transfer, promotion, arms, drill, discipline, clothing, distribution of duties, and any other matter concerning the efficient performance of duties by the police under his control. 4 G.P. Joshi, Controlling the Police: An Analysis of the Police Acts of Commonwealth Countries, Working Paper No.13, International Police Executive Symposium, October 2007: at p Bangladesh (Draft) Police Ordinance, 2007, Section

9 Taken together, it would seem that Sections 7(3), 10, 11(1) and 32 adequately define the police-executive relationship. However, this is not necessarily the case. For instance, Section 25 permits the Government to initiate the transfer of any police officer, albeit in consultation with the IGP, from the police to another agency. If there is a disagreement between the Government and the IGP, Section 25 makes clear that the proposed National Police Commission (NPC) will resolve the matter. But this fairly broad Government-held residual power of transfer undermines the operational responsibility of the IGP. In addition, Section 16 stipulates that the Government should ordinarily accept the IGP s recommendation for the posting of Head of District Police. In the event that the Government rejects the IGP s nomination three times for a particular district, then the matter will be resolved by the NPC. In an ideal world, these operational decisions should reside with the IGP and if improper considerations are fuelling his decision-making, then a strong and effective NPC should preferably step in, not the Government. In light of the extensive political interference that takes place in the context of policing in South Asia, the DPO 2007 arguably provides too many backdoor opportunities for Government to continue to wield improper interference in operational matters. In this regard, it is useful for Bangladesh to look at the Police (Northern Ireland) Act, 2000 ( PNIA 2000 ) for how to understand operational responsibility, and the New Zealand Policing Act 2008 ( NZPA 2008 ) for a precise articulation of what matters the executive can and cannot have a direct say on. The PNIA 2000 sets out a tripartite model wherein the executive is responsible for long-term policy (i.e. budgetary allocation and matters of national security), 6 an oversight body that has both elected and independent members is responsible for medium-term policy (i.e. oversee implementation of policing plans), 7 and the Chief of Police is responsible for short-term policy (i.e. autonomy over operational and administrative decisions that pertain to specific investigative matters and personnel decisions). 8 The DPO 2007 could benefit from a clear articulation of these points. The NZPA 2008 usefully describes in detail what the Commissioner of Police is, and is not, responsible to the Minister for. 16. Responsibilities and independence of Commissioner (1) The Commissioner is responsible to the Minister for (a) carrying out the functions and duties of the Police; and (b) the general conduct of the Police; and (c) the effective, efficient, and economical management of the Police; and (d) tendering advice to the Minister and other Ministers of the Crown; and (e) giving effect to any lawful ministerial directions. (2) The Commissioner is not responsible to, and must act independently of, any Minister of the Crown (including any person acting on the instruction of a Minister of the Crown) regarding (a) the maintenance of order in relation to any individual or group of individuals; and (b) the enforcement of the law in relation to any individual or group of individuals; and (c) the investigation and prosecution of offences; and (d) decisions about individual Police employees. 6 Police (Northern Ireland) Act, 2000, Section Police (Northern Ireland) Act, 2000, Section Police (Northern Ireland) Act, 2000, Section

10 30. Command and control (4) No Police employee may, when exercising any power or carrying out any function or duty, act under the direction, command, or control of (a) a Minister of the Crown; or (b) a person who is not authorised by or under this Act or any other enactment or rule of law to direct, command, or control the actions of a Police employee. The advantage of the Northern Ireland and New Zealand police acts is that they are much more explicit about when and how the executive can direct the police. It is useful to be as clear as possible in legislative drafting because without unambiguous expressions of how operational responsibility and legitimate political oversight can co-exist, the political executive or police commissioner might exploit any statutory gap in order to seize more power for itself. 2.2 Minimum Tenure The DPO 2007 provides that the IGP shall have a minimum tenure of two and maximum of three years, irrespective of his scheduled retirement date. 9 This is important as often IGPs in Bangladesh find themselves serving for relatively short periods and are therefore unable to make many important strategic decisions. The MPA 2006 also has a minimum of two years tenure for the Chief of Police but it does not provide a maximum tenure. The 2010 Kenya Constitution sets out that the Inspector-General should be provided a guaranteed tenure of four years 10 and that his removal can only be undertaken under very clearly defined circumstances, namely if he has committed a serious violation of the Constitution, engaged in gross misconduct, is physically or mentally incapable of performing his functions, incompetent or bankrupt. 11 Since an individual who is eligible for renewable tenure may be more susceptible to political pressure, the Kenya provision has merit. It also provides for four years of tenure, rather than just three. Ideally, tenure should be for five years since three or four years may not be sufficient time for the IGP to do a proper job given that it takes at least six months to learn how to suitably perform a particular role. 2.3 Selection of Chief of Police The selection, possible transfer and termination of the IGP should be much more depoliticised than it currently is in Bangladesh. The Police Act, 1861 permits the Government to appoint the IGP, other senior officers and officers who will lead the administration of police in a given district. 12 This level of direct appointment is not ideal in a system that seeks to have police wield greater operational responsibility. The DPO 2007 improves on this arrangement by requiring the NPC to empanel three possible candidates for IGP, from amongst the five senior-most police officers, which the Government will then select from. 13 This allows for some independent scrutiny of potential IGP s and is more democratic than what is provided for under the Police Act, Bangladesh (Draft) Police Ordinance, 2007, Section 7(2). 10 The Constitution of Kenya, 2010, Article 245(6). 11 The Constitution of Kenya, 2010, Article 245(7). 12 Bangladesh Police Act, 1861, Sections 2B and Bangladesh (Draft) Police Ordinance, 2007, Sections 7(1), 7(7) and 44(2)(a). 11

11 Although progressive as compared to the Police Act, 1861, there is room for the DPO 2007 to improve. For instance, subject to approval from the Minister of Justice, the Northern Ireland Police Board actually selects the Chief Constable. 14 While this practice might be too radical for South Asian policymakers, the MPA 2006 provides an example of good practice that emanates from South Asia. It also provides for the empanelment of three candidates, but it goes one commendable step further. It stipulates the criteria by which possible IGP candidates should be shortlisted. 15 (a) Length of service and fitness of health, standards as prescribed by the State Government; (b) assessment of the performance appraisal reports of the previous 15 years of service by assigning weightages to different grading, namely, Outstanding, Very Good, Good, & Satisfactory ; (c) range of relevant experience, including experience of work in central police organisations, and training courses undergone; (d) indictment in any criminal or disciplinary proceedings or on the counts of corruption or moral turpitude; or charges having been framed by a court of law in such cases. (e) due weightage to award of medals for gallantry, distinguished and meritorious service. The DPO 2007 does not provide any criteria for IGP selection. Providing such further guidance will only strengthen the selection process. 2.4 Removal/Transfer of Chief of Police Almost as important as IGP selection, is the process by which he/she can be removed or transferred. The DPO 2007 states that the Government, with concurrence from the NPC, can remove or transfer the IGP before his tenure has expired upon his: 16 Voluntary application on personal grounds; or Conviction by a court of law in a criminal offence; or Punishment of dismissal, removal, or compulsory retirement from service or of reduction to a lower post, awarded under the provisions of the Government Servants (Discipline and Appeal) Rules 1985 or any other relevant rules. The problem with this provision is threefold. First, it is unclear in the DPO 2007 whether the NPC can initiate on its own motion the removal or transfer of the IGP. Section 7(8) indicates that the Government requires only the concurrence of the NPC, but Section 44(2)(c) seems to suggest that the NPC can suo moto recommend the transfer of the IGP. Second, given that the IGP sits on the NPC, and the NPC has a role to play in the possible premature transfer of the IGP, it seems strange that the DPO 2007 is silent on recusal procedures for the IGP when personnel matters related to him are at issue. Third, the criteria for premature transfer under Section 7(8) of the DPO 2007 are vague. The Kerala Police Act, 2011 ( KPA 2011 ) provides greater clarity on how and when premature transfer can be initiated: 97(2) The Government or the appointing authority may, without prejudice to the right to initiate any legal or departmental action, transfer any police officer before completing the normal tenure of two years, on being satisfied prima facie that it is necessary to do so on 14 Police (Northern Ireland) Act, 2000, Section 35(1). 15 Model Police Act, 2006 (India), Section 6(2). 16 Bangladesh (Draft) Police Ordinance, 2007, Section 7(8). 12

