Legal Status of Police Order 2002 and the Need for a Uniform Law

Introduction
The Police Act 1861 was a central law extended to virtually the whole of British India,
except the Presidency Towns of Bombay, Madras and Calcutta wherein the policing
arrangements were modeled on the pattern of London Metropolitan Police Act, 1829. In
Pakistan, the issue that Police Act 1861 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, the National
Reconstruction Bureau prepared a standard law that was promulgated as an Ordinance
by the Governor of each province. The promulgation of provincial Ordinances was
necessary as local government under the Constitution was essentially a provincial
subject. The fact that by and large the same local government law was promulgated
throughout Pakistan, though separately by each provincial government, was exploited
by vested interests that portrayed this step as ‘gross interference’ of the Federal
Government in provincial matters. The same interests have not only continued to
exacerbate the controversy over time, but are responsible to extend it to The Police
Order 2002 as well.

There is a need to bring clarity on the status of Police Law in Pakistan. Any ambiguity
about the law will only hamper the capability of the police to deal with the present
daunting challenges of terrorism in particular, and law and order in general.

Background
Police in India was established under The Indian Police Act 1861 (Act V of 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
making rules consistent with the Act. The same legal position continued after
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independence. The Constitution of 1973 provided only two legislative lists, namely
Federal and Concurrent. While the Federal Government could legislate exclusively on
subjects included in the Federal List, the laws concerning subjects mentioned in the
Concurrent List could be amended by both Federal and Provincial Governments,
subject to the proviso that in case any provision of the provincial legislation was in
derogation of the federal legislation, it would be of no effect to that extent, and the latter
would prevail. This was necessary to enable the Provinces to make minor changes in
criminal law and procedure, to suit any specific local requirements, while firmly
preserving the national character of such laws as Criminal Procedure Code, Pakistan
Penal Code, Evidence Act, etc.

Legal Status
It is relevant to the subject to examine full implications of this arrangement. As police
powers, responsibilities and other matters of public peace are included in the Code of
Criminal Procedure, on which both the Federal and Provincial Governments are
empowered to legislate, subject to the condition that the Federal legislation would have
overriding effect, it would be a gravely flawed understanding of criminal law if critical
nexus of criminal procedure and Police Law was ignored. Indeed, the Police Law is not
only rooted in the criminal procedure but the former cannot be meaningfully amended
without reference to the latter. The Federal Government never seemed to be in doubt
about its responsibility and powers to legislate in the light of the existing constitutional
provisions. That is why even after 8 years of the 1973 Constitution’s coming into force,
the Federal Government included The Police Act 1861 in the Second Schedule of The
Federal Laws (Revision & Declaration) Ordinance 1981 (Ordinance XXVII of 1981).
More importantly, no province objected to the inclusion of Police Act 1861 in this
Ordinance. Nor were the amendments in The Police Act 1861 made vide the Ordinance
XXVII of 1981 challenged on the ‘ground’ that being the provincial subject the Federal
Government was not competent to do so.

It was only after introduction of devolved district governments in 2001 that the long
settled issue of Police Law being essentially a federal law began to be agitated.
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However, this was settled when it was decided, after lot of debate, to issue the new
Police Law as a Presidential Order, not as an ordinance by the respective Provincial
Governors, as was done with the local government law.

The Chief Executive promulgated The Police Order 2002 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 under
the 17th Amendment to the Constitution so that it could not be amended for a period of
six years without the prior consent of the President of Pakistan.

Unfortunately, due to political expediency, the President amended The Police Order
2002 through an Ordinance in 2004 that effectively negated most of the essential
prerequisites of modern, accountable, and politically neutral policing. 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 Amendment
Ordinance was re-promulgated was in November 2009. On expiry of this Amendment
Ordinance the Police Order 2002 stood restored in its original form. However, effective
1st January 2010 the Parliament could amend the Police Order without the previous
sanction of the President.

