It will be important for the K-P police to learn from the failures of the Police Order 2002
The writer is a human rights activist and development practitioner. He tweets at @amahmood72
The Khyber-Pakhtunkhwa (K-P) Assembly passed the K-P Police Act of 2017 on January 24th with no media coverage. It was a historic moment as it is Pakistan’s first-ever provincial legislation related to the police. Credit goes to the PTI provincial government for adhering to their police reforms agenda and introducing the legislation to make the police operationally autonomous, politically neutral and democratically controlled.
The question, however, remains whether the legislation was adopted after a proper consultative process with the involvement of all stakeholders or not. And whether the myth that police reforms in Pakistan are usually initiated by the police themselves, leading to no logical conclusion, was proved right or wrong. There was much to be desired as far as consultations with the civil society are concerned. But it might have been overlooked keeping in mind the end result and with hope that the civil society will be actively involved in the implementation of the law and monitoring its implementation.
There is genuine political will for reforms in K-P and the provincial government and the police high-ups are open to accountability mechanisms under the new law at the provincial and district levels, and internally in the police. The issue of the representation of women and minorities in the proposed oversight mechanisms was a key question raised by the civil society, which has been addressed under Section 48 related to the membership of the Provincial Public Safety Commission. However, the membership of the minorities has not been assured under the Capital City Public Safety and District Public Safety Commissions.
Similarly, under Section 88 of the K-P Police Act of 2017, police has been empowered to erect barriers in the streets for one month. It is not clear, however, that if the barriers continue to exist, how the general public or community can raise their voice to remove such barriers.
Nonetheless, it is heartening to see that the district Criminal Justice Coordination Committee (CJCC) is a part of the Act of 2017. This is a major step towards ensuring coordination and cooperation among the key actors of the criminal justice system at the district level in the province. There is, however, a need to learn from the failures of the past: why could the CJCCs not be effective?
Due to various reasons, including a huge difference in the hierarchy and powers of the members, ie, an under resourced probation and reclamation department, lack of awareness about the probation and parole system among the stakeholders, probation and parole couldn’t get due attention and focus in the CJCC meetings. Therefore, under the new rules, this gap should be addressed and an oversight mechanism should be put in place at the provincial level to regularly review the progress of the CJCCs. Such a review mechanism could have the chief justice of Peshawar High Court, secretary home, inspectors general of police and prisons, etc, as its members.
It will be important for the K-P police to learn from the failures of the Police Order 2002. In my opinion, one of its failures was not being able to implement the provisions of the law related to oversight bodies and public involvement, ie, Public Safety Commissions, Citizen Police Liaison Committees and the Police Complaint Authorities. It is therefore very important for the K-P government to immediately start the process for the notification, activation and functioning of these bodies with full involvement of the relevant stakeholders.
Under Section 143, an implementation commissioner shall be appointed for one year soon after commencement of the Act for ensuring establishment of various bodies under the Act within a year. I am not sure if the commissioner has been appointed so far. It’s a positive step that the government is concerned about the implementation of the Act. However, it would have been better had a high level committee been established, comprising all the key stakeholders of the criminal justice system, to oversee the implementation, instead of appointing a commissioner only for one year just to establish the bodies. What if the bodies are established within a year but are not functional like the past?
In Sindh, the civil society under the banner of the Pakistan Forum for Democratic Policing took an initiative and supported the Sindh government in drafting the Sindh Police Bill, involving Justice Nasir Aslam Zahid. It was handed over to the provincial minister concerned and the speaker of the Sindh assembly but there has been no action by the government so far. The government should take this opportunity and enact the long awaited Bill. Balochistan and Punjab should also come up with their respective police reforms before the next general elections.
Whether the police reforms in K-P are successful or not, will only be proved in the years to come, largely depending on the implementation of the new Act. But there is a need to concentrate not only on the police but all other pillars of criminal justice system as well.
Published in The Express Tribune, May 23rd, 2017.
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History of Police Law in Pakistan
History of legislation in India establishes the fact that police has been a legislative, administrative and Constitutional concern of the Central/Federal Governments. Examination of various enactments on the subject lends support to this assertion. The Character Act of 1833 named the Governor General of Bengal as the Governor General of India and it is with this Act that the process of law making commenced for the whole of British India.
The Charter Act 1833 introduced further important changes in the power for law making by vesting the legislative power of the India government exclusively in the Governor – General-in-Council. The provincial Governments were absolutely deprived of their power of law making granted to them by the Act of 1807 as they now could merely submit drafts if they wished any law to be passed by the Governor-General-in-Council. Thus the Governor-General-in-Council was exclusively vested with the legislative power as he was empowered to make laws and regulations and could also repeal or amend any existing measure, for all persons, places and things in Company’s dominions.
