Constitutionality Of The Police Laws And The Sindh Revival Of Police Order Bill, 2019

CONSTITUTIONALITY OF THE POLICE LAWS AND THE SINDH REVIVAL OF POLICE ORDER BILL, 2019

Kamran Adil

1. Constitutionality and Justice Sector

The justice system of Pakistan is not showing signs of resuscitation as it is neither providing ‘justice’ nor acting as a ‘system’. Many factors have contributed to this state of affairs. The very orientation of the ‘system’ needs to be addressed, before talking about its ‘reform’. The World Bank has taken an economist’s approach towards the subject in which instead of individual actors or organizations, the very sector is considered the subject of study and improvement. As a result, in a publication titled ‘Justice Sector Assessments–A Handbook’ by the World Bank Group, the term justice sector has been equated with the term justice system. The relevant extract from the Handbook reads:

“Justice sector” is the term that economists use for what social scientists usually call the justice system. For this book, we define the justice sector or system most broadly as:

For Pakistan, instead of organizational approach, sector-wise approach may be more relevant to make the things functional in an efficient and effective manner. In any case, this calls for paradigm shift in the approach of the policymakers, who do not treat justice sector as an organic whole and tend to treat it, for various reasons, on organizational basis. Consequently, the level of thinking for ‘reform’ has never transcended the organizational approach. Within this organizational approach, the police have, conventionally, been central to ‘reform’ agenda. The police-related ‘reform’ agenda have, most often than not, focused on reforming the police law. In the year 2002, after all the toil, struggle and unanimous but unimplemented recommendation of all the bodies/institutions/commissions of the yesteryears, the colonial Police Act, 1861, was replaced with the Police Order, 2002, through a constitutional fiat. The constitutional fiat was temporal and was modified by Articles 142 and 143 that were introduced through the Eighteenth Constitutional Amendment. The federal and concurrent nature of criminal law, criminal justice and evidence law were preserved in the Eighteenth Constitutional Amendment with underlying assumption that ‘police’ subsumed in these three subjects/items. The provinces, however, interpreted it according to their understanding that tilted in favour of provincialism. The provinces opted to provincialize organizational police laws without realizing that the policing law (criminal justice code) was federal. The dichotomy resulted in many an issue for the practitioners in the field besides weakening the federal architecture for internal security of the country.

1. Revival of the Police Order, 2002, in Sindh

In this backdrop, in 2011, Sindh enacted the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 (Sindh Act No. XXII of 2011) that reversed the enactment of the Police Order, 2002, in Sindh. Later, the vires of the 2011 police law were challenged initially in the Sindh High Court and finally in the Supreme Court of Pakistan. Deciding the constitutionality of the police law, a three-member SC bench headed by the then-Chief Justice of Pakistan Mian Saqib Nisar in the case titled “The Province of Sindh through the Chief Secretary versus the Shehri Citezens for a Better Environment (CBE)” decided that the legislation on police law is not within the exclusive domain of a province. Speaking for the bench, Justice Umar Atta Bandial authored the judgement and held that police law is concurrent subject in view of Articles 142(b) and 240 of the Constitution of Pakistan. It, therefore, directed that federal and provincial governments may collaborate in the matter of transfers/postings of the senior police cadre posts. In this backdrop, the Sindh Assembly passed the latest Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) Amendment Bill 2019 on 19^th May 2019. The bill was sent to the Governor of Sindh for his assent. On 29^th May 2019, the Governor Sindh returned the Bill to the Assembly by exercising his powers under Article 116(2) of the Constitution. The reasons for returning the Bill were stated in detail. The following chief reasons, inter alia, were assigned for returning the Bill:

1. That the Bill did not revive the Police Order in its original form. It proposed to revive the Police Order from 13th July, 2011 with all amendments inclusive in it;
2. That the Supreme Court directed making police law by keeping in view the ‘modern needs’ and by keeping in view the observations made by the Sindh High Court in its impugned judgement;
3. That the scope of the ‘superintendence’ of police should not be beyond policymaking as noted in Para 88 of the Sindh High Court’s judgement that was impugned before the Supreme Court of Pakistan;
4. That the appointment and removal of the IGP Sindh must be according to the well-established practice and understanding between the provinces and the federation;
5. e. That sections 13, 15, 17 and 20 of the Bill were inconsistent with Paragraphs 101(h) and 101(i) of the impugned judgement of the Sindh High Court that directed that the IGP shall post/transfer all the police officers under him to ward of extraneous influences;

With the above observations, he returned the Bill to the Sindh Assembly for reconsideration. On 14^th June, 2019, the Sindh Assembly, after incorporating some amendments, again passed the Bill and sent it for assent of the Governor Sindh.

III. The Characteristics of Reviving the Police Order, 2002

In Parts I and II, the constitutionality of police laws in Pakistan along with background of the new Sindh police law were discussed. In this Part, some select themes that characterize revival of the Police Order are being highlighted to inform and excite the thinking about the subject of police laws in Pakistan:

1. Reviving the Police Order, 2002

The pristine Police Order, 2002, provided a template for progressive policing legal framework that was aimed at improving the organizational and working aspects of police organizations. The revival of the original Police Order, 2002, is usually sought because of its linkage with human rights and citizenry. The mere enactment of a progressive police law may not guarantee implementation of human rights, but it does create enabling environment for law-enforcement agencies to follow and respect human rights laws and international treaties that Pakistan is obligated to follow.

2. Transfer/Posting of Police Officers

The central issue of controlling police relates to the power to transfer/post police officers to different assignments. The governments want to monopolize it and want to use it in a discretionary manner. The unstructured discretion results in interference rather than accountability.

3. Change of Investigations

The Police Order provided for an institutional mechanism to deal with change of investigations in criminal cases. Prior to the Police Order, 2002, the investigations were changed at whim and the perpetual nature of the investigations was used to open old cases in discretionary manner.

4. Institutional Mechanism for Public Safety and Police Accountability

Though the institutional mechanisms envisaged by the Police Order, 2002, in the form of public safety commissions and police complaints authorities were never implemented, but the Police Order, 2002, did set a precedent to fashion institutional mechanisms in which elected people could do accountability of police in apolitical manner.

Concluding Remarks

Reforming the police is a well-documented subject in Pakistan within the realm of public sector studies. The organizational change that can lead to thana/police culture change has invariably to come from the police law, which has been oscillating between the colonial Police Act, 1861, and the progressive Police Order, 2002, for the last two decades. It is as much as subject of policing as much of the federalism and constitutionalism in Pakistan. In order to bring sustainable improvement in police working, there is a pressing need that the fundamental constitutional questions be settled tritely to work on more substantial set of reforms so as to see the citizens get the dual benefits of security with respect for human rights from police organizations all over Pakistan.