12 any of the following grounds stated in (a) to (f), namely:- (a) the officer is subjected to disciplinary action; (b) it is found prima facie on investigation that the officer is involved in a corrupt practice or in a criminal offence involving proclivity for violence or moral turpitude; (c) the officer is physically or mentally incapable of discharging his duties; (d) a superior officer evaluating the work of an officer, reports, in writing, that the officer is not carrying out his duties efficiently; (e) cause serious dissatisfaction in the general public about efficiency of police in his jurisdiction; and (f) the officer requests, in writing, for a transfer from the place where he is working. In fact, even Section 12 of the DPO 2007, which describes how and when Heads of Units or Ranges can be transferred, is more detailed than Section Role of District Magistrate Section 4 of the Police Act, 1861, sets out that the police must operate under the general control and direction of the Magistrate. This form of dual control is unique to South Asia and adds an interesting element to the police-executive relationship. Strict dual control is not appropriate for a nation that wishes to cultivate democratic policing. However, one cannot ignore that dual control has been the practice in Bangladesh for 150 years. Radically altering that arrangement is bound to meet stiff resistance from many quarters, the effect of which may be to doom any reform effort. This is one of the reasons that police reform in Pakistan failed. The import of a completely foreign system of oversight and accountability resulted in the significant marginalisation of administrative cadres vis-à-vis the police. For instance, the Police Order, 2002 (PO 2002) provides for the creation of The Criminal Justice Coordination Committee, which shall consist of a number of different actors (i.e. District and Sessions Judge, Head of District Police, District Public Prosecutor, District Superintendent Jail, District Probation Officer, District Parole Officer and Head of Investigation), but no role for the District Coordination Officer. Delegating greater operational responsibility to the Head of District Police and providing the Zila Nazim 17 with supervisory powers over the police meant that the PO 2002 instantly changed 140 years of practice in Pakistan. This undermined reform efforts. Like the PO 2002, the DPO 2007 removes all mention of the Magistrate. This complete excision of the bureaucratic cadre from the Police Act of 1861 is a mistake. In contrast, India has a formulated a possibly better approach. The MPA 2006 acknowledges the important role of the District Magistrate (DM) in coordinating administration in the district and accepts that this will naturally touch on matters of pertinence for the District Head of Police. Thus, it expressly provides for the DM to have a role in relation to police supervision, but circumscribes that power: 14. Coordination within the District Administration (1) For the purpose of efficiency in the general administration of the district, it shall be lawful for the District Magistrate, in addition to the provisions of the Code of Criminal Procedure, 1973 and other relevant Acts, to coordinate the functioning of the police with other agencies of district administration in respect of matters relating to the following: (a) the promotion of land reforms and the settlement of land disputes; 17 Zila Nazim is the Urdu equivalent of mayor ; he was given considerable power over local affairs by virtue of the Local Government Ordinance, 2001 (Pakistan). 13

13 (b) extensive disturbance of the public peace and tranquility in the district; (c) the conduct of elections to any public body; (d) the handling of natural calamities and rehabilitation of the persons affected thereby; (e) situations arising out of any external aggression or internal disturbances; (f) any similar matter, not within the purview of any one department and affecting the general welfare of the public of the district; and (g) removal of any persistent public grievance. (2) For the purpose of such coordination, the District Magistrate may call for information of a general or special nature, as and when required, from the Superintendent of Police and heads of other departments of the district. Where the situation so demands, the District Magistrate shall pass appropriate orders and issue directions in writing, to achieve the objective of coordination. (3) For the purpose of coordination, the District Magistrate shall ensure that all departments of the district, whose assistance are required for the efficient functioning of the police, will render full assistance to the Superintendent of Police. In order to facilitate such coordination, the DM may call for information of a general or special nature from the District SP and when necessary, the DM shall pass orders and issue directions in writing. 18 By acknowledging the importance of the DM and clearly delineating the scope of his role in relation to the police, the MPA 2006 charted out an interesting compromise between the full police independence and governmental policing models of police-executive relations that might be appropriate in the South Asian context. While the Kerala Police Act, 2011 ( KPA 2011 ) largely replicates the language of the MPA 2006, the problem with the KPA 2011 is that it inserts a very open-ended provision that can be abused. When outlining the areas that the DM can coordinate the police, it states that the DM can give such directions to the Police and the connected agencies in respect of matters as the District Magistrate deems necessary. 19 Since the KPA 2011 is a relatively new piece of legislation, it remains unclear whether the Magistrates in Kerala will abuse this provision in practice. But regardless, to avoid any difficulties, this is an open-ended provision that Bangladesh might wish to refrain from inserting in any future attempt to circumscribe the role of the DM. 18 Model Police Act, 2006 (India), Section 14(2). 19 Kerala Police Act, 2011, Section 19(2)(c). 14

14 3. DEMOCRATIC ACCOUNTABILITY 3.1 Mandate of Democratic Accountability Body The DPO 2007 addresses a shortcoming of the Police Act, 1861 in that it creates the National Police Commission, a democratic body that seeks to oversee the police. However, the enumerated mandate of the NPC is one of the more weak aspects to the DPO 2007, especially when compared against international models. For example, Section 44 of the DPO describes NPC functions to include: Recommendations for appointment/premature transfer of IGP; Recommendations for appointment of police officers; Oversee implementation of plans prepared by different police units; Request reports from the various police units and then report to Parliament on the same; and Recommend reforms for the modernisation of laws and procedure. At no point does the DPO 2007 compel the NPC to work towards making the police more efficient and effective. One might argue that all of the items listed above are attempts to make the police more efficient and effective, but these elements ought to be delineated much more clearly if the NPC is to match international good practice. In this regard, the reform attempts from India provide guidance. Each of the MPA 2006, KPA 2011 and the West Bengal Draft Police Act, 2007, require that the oversight body frame general policy guidelines for the police. 20 In Kerala, the State Security Commission (SSC) can issue directions for the implementation of crime prevention tasks and service oriented activities. In addition, the KPA 2011 requires the SSC to hire three experts to assess police performance for the preceding year. 21 Moreover, the directions of the SSC are binding on the Kerala Police. 22 The purpose of these provisions is to ensure that the oversight body guides the police, as best as possible, to be more efficient and effective. The DPO 2007 could also benefit by emulating the Northern Ireland example of clearly articulating that the oversight body will have a role in setting out medium term policing policy. 23 Having already discussed the importance of the Chief of Police to set short-term policy and the desirability for the concerned Minister to set long-term policy, it is equally important to have an autonomous body, which enjoys the trust and confidence of the public, to be responsible for monitoring police performance. In South Africa, the Civilian Secretariat is expected to provide the Minister with strategic advice on policing policy. 24 It would also be helpful if the NPC could have a role in monitoring and/or evaluating police budgets, like the Civilian Secretariat in South Africa. 25 These countries envision a very active and participatory role for the oversight body, attributes not spelled out so clearly for the NPC in the DPO Model Police Act, 2006 (India), Section 48; Kerala Police Act, 2011, Section 25; West Bengal Draft Police Act, 2007, Section Kerala Police Act, 2011, Section Kerala Police Act, 2011, Section 25(5). 23 Police (Northern Ireland) Act, 2000, Section Civilian Secretariat for Police Service Act, 2011 (South Africa), Section 5(b). 25 Civilian Secretariat for Police Service Act, 2011 (South Africa), Section 6(1)(b). 15

15 3.2 Composition of Democratic Accountability Body According to Section 38 of the DPO 2007, the proposed NPC should be an eleven-member body composed of: Minister of Home Affairs (ex-officio Chairperson) 2 members from Treasury; 2 members from Opposition; 4 independent members (at least one of which is a woman) nominated from a panel of 6 given to the President by the National Selection Panel; Secretary, Ministry of Home Affairs; and Chief of Police. The DPO 2007 also requires that the National Selection Panel, which recommends names for independent members, be comprised of the Chief Justice of Supreme Court (Chairperson), Chairman of the Anti Corruption Commission, and the Comptroller and Auditor General. 26 Moreover, the DPO 2007 outlines the requirements for independent members and commendably disqualifies anyone that has remained a public servant in the two years immediately preceding possible appointment. 27 The composition of the proposed NPC is fairly well balanced and strong. It also has the added safeguard of a respectably constituted National Selection Panel. However, independent members should constitute half (or nearly half) of the seats on an oversight body with government or opposition members comprising the remaining half. Public trust in the oversight body will be weakened if it is seen as a government functionary. Inclusion of an equal (or almost equal) number of independent members will strengthen public perception that the body is truly non-political in nature. The Northern Ireland Policing Board provides guidance in this respect; it has ten elected members and nine independent members. In South Asia, the State Police Board created by the Model Police Act of India also has a fairly strong independent flavour to it: 28 Home Minister (Chair); Leader of the Opposition; Retired High Court Judge; Chief Secretary; Secretary in charge of the Home Department; Director General of Police; and Five independent members. Therefore, a possible remedy to the composition of the NPC might be to add two more independent members and make the body a 13-member institution. 26 Bangladesh (Draft) Police Ordinance, 2007, Section 41(1). 27 Bangladesh (Draft) Police Ordinance, 2007, Section Model Police Act, 2006 (India), Section 42(1). 16

