Police Laws in Pakistan: Present State of Affairs

POLICE LAWS IN PAKISTAN: PRESENT STATE OF AFFAIRS POLICE LAWS IN PAKISTAN: PRESENT STATE OF AFFAIRS By Kamran Adili INTRODUCTION The police have a peculiar status in Pakistan. Without much authority, they have much responsibility and much blame to share. In this backdrop, more often than not, the police are treated as the face of criminal justice system, and with the installation of every new government, renewed claims are made to reform the police. Since 1947 more than twenty one official initiatives to improve/reform the police have been undertakenii. The central point of many a report has been to improve the law relating to the police to ensure sustainable structural and functional reform. However, a major development in this regard was taken in 2002 by the introduction of the Police Order, 2002, which ultimately got diluted through subsequent governmental actions and plethora of amendments. The instant article intends to explore the state of policing laws in Pakistan in the year 2014; this, however, is done after highlighting some fundamental concepts related to police laws in Pakistan. LITERATURE REVIEW The twenty' one reports/initiatives referred to above become, by default, integral part of literature review on the subject. However, out of these, the Police Committee Report (1985) was anchored by police officers exclusively and therefore got general endorsement from serving and retired police officers as most of them emphasize and refer to itiii. In 1990 an Implementation Committee to assess the implementation of the Police Committee Report (1985) was constituted, which opined: "There are three categories of Reform viz: those requiring changes in law, those requiring funds and those which need Government or departmental action by way of restructuring...iv The analysis of the above paragraph reveals that the authors of Implementation Committee Report ,envisioned reforms in police law as one category of the reform. In pursuance thereof, ultimately, the Police Order, 2002 was implemented. Suddle (2012) pinned hopes on the Police Order and recommended that the law's implementation be extended to other parts of Pakistanv: he opined: "The objective of police reform is largely achievable through implementation of Police Order 2002, with minor amendments, throughout the country, including the provinces of Sindh and Balochistan, the federal capital of Islamabad, Gilgit-Baltistan, and Azad Jammu and Kashmir. In due course, the Order should be extended to the Federally Administered Tribal Areas as well so that the whole country is governed under a common set of rules. The present state of affairs is, however, different. Mr. Ahmer Bilal Soofi, a senior Advocate Supreme Court of Pakistan and former federal law minister observed that there was no uniformity in the emerging police laws of the country; he called it the 'one of the most startling revelations' for him during his office as the federal law ministervi. Not much different is the observation of Mr. Tariq Khosa, former Inspector General of Police, Balochistan. He observed that the Sindh, the Balochistan, Islamabad, Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (GB) operated in '19th century' whereas, the Punjab and Khyber Pakhtunkhwa (KPK) lived with 'truncated' Police Order, 2002vii. The gap between the legal status of police laws in different parts of Pakistan and the expectations of criminal justice system and citizens at large exists, which needs elaborate research. The instant article is exploratory in nature and will try to document the legal status of the police laws and related issues. The article has been divided into three parts: Part I will examine some preliminary and fundamental issues related to criminal and policing laws, while Part II will snapshot the state of police organizational laws in different parts of Pakistan. Part III will briefly recommend the available options to bring semblance of uniformity in the police organizational laws. PART-I. PRELIMINARY AND FUNDAMENTAL ISSUES Before embarking upon the state of affairs of policing laws in Pakistan, it is necessitated to adumbrate, in brief, some preliminary and fundamental issues related to policing laws in Pakistan. These issues include a description of police legal framework, elucidation of two types of policing laws, Eighteenth Amendment to the Constitution of Pakistan vis-a-vis policing laws and constitutionality of police organizational law in Pakistan. A. LEGAL FRAMEWORK: A DESCRIPTION The police legal framework comprises various laws. Substantive and procedural legislation 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 partviii. However, the jurisprudential and academic distinction between substantive and procedural legislation is not retained in practice in a razor sharp manner. Besides, the international law on human rights and counter-terrorisrn laws also become applicable because of some legislation that has 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; on the other hand, the empowering law delineates the powers of the police. The organizational law of the police in Pakistan was the Police Act, 1861, which was substituted by the Police Order, 2002; however, the former has resurfaced in new garbs. The empowering law to the police is found in different legislation. The most important and omni bus in the legislation is the Code of Criminal - Procedure, 1898. Other legislations include Qanun-e-Shahadat Order, 1984, the Hudood Ordinance of 1979, the Anti-Terrorism Act, 1997, the Arms Ordinance, 1965 and the Motor Vehicles Ordinance, 1965 that 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. B. CONSTITUTIONALITY OF ORGANIZATIONAL LAW The constitutionality of organizational law has been subject matter of many a legal debate and adjudication. On this issue, the Supreme Court of Pakistan passed an unequivocal judgment in IGP v. Mushtaq Ahmed Warriahix. CJ 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, therefore, 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 re-emerged. 