March – 2012

Dear All, There is an urgent to cla= rify the current status of Police Order 2002. I am copying herewith a must read article to understand the current status of Police Order 2002. I understand colleagues are bit confused about the status of Police Order 2002 and posit= ion of provincial governments viz amendments in Pol= ice Order. The fundamental points are:

1. It is a federal law.<= /span>

2. It is still on concurrent list w= ith primacy of federal parliament (article 142, 143 of the constitution)

3. It cannot be abolished by the provinces. Sindh and Balochistan did it illegally and unconstitutionally. it= has been challenged in BHC and matter is sub-judice. Unfortunately, nobody has dared/bothered to challenge it in Sindh

4, It stands restored in its original form of 20= 02 as the ordinance amending it in 2004 has lapsed after 18th amendment in April 2010.

Please share it with colleagues so that we can have uniform stand point on = this issue:

LEGAL STATUS OF POLICE ORDER 2002 - A PERSPECTIVE.

• Police in In= dia was established under the Indian Police Act 1861. The Indian states were permitted to adopt this law. However, once adopted The Police Act 1861 could not be amended by the states that were empowered only to the extent of maki= ng rules consistent with the Act.

• The same legal position continued after independence. Under The Cen= tral Laws (Statute Reform) Ordinance 1960 (Ordinance XXI of 1960), The Police Act 1861 was included in the Second Schedule and minor amendments in it notifie= d by the Federal Government.

• Criminal laws, criminal procedure, and the law of evidence were included in the concurrent list of Constitution of 1973 The laws concerning subjects mentioned in the Concurrent List could be amended by both the fede= ral and provincial governments, with the primacy of Federal Government. This was done to allow the provincial government to make minor changes in criminal l= aw and procedure to suit any specific local requirements.

• The Police Act 1861 was included in the Second Schedule of The Fede= ral Laws (Revision & Declaration) Ordinance 1981 (Ordinance XXVII of 1981).= No province objected to the inclusion of Police Act 1861 in this Ordinance. Nor was the amendment in The Police Act 1861 made vide the Ordinance XXVII of 1= 981 challenged on the ‘ground’ that being the provincial subject the Federal Government was not competent to do so. It was only after introducti= on of devolved district governments in 2001 that the long-settled issue of Pol= ice Law being a federal law began to be agitated. However, in order to avoid unnecessary controversies, it was decided to issue new Police Law as an Ord= er.

• Even after the Concurrent List sands transferred to the provinces u= nder the Eighteenth Amendment, it was felt critical to continue to maintain a standard set of basic laws for the all important subject of criminal justic= e. It was this imperative that the status of criminal law, criminal procedure,= and the law of evidence, under Article 142, was maintained, enabling the federal government to make laws but the provincial government to make minor changes= , if necessary, provided that under Article 143 the federal laws would override = any conflicting legislation by a province.

ANALYSIS

• Police powers, responsibili= ties and public peace are included in the Code of Criminal Procedure, on which b= oth the federal and provincial governments can legislate. Indeed, the Police La= w is not only rooted in the criminal procedure law but the former cannot be meaningfully amended without reference to the latter. It would thus be a gravely flawed understanding of criminal law if critical nexus of Code of Criminal Procedure Code and Police Law were to be ignored.

• In order to give Police Order 2002 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 and so it could not be amend= ed for a period of six years without the prior consent of the President of Pakistan. Unfortunately, the President amended The Police Order 2002 throug= h an Ordinance in 2004 however, due to political expediency. That ordinance had = to be re-promulgated every four months. On expiry of this Amendment Ordinance = in March 2010, the Police Order 2002 stands restored in its original form. The Parliament can now amend the law without the previous sanction of the President.

• Article 184 of The Police O= rder 2002 empowers the Provinces to amend the Police Order with the prior approv= al of the Prime Minister, to the extent of meeting their specific requirements= and circumstances.

• A misleading impression deliberately being disseminated by certain vested interest groups is 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 Parliament can now amend The Police Order 2002 without prior sanct= ion of the President, and a Provincial Assembly can make 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 Ord= er 2002 or abolish it, as enshrined in Article 143 of the constitution.

• The Lahore High Court on a writ petition by Barrister Zafarullah (W. P. No. 16244/2002 dated 28-2-2003) hel= d: “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 constitut= ion of Islamic Republic of Pakistan. The Police Order 2002 primarily is relatab= le 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 attai= ned finality.

• The Parliament in the Eighteenth Amendment wisely chose not to chan= ge the status of criminal laws and both federal and the provincial assemblies = have the jurisdiction to legislate on the subject with primacy of the federal legislation over provincial legislation. Policing will continue to be a provincial subject. The present Police Law is federal,<= /span> policing is essentially provincial under the scheme of the Constitution of = 1973 and is so retained in the Eighteenth Amendment. And just as the provinces a= re allowed to make amendments in the Criminal Procedure Code, Pakistan Penal C= ode or the Qanun-e-Shahadat, they have been so empo= wered vis-a-vis The Police Order 2002.

WHY TO HAVE UNIFORM POLICE LAW ?

• It is absolutely critical in the prevailing security environment th= at a standard law enforcement system is not only maintained but further strength= ened to enable the police to meet the unprecedented challenges of terrorism and organized crime. Without uniform criminal laws (penal, procedural and evidential) and the police law, being inter-twined with each other, any coordination amongst various police forces across Pakistan will not only be difficult but impossible in certain situations.

• Pakistan 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 waver in taking right decisions. Reversal of extension of unifo= rm police system in ‘B’ areas in Baluchista= n is a typical example of this skewed approach.

• Most countries with lesser challenges of public order have adopted a single uniform law even though policing there is a local responsibility. Malaysia was confronted with similar challenges with diverse police law in each federating unit and decided to have a uniform police law for the country and was able to turn the tide of terrorism. European Union is in the process of establishing a single police for a group of countries and is moving to have= a uniform police law even for diverse independent countries. It is baffling to see that Pakistan confronted with the worst possible terrorism is not yet fully focused to implement a uniform law.

• There is a pressing need to implement a uniform police law. A pleth= ora of laws that are at variance with each other is a recipe for disaster and w= ill only aggravate the existing fragmentation and lack of cohesion in dealing w= ith the challenges at hand.

WAY FORWARD

• It is internationally recognized that to fight exceptional challeng= es of terrorism and public order, there is need to have standard police statut= es and procedures. Therefore the Government should take steps to ensure that T= he Police Order 2002, that now stands restored in its original form, is implemented in letter and spirit, with some necessary amendments
• It is high time to address this critical issue and intervene at appropriate level to ensure that the provincial governments do not again go= for a fresh legislation that will not only be illegal but will also again open = the door for political interference.

12:12am Mar 25, 2012