16 3.3 Need for Transparency and Co-operation Aside from some references to the Police Policy Group at Section 44(2)(h) and the Bureau of Police Research (Section 48), there is little in the way of NPC transparency and co-operation in the DPO The need for transparent functioning is important for oversight bodies. It needs to operate transparently if the public is to trust it. In Northern Ireland, the Policing Board has been successful in gaining the public s trust and confidence because it holds public meetings at least eight times a year and publishes the transcripts of each meeting. 29 The Board must also co-ordinate and co-operate with other statutory authorities. 30 In South Africa, the Civilian Secretariat for Police Service Act, 2011 requires that the Civilian Secretariat promote co-operation between itself, the South African Police Service and the Independent Police Investigative Directorate. 31 It also is expected to implement intergovernmental cooperation on safety and encourage national dialogue on crime. 32 Also, the six collaborative features found in Chapter 5 of the same Act are an example of the co-oeration required to ensure that policing-related institutions are able to successfully work together Transfer & Promotion Section 2.1 of this report addressed the issue of transfers provided for under Section 25 of the DPO 2007, which permits the Government to initiate the transfer of any police officer, albeit in consultation with the IGP, from the police to another agency. This ability of the Government to initiate a transfer seems to contradict other provisions (i.e. Sections 7(3), 10 and 11) in the DPO 2007 that seek to give operational responsibility to the IGP. In addition, it is unclear in the DPO 2007 how the power of the NPC to recommend premature transfers, given under Section 44(2)(c), will intersect with the powers of the Government and IGP on this issue. In regards to the transfer, posting and promotion of officers other than IGP, countries like Northern Ireland and South Africa largely leave that responsibility to the IGP since he will have the necessary administrative and operational understanding to make those determinations. However, due to the politicised nature of policing in South Asia, it might be prudent to have more than just the IGP involved in such decisions. In India, the MPA 2006 has done a very good job of incorporating effective checks and balances with the creation of Police Establishment Committees (PEC). This body is composed of senior police officers that are involved in important personnel decisions. According to Section 53 of the MPA, the PEC accepts complaints from police officers about being subjected to illegal orders, it recommends names for the posting of Assistant/Deputy SP positions and higher (which the Government should ordinarily accept), and it recommends to the DGP the postings of Sub Inspectors or Inspectors in a police range. Also, the MPA 2006 understands the importance of decentralising some of the operational decision-making within the police organisation, a possibly important attribute for the highly 29 Police (Northern Ireland) Act, 2000, Schedule 1, paragraph Police (Northern Ireland) Act, 2000, Section 3(4)(d). 31 Civilian Secretariat for Police Service Act, 2011 (South Africa), Section 5(h). 32 Civilian Secretariat for Police Service Act, 2011 (South Africa), Section 6(2)(c). 33 Civilian Secretariat for Police Service Act, 2011 (South Africa), Chapter 5, Sections

17 centralised Bangladesh Police. Therefore, inter-district transfers and postings of non-gazetted ranks, within a Police Range, shall be decided by the Range Deputy Inspector General (on the recommendation of District SPs). In addition, the District SP will decide the postings and transfers of non-gazetted police officers within a district (on the recommendation of all Additional/ Deputy/ Assistant SPs). Section 29 of the DPO sets out that promotions should be done in accordance with the procedure laid down in the Fourth Schedule. The process, including the promotion boards, is a well-conceived scheme. It would be very easy to integrate this component with the larger idea of having a PEC (or some equivalent). 3.5 Policing Plans & Performance Standards Interestingly, the DPO 2007 only mentions the formulation of annual or strategic plans for the Bangladesh at Section 70(a) where it states, The responsibility of the Bureau of Police Research shall include formulating Strategic Plans which shall include transport, weaponry, IT & communication, forensic, infrastructure, equipment and protective gears, official and residential accommodation, and any other subject which may have a positive impact on technology-based qualitative improvement in policing. As Secretariat for the NPC, having the proposed Bureau engage in such strategic planning is helpful. However, policing in Bangladesh would definitely benefit by a more explicit articulation of the need for broader police planning, preferably facilitated by the NPC. For instance, the Northern Ireland Policing Board will issue an annual policing plan after it has received a draft from the Chief Constable and it has had an opportunity to consult with the Minister of Justice. 34 It will address training and education, as well as other matters. District commanders are also involved in this process; they will issue a local policing plan that takes into account community concerns. 35 To ensure the efficiency and effectiveness of the police service, the NPC ought to formulate specific performance standards that the police organisation can meet and draft policing plans that the police can follow. With benchmarks in place and plans prepared, it is much easier for the police to understand and meet the community s expectations. For instance, the State Security Commission in Kerala appoints three external experts each year to assess police performance. 36 The MPA 2006 also identifies performance indicators to evaluate the functioning of the police (a provision replicated in the West Bengal Draft Police Act). 37 Similarly, the Civilian Secretariat in South Africa is expected to conduct quality assessments of the SAPS, as well as monitor and evaluate its performance Police (Northern Ireland) Act, 2000, Section Police (Northern Ireland) Act, 2000, Section Kerala Police Act, 2011, Section Model Police Act, 2006 (India), Section Civilian Secretariat for Police Service Act, 2011 (South Africa), Sections 6(1)(a) and 6(2)(b). 18

18 4. EXTERNAL ACCOUNTABILITY 4.1 Mandate of External Accountability Body The creation of a Police Complaints Commission (PCC) at Section 71 of the DPO is a significant improvement over the Police Act, 1861, which has no provision for an external accountability body. According to Section 75, the functions of the PCC include: Receive complaints against police from either the NPC or an aggrieved individual; Refer ordinary complaints to the appropriate authority and initiate action on its own for serious cases; Receive from the NPC or the Range Police Officers / Head of Units any report of death, rape or serious injury to any person in police custody; Request the Chief Justice, in serious cases, to appoint a District and Sessions Judge for a judicial enquiry; Appoint a police officer that is senior in rank to the officer complained against as an inquiry officer, and supervise the inquiry proceedings; Send a copy of the inquiry report to the competent authority and direct it for departmental action on the findings of the enquiry or registration of a criminal case as appropriate and direct the competent authority to submit a report about the action taken; Recommend disciplinary action against an enquiry officer for willful neglect or mishandling of an enquiry; and Prepare and send to the Government an annual report. For Bangladeshis to have trust in the police, they must believe that misconduct committed by serving officers will be fairly and thoroughly examined by an independent agency. Conversely, it is also in the police s interest to have independent and proper investigations performed because this ensures that inquiries into police conduct will be free from political interference and decided on the merits. In order for that to occur, it would be helpful if the PCC could conduct its own independent investigations. In South Africa, IPID investigates a wide range of offences. 39 In Northern Ireland, the Ombudsman is able to receive and investigate all complaints against the Police Service of Northern Ireland Composition of External Accountability Body Section 72 sets out that the PCC will have five members and composed of people with an outstanding record of integrity and commitment to human rights. The PCC will include: A retired judge of the Appellate Division of the Supreme Court or a person of national repute (Chair); A retired police officer, superannuated as IGP or Additional IGP; 39 Independent Police Investigative Directorate Act, 2011 (South Africa), Section Police (Northern Ireland) Act, 1998, Section

19 A retired secretary/additional Secretary to the Government; and 2 persons of repute from the civil society including one woman. South Africa and Northern Ireland have chosen to create external accountability bodies headed by a Director or Ombudsman who has highly technical personnel at his disposal to carry out investigations. In contrast, the South Asian preference is to have a panel of people adjudicate complaints with limited investigative staff available to them. 41 Although the latter may be more democratic, the fact remains that the former is probably more robust and effective by virtue of its specialisation. In fact, at Section 74(2) the DPO 2007 permits PCC members to serve part-time. The importance and difficulty of civilian oversight demand that those looking into matters of police misconduct serve full-time. This is something that Bangladesh might wish to consider. If the independence and extensive powers of the South African IPID or Northern Ireland Ombudsman are too daunting for Bangladeshi policymakers, then perhaps Kenya provides a compromise position that is workable. In Kenya, the IPOA is allowed to investigate complaints against the National Police Service and it has a Director empowered to direct and guide the agency in furtherance of this statutory duty (much like the Executive Director for IPID in South Africa). 42 However, a Board that has a composition very similar to the one for the PCC ultimately governs the IPOA. 43 The composition of the Kenyan civilian oversight mechanism ensures that the specialised Director/Ombudsman makes the necessary technical decisions related to the body s mandate, while at the same time well-respected individuals are able to monitor the overall performance and conduct of this newly created, and possibly very powerful, institution. It is advisable that the proposed PCC be able to operate independently and without political interference. Thus, it is important that appointments to this body are non-political and that adequate protections are afforded in terms of transfer or termination. In that way, the DPO 2007 usefully sets out a fairly independent process for selecting members. At Section 73, a Selection Panel consisting of the senior most Judge of the Appellate Division of the Supreme Court, the senior most person of the Anti-Corruption Commission, and the senior most member of the Public Service Commission will be responsible for choosing the members of the PCC. 4.3 Serious Cases of Misconduct At Section 75(c), the DPO 2007 stipulates that the PCC shall receive reports of death, rape or serious injury to any person in police custody. Kenya and South Africa do not restrict their external accountability bodies to only look at issues that occur when an individual is in police custody. For instance, there is a requirement in the IPID Act that the Station Commander, or any member of the SAPS or Municipal Police Service, must immediately notify IPID of any death due to police action, any instance of police firing, and any rape by an officer (regardless of whether he is on 41 Model Police Act, 2006 (India), Section 160; Kerala Police Act, 2011, Section Independent Policing Oversight Authority Bill, 2010 (Kenya), Section Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 10(1). 20

