Policing Laws in Pakistan THEORY AND PRACTICE

The instant article is primarily exploratory in nature and aims at examining some of the core issues related to Police laws in Pakistan.

INTRODUCTION
The landscape of policing in Pakistan is not very healthy; two eminent personalities bear witness to this and warrant mention here verbatim.

Mr Ahmer Bilal Soofi who served as Federal Minister for Law in the interim government, through his article ‘Police Law Challenge’ (Dawn 27th June 2013) made the following assertion:

‘One of the most startling revelations during my brief tenure as federal law minister in the last caretaker government was that the police force in all the provinces is not governed under a uniform law and that there is serious confusion amongst the police officers in this regard.’

Mr Tariq Khosa, a retired police officer, made an observation that captures succinctly the state of legal framework operative in Pakistan vis-à-vis policing. In his article, ‘Who will Police the Police’ (Dawn on 9th July 2013), he stated:

‘While Sindh, Balochistan, Islamabad, Azad Kashmir and Gilgit-Baltistan are still in 19th-century governance mode, Punjab and KP are in the middle of nowhere, suspended in a truncated 2002 Police Order in theory and following the 1861 Act in practice.’

The instant article is primarily exploratory in nature and aims at examining some of the core issues related to Police laws in Pakistan.

LEGAL FRAMEWORK
The Police legal framework comprises various laws. Substantive and procedural legislations along with case-law become operative when dealing with a Police issue. The bedrock is the Constitution of Pakistan especially Article 4 read with the Fundamental Rights part (from Article 8 to 28). However, the jurisprudential distinction between substantive and procedural legislations is not retained in practice in a razor-sharp manner. Besides international law on human rights and counterterrorism, laws also become applicable because of legislations which have nationalized Pakistan’s international obligations. Within this legal framework, there are two types of policing laws: the organizational law and the empowering law.

The organizational law establishes and constitutes a Police organization and also defines its relationship with the government; whereas the empowering law delineates the powers of Police. The organizational law of Police in Pakistan was the Police Act 1861 that was replaced by the Police Order 2002; however, the former has resurfaced in new garbs. The empowering law of Police is found in different legislations. The most important and omnibus among these is the Code of Criminal Procedure (CrPC) 1908 while others include the Anti-Terrorism Act 1997, the Arms Ordinance, 1965 and the Motor Vehicles Ordinance 1965 which specifically provide powers to Police. Any attempt to understand the constitutional status of Policing law is based on comprehending the above-stated distinction. Finally, the Punjab Police Rules 1934 that have been adopted by all the provinces and the territories also constitute the part of the Police legal framework.

Constitutionality of Organizational Law
The constitutionality of organizational law has been subject to many a legal debate and adjudication. On this issue, the Supreme Court of Pakistan passed an unequivocal judgement in IGP v Mushtaq Ahmad Warraich (PLD 1985 SC 159). Chief Justice Muhammad Haleem declared:

‘the Police Act is now a Provincial Act by reason of the subject within the legislative competence of the Provincial Legislature’

With this declaration, there is little room left to doubt the constitutionality of organizational law of Police. What kept the declaration away from later generations of legal minds within Police and Law Ministry is not known to an outsider; anyone who was not privy to the official discussions can only surmise. Based on guesstimates, it may be stated that since the Police Act 1861 remained applicable in all the provinces without much change, the general perception of treating it as a federal legislation continued till 2002. In 2002, when the new Police law was to be promulgated, the debate about its constitutionality reemerged. Perhaps the debate was intense and in order to reconcile the differing factions, the legislative device of ‘Presidential Order’ protected under Sixth Schedule was adopted. It will be of added advantage to briefly comment on the legality of the Police Order 2002 here.

Legality of Police Order 2002
Though the Police Order was promulgated in 2002, it got its temporal legal sanction from Section 9 of the Constitution (Seventeenth Amendment) Act, 2003, which amended Article 268 of the Constitution of Pakistan 1973. Article 268 of the Constitution provided that certain laws shall not be altered, repealed or amended expressly or impliedly without previous sanction of the President accorded after consultation with the Prime Minister.  The ‘certain laws’ were enlisted in the Sixth Schedule, wherein Police Order was shown as ‘Entry 35’. Further, the proviso to Article 268(2) of the Constitution provided that Entry 35 (i.e. Police Order 2002) shall stand omitted after six years.

