Sunday, January 22, 2012

An Overview of Police Reforms


By Afzal A Shigri

Article 4 of the Constitution of Pakistan gives the right to an individual to be dealt with in accordance with the law: "To enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan." It was in this spirit that the Police Order 2002 was promulgated and in the preamble it was categorically stated: "The police has an obligation and duty to function according to the constitution, law and democratic aspirations of the people". The Police Order accordingly redefined the role, duties and responsibilities of the police, breaking free of the colonial past and the Police Act of 1861. The Police Act 1861 was very focused as it emphasized the maintenance of order above every other consideration. This law served the empire well for 86 years and saw it through two world wars during which time maintenance of order and suppression of dissent was of paramount importance for the war effort. Even after independence the successive governments found the law very useful as it effectively stifled any dissent and in the short run it was an ideal tool for perpetuation of their rule. However the highhandedness of the police mostly at the behest of the executive invited a lot of criticism from the political parties that were at the receiving end and the civil society at large. Tragically these very parties when in power were reluctant to reform the system as they too felt secure with repressive machinery at their disposal. It is rather ironic that it was a military ruler who initiated police reforms and brought about fundamental changes in law enforcement and Police Order 2002 was promulgated. This new law comprehensively addressed all aspects of policing and for the first time introduced modern concepts of an external check on the law enforcement agencies.

The salient features of this law are;
  • Depoliticization of police by insulating it against all extraneous interference
  • External oversight through Public Safety Commission
  • Functional and operational autonomy
  • Swift and credible system of accountability through independent Police Complaint Authority
It was hoped that after the promulgation of the new law the common person will get some relief, policemen will be held accountable for their misdeeds and there will be an effective check on extraneous interference in the functioning of the police. But nine years down the enactment of this law there is no change. Harassment of innocent citizens has not stopped and the police continue to be a tool to suppress dissent. The executive authority who are responsible for the continuation of this rot have conveniently blamed the new police law for the inefficiency, corruption and the so-called thana culture

The Police Order addressed three major areas to reform the police namely:

· a neutral external check on the police, credible accountability and its professional/operational autonomy. In order to create an institution that insulates the police as well as subjects it to civilian oversight a system of public safety commissions at all the operational levels were created i.e. district, provincial and the national. These commissions comprise independent members from civil society and elected members of assemblies/councils from the treasury as well as the opposition benches. The commissions are required to monitor and assess the implementation of the annual policing plan to ensure professionalism and focused attention on the issues identified by the police in consultation with all the stakeholders in advance. Honest and professional police officers at various levels also had recourse to the appropriate commission in case of motivated or illegal orders issued by any authority and the orders of the commission were to prevail.

· Persistent complaints of abuse and maltreatment of those in police custody called for swift, transparent and an effective mechanism for accountability of the force. The existing legal provision was not satisfactory. Once arrested, a person was at the mercy of the police and had to endure harsh treatment. An aggrieved person could take his complaint to senior police officers or the district magistrate who was essentially part of the executive responsible for law and order. Allegations of false police encounters, death, gang rape and serious injuries to people in police custody made sensational stories in the media. The NGOs held their seminars and workshops on these issues while politicians gained political mileage from them. But the aggrieved person was denied any meaningful redressal of his/her grievance. The magisterial inquiry was fundamentally an administrative process to defuse a situation and was never meant to dispense justice. In order to address this very vital issue through an institutional arrangement, an independent professional structure of the Police Complaint Authorities at the National and Provincial levels was created (articles 97 to 107 Police Order 2002). These complaint authorities were given vast powers to initiate enquiries against the police that could lead to criminal proceedings or departmental action.

· The police was given functional autonomy and enabling provisions were made in the new law to delegate all necessary powers to the police command that was now fully responsible for its actions. Functionally the police was made completely independent but was accountable to the people and solely responsible for all its actions as a consequence of carrying out any unlawful orders. The authority and the responsibility were combined to remove any ambiguity in holding the police accountable who under the old police act shared this responsibility with the magistracy an inherently flawed arrangement that had persistently failed to deliver.

In addition to these major structural reforms the following issues specific to the woes of a common man who comes in contact with police were addressed.