20 duty or not). 44 The SAPS are required to submit a written report of the same within 24 hours. 45 Failure to do so could result in up to two years imprisonment. 46 This statutory obligation on the police to report on internal wrongdoing is also found in the Kerala Police Act, Every police officer must inform the Deputy Superintendent of Police or the District Police Chief of any corruption or physical torture perpetrated by a fellow police officer. 47 The police in Kenya are compelled to forthwith report any death in police custody or control and when the person who died was the target of a police operation or an innocent bystander Investigatory Powers As outlined in Section 4.1 of this report, the powers of the PCC are limited to processing complaints and supervising investigations. The PCC can request the Chief Justice to appoint a District and Sessions Judge to look into serious cases. 49 It can also recommend that disciplinary proceedings be initiated against any enquiry officer who wilfully neglects or mishandles an enquiry. 50 However, the powers of the PCC are quite circumscribed as compared to civilian oversight bodies elsewhere. In the case of the Police Ombudsman of Northern Ireland, investigators have the powers of a constable. 51 Similarly, IPID investigators in South Africa also have the same powers of a police officer in relation to the investigation of offences; entry and search of premises; seizure/disposal of articles; arrests; and execution of warrants. 52 With these powers in hand, investigators (who are sometimes former police officers themselves) are able to carry out thorough and effective inquiries. In Kenya, IPOA investigators are not granted full police powers but they are permitted to enter any establishment or premises with a warrant; seize and remove any object; summon and enforce attendance of witnesses, and examine them on oath; and take over internal investigations if they are inordinately delayed or manifestly unreasonable. 53 IPOA is also allowed to re-open an investigation and amend or withdraw previous findings. 54 In India, the states that have partially adhered to the ruling in Prakash Singh have in most cases conferred to police complaints authorities (PCAs) the powers of a civil court. That is why in Kerala both the district-level and state-level PCAs are able to summon and enforce the attendance of witnesses, examine them on oath, request the discovery and production of documents, receive evidence on affidavit, and 44 Independent Police Investigative Directorate Act, 2011 (South Africa), Section Independent Police Investigative Directorate Act, 2011 (South Africa), Section 29(1). 46 Independent Police Investigative Directorate Act, 2011 (South Africa), Section 33(3). 47 Kerala Police Act, 2011, Section 96(1). 48 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section Bangladesh (Draft) Police Ordinance, 2007, Section 75(d). 50 Bangladesh (Draft) Police Ordinance, 2007, Section 75(j). 51 Police (Northern Ireland) Act, 1998, Section 56(3). 52 Independent Police Investigative Directorate Act, 2011 (South Africa), Section Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 8(1). 54 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 27(9). 21

21 requisition any public record from any court or office. 55 These are useful powers but it is unlikely that in the absence of full police powers, or even something akin to the powers that an IPOA investigator enjoys, that Indian PCAs will be able to uncover information that the police wish to keep secret. Therefore, if Bangladesh wants to properly investigate police misconduct, then it is in its interest to empower the accountability body with more than just the powers of a civil court Power to Initiate Investigations Section 75(b) requires the PCC to process the complaint and refer the ordinary cases to an appropriate authority for action and report and in serious cases initiate action on its own. It is important for the external accountability body to be able to initiate an investigation on its own motion. This enables the accountability bodies to examine wrongdoing even if people choose not to complain because of the fear they might have of law enforcement agencies. Such powers are also given to the Ombudsman in Northern Ireland, 57 IPOA, 58 IPID (matters involving corruption), 59 the Police Accountability Commission in the MPA 2006 (matters involving serious misconduct), 60 and the Police Complaints Authority in the WB Draft Act (matters involving serious misconduct) Power to Enforce Findings A serious problem that external accountability bodies sometimes encounter is that they do not have the requisite power to enforce their findings. Important obstacles to external mechanism effectiveness often arise after it has completed its investigation. Many mechanisms have no real teeth, even where their investigations found strong evidence of police wrong-doing. 62 Thus, it is important that an external accountability body has the ability to recommend criminal prosecution when it comes across egregious misconduct. Each of IPID, 63 PONI 64 and IPOA 65 has this power. In fact, under certain circumstances, the IPOA may apply to substitute itself as Prosecutor if the Attorney General decides not to proceed with criminal charges. 66 Another valuable tool for an oversight body is if its recommendations are binding. In Kerala, the police are bound to accept the recommendation of either the state-level or district-level PCA to initiate a department level inquiry or register a criminal case 55 Kerala Police Act, 2011, Section 110(7). 56 Pakistan s police complaint authorities are more supervisory in nature, and one of the weaker models surveyed. The investigations are either done by a senior police officer or a judicial inquiry is established for more serious cases. The Authorities have none of the civil court powers of their Indian counterparts, or the robust investigative powers of the Police Ombudsman of Northern Ireland, the Independent Police Investigative Directorate in South Africa or the proposed Independent Police Oversight Authority in Kenya. 57 Police (Northern Ireland) Act, 1998, Section 55(6). 58 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 7(c). 59 Independent Police Investigative Directorate Act, 2011 (South Africa), Section 28(1)(g). 60 Model Police Act, 2006 (India), Section 167(1). 61 West Bengal Draft Police Act, 2007, Section UN General Assembly Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum Study on police oversight mechanisms, A/HRC/14/24/Add.8, 28 May 2010, at p Independent Police Investigative Directorate Act, 2011 (South Africa), Section 7(4). 64 Police (Northern Ireland) Act, 1998, Section 58(2). 65 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 32(1)(a). 66 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 32(2). 22

22 against a police officer. 67 Under the MPA 2006, the Police Accountability Commission has the power to direct the DGP or State Government to register an FIR and/or initiate departmental action. 68 In Northern Ireland, if the Chief Constable declines to accept PONI s recommendations, the Ombudsman can direct him to do so. 69 PONI has additional powers, including full responsibility for receiving and investigating all complaints. As a result, the police are mandated to report to PONI any complaints it receives and PONI has supervisory function over all these complaints, including even those that have been assigned to PSNI for investigation. 70 A useful provision to include, which the DPO 2007 has done at Section 80, is obligating others to co-operate with the civilian oversight mechanism. In the case of the PCC, the heads of the police units and other Government agencies are bound to provide the body with relevant information. 71 Any attempt to influence or interfere with the PCC will result in up to one-year imprisonment. 72 A similar approach is also adopted by South Africa District-Level Complaints Commission Given the size of Bangladesh it may be advisable to allow for a district level Complaints Commission rather than just one central organisation. The DPO 2007 only creates one Police Complaints Commission for the entire country. In Prakash Singh and Others vs. Union of India and Others, the Indian Supreme Court explicitly ordered that Police Complaints Authorities be constituted at both district and state levels because of the significant distances that some people would have to travel in order to register a complaint at the state capital. Since infrastructure is poor in India, and people may not be able to afford to travel long distances, the Court firmly believed that the issue of accessibility required a district-level mechanism. Thus, the KPA 2011 and MPA 2006 both provide for district-level complaints authorities. 74 Setting up such district-level authorities throughout Bangladesh, while ideal, may prove initially difficult. Therefore, consideration should at least be given to having Division-level complaints commissions, in addition to a centrally appointed one. 67 Kerala Police Act, 2011, Section 110(9). 68 Model Police Act, 2006 (India), Section 171(1). 69 Police (Northern Ireland) Act, 1998, Section 59(5). 70 The Ombudsman utilises a wide ranges of powers when conducting its work. As well as identifying and interviewing witnesses, the Police Ombudsman's Office will also conduct or arrange any required forensic and medical examinations, and will consider the full range of investigative options including house-to-house enquiries, securing available CCTV footage, media appeals, computer analysis etc... In order to conduct their duties, Police Ombudsman investigators have the powers of constable when conducting their enquiries. This means that, when required in connection with an investigation, and with lawful authority, they can search police premises and filing systems and seize documentation and other police material. They can also establish incident scenes and direct SOCO and forensic services at the scene. See the Ombudsman s website at: 71 Bangladesh (Draft) Police Ordinance, 2007, Section 80(2). 72 Bangladesh (Draft) Police Ordinance, 2007, Section 80(3). Interference is defined as any threat, coercion or inducement offered to any witness or victim of police misconduct. 73 Independent Police Investigative Directorate Act, 2011 (South Africa), Section 33(1). 74 Kerala Police Act, 2011, Section 110(3); Model Police Act, 2006 (India), Section

23 4.8 Rights of Complainant In order for an external accountability body to be effective and to have public trust, it should ensure that the rights of a complainant are protected. This will build confidence in the institution and improve an individual s ability to get a remedy for possible wrongdoing that was committed against them. The DPO 2007 sets out that a complainant should be informed of the progress of his complaint 75 and that the PCC must inform the complainant, in writing, of the outcome of the enquiry. 76 Unfortunately, the DPO 2007 also states that in case of any frivolous, false or vexatious complaint, legal action can be initiated against the complainant. 77 This approach has a chilling effect on people s willingness to file a complaint because the risk of penalty will dissuade them from registering legitimate grievances. Jurisdictions in South Asia emulate the DPO 2007 requirement that a complainant ought to be informed of his complaint s progress, completion and final determination. 78 According to the Kerala Police Act, 2011, the police must accept a complaint 79 and the complainant should receive a receipt acknowledging his complaint. 80 However, countries outside of South Asia go further in protecting the complainant or witness who must be protected if he is going to make serious allegations against the police or provide incriminating testimony. Thus, the SAPS Act in South Africa and the IPOA Bill in Kenya are praiseworthy for their inclusion of provisions that protect the identity of the complainant or witness. 81 The IPOA Bill goes even further and allows IPOA to provide a victim with relevant information of unlawful NPS conduct so that he may institute and conduct civil proceedings for compensation in respect of injuries, damages and loss of income. 82 A commendable aspect to the IPOA Bill is the extent to which it seeks to protect and safeguard the rights of the complainant. In the event of a vexatious or frivolous complaint, the IPOA may simply refuse to conduct an investigation. 83 This is a progressive departure from the typical South Asian approach of imposing a fine or imprisonment for those who have initiated a vexatious or frivolous complaint. 75 Bangladesh (Draft) Police Ordinance, 2007, Section 78(4). 76 Bangladesh (Draft) Police Ordinance, 2007, Section 75(g). 77 Bangladesh (Draft) Police Ordinance, 2007, Section 75(i). 78 Model Police Act, 2006 (India), Section 177; West Bengal Draft Police Act, 2007, Section Kerala Police Act, 2011, Section Kerala Police Act, 2011, Section 8(4). 81 The South African Police Service Act, 1995, Section 53(9); Independent Policing Oversight Authority Bill, 2010 (Kenya), Sections 27(13) and (15). 82 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 8(1)(i). 83 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 27(8). 24

