THE quality of internal defence, ie the “criminal justice system”, is as important as the external defence and must not be compromised. On the contrary, it must be enhanced at all levels. It is essential to uphold the rule of law and pursue it to restore the confidence of the investors, protect human rights, and combat crime on a sustainable basis.

The conviction rate of 2-5% has not only encouraged the criminals, but also all forms of terrorism in society. My 13 years of association with the Citizens-Police Liaison Committee (CPLC) in the enforcement of the rule of law from an independent and uninvolved position has convinced me that the system has failed primarily because of the absence of accountability and transparency, even if the intentions were not mala fide.

It is time we monitor such developments instead of pursuing the overseas investors. Our own people, especially the professionals, including those who excel in their education abroad, are leaving the country, or fear to return, lest they fall victim to the alarming law and order situation.

The law enforcers, belonging to highly politicized institutions, comprising incompetent investigators, leave ample lacunas, sometimes intentionally for monetary gains, eventually leading to acquittals. In many cases, the acquittals take place because of the poor quality of prosecution lawyers pitted against leading criminal lawyers for the accused. It would be of great service to society if the National Accountability Bureau (NAB) could pursue such cases and demand the source of income of those accused who hire expensive criminal lawyers. It would lead towards exposing the financiers or promoters of such acts of terrorism.

There are also some questionable judgments which definitely need a review if we wish to suggest that crime in our society will not go unpunished. At present our institutions are at daggers drawn with each other much to the pleasure and advantage of the criminals. All those involved in the criminal justice system, essentially the judiciary which is entrusted with the most difficult task of imparting speedy justice to the victims, will have to take the lead in jointly evolving a self-monitoring, co-ordinating, transparent and accountable system to identify and punish those officials who have malafidely led to the decay of the rule of law. Such exercises will also lead to identifying amendments in the laws which provide encouragement to the perpetrators of the crime and erodes the confidence of the citizens in the state.

Any commitment to combat terrorism without having an empowered home minister is like attempting to improve the economy without a finance minister or endeavouring to enhance exports without a commerce minister.

In the same context the initiative taken by the government in restructuring the institution of the police to make it effective, accountable and transparent under the new Police Ordinance 2002 is a major step. It can be successfully implemented by appointing effective and empowered home ministers in all the provinces as policing and law and order are provincial subjects. The following measures may be taken in this respect:

The Police Ordinance 2002 should be implemented on a war footing making the police service-oriented and accountable to the community it serves. Sufficient funds should be allocated for the implementation of police reforms even if a new “provincial security tax” is to be imposed, so as not to compromise on the quality of policing and speedy deliverance of justice.

If needed some low priority development projects may be deferred till the essential revamping of the criminal justice system. This would enhance the quality of life by restoring the confidence of the people and establishing the rule of law for all irrespective of one’s caste, creed, status or wealth. This has become essential with the devolution of power to make it a successful model and not allowing it to be criminalized.

The Public Safety Commissions (PSCs) should be established at all levels as envisaged in the Ordinance.

The professional capabilities of the police should be enhanced for the prevention and detection of crime on a continuous basis with the help of modern technology (Forensic & DNA).

The police should be held accountable at various levels, ensuring their effectiveness when dealing with citizens.

Monitoring of the Criminal Justice Co-ordination Committee under the District and Sessions Judges should be held as envisaged in the Ordinance.

Speedy Computerization of the Criminal Record Management (FIRs and jails) should be held across the provinces with the assistance of the CPLC.

To continue a war on terrorism with the support of the international community should be adequately financed.

Proper utilization of the Asian Development Bank‘s “Access to Justice Loan”, as well as loans offered by other countries including the US should be ensured to strengthen the law enforcement agencies’ initiatives in combating terrorism.

The police welfare projects should be developed.

The Citizens-Police Liaison Committee (CPLC) should be established at the Governor’s Secretariat, the provincial headquarters, capital city governments and districts as proposed in the Ordinance to provide relief to the victims of crime, while simultaneously assisting the Public Safety Commissions as well as the Police Complaints Authority to ensure its effective deliverance. This will immensely help restore the confidence of the people in the police.