Change in Thana culture through code of conduct and punishment for misbehavior

Registration of FIR

Improvement in investigation

Habeas corpus writ jurisdiction at D & SJ

Swift Accountability and Stringent punishments of police officers

Enquiry in death, rape or serious injury in Police Custody by D&SJ

Independent prosecution and jail reforms

Once the political governments were installed in the provinces the implementation of the police order was stalled and an organized campaign was launched to criticize the new law and attribute the failures in law enforcement to the new law while the credit for any successes was owned and trumpeted by the provinces.

There are three major players who had the responsibility to implement the Police Order 2002 namely politicians, bureaucracy and the police. Everyone had its own agenda to demolish this law for different reasons. Politicians without the exclusive control over police felt weakened and therefore were averse to external oversight by civil society through public safety commissions or accountability by an independent body outside their ambit of authority, and the bureaucracy without the control over the police through a system of executive magistracy was uncomfortable and considered the functional autonomy to police an impingement on their authority and the police just did not like the stringent provisions of swift and meaningful accountability without the magisterial cover to whitewash their sins.

Massive changes were introduced in the law in 2004 through an ordinance by the political government that practically hit at the foundation on which this law was conceptually structured. Sadly police officers at the command level barring a few honorable exceptions collaborated to destroy this people-friendly law that was completely changed at the provincial level even before its implementation. Although with lapse of the ordinance that was repeatedly issued till 2009 the Police Order 2002 stands restored. This law is constitutionally protected but the Government of Sind has replaced it with the old Police Act 1861 and a new Police Act 2011 has been enacted repealing Police Order 2002 by the government of Baluchistan. The other two provinces are in the process of working on new police laws.

Police Order 2002 is dubbed as remnant of Military rule therefore fit to be repealed. It is not a question of Police Order 2002 but the concept of a police force that is

  • depoliticized,
  • subject to external oversight
  • accountable through a transparent and credible system
  • professionally efficient with complete internal functional autonomy and geared to meet the challenges of the 21st century.

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If the government chooses to legislate they have every right to do so but it must meet the benchmarks of public interest provided in Police Order 2002 and keep before them the constitutional provisions on the subject. Country must have uniform law for the country to meet the life threatening wave of terrorism in the country. While the world is moving towards consolidating and have common law enforcement structure we in the middle of unprecedented law & order crises are fragmenting the system.

This note was drafted and read in the seminar arranged Ms. Marvi Memon on 3-11-2011at Islamabad.

Legal Status of Police Law in Pakistan and Need for Uniformity

Legal Status of Police Order 2002:

The Need for a Uniform Police Law for Pakistan

Introduction

The Police Act 1861 was a central law extended to whole of Pakistan, and the issue that it was a provincial subject was never raised until the time it was replaced by Police Order 2002. When the local government system was introduced in 2001, a standard law prepared by the National Reconstruction Bureau was promulgated as an Ordinance by the Governor of each province as local government under the Constitution was a provincial subject. The fact that the same local government law was promulgated throughout Pakistan, even though separately by each provincial government, was exploited by interested groups who portrayed this step as ‘gross interference’ of the federal government in provincial matters. The controversy thus created has not only exacerbated, but has also been extended to The Police Order 2002. This paper is an effort to bring clarity on the issue with a view to assist the Parliament that is currently seized with this subject of vital national importance.

Brief History

Police in its present form was established under The Indian Police Act 1861 (Act V of 1861). This was a central law and was extended to most of India except presidency towns of Calcutta, Bombay and Madras that had separate laws modeled on the pattern of London Metropolitan Police Act of 1829. The Indian states were enabled to adopt The Police Act 1861 under Section 46 ibid. However, once adopted The Police Act 1861 could not be amended by the states that were empowered only to the extent of making rules consistent with the Act.

The same legal position was continued in independent Pakistan. Under The Central Laws (Statute Reform) Ordinance 1960 (Ordinance XXI of 1960), The Police Act 1861 was included in the Second Schedule and minor amendments in it notified by the Federal Government.

The Constitution of 1973 provided two legislative lists, namely Federal and Concurrent. The Federal government could legislate exclusively on subjects included in the Federal List, while on the Concurrent List subjects both federal and provincial legislatures could legislate, although the federal legislature would override any conflicting legislation by the province. The residual subjects (not covered by the Federal and Concurrent Lists) were left exclusively with the provinces.