24 5. COMMUNITY ENGAGEMENT 5.1 Preamble As compared to the Police Act, 1861, the Preamble of the DPO 2007 positively changes the philosophical approach towards the community. It mentions that the police have an obligation to function according to the law and Constitution and a duty to respect and protect the human rights of people. It also clearly requires the police to be professional, efficient, accountable, and operate free from extraneous influence. These are all important attributes if a police organisation is looking to democratise and transition from regime policing to a service-oriented model of law enforcement. In comparison to other preambles, the one found in the DPO 2007 is very good. 5.2 Community Policing At Section 56, the DPO 2007 provides for community policing in metropolitan and urban settings but remains silent on whether such activities should be extended to rural areas. Where community policing is mentioned in the respective acts of South Africa, Northern Ireland, Kenya or Kerala, no distinction is made between rural and urban communities. Also, the DPO 2007 calls for the creation of Citizen Policing Committees for groups of localities or colonies, which should meet at least once every three months. While the police acts of South Africa, Northern Ireland, Kenya and Kerala do not stipulate a specific timeframe for community policing meetings to take place, once every three months seems too intermittent. In practice, most community policing meetings in South Africa or Kerala take place once every month (if not more frequently). Since community policing is very contextual and ultimately undermined if the governing statute is too prescriptive, a few important points need to be made. First, it is inappropriate to import a particular community policing structure from one jurisdiction to another. Community policing is most successful when it is tailored to the community in question because its policing needs will be specific to that community 5.3 Duty of Police Towards Community & Rights of the Community Section 3 of the DPO 2007 places emphasis on treating the public with respect and courtesy and to prevent all forms of harassment against women and children as well as foster community partnership in policing. This is a strong foundation to build upon. In terms of international good practice, the Kerala Police Act, 2011 does a very good job of embedding public-friendly provisions throughout the legislation. Citizens have the right to efficient police service. 84 Citizens have a right to lawful services from the police and to meet with the Officer in Charge (subject to reasonable restrictions). 85 The police must treat the public with respect and courtesy, and assist at all times Kerala Police Act, 2011, Section Kerala Police Act, 2011, Section Kerala Police Act, 2011, Section

25 Importantly, police officers are liable to explain their actions 87 and they must behave decently towards witnesses. 88 Additionally, the police should also identify themselves, or be clearly identifiable as police officers with an appropriate nameplate and/or badge displayed, and must provide identity when requested by a member of the public. 5.4 Beat Constable Typically, the Constable and the Head Constable in South Asian policing are under-utilised in operations. Comprising over 80 per cent of the total Bangladesh Police force, the Constable is hardly mentioned at all in the DPO In contrast, as part of their effort to establish closer ties with the community, both the Kerala Police and the Police Service of Northern Ireland have placed considerable importance on the beat constable. Recognising that building trust with the public requires regular and healthy interaction, the beat constable is expected to spend substantial time in getting to know community members personally. The Kerala Police has formally integrated the beat constable into its CBP program with significant success. By having properly trained and reliable constables hand-picked to forge productive relationships with the community, the dynamic between the police and the people has radically changed for the better. But in order for this approach to work, it is absolutely imperative that constables are permitted to stay in the community for at least three years; this is the minimum amount of time required to cultivate the necessary ties in most of the jurisdictions surveyed. Aside from building a closer bond with community members, the beat constable system is also useful in curtailing crime. When an officer patrols a small geographic area on foot, the mere presence of law enforcement discourages the commission of crime. In addition, better ties with the community means better intelligence and this can also lead to crime reduction. The Kerala Police Act enumerates these various roles for the beat constable. 89 It would be a remarkable innovation for Bangladesh if it were decided that the beat constable could be empowered to take on more challenging responsibilities than those accorded hitherto. 5.5 Working Hours One of the tremendous burdens on the junior ranks is the fact that Section 22 of the Police Act, 1861 stipulates that police are always to be on duty. Section 93 of the DPO 2007 essentially replicates this wording. On the face of it this policy may appear public friendly, (i.e. the police being on duty at all times means that they are always accessible to the public), but it is not. In practice, having police always on duty and subjecting them to hour days without holidays burns them out and makes them less likely to serve the public selflessly. It would be much better for both the police and the community if the police were treated with more respect in this regard. Although the MPA 2006 also sets out that police are always to be on duty, it 87 Kerala Police Act, 2011, Section Kerala Police Act, 2011, Section Kerala Police Act, 2011, Section

26 establishes that police are entitled to one day off per week 90 and that in the absence of exceptional circumstances, they are expected to work only eight hours a day Special Police Officers Section 34 of the DPO 2007 reproduces the use of special police officers (SPOs) as found in Sections of the Police Act, Notwithstanding that the use of a standing reserve force provided for under Section 36 of the DPO 2007 is a fairly mainstream practice that can be found throughout the world, 92 the use of the more ad hoc (and less regulated) SPOs is a remnant of British India 93 that has been embraced in the various jurisdictions of South Asia. The problem with SPOs in South Asia 94 is that they are usually poorly trained and an impermanent adjunct to regular policing. 95 This differs from the standing reserves in countries like South Africa and Northern Ireland where reserve forces are given training very similar to regular police officers. When issues of training and recruitment plague the regularly constituted police forces of South Asia, it should come as no surprise that SPOs face even more challenges on these fronts. Due to the ad hoc nature of SPO appointments, it is likely that insufficient time will be available to adequately train them on the principles of law relating to police powers, as well as the functions and responsibilities of the police. Inclusion of SPOs run the risk of expanding the ranks of the Bangladesh Police with poorly trained and unprofessional officers when even trained officers sometimes fail to understand the limits of police powers and duties. Therefore, having untrained officers with the powers of a police officer could prove extremely difficult. SPOs have been used extensively in India to fight Naxalism and have recently incurred the condemnation of the Supreme Court of India. 96 The Koya Commandos and Salwa Judum, as these SPOs are called, represent the worst forms of community engagement. They are nothing more than vigilante proxies who should not be included in any modern police act. Therefore, it is highly advisable that Bangladesh avoids the use of special police officers and instead strengthens provisions relating to a standing part-time or full-time professionalised reserve force that can assist the Bangladesh Police when the need arises. While those belonging to the Ansars or Village Defence Party may constitute the Bangladesh version of reserves, it is not clear that they receive an adequate level of training to properly perform law enforcement functions. 90 Model Police Act, 2006 (India), Section Model Police Act, 2006 (India), Section See Police Service of Northern Ireland Reserve (Part-Time) Regulations, 2004; South African Police Service Act, 1995, Section 48; National Police Service Bill, 2010 (Kenya), Section Bangladesh Police Act, 1861, Sections Model Police Act, 2006 (India), Section 22; Kerala Police Act, 2011, Section 98; West Bengal Draft Police Act, 2007, Section 10.17; Police Order, 2002 (Pakistan), Section In addition to SPOs, there are the Ansars and the Village Defence Party that also serve some policing function. 96 In Nandini Sundar and Others vs. State of Chattisgarh, Writ Petition (Civil) No. 250 of 2007, 5 July 2011, the Court held that the use of young, ill trained and poorly educated men to fight against Naxals is a violation of their constitutional rights to equality and right to life. 27

27 5.7 Special Security Zones Similar to special police officers, the DPO 2007 also permits the creation of special security areas under Sections The objective of a civilian-minded police act ought to be strictly focused on the delivery of civilian policing. This is not to suggest that the State should not contemplate exceptional or emergency circumstances. But such considerations are best served with the passage of an act designed for extraordinary situations and not simply inserted in an ill-suited police act. Neither Northern Ireland nor South Africa, two jurisdictions previously prone to highly insecure situations, has special security zones in their respective police acts. Second, the community policing-related provisions of police acts in South Africa, Northern Ireland, Kenya and Kerala are strong because they provide an overall structure for community policing throughout the jurisdiction without dictating that the police-community relationship in a particular district should be formulated in a specific manner. 97 Having a consistent, and well-conceived, framework for community policing is important. The DPO 2007 takes some initial good steps in this regard but any attempt to draft a future police act for Bangladesh should closely examine the approaches taken by these other jurisdictions. Third, a significant concern for any jurisdiction seeking to implement community policing is the risk of such entities becoming politicised. However, the police acts of South Africa, Northern Ireland, Kenya and Kerala do not specifically formulate structures or legislative language to address politicisation of community policing bodies because to do so is beyond the purview of a statute. Rather, the success of community policing is contingent on mustering the requisite political will to ensure that the aforementioned community-policing framework is properly implemented. 97 South African Police Service Act, 1995, Sections 18-23; Police (Northern Ireland) Act, 2000, Sections 14-19; National Police Service Bill, 2010 (Kenya), Sections 72-77; Kerala Police Act, 2011, Section