The Charter Act of 1853 did not, however, introduce any significant change in the existing powers and process of law making in British India.
The Act of 1858 was passed after the War of Independence of 1858. The government of the East India Company came to an end as British India was to be governed by, and in the name of, the British Crown. The Board of Control was formally abolished. A new Secretary of State for India was appointed to whom were transferred all the powers of Company’s Court of Directors and Board of Control. He was assisted by a council consisting of fifteen members, out of which at least nine were to be persons with at least ten years service in India.
It was the Indian Councils Act of 1861 that made some changes in the existing Constitutional arrangements relating to the power of law making. This enactment restored the power of legislation that had been taken away by the Act of 1833 to the provinces of Madras and Bombay. It was, however, not a complete restoration as firstly no line of demarcation was drawn between the central and provincial subjects; secondly the previous sanction of the Governor-General was essential before the provinces could undertake legislation in certain cases and thirdly the assent of the Governor-General was essential, in addition to that of the Governor, for every Act passed by the provincial legislature. It was in pursuance of this inherent legislative power of the Governor-General-in-Council that the Central Act V of 1861, commonly known as the Indian Police Act of 1861, was passed and assented to by the Governor-General on 22nd March, 1861.
The Indian Councils Act of 1909, commonly known as the Morley-Minto reforms, materially enlarged the size of the legislative councils and also extended their legislative functions by giving power to them to move resolutions on the budget. This Act, however, did not effect any change in the existing legislative powers. It is therefore; clear that till the Indian Councils Act 1909, the powers of the Governor-General-in-Council to legislate for the whole of British India on any subject remained intact.
On introduction of the Government of India Act 1919, police law did not become a provincial subject, free from the control of the Governor General. Government of India Act 1919 introduced a number of reforms both in the Federal and Provincial sphere but absolute power of the Governor General to legislate on any matter whether central or provincial, remained unaffected. Police law therefore, continued to remain under the legislative control of the Governor General. By the Act of 1919 and the Devolution Rules made there-under , certain subjects were earmarked as ‘provincial’ and the governmental functions in respect of those were allowed to be exercised primarily by the Provinces. But the responsibilities entrusted in this way to the provinces were not exclusive. The Governor-General and the Central legislature possessed concurrent powers to legislate on the provincial subjects. They continued to possess legislative powers and executive authority regarding matters falling within the provincial sphere. No exclusive and independent legislative power existed with the provinces nor could they constitutionally amend, without the previous sanction of Governor-General, any central law. The Indian Police Act 1861 was a central law passed by the central legislature and assented to by the Governor-General of India.
The import of the Government of India Act 1935 with regard to amending or repealing any Act passed by the Governor General in Council (Indian Police Act 1861) has been wrongly interpreted generally by referring to the provincial list in this law. The Provincial Government did not possess any such power under the Government of India Act 1935 on the following grounds:-
(a) The Constitutional position with regard to the powers of the Federal and Provincial legislatures was clearly stated in section 100 of the Government of India Act 1935 which provided three legislative lists, i.e. Federal, Concurrent and Provincial. The subject police was included in the Provincial list. Although this would prima-facie generate the impression that Police Act 1861 and the subject of law and order had been decentralized to the Provinces by the said enactment, the study of overriding provisions both in matters of legislation and the exercise of executive authority in respect of aforementioned subjects by the Provinces would clearly demonstrate that the Police Act 1861 and the subject of law & order were outside the pale of the Provincial sphere. Section 108 of the Government of India Act 1935 had laid down the overriding legislative provision that the previous sanction of the Governor General, given in his discretion, was obligatory interalia, for the introduction of a Bill in a chamber of the Provincial legislature which repealed, amended, or was repugnant to any provision of any Governor-General’s Act or any ordinance promulgated by him. It would thus be clear that although subject of police was included in the Provincial list, the competence of the Provincial legislature with regard to amending or repealing the Central Police Act 1861 was under the legislative control of the Governor-General.
(b) on the executive side with regard to the subject of law & order, the factual position was no different. A concept of three fold classification of powers conferred on the Provincial Governor was introduced. He had to act in his discretion or in his individual judgment or on the advice of his ministers who were responsible to the legislature. The subject of law and order was included in the individual judgment of the Governor as unfettered powers in this connection were not envisaged to be given to the Provincial Ministers. Where the Governor was empowered to act in the exercise of his individual judgment, he was expected to do so after consultation with his ministers. The Governor, of course, was not bound to accept the views of the minister. Another over-ridding provision contained in section 54 of the said enactment laid down that when the Governor acted in his discretion or in the exercise of his individual judgment, he was under the general control of the Governor-General and had to comply with such directions as were to be issued by the latter in his discretion. The subject of law & order read with the special responsibilities of the Governor General as defined in section 12 of the Government of India Act 1935, was actually under the control of the Governor-General.