The implementation of the following policies should be monitored: Arms Control, expeditious implementation of the policies of National Alien Registration Authority (NARA), establishment of the Provincial Vehicle Authority (PVA) having linkages with the National Vehicle Authority (NVA) to effectively combat vehicle theft, streamlining the policy on mobile phones so as to identify and locate its subscriber, qualitative training of the police enhancing their investigative capabilities, especially in detection of cyber and white collar crime, restoring citizens’ confidence by upholding their civil and human rights with the transparent functioning of the Police Complaint Authority (PCA) and ensuring proper allocation of funds by imposing provincial security tax as well as generate additional resources with the help of the community, donor agencies, corporate sector, multinational companies, provision of home security through police stations, unclaimed property disbursement, electricity, gas, telephone, fuel, banks, motor vehicle registration.

The establishment of the Criminal Accountability Bureau (CAB) at the national and provincial levels is essential to put in place not only an institutionalized monitoring system, but to supplement each institution’s honest observations. The following proposals will enhance the image of their institutions and will be of immense advantage in restoring the rule of law.

The crisis management cell (CMC) already established in the federal ministry of interior is a good initiative which can oversee the function of the national criminal accountability bureau. The provincial setups could include senior officials of the administration from the provincial governments, police, intelligence agencies, CPLC and retired judges and eminent criminal lawyers as advisers, so as to monitor the quality and expeditious delivery of the following on a continuous basis:

Review cases of sectarian murders, rapes, kidnappings, vehicle snatching and other terrorist activities to be placed before special speedy tribunals with the state represented by leading criminal lawyers, completing the trials and appeals within a timeframe of six months. To achieve this the following measures should be adopted:

Induction of a special team of public prosecutors of repute be inducted to guide the police in preparation of case files, ensuring that there is no delay in the hearing of the case, proper briefing of the witnesses is carried out, recording of confessions and timely identification parade, liaising with the judiciary to assist and facilitate them for the removal of all hardships and irritants, ascertaining and making provision for any additional requirements of financial assistance for the successful implementation of the CAB programme.

Besides, there should be monitoring of the trials at all levels, expeditious announcement about the head money for identified terrorists, enhancement of inter-provincial co-operation for sharing information, and providing assistance in combating crime, developing a cohesive intelligence network, in close co-ordination with the ministry of information projection of the actions taken and the people involved in heinous crimes, their convictions and the terrorizing effects on different sections of the community, soliciting public support and involvement through awareness programmes.

There is need for enhancing the level of safety in the community, making case studies of judgments to remove any shortcomings by the police as well as the judiciary through an in-built monitoring system, imparting training at the Judicial Academy in the use of technical data and modern techniques to be incorporated as evidence e.g. voice matching, sketches, identification by victims in the presence of higher judiciary, the use of cyber technology, etc, carrying out training programmes at the judicial academy for high court and supreme court judges, while also sharing their expertise to enhance the conviction rate as a deterrence to terrorism,

The mercy petitions of the offenders whose crimes have been proved should be rejected and the death sentences carried-out. The laws of contempt and defamation should be amended to introduce a more progressive and accountable system. Efforts should be made to supplement and protect the weak from the powerful wrongdoers.

The writer is chief of the Citizens-Police Liaison Committee, Karachi.

Of all the many ironies in President George Bush’s decision to remove America from membership of the treaty establishing an International Criminal Court — its own adherence to the supremacy of law, its enthusiastic initiating of the Universal Declaration of Human Rights and its primary role in setting up the ad hoc international court that is now trying Milosevic, none is more to the fore than the swapping of roles between an imperial Britain and an idealistic United States. In the short space of fifty-eight years there has been a total reversal of roles.

Winston Churchill believed that there was only one fit punishment for the Nazi war leaders: to execute the top fifty the moment they were captured. Anthony Eden, his foreign secretary, observed that the “guilt of such individuals as Himmler is so black that they fall outside and go beyond the scope of any judicial process”.

But the US Secretary for War Henry Stimson felt very differently. He wrote to Roosevelt “the very punishment of these men in a dignified manner consistent with the advance of civilization will have a greater effect on posterity”.

Roosevelt himself seemed ambiguous but when Truman took over the US presidency he made it clear he wanted the Nuremberg court established quickly and agreed with Supreme Court Justice Robert Jackson, whom he nominated as chief prosecutor, that anything else than a fair international trial “would not sit easily on the American conscience or be remembered by our children with pride.” No wonder that when the Bush administration announced recently that it no longer saw itself bound by its signature of the treaty establishing an International Criminal Court, Kenneth Roth, executive director of Human Rights Watch could observe, “The administration is putting itself on the wrong side of history”.