28 6. MISCELLANEOUS 6.1 Diversity in the Police Organisation In order for the police to have the trust and confidence of the public, it should demographically reflect the population it polices. The Independent Commission on Policing for Northern Ireland recognised this:, Real community policing is impossible if the composition of the police service bears little relationship to the composition of the community as a whole. 98 While Section 8 of the DPO 2007 discusses recruitment, it is silent on the issue of diversity. Therefore, it may be instructive for Bangladesh to look at the Model Police Act, 2006 where it stipulates that the composition of the Police Service shall, as far as possible, reflect adequate representation of all sections of society, including gender representation Separation of Law & Order from Investigations Sections 19 and 21 of the DPO 2007 stress the importance of having highly competent and effective investigative staff. Currently, the police regulations in Bangladesh do not permit any officer below the rank of Sub Inspector from normally conducting criminal investigations. 100 That means there are approximately only 15,000 people authorised to do investigations in Bangladesh and of those eligible, many are on deputation to the Rapid Action Battalion, seconded to other agencies, or engaged in overseas peacekeeping. Therefore, at any given moment in time, there are approximately 6,000 investigators available in all of Bangladesh. Moreover, in addition to their investigative duties, these 6,000 are often responsible for a whole host of other tasks. In light of these realities, there would be tremendous value in having officers dedicated exclusively to investigations. In Kerala, investigations are separated from law and order and the District Police Chief is expected to ensure coordination of both wings. 101 When separation of investigations from law and order was done in Pakistan, the mistake they made was in having the supervision of investigations conducted by the Head of Investigation, and the supervision of law and order conducted by the District Police Officer. 102 By separating the supervision, the proverbial left hand did not know what the right hand was doing. In order to develop expertise in investigations, it might be useful for legislation to set out that investigative staff, subject to the necessary qualifications, are not to be assigned any non-investigative duties and that they should be placed in investigations for a minimum of two years. 6.3 Impunity When examining international good practice, Section 145 of the DPO 2007 is problematic. Section 145 stipulates that a criminal case cannot be filed against a police officer unless permission 98 A New Beginning: Policing in Northern Ireland, The Report of the Independent Commission on Policing for Northern Ireland, September 1999, at paragraph Model Police Act, 2006 (India), Section 4(4). 100 Police Regulations of Bengal, 1943 (Bangladesh), Section 255(b). 101 Kerala Police Act, 2011, Section Police Order, 2002 (Pakistan), Section

29 is given from a high-ranking police official or the government. Ostensibly, Section 145 prevents any court from taking cognizance of any offence committed by a police officer except on a written report of the facts constituting the offence. This provides an additional layer of protection to police officers than what is already available to them under Section 197 of the Code of Criminal Procedure, which mandates previous sanction of the government for prosecution of certain class of public servants. Therefore, while typically only those police officers appointed and dismissed by the government are given protection from prosecution under Section 197 of the Code of Criminal Procedure, the DPO 2007 extends this immunity to the entire police force. South Africa, Kenya, and Northern Ireland avoid the inclusion of such a provision. In fact, in Kenya, the IPOA can apply to substitute itself as Prosecutor if the Attorney General does not pursue criminal charges against a member of the National Police Service Use of Force Since excessive use of force by the police is an ongoing issue in Bangladesh, it is striking that the DPO 2007 is silent on the need to use minimum force. In South Africa, where a member who performs an official duty is authorised by law to use force, he or she may use only the minimum force that is reasonable in the circumstances. 104 While Section 49 of the Criminal Procedure Act, 1977 is largely seen as too permissive on this issue of use of force, it is hoped that a proposed amendment to Section 49 will provide greater clarity on the appropriate use of police force. 105 In Kenya, the National Police Service Bill, 2010, sets out in considerable detail the circumstances when force by the police is permissible and the extent to which force can be applied. 106 These two countries, both with histories of excessive use of police force, illustrate the importance of establishing a framework for the use of such force. 103 Independent Policing Oversight Authority Bill, 2010 (Kenya), Section 32(2). 104 South African Police Service Act, 1995, Section 13(3)(b). 105 For an interesting discussion on the proposed changes in South Africa to the use of police force, see Submission to the Portfolio Committee on Justice and Constitutional Development Re: Criminal Procedure Amendment Bill, 39 of 2010, Centre for the Study of Violence and Reconciliation, 2 August National Police Service Bill, 2010 (Kenya), Sixth Schedule. 30

30 POLICE-EXECUTIVE RELATIONS SUBJECT AREA SUPERINTENDENCE MINIMUM TENURE SELECTION OF CHIEF OF POLICE REMOVAL OF CHIEF OF POLICE ROLE OF DISTRICT MAGISTRATE OR DEPUTY COMMISSIONER 3: Superintendence over the police vests with the Government 4: Administration of police shall generally vest in the IGP and other senior officers; Administration of police at district level shall, under the general control and direction of Magistrate, be vested in District SP 5: IGP magisterial powers subject to governmental limitation 12: Subject to Government approval, IGP can frame rules 2B: Government selects IGP directly. Bangladesh Police Act, 1861 Bangladesh (Draft) Police Ordinance, 2007 (DPO 2007) International Good Practice 4: Administration of police at district level shall, under the general control and direction of Magistrate, be vested in District SP The DPO 2007 criminalises political interference and gives the IGP full administrative control over the police. This is a considerable improvement over the Police Act, However, it does not fully articulate the parameters of the police-executive relationship. 10(1): The superintendence over Police Service shall vest in the Government and except as authorized under provisions of this Ordinance, no person, officer, authority or the court shall be empowered by the Government to supersede or control any police functionary. (2) Direct or indirect influence or interference into police investigation, law enforcement operation, recruitment, promotion, transfer, posting or any other police function in an unlawful manner shall be a criminal offence. (3) The power of superintendence under sub-section (1) shall be exercised only to ensure that the Police perform its duties strictly in accordance with the Constitution and law. (4) The superintending authority shall also include the responsibility to oversee that any request made by any governmental body or official to Police is in accordance with law. 7(3): IGP shall have the full management, administrative and financial powers as ex-officio Secretary to the Government (see also Section 11) 7(2): DPO 2007 gives the IGP minimum tenure of 2 years, maximum 3 years. The minimum is a useful provision that will limit political interference in the employment status of the IGP. However, 3 year might not be a sufficient amount of time to do an effective job. 7(7): Government will select The IGP from a panel of 3 provided to it by the National Police Commission (NPC) as per Section 44(2)(a). 7(8): Government can remove, with concurrence from NPC, the IGP upon his: (a)voluntary application on personal grounds; or (b)conviction by a court of law in a criminal offence; or (c)punishment of dismissal, removal, or compulsory retirement from service or of reduction to a lower post, awarded under the provisions of the Government Servants (Discipline and Appeal) Rules 1985 or any other relevant rules. The DPO 2007 removes all mention of the Magistrate/Deputy Commissioner. This complete excision of the bureaucratic cadre from the Police Act is reminiscent of the Police Order, 2002 in Pakistan. The removal of the Magistrate proved an impediment to securing widespread stakeholder buy-in for efforts to reform the police. This mistake should not be repeated by Bangladesh. In addition to the tripartite model described at Sections 24, 25 and 33 of the Police (Northern Ireland) Act, 2000, the New Zealand Policing Act 2008 does a very good job of delineating the ways in which the Minister can, and cannot, direct the Commissioner of Police. 16. Responsibilities and independence of Commissioner (1) The Commissioner is responsible to the Minister for (a) carrying out the functions and duties of the Police; and (b) the general conduct of the Police; and (c) the effective, efficient, and economical management of the Police; and (d) tendering advice to the Minister and other Ministers of the Crown; and (e) giving effect to any lawful ministerial directions. (2) The Commissioner is not responsible to, and must act independently of, any Minister of the Crown (including any person acting on the instruction of a Minister of the Crown) regarding (a) the maintenance of order in relation to any individual or group of individuals; and (b) the enforcement of the law in relation to any individual or group of individuals; and (c) the investigation and prosecution of offences; and (d) decisions about individual Police employees. The Model Police Act, 2006 (India) provides minimum tenure of 2 years, but does not stipulate a maximum (Section 6(3)). The Kenya 2010 Constitution provides a non-renewable 4-year term (Article 245(6)). Ideally, tenure should be for 5 years, since it takes some time to fully acquaint oneself with an important job like IGP. The Model Police Act, 2006 (India) provides for empanelment, but goes further and gives criteria by which possible candidates for the position of IGP should be assessed (Section 6(2)). In Northern Ireland, the Police (Northern Ireland) Act, 2000 makes the process of choosing the Chief of Police truly independent by having the Chief Constable selected by the Northern Ireland Policing Board (Section 35(1)). The Kerala Police Act, 2011 provides greater clarity than the DPO It stipulates at Section 97(2) that any officer, including the Chief of Police, can be removed if: (a) the officer is subjected to disciplinary action; (b) it is found prima facie on investigation that the officer is involved in a corrupt practice or in a criminal offence involving proclivity for violence or moral turpitude; (c) the officer is physically or mentally incapable of discharging his duties; (d) a superior officer evaluating the work of an officer, reports, in writing, that the officer is not carrying out his duties efficiently; (e) cause serious dissatisfaction in the general public about efficiency of police in his jurisdiction; and (f) the officer requests, in writing, for a transfer from the place where he is working. The Model Police Act, 2006 (India) acknowledges the important role of the District Magistrate (DM) in coordinating administration in the district and this will naturally touch on matters of pertinence for the District Head of Police. Thus, it expressly provides for the DM to have a role in relation to police supervision, but circumscribes that power: 14. Coordination within the District Administration (1) For the purpose of efficiency in the general administration of the district, it shall be lawful for the District Magistrate, in addition to the provisions of the Code of Criminal Procedure, 1973 and other relevant Acts, to coordinate the functioning of the police with other agencies of district administration in respect of matters relating to the following: (a) the promotion of land reforms and the settlement of land disputes; (b) extensive disturbance of the public peace and tranquility in the district; (c) the conduct of elections to any public body; (d) the handling of natural calamities and rehabilitation of the persons affected thereby; (e) situations arising out of any external aggression or internal disturbances; (f) any similar matter, not within the purview of any one department and affecting the general welfare of the public of the district; and (g) removal of any persistent public grievance. (2) For the purpose of such coordination, the District Magistrate may call for information of a general or special nature, as and when required, from the Superintendent of Police and heads of other departments of the district. Where the situation so demands, the District Magistrate shall pass appropriate orders and issue directions in writing, to achieve the objective of coordination. (3) For the purpose of coordination, the District Magistrate shall ensure that all departments of the district, whose assistance are required for the efficient functioning of the police, will render full assistance to the Superintendent of Police. = Denotes when a statutory instrument does not have a specific provision that directly addresses the subject matter