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. C. LEGALITY OF THE 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 of the Constitution, 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 through the Constitution (Eighteenth Amendment) Act, 2010x which 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 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 (i.e. by April 2010) 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. D. EIGHTEENTH AMENDMENT AND CRIMINAL LAW The general perception is that the Eighteenth Amendment is a watershed legislation as far as inter-provincial issues are concerned as the Concurrent List which appeared on the Fourth Schedule of the Constitution was abolished. The core of Concurrent List abolition lied in narrowing the legislative competence of the Federal Legislature and hence expanding the space for Provincial Legislatures, which could, in application, culminate into provincial autonomy. The general perception, however, did not address the nuanced point introduced by Article 142(b) of the Eighteenth Amendment. The modified Article 142(b) reads: "Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence." When read with Article 143, which holds that in case of non conformity between the provincial and federal legislations, the latter shall prevail. The combined legal effect of the two Articles is that a new `Criminal Concurrent Field' has been established as far as 'criminal law, criminal procedure and evidence' are concerned. The newly created Criminal Concurrent Field, when analyzed in the legal hierarchy of rules, is found more deeply pegged into constitutional legality as compared to the erstwhile Concurrent List, which derived its legality as part of Fourth Schedule and not as a substantive constitutional provision. It is also worth mentioning that in the pre-Eighteenth Amendment scenario, the 'criminal law, criminal procedure and evidence' were reflected as items 1, 2 and 4 on the Concurrent List respectively. The brevity of modified post Eighteenth Amendment Article 142(b) has infused more ambiguity to the already confused terms of 'criminal law, criminal procedure and evidence'. An illustration in point is the recent debate in the Punjab over the meaning of 'criminal law' as a legislative subject matter. The issue became a moot point when the present Government of the Punjab tried to introduce a package of amendments to the Police Order, 2002. The initiative met some resistance in the Punjab Police. Police officers contested the legality of the proposed amendments on the grounds of modified Article 142 (b) (as introduced by the Eighteenth Amendment) and Article 143 of the Constitution of Pakistan. Taking note of the differing points of views between the Home Department and Police officers, the Government of the Punjab opted to solicit legal opinion from the Office of the Advocate General of the Punjab. The Advocate General of the Punjab got the matter researched through its Research Cell whose Opinion is available online (http://advocategeneral.pitb.gov.pk/research cell). The crux of the Opinion was that 'police' law was not a 'criminal law', and therefore, Articles 142(b) and 143 of the Constitution of Pakistan were not attracted to legislation on police. The Opinion stated that the Provincial Legislature was fully competent to legislate on the subject of 'Police'. Based on the Opinion, the Provincial Legislature, in July 2013, initially through the Punjab Police Order (Amendment) Ordinance, 2013 got the amendments done to the Police Order, 2002. Subsequently, the Ordinance was placed before the Punjab Assembly which passed the law as an Act of the Assembly and the amendments were enacted through the Punjab Police Order (Amendment) Act, 2013 on September 11 2013. The point was settled administratively, but it is generally believed that the term 'criminal law' as a subject matter for legislative competence is as ambiguous today as it was prior to the Opinion. Chapters XVI and XVII (from Articles 139 to 159) of the Police Order 2002 outline offences and punishments; such legal provisions are squarely fall in the domain of 'criminal law'. Likewise, Article 18 of the Police Order 2002 that deals with the procedure for change of investigation is surely part and parcel of the 'criminal procedure'. Based on the foregoing, the constitutional question that begs serious consideration is what can be categorized as 'criminal law', 'criminal procedure' and 'evidence' for the sake of determining the subject matter for legislative competence as envisioned under Article 142 (b) of the Constitution of Pakistan, 1973. E. CONSTITUTIONALITY OF EMPOWERING LAW The constitutionality of the empowering law has never been in doubt. The omni bus 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. PART-II. 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. A. 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 Police Order is in very few areas which primarily include change of investigation, heavy 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 this July that aims to amend Article 7 to allow induction of Sub-Inspectors in police. B. 