As regards the amending powers of the Provinces, they can very much amend the
Police Order 2002 under Article 142 of the Constitution. Article 184 of The Police Order
2002 also empowers the Provinces to amend The Police Order 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 change is that the
Parliament can now amend The Police Order 2002 without prior sanction of the
President, and a Provincial Assembly can make amendments to meet any local and
special requirements with the approval of the Prime Minister. However, no Provincial

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Government can change the substantive provisions of The Police Order 2002, as
enshrined in Article 143 of the Constitution.

It is also relevant to note that The Lahore High Court on a writ petition by Barrister
Zafarullah (W. P. No. 16244/2002 dated 28-2-2003) 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 attained finality.

With the unambiguous legal interpretation of the subject by The Lahore High Court,
there are no grounds whatsoever for any further argument on the issue particularly
when, while doing away with the Concurrent List, the Parliament in the Eighteenth
Amendment wisely chose not to change the status of criminal laws and both Federal
and Provincial Governments were specifically empowered to legislate on the subject,
with primacy of the federal legislation over provincial legislation.

Indeed, while passing the Eighteenth Amendment, it was felt critical to continue to
maintain the national character of Pakistan’s criminal laws. But for this imperative, the
status of criminal law, criminal procedure, and the laws of evidence, could not have
been preserved under Article 142 of the Constitution. In essence, the Eighteenth
Amendment ensured that the Federal Government would make laws concerning
criminal procedure, criminal law, evidence, etc., but the Provincial Government could
make minor changes, if necessary, subject to Article 143 of the Constitution under which
the federal laws would override any conflicting legislation by a province.

Police Law and Policing

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
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provincial subject under The Police Order 2002. So while the present Police Law is
federal, 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 are allowed
to make amendments of a local nature 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.

Need for a Uniform Police Law

Notwithstanding the reservations and misconceptions on the subject, it is absolutely
critical in the prevailing security environment that a standard Police Law is not only
maintained but further strengthened to enable the police to meet the unprecedented
challenges of terrorism and organized crime that Pakistan is currently faced with.
Without uniform criminal laws (penal, procedural and evidential) and a standard police
law, being inter-twined with each other, any effective strategy of policing, even
meaningful 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, which 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 uniform police system in ‘B’ areas in Balochistan and the repeal of Police Order 2002
in Sindh and Balochistan, without any constitutional mandate, are typical examples of
this skewed approach to the emerging complex challenges of law and order.

Way Forward
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
diverse and fragmented systems. The Government, therefore, has a vital responsibility
to examine the issue in its correct perspective, and take steps to ensure that The Police
Order 2002 is not only retained across Pakistan but implemented on ground in letter
and spirit. Where required amendments could be introduced but without compromising
the basic concept of a professional, politically neutral and accountable police that can
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effectively and efficiently deal with the daunting challenges of terrorism and rising tide of
crime.

Most countries with lesser challenges of law and order have adopted a single law even
though policing there is a local responsibility. Others in a federal system have moved
toward a single national police force to face these challenges more effectively.
Malaysia, a federation, went a step forward and adopted a single uniform law for the
country when faced with challenges of serious disorder and terrorism. European Union
is now moving towards a uniform law and even for a common police force. 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 take whatever steps are needed to update the Police Law
across Pakistan. Without the necessary political will it will be impossible to deal with the
monster of terrorism and internal security issues in cities like Karachi. A plethora of laws
that are at variance with each other is a recipe for disaster and will only aggravate the
existing fragmentation and lack of cohesion in dealing with the challenges at hand. If we
continue to dilly-dally in making correct decisions, the results will be tragic not merely for
Pakistan but the whole world.

It is now the responsibility of all organs of the state to address this critical issue and
intervene to ensure that the provinces do not do what is apparently not only in clear
contravention of the Constitution but also will have devastating effect on handling of law
and order in the country.
In conclusion, what is needed is to bring about appropriate amendments, especially in
relation to strengthening investigation side of police, enhanced use of forensic evidence
protection of witnesses, etc. in Police Order 2002 on priority basis, rather than returning
to Police Act of 1861 which was for a different society and for different social conditions.

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