(c) The extent of control by the Federal government over the police department does not end here and goes much beyond. Section 56-58 of Government of India Act 1935 had laid down that in amending or approving police rules, regulations or orders relating to police force, the Governor would exercise his individual judgment which as stated earlier, was subject to the control of the Governor-General in his discretion. Provincial Governments thus could not amend even Police Rules without the approval of the Governor-General. That is why the police rules were consolidated and published in 1934, as they had to be protected, as aforesaid, in the Act of 1935.
It is thus clear that Police Act of 1861 and the subject of law & order were under the legislative and executive control of the Governor-General even after Act of 1935 even though the subject police was mentioned in the Provincial list. This Constitutional position continued to prevail until 1947 when India was granted Independence. The Police Act 1861 section 46 provided the mechanism for adoption of this law in the provinces but clearly stated once adopted the provinces could only make rules consistent with this Act.
Constitution of 1962 placed the police law under the exclusive control of the Provincial Governments by providing only the Federal list on which police was not mentioned. This Constitution has to be read as a whole and not in isolated passages. The Constitution of 1962 was based on the presidential system of government and had only one Central list in the Third Schedule. Police was not mentioned on it. But Article 133 of the said Constitution had provided that the responsibility of deciding whether a legislature had power to make laws on a particular subject was that of the legislature itself and encroachments on the Provincial sphere by the Central legislature and vice-versa were not justice-able. /article 134 of the 1962 Constitution also stipulated that in case a provincial law was inconsistent with a Central law, the latter shall prevail and the former shall, to the extent of inconsistency, be invalid. These two provisions reveal the true nature of the Provincial sphere. No subject exclusively fell within it domain. All were amenable to the Central sphere of legislation. This Constitutional position also stands confirmed by the decision of the Supreme Court of Pakistan PLD, 1966page 858, Province of East Pakistan vs Siraj-ul-Haque Patwari. We may quote;
“Article 131is not to be understood as placing the legislative competence of the Center within the strait-jacket constituted by is express terms. Clause (1) OF THIS Article states that matters in the Third Schedule are within the “exclusive power” of the Central legislature. It does not say that the power of the Central legislature does not extend beyond these matters”.
Thus Police Act 1861 was not within the exclusive legislative sphere of the Provincial Government under this Constitution.
Although the Constitution of 1973 has provided two lists, the Federal and the Concurrent, it has not provided the Provincial list. Under these peculiar Constitution all arrangements, a Provincial list is not a speaking list but a silent one. A subject will only fall into this list if it escapes the full operation of the Constitutional provisions as well as full operation of the items borne on the Federal and the Concurrent list. Viewed in this light the subject police law is not borne on the provincial list.
It is germane to the subject to examine full implications of the items enumerated in the Concurrent list as a supplement to the above explicit provisions of the Constitution of 1973 Criminal Procedure including all matters mentioned therein are included in the Code of Criminal Procedure. Thus item no. 2 on the Concurrent list is not a small item as it prima facie appears. This item can neither be glossed over in a summary manner, nor can it be viewed in a cursory fashion. To understand its full extent and import, it has to be developed and analyzed in its full details and dimensions by comprehensively listing all subjects included in the Code pertaining to police, public peace and tranquility. It would be a mistake to bypass full details of the subjects under this item as such a course of action, instead of clarifying matters, would present a distorted picture. We have to walk through the full details of this item to reach the residuary realm of the provincial list of subjects. We cannot fly over to it to land in the provincial sphere. Developed in it details pertaining to full particulars of all matters included in the Code of Criminal Procedure with regard police, public peace, powers and authority and duties of police, item No. 2 would read as follows.
The peculiar arrangement of legislative lists adopted by the 1073 Constitution raises a fundamental question of the Constitutional concept of the extent of the Provincial list. The Provincial list is neither a specific nor a definite list nor a positive list. It is a general and a negative list. To hold that a particular residuary item falls in the provincial list is not an Easy task. Such a decision has to stand various tests and touchstones because a Provincial list under the Constitution of 1973 consists of undefined and unparticularised mass of residuary items that have to clearly escape un-scathed from the following tests.
· The text of Articles of the Constitution creating obligations of Federal towards the Provinces. (Article 148(3) and Article 149(4).
· Full. Ancillary and incidental operation of all items enumerated in the Federal list.
· Full. Ancillary and incidental operation of all subjects falling under items borne on the Concurrent list.
· Area covered by an existing Federal law.
· The occupied part of Concurrent legislation.
After having examined the text of the relevant Articles of the Constitution of 1073 and their full implications for the obligations of the Federation for law & order in normal circumstances under Article 148 (3), and the extension of the executive authority of the Federation to giving of directions to the Provinces for preventing grave menace to the peace and tranquility under Article 149 (4), apart from the power under Article 232 for issuing the Proclamation of emergency, in situation in which internal disturbance is beyond the power of a Province to control, the police law and the subject of public peace becomes a shared subject between the Federation and the Provinces.