Yet it cannot be rational legal principles that have turned Bush against the treaty so vehemently and led it once again to cross swords with its faithful ally, Britain. It is the reflex America-must-be-in-charge- or-we-don’t-do-it mentality of the neo-conservatives who wield so much influence in Washington combined with the anti-internationalism of the Christian right who give the impression that they believe that the US is the sole virtuous country in a very dark world.

The truth is, in the negotiations in Rome to write the treaty in 1998, the US rammed through almost every change it wanted. Its goal, it made clear, was to make more than doubly sure that no American soldiers could ever come to trial before the court.

So pleased is much of the world at having got the treaty written and now recently winning the 60 ratifications necessary for the court to begin work- which it will on July 1st- that it has tended to play down just how much harm the American negotiators did to the treaty in Rome.

Most importantly, the US successfully wrote into the treaty provisions that in effect mean that nobody occupying a position of current political or military power in any state is likely to be put on trial unless they invade another state and commit war crimes on its territory. Thus, since also the court cannot act retrospectively, it cannot seek to arrest Saddam Hussein, as long as from now on he keeps his army at home. As Geoffrey Robertson has written in his masterful book “Crimes Against Humanity”, “the class of criminal most likely to be arraigned at The Hague comprises persons who commit barbaric crimes in a cause that has utterly failed, in a country which decides to surrender them because it lacks the facilities to try them itself.

Otherwise the Court will become a kind of “permanent ad hoc” tribunal dependent on references from the Security Council to instigate countries like former Yugoslavia and Rwanda where none of the combatants have superpower support.” Thus the chances of Ariel Sharon ever being charged are zero whatever he decides to do and however brutally he does it- as long as Israel maintains US political support. — Copyright Jonathan Power

THE National Finance Commission (NFC) is set to meet today in Islamabad to evolve a new acceptable formula on distribution of revenue transfer from the federal divisible pool to the federating units.

The present NFC formula is unscientific, defective, over-centralized and outdated. It is against the spirit of the devolution plan and forces provincial governments to depend heavily on the centre. Instead of becoming a seed-bed of rancour, it should be seen as a fair dispensation by all the provinces.

Under Article 160 of the Constitution, the NFC is constituted to recommend distribution of revenue out of the divisible pool between the centre and the provinces and amongst the provinces themselves. The divisible pool consists of income tax, corporate tax, wealth tax, capital value tax, sales tax, custom duties and federal excise duties. The federal share in the net proceeds of the divisible pool taxes has been fixed at 62.5 per cent and the remaining 37.5 per cent represents the share of the four provinces.

The last NFC award (1996) was made on the basis of the 1981 population census. Punjab was awarded 57.88 per cent, Sindh 23.28 per cent, the NWFP 13.54 per cent and Balochistan 5.30 per cent denoting the centre’s retention of a 62.5 per cent share and the distribution of the remaining 37.5 per cent among the federating units on the basis of population.

The criteria used by the NFC to distribute revenues among the provinces have not improved over the years. In 1996 the only development was the change of the resource distribution formula between the centre and the federating units from 20:80 to 62.5:37.5 ratios. The divisible pool was marginally enlarged by the inclusion of customs duty. The mode for revenue transfers was changed. Instead of transferring the revenues on the basis of the NFC projections or budget estimates, transfers were made on the basis of actual collections which increased the vulnerability of the provincial finances further.

Sindh now gets about 80 per cent of its revenue by way of federal transfer on the basis of the NFC formula. This makes it predominantly dependent on the federal government, so much so that the province’s receipts are insufficient to finance even its debt-serving liability.

The revenue generation trend in the country has remained low. The tax-to-GDP ratio has remained stagnant for the last 20 years. On the other hand, the provinces have been assigned major expenditure responsibilities. They collect six per cent of the national revenue but are responsible for 25 per cent of the expenditures.

Sindh collects 70 per cent income tax and 62% sales tax. Almost 70 per cent of the national revenues forming the divisible pool are collected from Sindh but its share in revenue transfers is 23.28 per cent.

