Law and Policing in the Era of Covid

In a constitutional democracy, the law and policing are intertwined. Every action of the police must be backed by law. The law, therefore, has to provide enabling legal framework to empower, with safeguards, police to perform their evolving functions. In the context of Covid-19, new challenges have emerged for policing. Predominantly, police are required to implement ‘social distancing’, ‘contact tracing’ and ‘lockdown’ strategies in collaboration with other functionaries of the state and with active involvement of the health professionals. Whereas ‘social distancing’ and ‘lockdowns’ are preventive in nature, the ‘contact tracing’ is detection-based. The skills and legal frameworks required to deal with both sets of strategies are different. Due to sudden onset of the pandemic, police have been, without any training, required to undertake the implementation. These functional challenges necessitated actions that required sanction of law. The instant write-up will briefly present a survey of the legal framework of Pakistan; besides, the UK law and the INTERPOL Guidelines will be presented to show that practices in Pakistan are no different from international trends.

Pakistan

1. Constitutional Responsibility

Pakistan is a federation that divides the constitutional responsibilities between the federation and the provinces. In the context of Covid-19, however, the constitutional responsibility is of both the federation and the provinces jointly. Whereas, after the Eighteenth Amendment that was introduced in 2010, health falls in the sole domain of the provinces, the border controls as stated in Fourth Schedule of the Constitution outlining the items of the Federal Legislative List is the responsibility of the federation. Hence, for policing the borders, the federal government is responsible and in case of the pandemic, where the roots of the disease/infection/virus (Covid-19) are international, the federal government is required to use the Federal Investigation Agency (FIA), the Coastal Guards, the Frontier Corps and other agencies at its command. It has already used its constitutional authority and deployed armed forces by invoking Article 245 of the Constitution. The provinces, on their part, have made arrangements for health, and have also deployed provincial police organizations. The crux is that both the federation and the provinces have constitutional responsibility within their domains to deal with the pandemic. It may be noted here that the provinces have passed resolutions under Article 144 of the Constitution in favour of the federation requiring it to deal with ‘medicine and drugs’ and ‘disaster management’. Accordingly, the federation is dealing with ‘approval’ processes for medication to deal with Covid-19 and has activated the country’s disaster management agency, i.e. National Disaster Management Authority (NDMA). The deployment of armed forces under Article 245 of the Constitution also means that Covid-19 is being dealt with as a national security matter. 

2. Preventive Law

The law of policing in Pakistan is stated in the Code of Criminal Procedure, along with the provincially-enacted police laws. It may be noted that the legal framework for policing in Pakistan is predominantly post fact, i.e. detection-based; the law related to preventive and anticipatory actions is quite underdeveloped. In order to implement ‘social distancing’ and ‘lockdowns’, the law related to public nuisances (Section 144 of the Code of Criminal Procedure) has been used to order partial and full lockdowns by all the four provinces and by the district administrations therein. The executive orders are temporal in nature and their implementation is carried out by the police. The offences relating to public nuisance are treated by the judicial system as minor in nature. The investigation by police in these cases is not very thorough and most of the cases end up in acquittal or meagre pecuniary punishments awarded on the basis of confessions of the accused. In addition, in the Lahore district, the Capital City Police Officer issued orders under Articles 122, 123, 124 and 125 of the Police Order, 2002, empowering police to prevent assembling of people and ensuring social distancing. The provincial governments also used the Epidemic Diseases Act, 1958, to order segregation at different places including stopping of the public transport at inter- and intra-city levels. The Punjab also got promulgated a new law titled as the Punjab Infectious Diseases (Prevention and Control) Ordinance, 2020, on 27th of March 2020. Section 16 of the Ordinance allows the police to impose reasonable restrictions on people and to use force, if required. The non-compliance to the law has been criminal with imprisonment and fines higher than those awarded in the public nuisance offences. The law also criminalizes the escape from a ‘place of retention’ (quarantine) with imprisonment and fine. The police leadership has implemented the laws sensibly by ensuring that the supply line of essential items is not disrupted. Operationally, the police had to attain working partnerships with the military, rangers and health professionals to implement the partial and full lockdowns. Once again, the police emerged as the lead agency by coming into contact with public at large and by engaging communities to follow segregation and social distancing. There were no clear-cut orders to get the mosques closed; however, the police managed to engage the religious leadership and exhorted them to not congregate in mosques.

3. Detection Law

The detection law for ‘contact tracing’ is the same as used for investigation of criminal cases. The police have, however, chosen not to use it, rather they tried to use investigative tools related to technology just to trace the contacts without recording formal criminal cases. Most of the cases might not involve mala fide required for the acts to be treated as offences.

The United Kingdom

The United Kingdom promulgated a new law called the Coronavirus Act, 2020. The legislation is public health led. The police must seek advice of public health officer before initiating legal action against persons violating the law. The College of Policing, UK, has issued detailed briefing for police officers in which the police have been urged to ‘engage, explain, encourage and enforce’ the law. The police have been given the secondary role and the enforcement has been treated as exceptional and to be used as a last resort. The law chiefly provides three powers to police: first, the police can detain someone to be tested whether (s)he suffers from infectious disease or not; secondly, the police can order close down of non-essential businesses; and thirdly, the police can restrict movement of people.

INTERPOL

On 26th March, the INTERPOL issued guidelines for police organizations dealing with Covid-19. The guidelines advise police personnel to first protect themselves and to take all precautionary measures. The guidelines are apt due to high rates of positive tests in police dealing with public at large. For example, in New York Police Department (NYPD), over 1000 police officers were found positive in their tests for the virus. The guidelines elaborate duties of law enforcement in Covid-19. The duties are: (1) supporting the public health measures; (2) management of public order; (3) contact tracing; (4) securing delivery of emergency supplies; (5) public messaging; (6) preventing deliberate contamination; (7) checking supply of fake and counterfeit medical products; and (8) prevention and detection of cybercrime related to Covid-19.

Concluding Remarks

Mostly, the police organizations are dynamic and adaptable to emerging challenges. The police in Pakistan, like elsewhere, have been at the forefront and have quite professionally handled the Covid-19 challenge. The situation, however, needs continuous monitoring as the post-Covid-19 scenario will bring new challenges of surge in street crime due to economic problems and will also witness increased cybercrime due to online financial activities.

The author is an independent researcher

and has done his BCL from the University of Oxford. Email: kamranadilpsp@gmail.com