31 DEMOCRATIC ACCOUNTABILITY SUBJECT AREA Bangladesh Police Act, 1861 Bangladesh (Draft) Police Ordinance, 2007 (DPO 2007) International Good Practice OVERSIGHT BODY: COMPOSITION 38: Sets out a good composition for the National Police Commission (NPC): Minister of Home Affairs (ex-officio Chairperson) 2 members from Treasury; 2 members from Opposition; 4 independent members (at least one of which is a woman) nominated from a panel of 6 given to the President by the National Selection Panel; Secretary, Ministry of Home Affairs; and Chief of Police. 41 and 43: Establishes a reasonably good method of selecting independent members. However, the NPC would be better served if there were a more equal number between independent members and political/executive members. The Police (Northern Ireland) Act, 2000 sets out in Schedule 1 (paragraph 6) that the Northern Ireland Policing Board will have 10 elected members and 9 independent members. This almost equal distribution between independent and political members strikes a good balance. The Model Police Act also attempts to strike a more independent tone to the oversight body at Section 42(1). Home Minister (Chair); Leader of the Opposition; Retired High Court Judge; Chief Secretary; Secretary in charge of the Home Department; Director General of Police; and Five independent members. OVERSIGHT BODY: FUNCTIONS & POWERS 44: Relatively weak, as compared to international good practice. It sets out some functions for the NPC, but it does not explicitly provide guidance on how the body can improve police efficiency and effectiveness. The Acts emanating from India provide guidance on a useful mandate for the oversight body. Each of the Model Police Act (Section 48), Kerala Police Act (Section 25) and the West Bengal Draft Police Act (Section 6.10), require that the oversight body frame general policy guidelines for the police. In Kerala, the State Security Commission (SSC) can issue directions for the implementation of crime prevention tasks and service oriented activities. The Kerala Police Act also requires the SSC to hire three experts to assess police performance for the preceding year (Section 26). The Police (Northern Ireland) Act, 2000 clearly establishes that the Northern Ireland Policing Board is responsible for setting medium-term policing (Section 25) and ensuring the efficiency and effectiveness of the Police Service of Northern Ireland (Section 3(1) and (2)). TRANSPARENCY & CO-OPERATION POSTING, TRANSFER & PROMOTION POLICING PLANS & PERFORMANCE STANDARDS = Denotes when a statutory instrument does not have a specific provision that directly addresses the subject matter NPC will work with the Police Policy Group (Section 44(2)(h)) and the Bureau of Police Research will serve as Secretariat to the NPC (Section 48). However, it does not do much more than this in terms of transparency and co-operating with other institutions involved in policing. 29: Provides that promotions will be done in accordance with the Fourth Schedule. The Fourth Schedule gives considerable detail on how promotions are to be handled. However, with the confusion created by Sections 7(3), 10, 11 and 44(2)(c), the DPO 2007 might benefit from greater clarity on how transfers are to be made. 70(a): Compels the Bureau of Police Research, Secretariat to the NPC, to develop strategic plans related to transport, weaponry, IT & communication, forensic, infrastructure, equipment and protective gears, official and residential accommodation, and any other subject which may have a positive impact on technology-based qualitative improvement in policing. However, policing in Bangladesh would definitely benefit by a more explicit articulation of the need for broader police planning, preferably facilitated by the NPC. The Civilian Secretariat for Police Service Act in South Africa requires the Civilian Secretariat to provide the Minister with strategic advice on policing policy (Section 5(b)). Also, the Secretariat has a role in monitoring and/or evaluating police budgets (Section 6(1)(b)). The Police (Northern Ireland) Act, 2000 mandates that the Northern Ireland Policing Board hold at least 8 public meetings per year (Schedule 1, paragraph 19). The Board must also co-ordinate and co-operate with other statutory authorities (Section 3(4)(d)). The South African Civilian Secretariat for Police Service Act establishes that the Civilian Secretariat is to promote co-operation between itself, the South African Police Service and the Independent Police Investigative Directorate (Section 5(h)). Also, Chapter 5 (Sections 23-32) of this Act require different bodies involved with policing to co-operate with one another. The Model Police Act creates a Police Establishment Committee, comprised of 4 senior police officers that make decisions related to transfers and handle complaints regarding the same (Section 53(1)). The power of transfers is also decentralised, so that those that know the area the best can make better operational decisions (Section 53(5) and (6)). For the South Asian context, this is a better option than having the IGP make centralised decisions like in South Africa and Northern Ireland. The Northern Ireland Policing Board will issue an annual policing plan after it has received a draft from the Chief Constable and it has had an opportunity to consult with the Minister of Justice (Section 26). It will address training and education, as well as other matters. District commanders are also involved in this process; they will issue a local policing plan that takes into account community concerns (Section 22). The Kerala Police Act requires the State Security Commission to appoint three external experts each year to assess police performance (Section 26). The Model Police Act identifies performance indicators to evaluate the functioning of the police (Section 48). The Civilian Secretariat in South Africa is expected to conduct quality assessments of the SAPS, as well as monitor and evaluate its performance (Sections 6(1)(a) and 6(2)(b)).