The revenue distribution formula, based on population, being unrealistic was discarded by India long ago. The Indian Finance Commission has reduced the importance of total population, so that a state’s income has become the major determinant of its revenue share. The most important factor called the distance factor influencing distribution is the average difference in a state’s per capita income as distinct from the highest per capita income. Revenue sharing by the states in India is now based on four broad criteria:

(1) The general need of the region (population has been used as a proxy); (2) existing financial capacity of the state; (3) its contribution to the national exchequer in terms of tax collection, and (4) its level of development (calculated in terms of backwardness and percentage of poor).

In Mexico the criteria for revenue-sharing among federating units is 50 per cent based on population and 50 per cent on collection. In Indonesia, Malaysia and Japan entire revenues are distributed on the basis of collection. No country except Pakistan relies exclusively on population as the basis for revenue sharing.

The weightage given to population ranges from 25 per cent in India, 40 per cent in Nigeria, 50 per cent in Mexico, 65 per cent in Argentina and 70 per cent in Colombia and the Philippines. Some countries follow strictly the derivation principles. In Indonesia, Japan and Malaysia 100 per cent of revenues is distributed on the basis of collection. In the Indian revenue-sharing formula development gap is included as a sharing criterion.

Based on the international comparisons, Pakistan appears to have a very skewed revenue sharing formula with exclusive reliance on population. The facts cited above indicate there is a strong case for the inclusion of collection and backwardness to provide for a more equitable basis for revenue sharing. Many countries rely on more than one criterion for revenue sharing. One popular criterion is backwardness or development gap. Backwardness has a significant weight in tax collection.

Sindh has certain special features which warrant higher fiscal transfers. First, the principle embodied in the Constitution that special location advantage of a province like the presence of natural resources (oil and gas) or sites for generation of hydroelectricity calls for higher ‘straight’ transfers from relevant taxes, profits, surcharges or royalties. These need to be extended also in view of the presence of the country’s only main port, Karachi, in Sindh. The provincial government has had to invest a substantial amount to provide the supporting infrastructure for the operation of the port and for upcountry transportation of imports and bringing of exports to Karachi for shipment.

A case for higher transfers to the province to cover these costs thus exists. This could be done in the form of a special share in revenues collected from customs duties at Karachi ports or a share in the operating income of the Karachi Port Trust.

The principle of sharing profits of the natural wealth of the provinces has been recognized in the shape of hydroelectricity profits for the NWFP, natural gas for Sindh and Balochistan and oil for Sindh and Punjab.

Sindh has two seaports which handle 100 per cent imports by sea. In order to ensure smooth flow of goods to upcountry the province has to maintain an effective road network. It is also charged to provide housing, education, health, water supply etc, to almost 100,000 people working in Karachi and Bin Qasim ports. This housekeeping is a heavy drain on the provincial exchequer.

According to Unicef’s 31 indicators, Sindh is the least developed province. Over 50 per cent population of the province is estimated to be poor and devoid of the basic necessities of life, including adequate nutrition, shelter, drinking water, sanitation, health and education.

In the 1990 NFC Award, it was stipulated that the sales tax on domestic consumption would be transferred after collection arrangements are put in place. Nothing has happened so far in this respect. It may be recalled here that sales tax was totally a provincial source of revenue till 1951 when it was ‘temporarily’ handed over to the centre, subject to the allocation of 50 per cent proceeds to the provinces in view of the “abnormal conditions created by the large influx of refugees and additional defence requirements.” Such abnormal conditions do not exist any more and, as such, there is no rational justification for sales tax (on locally manufactured goods) proceeds to be shared by the federal government.

This tax which is essentially of a local character and is based mainly on consumption should, therefore, be reassigned to the provinces where it is collected, thus restoring the old status which is also the practice obtaining in many parts of the world, including countries like India and Malaysia.

The federal government has announced to devolve its various departments to the provinces but surprisingly the terms of reference of the NFC Award, 2002-2003, are the same as in the case of the 1996 Award. Why is the federal government reluctant to update the NFC’s terms of reference in line with the devolution plan? It is also necessary that the centre should devolve its administrative and financial powers, including revenue collection. In short, it is the need of the hour that a new scientific NFC formula be evolved in accordance with the devolution plan.

Why does the government not wait for the elected government to decide the new NFC formula because the present NFC was also awarded by a caretaker government? It is advisable that a new formula be evolved and then be left for the national assembly to debate and for the elected government to finalize it.