All about (dis)Order

"Admitting anomalies in the Police Order 2002, the government has prepared a strategy to replace it with a new Police Order 2010"

By Babar Dogar

As the December 31 deadline for giving constitutional protection to the Police Order 2002 approaches fast, the provincial governments have started bracing themselves for a new police system. The present police laws were put in place during the Musharraf era by the National Reconstruction Bureau (NRB), allegedly cobbled together under the patronage of the military regime. The police order was brought with the objective of depriving the District Management Group (DMG) of all powers relating to the police.

Under the system of executive magistracy, the deputy commissioner played a pivotal role in the district. The district magistrate wielded vast powers under the Police Act of 1934 and Police Rules of 1934. Under the previous police laws, the district magistrate exercised general superintendence over the district police and the District Superintendent of Police was answerable to the district magistrate in matters pertaining to law and order and human rights.

The district magistrate and the assistant commissioner/sub-divisional magistrate could inspect police stations in the district. They could hold judicial enquiries against police officers accused of committing excesses against the public. The police was bound to take orders from the district magistrate and his subordinate magistrates in matters relating to law and order. The district magistrate would initially write a portion of the Performance Evaluation Report of the District Superintendent of Police. However, later, this power gave way to writing a separate special report on the performance of the SSPs. Under the Police Rules of 1934, the district magistrate had the power to approve posting of the Station House Officers (SHOs). However, with the passage of time the SSPs started posting SHOs independently. Under the previous laws, permission for holding processions and rallies was also granted by the district magistrate.

Under the devolution plan, the institution of executive magistracy along with the district magistrate was abolished. For the purpose, criminal law amendments were brought, which amended the Criminal Procedure Code 1898. Likewise, a new police order with the name of Police Order 2002 was promulgated. The Police Order was brought with the high claims of freeing police from political pressures. The continuous political interference was not only marring the performance of police officers but also adversely affecting the provision of justice to the common man.

The police was brought out of the control of provincial governments by minimising the control of Home Department over the police and transferring its reigns to civilian control. There was a provision of Public Safety Commission, a watchdog body comprising people from the civil society at the federal, provincial and district levels to control the police. Nevertheless, due to political exigencies and manoeuvering of police officials, the Public Safety Commissions remained a toothless body and was not allowed to function properly.

Despite the fact that police is purely a provincial subject, the Police Order was promulgated as a federal law by General Pervez Musharraf in his capacity as Chief Executive. Some of the consultants, then working with NRB, had expressed their reservations regarding promulgation of the Police Order as a federal law. However, the powerful and well-entrenched police lobby in NRB prevailed and the Police Order was promulgated as a federal law.

The Police Order 2002 envisages that any amendment to the Order can only be made by the federal government. When the Parliament was elected in 2003, it validated all the Ordinances and Orders of the Chief Executive under Article 270AA by a two-third majority.

There is a difference of opinion regarding the repeal of or amendment to the Police Order even after it is denuded of its constitutional protection after December 31, 2009. Police and DMG officers view the law through different lenses. Police officers maintain that the Police Order is no more within the domain of the provincial governments as it has been validated by the two-third majority of the Parliament. The DMG officers, on the other hand, maintain that police is neither in federal government nor in the Concurrent List of the Constitution and thus is purely a provincial subject. Hence, promulgation of the police law is entirely unconstitutional and after December 31, when it is excluded from the sixth schedule of the constitution, the provincial governments will adopt it and thus amend it.

There are two options available to the provincial governments to bring new police laws. First is a compromise with the federal government under which the present Police Order may be repealed and a new law may be framed by the federal government and given to the provinces to adopt it like the Local Government Ordinance was done. The other option is the judicial forum, meaning thereby that since the promulgation of the Police Order as a federal law is violation of the constitution, the courts can strike down the Police Order.

Keeping in view the intricacy of the situation, the viable option for the federal and provincial governments is to sit together and bring consensus laws. For bringing about an effective administrative system according to the demands of the provinces, amendments in Criminal Procedure Code for restoration of Executive Magistracy and in Police Order for creating control of the District Magistrate are necessary. These amendments can only be made by the federal government. Some quarters, especially Daniyal Aziz, ex-Chairman NRB, strongly opposed the restoration of Executive Magistracy on the ground that its restoration would be negation of the doctrine of separation of Judiciary from the Executive.

The Law Reforms Ordinance 1972, which served as the basis of separation of Judiciary from the Executive and which was made part of the Constitution of 1973, provided for retention of the institution of Executive Magistracy. They further cite the example of the Indian Constitution which also contains provisions of separation of judiciary from the executive. However, the institution of Executive Magistracy still exists there.

The present Police Order 2002 does not provide considerable safeguards against human rights violations. The entire police order revolves around the Public Safety and Complaints Commissions. It was claimed at the time of promulgation of the Police Order that community involvement would be ensured. Even at the initial stage, the commissions were packed with members having strong political affiliations. Later, MNAs and MPAs were included in the commissions whose very political survival depended on their performance in thana and kutchery.

Prominent lawyer on criminal procedures Aftab Bajwa, tells The News on Sunday (TNS) that Police Order 2002 had some inherent flaws which had caused difficulties in providing justice to the masses. "The decision to separate investigation from operation caused further difficulties for the masses instead of facilitating them". Bajwa is of the view that the absence of proper checks and balances on police after abolishing the office of District Magistrate made cops unruly, adding that the concept of community oversight over police has utterly failed. A two-tier system of oversight over police needs to be put in place to safeguard human rights. Bajwa suggests that a district magistrate should be empowered to conduct enquiry against errant police officers but the matter of punishment should be left to the court which should not be inferior to the Sessions court. Entrusting powers of judicial enquiry of police encounters with the Judicial Magistrates has not worked as a deterrent against fake encounters. Bajwa believes this power should be given to the Sessions Judges while the power to disperse unlawful assemblies should be given to the Executive Magistrates.

Talking to TNS, Punjab Law Minister Rana Sanaullah Khan admitted anomalies in the Police Order 2002 and claimed the government had prepared a strategy to replace it with a new Police Order 2010. He told TNS that the ministry had constituted a working committee to work on Police Order 2010 after identifying lacunas in the Police Order 2002. Sanaullah termed meaningless the Public Safety Commissions and Police Liaison Committee, which were part of the draft of Police Order 2002.

The minister claimed that the separation of Investigation wing from the Operation wing had damaged the concept of unity of command in the police department and encouraged corruption. He said the ministry was planning to bring it under one control. Moreover, he was of the view that since the Police Order had created new posts and consequently brought unprecedented promotions among police officers that made the police hierarchy top-heavy. Sanaullah said they had plans to further clip some of the powers of DPOs and transfer these to the office of District Magistrates, adding that under the Police Order 2010, DPOs would not be able to transfer Station House Officers (SHO) before a period of one year.