32 EXTERNAL ACCOUNTABILITY SUBJECT AREA Bangladesh Police Act, 1861 Bangladesh (Draft) Police Ordinance, 2007 (DPO 2007) International Good Practice MANDATE: SUPERVISE INQUIRY VS. INVESTIGATION 75: Permits the Police Complaints Commission (PCC) to only supervise investigations against the police. The PCC is not actually able to conduct the investigation itself. In South Africa, the Independent Police Investigative Directorate Act, 2011 empowers IPID to investigate a wide range of offences (Section 28). In Northern Ireland, the Police (Northern Ireland) Act, 1998 enables the Ombudsman to receive and investigate all complaints against the Police Service of Northern Ireland (Section 52). In Kenya, the Independent Policing Oversight Authority Bill, 2011 requires IPOA to investigate complaints against the National Police Service (Section 7). COMPOSITION OF ACCOUNTABILITY BODY 72: sets out that the PCC will consist of: A retired judge of the Appellate Division of the Supreme Court or a person of national repute (Chair); A retired police officer, superannuated as IGP or Additional IGP; A retired secretary/additional Secretary to the Government; and 2 persons of repute from the civil society including one woman. 73: Requires a 3-member Selection Panel to choose PCC members. The Independent Police Investigative Directorate Act, 2011 establishes that South Africa s IPID is headed by an Executive Director (Section 6), who supervises a number of technical staff located in various units (Section 8). The Police (Northern Ireland) Act, 1998 stipulates that the Ombudsman will spearhead the Office of the Police Ombudsman of Northern Ireland (Section 51). In Kenya, a Director runs the Independent Policing Oversight Authority Bill, 2011, but a Board consisting of eminent people, much like the PCC, governs IPOA (Section 10(1)). SERIOUS CASES 75(c): Allows the PCC to receive from the NPC or the Range Police officers / Head of Units any report of death, rape or serious injury to any person in police custody. In South Africa, the Independent Police Investigative Directorate Act, 2011 requires IPID to examine deaths due to police action generally, instances of police firing, and rape by an officer regardless of whether he is on duty or not (Section 28). In Kenya, the Independent Policing Oversight Authority Bill, 2011 compels police to forthwith report any death in police custody or control and when the person who died was the target of a police operation or an innocent bystander (Section 28). In South Africa, the Independent Police Investigative Directorate Act, 2011 bestows IPID investigators with police powers (Section 24). In Northern Ireland, the Police (Northern Ireland) Act, 1998 grants Ombudsman investigators with police powers (Section 56(3)). In Kenya, the Independent Policing Oversight Authority Bill, 2011 allows IPOA investigators to enter any establishment or premises with a warrant; seize and remove any object; summon and enforce attendance of witnesses, and examine them on oath; and take over internal investigation if it is inordinately delayed or manifestly unreasonable (Section 8(1)). IPOA is also allowed to re-open an investigation and amend or withdraw previous findings (Section 27(9)). In Kerala, the Police Act, 2011 grants Police Complaints Authorities (at both state and district-level) with the powers of a civil court. These powers include: summon and enforce the attendance of witnesses; examine them on oath; request the discovery and production of documents; receive evidence on affidavit; and requisition any public record from any court or office (Section 110(7)). INVESTIGATORY POWERS OF ACCOUNTABILITY BODY The powers of the PCC are limited to processing complaints and supervising investigations. 75(d): Enables the PCC to request the Chief Justice to appoint a District and Sessions Judge to look into serious cases. 75(j): Allows PCC to recommend disciplinary proceedings against any enquiry officer who wilfully neglects or mishandles an enquiry. POWER OF ACCOUNTABILITY BODY TO INITIATE INVESTIGATIONS POWER OF ACCOUNTABILITY BODY TO ENFORCE FINDINGS DISTRICT-LEVEL COMPLAINTS COMMISSION RIGHTS OF COMPLAINANT 75(b): Requires the PCC to process complaints and to refer ordinary cases to an appropriate authority for action and report and in serious cases initiate action on its own. 80: Obligates the heads of the police units and other Government agencies to provide the PCC with relevant information and any attempt to influence or interfere with the PCC will result in up to one-year imprisonment. In Northern Ireland, the Police (Northern Ireland) Act, 1998 allows the Ombudsman to investigate on his own motion (Section 55(6)). In Kenya, the Independent Policing Oversight Authority Bill, 2011 permits IPOA to initiate on its own an investigation of police misconduct (Section 7(c)). In South Africa, the Independent Police Investigative Directorate Act, 2011 enables IPID to initiate an investigation involving corruption (Section 28(1)(g)). In India, the Model Police Act, 2006 permits the Police Accountability Commission to initiate investigations into matters involving serious misconduct (Section 167(1)). Also, the West Bengal Draft Police Act provides for the same (Section 14.2). In Northern Ireland, the Police (Northern Ireland) Act, 1998 permits the Ombudsman to recommend charges to Director of Public Prosecutions (Section 58(2)). If the Chief Constable declines to accept the Ombudsman s recommendations, the Ombudsman can direct him to do so (Section 59(5)). In Kenya, the Independent Policing Oversight Authority Bill, 2011 allows IPOA to recommend prosecution of a police officer to the Attorney General (Section 32(1)(a)). In South Africa, the Independent Police Investigative Directorate Act, 2011 enables IPID to refer criminal offences the National Prosecuting Authority (Section 7(4)). In Kerala, the police are bound under the Kerala Police Act, 2011 to accept the recommendation of either the state-level or district-level PCA to initiate a department level inquiry or register a criminal case against a police officer (Section 110(9)). Under the Model Police Act, 2006, the Police Accountability Commission has the power to direct the DGP or State Government to register an FIR and/or initiate departmental action (Section 171(1)). 71: Creates one PCC for the entire country. In Kerala, district-level complaints authorities are established (Section 110(3)). Under the Model Police Act, 2006, district-level complaints authorities are also provided for (Section 173). 78: Requires the PCC to keep a complainant informed of the progress and ultimate outcome of his complaint. Significant penalties are imposed for frivolous, false or vexatious complaints (Section 75(i)). In Kenya, the Independent Policing Oversight Authority Bill, 2011 does not impose penalties for frivolous or vexatious complaints; it simply will refuse to conduct an investigation (Section 27(8)). The Bill also seeks to protect witnesses and complainants (Sections 27(13) and (15)). The IPOA can provide a victim with relevant information of unlawful police conduct so that he may institute and conduct civil proceedings for compensation in respect of injuries, damages and loss of income (Section 8(1)(i)). In South Africa, the South Africa Police Service Act, 1995 also identifies the need to protect the identity and integrity of complainants (Section 53(9)). = Denotes when a statutory instrument does not directly address the subject matter

33 COMMUNITY ENGAGEMENT SUBJECT AREA PREAMBLE COMMUNITY POLICING Bangladesh Police Act, 1861 Bangladesh (Draft) Police Ordinance, 2007 (DPO 2007) International Good Practice It is expedient to re-organize the police and to make it a more efficient instrument for the prevention and detection of crime. DPO 2007 is very strong in setting out a public-friendly preamble and articulating the obligations of police towards the public. WHEREAS the police has an obligation and duty to respond to the democratic aspirations of the people, function according to the law and Constitution, and respect the human rights of the people and protect their rights; AND WHEREAS such functioning of the police requires it to be professional, service-oriented, people-friendly, free from extraneous influences and accountable to the law and the people; AND WHEREAS it is expedient to redefine the role, duties and responsibilities of the police, by taking into consideration emerging challenges of policing and imperatives of rule of law and good governance; AND WHEREAS it is necessary to reorganize the police for efficient prevention and detection of crime, and maintenance of public order, peace and security; 56: Establishes that Citizens Policing Committees must be set up in metropolitan/urban areas once every 2 years. It mandates that these committees should meet the police at least once every three months. The Preamble of the DPO 2007 compares well against international practice. Each of Kerala, West Bengal, India (Model Police Act), Kenya, South Africa and Northern Ireland have enumerated some form of community policing in their respective police acts. However, the contextual nature of community policing means that the import of structures from one jurisdiction to another is not necessarily possible. As a result, the most that can be said is that Bangladesh should strongly consider formalising community policing and when doing so, it would be helpful if genuine police-community collaboration in problem solving and preventing crime constitute central elements to the partnership. DUTY OF POLICE TOWARDS COMMUNITY & RIGHTS OF THE COMMUNITY 3: Places emphasis on treating the public with respect and courtesy and to prevent all forms of harassment against women and children as well as foster community partnership in policing. In Kerala, the Police Act, 2011 stipulates that citizens have the right to efficient police service (Section 7). Citizens have a right to lawful services from the police and to meet with the Officer in Charge (Section 8). The police must treat the public with respect and courtesy, and assist at all times (Section 29). Police officers are liable to explain their actions (Section 32) and they must behave decently towards witnesses (Section 35). BEAT CONSTABLE In Kerala, the Police Act, 2011 places great emphasis on the role of the beat constable. In particular, the beat constable is expected to liaise with the community, collect key intelligence on local crime, vigilantly observe the local criminal element, and understand the nature of local disputes (Section 65). In Northern Ireland, beat constables are an integral part of the police s strategy of community engagement. Per Patten s recommendation, neighbourhood-policing teams have been set up with beat officers. WORKING HOURS 22: The police are always on duty. 93: Requires that the police are always on duty. In India, although the Model Police Act sets out that police are always on duty, it establishes that police are entitled to one day off per week (Section 155) and that in the absence of exceptional circumstances, they are expected to work only eight hours a day (Section 188). SPECIAL POLICE OFFICERS 17: Special officers can be appointed 18: Special officers can have the same powers as police. 19: The police can fine anyone who refuses to serve as a special police officer. 34: Allows the government to appoint special police officers. South Africa and Northern Ireland do not provide for special police officers. Rather, they place greater emphasis on part-time or full-time professionalised reserve forces. In addition, the Supreme Court of India has recently ruled that special police officers are unconstitutional. SPECIAL POLICE ZONES 17: Special officers can be appointed 18: Special officers can have the same powers as police. 19: The police can fine anyone who refuses to serve as a special police officer : Provide for the creation of special security areas if and when any terrorist or militant activity, or activities of any organised crime group threaten the security of that area. South Africa and Northern Ireland refrain from creating special security zones. Ideally, a civilian police act would not include such emergency-type powers. = Denotes when a statutory instrument does not have a specific provision that directly addresses the subject matter

34 SUBJECT AREA DIVERSITY IN THE POLICE ORGANISATION MISCELLANEOUS Bangladesh Police Act, 1861 Bangladesh (Draft) Police Ordinance, 2007 (DPO 2007) International Good Practice 8: Deals with recruitment to the Bangladesh Police Service but it is silent on the need for diversity within the police organisation The Model Police Act, 2006 (India) stipulates that the composition of the Police Service shall, as far as possible, reflect adequate representation of all sections of society, including gender representation (Section 4(4)). SEPARATION OF LAW & ORDER FROM INVESTIGATIONS 19: Head of Investigations will be set up and subject to general control of the District Police Officer. 21: Criminal Investigation Department to be set up for cross-district crime. In Kerala, investigations are separated from law and order and the District Police Chief is expected to ensure coordination of both wings (Section 23). IMPUNITY 145: No court shall take cognizance of any offence under this Ordinance when the accused person is a police officer except on a report in writing of the facts constituting such offence by, or with the previous sanction of an officer authorised by the Government in this behalf. The police acts from Northern Ireland, South Africa and Kenya avoid including such a problematic provision. USE OF FORCE In South Africa, the South African Police Services Act, 1995 requires a minimum use of force (Section 13(3)(b)). In Kenya, the National Police Service Bill, 2010 provides considerable detail on when and how police force can be used (Section 35(5) and 41). = Denotes when a statutory instrument does not have a specific provision that directly addresses the subject matter

35 ANALYSIS OF DRAFT POLICE ORDINANCE, 2007 AND 1861 POLICE ACT AGAINST INTERNATIONAL GOOD PRACTICE By Sanjay Patil

36