Article 140-A of the Constitution of Pakistan, 1973, was added through the Eighteenth Constitutional Amendment in 2010. The constitutional provision provided for three aspects related to the local government:
a. It established the local government system within the constitutional framework of Pakistan;
b. It provided for devolving of the ‘political, administrative and financial responsibility and authority to the elected representatives of the local government’;
c. It entrusted the responsibility of holding local government elections to the Election Commission of Pakistan.
The constitutional amendment, therefore, legally obligated the elected federal and provincial governments to hold local government elections. Consequently, the provincial governments enacted their respective local government laws before holding elections to the local bodies. The Punjab Local Government Act, 2013, was promulgated in the province of Punjab. It repealed the Punjab Local Government Ordinance, 2001. It is in this backdrop of the new local government law of the Punjab that a need was felt by some quarters to promulgate the Punjab Civil Administration Ordinance, 2016, which has now, after the approval of the Punjab Provincial Assembly, been enacted as the Punjab Civil Administration Act, 2017.
This write-up will try to specifically discuss the ‘need’ that necessitated the promulgation of the new law, and further it will elucidate its impact on the police and allied matters.
Law and Order
The specific need that instigated the introduction of the Punjab Civil Administration Act, 2017, was that Section 18(c) of the Punjab Local Government Ordinance, 2001, entrusted the office of the Zila Nazim (head of the local government at the district level) with the power to perform law and order functions in his district; it was argued that the same power was exercised by the office of the District Coordination Officer (DCO) after the discontinuation of the latter office. The argument, however, was not backed by law as no provision akin to Section 18(c) was included in the Punjab Local Government Act, 2013, and due to the fact that, after the discontinuation of office of Zila Nazim and till 2013, the law and order powers had fallen onto its professional recipient i.e., the Police. The premise of the advocates of the need to introduce the new law i.e., the Punjab Civil Administration Ordinance, 2016, was challenged by the Police leadership. It was argued that:
(a) the term ‘law and order’ is as ambiguous as the term ‘national security’, and that the progressive police law (the Police Order, 2002) chose to use the word ‘public order’ instead of the arcane and opaque terminology;
(b) the power to deal with the so-called ‘law and order’ rested with the Police, the professional and rightful recipient of the power/responsibility, which was not only authorized under the law, but was also responsible to citizens vis-à-vis the public order of the province;
(c) The Punjab Local Government Act, 2013, did not entrust any such power to the elected local government, as no legal provision analogous to Section 18(c) of the erstwhile provincial local government law was to be found in the extant law.
Police and the Punjab Civil Administration Act, 2017
The divergence of opinion led to keeping the Police out of the ambit of the Punjab Civil Administration Act, 2017, as provided in its Section 2(m) that excluded Police from the definition of ‘office’ (to which the law had to be applied). Another exception to the applicability of the law was the local government, which was also excluded through the same definitional exclusion. Notwithstanding the fact that the law was not applicable to the Police, in general, in Section 15 of the law, a novel joint responsibility mechanism in public order situations had been carved out in the law. It is apposite to reproduce Section 15 of the law here:
15. (1) The Deputy Commissioner on his own, or on the request of the head of a local government or head of the District Police, may convene a meeting for purposes of maintaining public order and public safety and safeguarding public or private properties in the District; and, the decisions taken in the meeting shall be executed by all concerned accordingly.
(2) Notwithstanding anything in subsection (1), in cases of any unforeseen or sudden situation that threatens or is likely to threaten public order, public safety or public and private properties in the District, the Deputy Commissioner and the head of the District Police shall jointly take appropriate action to address the situation.
(3) The provisions of subsection (1) and subsection (2) shall apply mutatis mutandis to the Commissioner and Assistant Commissioner respectively I relation to the Division and the Tehsil.
The analysis of Section 15 evinces that it caters for two types of situations: foreseen and unforeseen. In foreseen and predictable situations, like on the eve of any preplanned public order occasion, the convening power to hold meetings has been conferred on the Deputy Commissioner (DC); in unforeseen situations, the joint responsibility of DC and Head of the District Police has been envisaged in the law. Whether the arrangement will work successfully or not is arguable; it is, however, notable that the arrangement is a new beginning. Hitherto, the office of the DC, though, was authorized to play a role in the public order situations administratively, it did not have any statutory responsibility. Though police officers take this with a pinch of salt and with a sense of colonial renaissance, in effect, a head of the district police has limited responsibility under new dispensation, and his burden will now be shouldered by the DC. Perhaps, this was the reason that on 18th January 2017, Mr Tasneem Noorani, former Federal Secretary for Interior, in his article ‘Inexplicable Move’ in the daily Dawn, opined that:
“… So now there are three parts to the government in the districts; the police, local bodies, and the DC as inspector of all departments and their facilities, excluding health and education, for which district authorities are being made, which means the DC will have nothing much to do with them.”
The Deputy Commissioner
The purported salutary part of the Act is ‘revival’ of the ‘title’ of the Deputy Commissioner (DC). Section 3(3) is bombastic in its parlance: ‘A DC shall be the officer-in-charge of general administration and principal representative of the Government in the District’. What is ‘general’ administration and how is it different from ‘civil’ administration has not, however, been defined anywhere in the law; likewise, the concept of ‘representative’ in the democratic constitutional government is equally unclear. The abstract nature of the law is likely to add ambiguity to the existing system of governance, where tracing the lines of responsibility in case of any mal-governance is not easy.
With the assent of the provincial parliament, the law is likely to enjoy permanence in the near future in the Punjab. It will not be appropriate to categorize it good or bad; the real test for any law is whether it is good for the citizens or not and whether it will contribute to the larger good of the country and society or not.
On these yardsticks, the law is yet to be tested!