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 todays 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