These ‘six years’ came to an end on 31st December 2009. The legal position, therefore, is that the Police Order 2002 is sans legal protection. There are, however, people within the Police who claim that the Police Order 2002 is still in force and is protected by Article 270-AA (2) of the Constitution which was introduced by Section 96 of the Constitution (Eighteenth Amendment) Act, 2010 that came into force on 20th April 2010. They fail to appreciate that by operation of Section 9 of the Constitution (Seventeenth Amendment) Act, 2003, the Police Order 2002 ‘stood omitted’ by 31st December 2009. It is important to note here that Section 94 of the Constitution (Eighteenth Amendment) Act, 2010 repealed Article 268(2) of the Constitution altogether; however, important point to be underlined is that by the time the Eighteenth Amendment to the Constitution was made, the operation of ‘omission’ of the Police Order 2002 had already set in (on 31st December 2009), therefore, in order to keep the Police Order 2002 alive, no constitutional legislative cover is available as of today. Nevertheless, Police officers in the Punjab and KPK stick to the legal status of Police Order 2002 and argue its protection under Article 270-AA(2) as introduced by the Constitution (Eighteenth Amendment) Act, 2010 without appreciating the timelines indicated above.

Constitutionality of Empowering Law
The constitutionality of the empowering law has never been in doubt. The omnibus Code of Criminal Procedure was, and is, a provincial piece of legislation. Likewise, different special and local laws by and large belong to provincial domain. The criminal law was first item on the erstwhile Concurrent Legislative List of the Fourth Schedule of the Constitution and post-Eighteenth Amendment of the criminal law is that it belongs to provincial domain exclusively now.

Police Organizational Laws in Different Parts of Pakistan
The legal position of police organizational laws in different parts of Pakistan may be highlighted by treating each part and province separately for the sake of clarity.

PUNJAB
In the Punjab, the Police Order, 2002 in a truncated and amended form is implemented. Most of the Police Order, 2002 is in non-complied form as many mechanisms envisioned by the law were either not established, or if established, are now dormant. The implementation of the Police Order is in very few areas which primarily include change of investigation, top of Police hierarchy, criminal offences regarding Police and partial implementation of Article 7 that allows entry only three levels (Constable, Assistant Sub-Inspectors and Assistant Superintendents of Police). The Government of the Punjab has introduced an amendment through an ordinance in July 2013 that aims to amend Article 7 to allow induction of Sub-Inspectors in Police.

SINDH
In Sindh, initially, The Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Ordinance, 2011 was introduced. Later, on 14th July 2011, this was passed by the provincial legislature; hence, the applicable law, as of now, is the Police Act, 1861.

KHYBER PAKHTUNKHWA
Like in the Punjab, the KPK is also adhering to the Police Order 2002, which is partially implemented and principally distorted through amendments.

BALOCHISTAN
Balochistan is divided into ‘A’ and ‘B’ areas. A-Area is policed by regular Police department whereas B-Area is policed by levies. A-Area constitutes five per cent of Balochistan. In A-Area, now the applicable law the Balochistan Police Act, 2011 instead the Police Order 2002. The said Act is, with some modifications, a replica of the Police Act, 1861. It has reintroduced the control of District Magistrate on Police.

AJK, GB, ICT
The Police law applicable in AJK, GB and ICT is the Police Act, 1861. In these areas, the Police Order 2002 was never implemented.
The tabular picture of the above discussion is as follows:

Impact on Local Government and Law & Order
The revival of the Police Act 1861 and manipulations with the Police Order 2002 have created an asymmetry which will affect the would-be local government system and the law and order situation of the country. The unrepresentative nature of would-be local government has been reinforced and the law and order responsibilities stand further diluted and fragmented. The basic management principle of ‘no responsibility without authority’ has once again been militated: generalists have again taken all the authority; specialists held responsible without authority.

Police Leadership
The Police leadership, as always, is confused and operating at personal level. No organizational response can be discerned. Few Police officers who grandstand the Police reforms seem marginalized.

Way Forward
In the backdrop of turf battles of powerful occupational groups of Civil Service and an imbalanced civil-military relationship, the way forward is, apparently, not in sight. The case of Police Order 2002, if taken in totality and examined as a case study, evinces that it’s a ‘one step forward and two steps back’ case. If one is constrained to offer solace by offering suggestions, the point of departure would be principal decisions on legal responsibility of internal security in the country, transforming the generalist Civil Service to specialist and on treating citizenry of Pakistan as the central point of all state actions.

As far as the role of federal government in coordinating a uniform Police law for the whole country is concerned, as desired by legal minds like Mr Ahmer Bilal Soofi, the only forum that can do it is the National Police Bureau (NPB), which is the research and development arm of Policing (and that is the reason its counterpart is called Bureau of Police Research and Development). NPB is under the Ministry of Interior and is often treated as a dumping place for Police officers and is not empowered to or encouraged to undertake the role of coordination effectively as far as uniform law and standards and practices of policing are concerned.