It is germane to the subject to examine full implications of the items enumerated in the Concurrent List. Police powers and responsibilities and public peace and tranquility are included in the Code of Criminal Procedure, which is item 2 on the Concurrent List. It would thus be a gravely flawed understanding of criminal law if the Code of Criminal Procedure Code were to be regarded as a subject rightly placed on the Concurrent List without reference to its critical nexus with Police Law. Indeed, the Police Law is not only rooted in the criminal procedure law but cannot be meaningfully amended without its linkage with the Criminal Procedure Code, and is part of “matters incidental or ancillary” to the Code as stated in the Concurrent List.

The Federal Government never seemed to be in doubt about its responsibility and powers to legislate in the light of the constitutional position stated above. No wonder that The Police Act 1861 was included in the Second Schedule of The Federal Laws (Revision & Declaration) Ordinance 1981 (Ordinance XXVII of 1981). No province objected to the inclusion of Police Act 1861 in the Federal List. Nor was the amendment in The Police Act 1861 made vide the Ordinance of 1981 by the Federal Government challenged on the ‘ground’ that being the provincial subject the Federal Government was not competent to do so. Police Act also appear in the index to the Pakistan Statutes issued by Law, Justice and Human Rights Division for 1836-1988 and in 2003 for 1836-to date. No objection was raised for inclusion of this law in Federal Government Statutes. It was only after introduction of devolved district governments in 2001 that the long-settled issue of Police Law being a Federal subject began to be agitated. However, in order to avoid unnecessary political controversies, it was decided to issue new Police Law as an Order by the President.

The Police Order 2002 was promulgated by the Chief Executive on 14th August, 2002. In order to give it continuity and a fair chance to be implemented and tested on ground without any hasty and untimely changes it was placed in Schedule Six of the Constitution. According to Article 268 (2) of the Constitution:-

“The laws specified in the Sixth Schedule shall not be altered, repealed or amended [expressly or impliedly] without the previous sanction of the President [accorded after consultation with the Prime Minister.”]

A proviso was added to this clause under the Seventeenth Amendment on 31 December 2003 to the effect that:

"the laws mentioned at entries 27 to 30 and at entry 35 in the Sixth Schedule shall stand omitted after six years.”

The entries at 27 to 30 pertained to the Local Government Ordinances of the four provinces promulgated by their respective Governors, as local government was a provincial subject. Expiry of the six-year bar on amending the Local Government Ordinances has enabled the Provincial Assemblies, effective 1st January 2010, to amend these laws without previous sanction of the President.

The entry at Sr. No. 35 in the Sixth Schedule pertained to The Police Order 2002, which, as stated above, was promulgated by the Chief Executive, being a Federal Law. Later The Police Order 2002 was amended by the President through an Ordinance in 2004. As the Parliament could not amend the Police Order without previous sanction of the President, the Ordinance had to be re-promulgated every four months. The last time the Ordinance amending The Police Order 2002 was re-promulgated by the President was in November 2009. However, effective 1st January 2010, The Police Order 2002 can be amended by the Parliament (now without previous sanction of the President).

It is thus clear that the power to amend the Police Order 2002 rests only with the Parliament. In the like manner as there existed no power with the Provinces to amend The Police Act 1861, being a central law, the provinces under The Police Order 2002 are empowered to make rules to carry out the purposes of The Police Order 2002. However, Article 184 of The Police Order 2002 took a step further to empower the Provinces not merely to make rules but also to amend the Police Order itself, with the prior approval of the Prime Minister, to the extent of meeting their specific requirements and circumstances.

There is a totally erroneous impression deliberately being disseminated by certain quarters that The Police Order 2002 is no more in the field and each Province is free to enact its own Police Act. The correct position is that the only thing that has changed is that the Parliament can now amend The Police Order 2002 without prior sanction of the President, and even a Provincial Assembly can make minor amendments to meet any local and special requirements with the approval of the Prime Minister. No Provincial Assembly can change the substantive provisions of The Police Order 2002, the power for which rests exclusively with the Parliament. In any case if a Provincial Assembly enacts a law or an amendment that is repugnant to Police Order 2002, the provisions of The Police Order shall prevail, being the Federal law (Article 143 of the Constitution).

