Legal Status of Police Order 2002:
The Need for a Uniform Police Law for Pakistan
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.
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