Since 1948, there have been nearly 25 attempts and initiatives in the form of bills, laws, commissions, committees, reports, missions and legal instruments aspiring to reform the police organisation in the country. Almost every military and democratic government has expressed its policy intent to bring changes to the culture and contours of policing. However, little has been achieved so far after seventy-one years of independence.
A quick review of reform debates indicate that the focus of intended reforms remained limited to the proximate causes of the police-failure, without looking into the structural and systemic dimensions of the problem.
Similar to the judiciary, the basic structure, functions and procedures of the police and law enforcement establishments in contemporary Pakistan deeply relies on the bare-bones of the criminal justice system introduced in nineteenth century India. Deliberatively drawing upon the Irish Constabulary Model in post 1857, ‘war of freedom’, the police organisation was established through the Police Act 1861, making a unified police force exclusively under the provincial government jurisdictions.
The key assumptions shaping the police system in colonial India has been well documented in the Police Commission Report 1860, headed by M. H. Court. The Commission suggested, an unified force for the various police establishments, both civil and military, as the only means of “securing unity of action and system, and a real control, both departmental and financial.”
There have been three key structural features of the police re-organisation in colonial India which have direct bearing on the contemporary debates on police reforms in Pakistan.
First, the 1861 Police Act was explicitly predicated on the centralisation and concentration of executive, revenue, judicial, policing and prosecution authorities and powers in the singular portfolio of District Magistrate or District Officer, the Police Commission Report 1860, noted that the police force was made subordinate to the Civil Executive Government, “for its being efficient instrument in the hands of the Magistrate for the prevention and detection of crime, and under his control for the criminal administration of the District”. This feature of the police system underpins the on-going debates on the relevance, utility and legitimacy of ‘executive magistracy’.
Second, the controlling authority of this omnipotent office at the district level rested exclusively with the provincial executive or government without any horizontal accountability at the local levels. The office of the district magistrate has been considered the office of a ‘mini viceroy’ as most of the powers were assigned to this portfolio.
Dual control has also contributed to diluted authority of police, which became more prone to the instructions of the district magistrate, with little cognizance to the provincial head of the department
Third, a dual control was designed for the district head and superintendent of police force being answerable to the DM at local level and to the departmental head at the provincial level. This dual control has also contributed to diluted authority of police which became more prone to the instructions of the district magistrate with little cognizance to the provincial head of the department.
The Police Order 2002, promulgated by the last military regime replaced the Police Act of 1861 in Pakistan’s four Provinces: Punjab, Sindh, Khyber Pakhtunkhwa, and Balochistan, except Islamabad Capital Territory, Gilgit Baltistan, and Azad Jammu & Kashmir. The Federal Government in November 2004,made several amendments in the order enhancing government’s role in appointment of key police officers and altering the composition of public oversight bodies. The Provincial Police Complaints Authorities were disbanded and the amendments, according to some analysts, ended up in providing a statutory basis to police politicisation.
In the wake of the eighteenth Constitutional Amendment, Sindh and Balochistan repealed the Order and revived the 1861, police law in 2011, while Khyber Pakhtunkhwa repealed the Order in August 2016, and introduced new KP Police Order 2016, and Punjab amended the Police Order through Punjab Police Order (Amendment) Act 2013.
Despite being a radical departure from the archaic Police Act of 1861, the legitimacy and political ownership of the Police Order 2002, is compromised by the fact that it was introduced by the last military regime. Further, there are divergent views on the tenability of the Police Order 2002.
One school holds that, because the Police Order 2002 was included in the Sixth Schedule of the Constitution, the eighteenth amendment deletes its legal validity; it was a Federal Order and cannot therefore apply to the provinces. The other group of analyst views are that the eighteenth Amendment introduced Article 270AA (2) of the Constitution which provides for all orders made between 12 October 1999, and 31 October 2003, to remain in force across the county. The Police Order 2002 remains in place, therefore, and cannot be repealed by any other body than the Federal legislature.
Legal polemics aside, hither are political economy dimensions to this issue as well. The overall political and policy environment nurtured by the eighteenth Constitutional Amendment is not amenable to the notions of recentralisation and federal overreach on provincial subjects. Police Order 2002, may be a technically sound but is a ‘politically orphaned’ law — and that also on an exclusive provincial subject like police — is not likely to make an easy comeback through any unilateral federal intervention.
There can be three possible scenarios of engagement creating an inter-provincial ownership and consensus on the repeal of 1860, law and introduction of new provincial laws regulating police governance contemporaneously:
First, one or two provinces can invoke Article 144 of the Constitution through a resolution in the respective provincial assembly requesting federal legislature to legislate a unified law on police governance — admittedly a provincial subject which is not enumerated in the Federal Legislative List. After the concurrence of one or two provinces the federal legislature can regulate the subject by law. There is a recent precedent of establishing the Drug Regulatory Authority on essentially a provincial subject through federal legislation in 2012. This legislation was undertaken to bring harmony in inter-provincial trade and commerce and to regulate purchase and distribution of therapeutic drugs.
Second, Article 142(B) empowers both the Parliament and a Provincial Assembly to make laws with respect to criminal law, criminal procedure and evidence. Police law being an essential component of the criminal justice system is indeed a provincial subject, but it cuts across provinces on many accounts. The issue can be redefined as an inter-provincial matter and can be taken up at the Council of Common Interests (CCI), creating space for a joint decision through consensus on the broader contours of a harmonised police governance structure across the provinces. According to the entry 10 of the Federal Legislative List-II, the CCI has already been entrusted with a regulatory and supervisory control over the extension of the powers and jurisdiction of police force of one province to another province with the consent of the Government of that Province.
Third, provinces keeping their autonomy intact can initiate a debate on police reforms in their respective jurisdictions and can work out adopting the best practices from the Police Order 2002, and other such examples including Draft Sindh Police Bill 2014, which recognises the need to depoliticise police and introduces a Metropolitan Police System.
The writer is an independent researcher with interest in politics of culture, media and governance. E-mail: [email protected]
Published in Daily Times, September 8th 2018.