The text of Article 148 (3) is explicit and where the text of the Constitution is explicit, it is conclusive as well. Even when narrowly defined, in favour of provincial autonomy, the text of this Article does not dislodge the Federal Government from its embedded Constitutional obligation in the context of law & order, public peace and tranquility in the provinces.
The texts of the Article 148(3) and 149(4) make the subject of law & order as a shared and common responsibility between the Federal Government and the Provinces and any distribution of powers between the federation and federating units shall be subject to any limitation or restrictions imposed by the Constituting itself. Failure of the Federal Government to discharge this duty has often resulted in the dismissal of the Federal Government .e. in 1991, dacoities, kidnapping for ransom, riots, highway robberies, political violence and terrorism were rampant in the entire Province of Sindh irrespective of urban or rural areas. Human life, honor and property were completely insecure and were at the mercy of the lawbreakers and criminals. Federal Government having failed to offer protection to the Province against internal disturbance thus failed in its Constitutional obligation. Such conditions operating in a part of the country which was so important coupled with other factors provided nexus to the order of dissolution of National Assembly by the President.
No province objected to inclusion of Police Act in the Federal list nor was the amendment made by the Federal Government challenged. When after introduction of devolved district government was placed in position and a new Police Law was to be introduced this issue was agitated. In order to avoid any legal complication it was decided to issue it as an order by the President who was also the Chief Executive with powers to amend the constitution in the light of judicial verdict.
The Police Order 2002 was promulgated by the Chief Executive on 14th August, 2002. In order to give it continuity and a fair chance to be implemented and tested on ground without any hasty and untimely changes it was placed in Schedule Six of the Constitution. According to Article 268 (2):-
“The laws specified in the Sixth Schedule shall not be altered, repealed or amended [expressly or impliedly] without the previous sanction of the President [accorded after consultation with the Prime Minister.”]
A proviso was added to this clause under the Seventeenth Amendment on 31 December 2003 to the effect that:
"the laws mentioned at entries 27 to 30 and at entry 35 in the Sixth Schedule shall stand omitted after six years.”
The entries at 27 to 30 pertained to the Local Government Ordinances of the four provinces promulgated by their respective Governors, as local government was a provincial subject. Expiry of the six-year bar on amending the Local Government Ordinances has enabled the Provincial Assemblies, effective 1st January 2010, to amend these laws without previous sanction of the President.
The entry at Sr. No. 35 in the Sixth Schedule pertained to The Police Order 2002, which, as stated above, was promulgated by the Chief Executive, being a Federal Law. The Police Order 2002 was amended by the President through an Ordinance in 2004. As the Parliament could not amend the Police Order without previous sanction of the President, the Ordinance had to be re-promulgated every four months. The last time the Ordinance amending The Police Order 2002 was re-promulgated by the President was in November 2009. However, effective 1st January 2010, The Police Order 2002 can be amended by the Parliament, without previous sanction of the President.
It is thus clear that the power to amend the Police Order 2002 rests only with the Parliament, in the like manner as there exists no power with the Provinces to amend The Police Act 1861, being a central law. However, unlike The Police Act 1861 which empowered the Provinces only to make rules to carry out the purposes of the Act, The Police Order 2002 took a step further to empower the Provinces by allowing them not merely to make rules but also to amend the Police Order itself, with the approval of the Prime Minister, to the extent of meeting their specific requirements and circumstances. Thus whereas the power to amend The Police Order rests with the Parliament, the Provinces, with the approval of the Prime Minister, can amend The Police Order in a restricted context specifically to meet any local requirements. [ Article 184 of The Police Order 2002.]
There is a totally erroneous impression deliberately being disseminated by certain vested quarters that The Police Order 2002 is no more in the field and each Province is free to enact its own Police Act. The correct position is that the only thing that has changed is that the Parliament can now amend The Police Order 2002 without prior sanction of the President, and even a Provincial Assembly can make minor amendments to meet any local and special requirements with the approval of the Prime Minister. No Provincial Assembly can change the substantive provisions of The Police Order 2002, the power for which rests exclusively with the Parliament. In any case if a Provincial Assembly enacts a law or an amendment that is repugnant to Police Order 2002, the provisions of The Police Order shall prevail, being the Federal law (Article 143 of the Constitution).
This note was drafted by Mr. Zulfiqar Qureshi in reply to a writ petition by Barrister Zafaraullh who had challenged the enactment Police Order 2002 by the federal government being a provincial subject. The writ was dismissed by Justice Tassaduq Jilani of Lahore High Court in 2003.