Court decisions on the issue

Supreme Court Judgment in Inspector General of Police Punjab vs Mushtaq Ahmed Warraich as reported in PLD 1985, SC 159, is misquoted in support of the argument that Police Law is a provincial subject. The factual position is that leave to appeal granted by the Supreme Court on the specific question of law in this case was to consider whether in the matter of confirmation/seniority/promotion and other related matters, the Punjab Police Rules 1934 would be applicable or the Punjab Civil Servants Act 1974. The decision of the Supreme Court in this case on this specific point of law was that Police Rule 12.2 would be applied in determining the seniority of police officers of subordinate ranks. The judgment though contains a few observations about the status of Police Law; the important point is that it did not give any ruling on the specific question whether The Police Act 1861 was a Federal or a Provincial law. That is why the Federal Ordinances of 1961 and of 1981, declaring Police Act as a Federal Act, and extending it to the whole of Pakistan have not been declared ultra vires and also not removed from the Statute book of Pakistan.

Let it also be noted that had the Supreme Court of Pakistan conclusively decided the matter, The Lahore High Court on a writ petition by Barrister Zafarullah (W. P. No. 16244/2002 dated 28-2-2003) would never have held:

“This country is being run by a written constitution. Criminal Law is included in Concurrent List in Part-II of the 4th Schedule to the constitution of Islamic Republic of Pakistan. The Police Order 2002 primarily is relatable to the enforcement of the criminal law and policing, therefore, it would squarely fall within the said List. That being so, the Police Order 2002, is not ultra vires of the Constitution of Pakistan.”

As no appeal was preferred against this judgment; it has attained finality. With this legal verdict there are no grounds for any further argument on the issue.

Rationale and the need for a uniform law

Nobody says that policing is not, or should not be a Provincial subject. Policing was a Provincial subject when Police Act 1861 was a Central Act. Policing will continue to be a Provincial subject under The Police Order 2002. So while Police Law is federal, policing is essentially provincial under the scheme of the Constitution of 1973. And just as the provinces are allowed to make minor amendments in the Criminal Procedure Code, Pakistan Penal Code or the Qanun-e-Shahadat, they have been so empowered vis-a-vis The Police Order 2002.

But leaving aside the legal misconceptions that may exist in certain minds, it is absolutely critical in the prevailing security environment that a standard law enforcement system is not only maintained but further strengthened to enable the police to meet the most difficult challenges of terrorism and organized crime that Pakistan is currently confronted with.

Without uniform criminal laws (penal, procedural and evidential) and the police law, being intertwined with each other, any coordination amongst various police forces across Pakistan will not only be difficult but impossible in certain situations. The country is already suffering due to a variety of criminal justice systems in its different parts and this factor alone is a major cause of our present woes. There is a strong case to move fast in the direction of standardization but we continue to dillydally from taking right decisions. Reluctance to expand uniform police system in ‘B’ areas in Baluchistan is a typical example of this zigzag approach to the emerging complex challenges of law and order. In today’s dangerous world the need of a standard legal framework was never as critical.

It is internationally recognized that the way forward to fight exceptional challenges of law and order is to have standard police statutes and procedures, rather than going for varied and fragmented systems. The Parliament, therefore, has a crucial responsibility to examine the issue in its correct perspective, and take steps to ensure that The Police Order 2002 is suitably amended, where necessary, to make it more effective, keeping in view the internationally available best practices.

Most countries with lesser challenges of law and order have adopted a single law even when policing is a local responsibility. Others in a federal system have moved toward a single national police force to face these challenges. Pakistan confronted with the worst possible terrorism is reluctant to continue with a uniform law that has been hailed as a model police law in South Asia is incomprehensible.

There is a pressing need to take a realistic view and examine the legal status of this law dispassionately, and adopt a uniform police law to deal with the monster of terrorism in the country effectively. A plethora of laws that are at variance with each other is a recipe for disaster and will only exacerbate the existing fragmentation and lack of cohesion in dealing with the menace of terrorism with tragic results for the country and the world at large.

My thanks to Dr. Soaib Suddle and Mr. Zulfiqar Qureshi for their guidance and help in preparing this note.

Afzal A Shigri

Islamabad

20-01-2012