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, The Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 was passed; hence, the applicable law is now the Police Act, 1861. C. KPK Like in the Punjab, the KPK is also adhering to the Police Order, which is partially implemented and principally distorted through amendments. D. BALOCHISTAN Balochistan is divided into 'A' and 'IV areas. A-Area is policed by regular Police department whereas B-Area is policed by levies. A-Area constitutes five percent of Balochistan. In A-Area now the applicable law is not Police Order 2002, but it is the Balochistan Police Act, 2011. The Balochistan Police Act, -2011 with some minor modifications is a replica of the Police Act, 1861. It has teintroduced the control of District Magistrate on Police. E. AJK, GB, ICT The police law applicable in AJK, GB and ICT is the Police Act, 1861; these are the areas where Police Order 2002 was never implemented. The tabular picture of the above discussion is as follows: S. No. Province/Territory Organizational Law Empowering Law 1. Punjab Punjab The Police Order, 2002 Cr.P.C and special and local laws 2. Sindh The Police Act, 1861 through The Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 Cr.P.C and special and local laws 3. KPK The Police Order, 2002 Cr.P.C and special and local laws 4. Balochistan The Balochistan Police Act, 2011 Cr.P.C and special and local laws 5. AJK The Police Act, 1861 Cr.P.C and special and local laws 6. GB The Police Act, 1861 Cr.P.C and special and local laws 7. ICT The Police Act, 1861 Cr.P.C and special and local laws F. IMPACT ON LOCAL GOVERNMENT AND LAW AND ORDER The reviving of the Police Act, 1861 and manipulations with the Police Order, 2002 have created an asymmetry which has affected the would-be local government system and the law and order of the country. The unrepresentative nature of would-be local government has been reinforced and the law and order responsibilities 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. PART-III. 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 bleak. The case of Police Order, 2002, if taken in totality and examined as a case study, evinces that it is a case of one step forward and two steps back. On the other hand, 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 whole of Pakistan is concerned, two courses are open with the extant system: First option is to get approved the basic features of uniform organizational law for the whole of Pakistan at the forum of the Council for Common Interests. This is recommended in view of the new dispensation after Eighteenth Amendment that has according to eminent constitutional lawyer Mr. S. M. Zafar empowered CCI as 'a new tier of government' in Pakistan; The second option is to get prepared a model police law through the National Police Bureau (NPB), which is the research and development arm on Policing and is under the Ministry of Interior. The model police law thus drafted can be forwarded to provincial assemblies for consideration. However, it is not likely to yield results as NPB 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. i. The author is a police officer and has graduated from the University of Oxford. ii. Passage of Bill to introduce a Metropolitan System of Policing in Karachi (1948), Recommendations of Sir Oliver Gilbert Grace, IG Police, NWFP (1951), Police Commission headed by Mr. Justice J.B. Constantine (1961), Pay and Services Reorganization Committee (Justice Cornelius) (1962), Police Commission headed by Major General A.O. Mitha (1970), Police Station Enquiry Committee headed by M.A.K. Chaudhry, IG Police (1976), Police Reforms Committee headed by Rafi Raza (1976), Orakzai Committee on Police Welfare, Promotion and Seniority Rules (1981), Cabinet Committee on the Emoluments of SHOs (1982), Cabinet Committee on Determining the Status of SHOs (1983), Sahibzada Rauf Ali Committee (1983), The Police Committee headed by Mr. Aslam Hayat (1985), Report of the two-member delegation's visit to Bangladesh and India (1987), Report of the seven-member delegation's visit to Bangladesh and India (1989), Police Reforms Implementation Committee - M. A. K. Chaudhary (1990), Report of the UN Mission on Organised Crime in Pakistan (1995), Report of the Japanese Police Delegation on the Police System in Pakistan (1996), Committee on Police Reforms under the Chairmanship of Interior Minister (1997), Report of the Good Governance Group on Police Reforms: Committee Vision (1998), Report of the Focal Group on Police Reforms: NRB Draft (2000) Int ://www.baloehisthesis/ComRe orts. h [Accessed on 3rd August, 2013] also available at Commonwealth Human Rights Initiative's publication on Police Organizations in Pakistanhttp://www.humanrightsinitiative.ors/publications/police/volice organizations in Pakistan [Accessed on 3rd August, 2013] iii. Suddle Muhammad Shoaib, Reforming Pakistan Police: An Overview, United Nations Asia and Far East Institute for the Prevention of Crime, 2001. iv. Chaudhry, MAK, Police Reform Implementation Committee (1990), para. 186 v. Suddle, Muhammd Shoaib, in Obstacles to Reform, Stabilizing Pakistan through Police Reform, Asia Society Abbas, Hassan, Editor (2012), pp.40. vi. Soofi, Ahmer Bilal, Police Challenge, daily English newspaper Dawn, 27th June, 2013. vii. Khosa, Tariq, Who will Police the Police, daily English newspaper Dawn, 9th July, 2013. viii. Articles 8 to 28 of the Constitution of Pakistan cover Fundamental Rights, which include newly introduced Right to fair trial through Article 10-A, constitutional protection against double jeopardy and against self-incrimination. ix. PLD 1985 SC 159 x. Section 96 of the Constitution (Eighteenth Amendment) Act, 2010.