SC declares 'police' to be a concurrent legislative subject

SC says Article 142 (b) confers concurrent competence upon federal government and provinces


Hasnaat Malik January 31, 2019
Supreme Court of Pakistan. PHOTO: AFP

ISLAMABAD: The Supreme Court has declared that ‘police is a concurrent subject’ on which both the federal and a provincial government can legislate.

A three-judge bench headed by former chief justice Mian  Saqib Nisar and comprising Justice Umar Ata Bandial and Justice Ijazul Ahsan has said this in its detailed judgment in the case related to dismissal of Sindh government’s appeal against the Sindh High Court (SHC) verdict in former  Sindh inspector general of police (IGP) AD Khowaja’s transfer case.

“For securing integrity, competence, diligence in and accountability for police performance, the federation may consider framing a law setting out uniform criteria of appointment on sector cadre posts, their independence of operation, security of tenure, performance assessment and accountability of incompetence, negligence or dishonesty,” says the six-page order authored by Jutice Bandial.

Recently, the judges also rejected the Sindh government’s plea claiming ownership of three major hospitals in Karachi in the wake of devolution of the health sector under the 18th amendment. According to the decision, the federal government will continue to control the hospitals.

Justice Bandial declares that police is a concurrent subject to the legislative and executive competence of the federation and the provinces in relation to the matters covered by Article 142(b) and Article 240 of the Constitution.

The verdict says it is necessary that the federal and provincial governments collaborate in appointments and transfers of police personnel on senior cadre posts and in any event with prospect to crime prevention, detection and investigation as well as prosecution and punishment of criminal offenders in the province.

The apex court did not agree with an SHC observation that police is not a concurrent subject as parliament lacks legislative competence in relation to it.

The SHC judgment whilst excluding police from the ambit of Article 142(b) failed to deal with certain crucial functions of police. Apart from matters regarding police organisation, the Police Act 1861 also addresses the maintenance of public order as functional purpose of the police, the verdict says.

For meeting the constitutional mandate of rule of law, the ruling says, prevention, detection and investigation of crime and the prosecution and punishment of criminal offence in a society are equally important services rendered by the police.

In that context, Article 142(b) confers concurrent competence upon the federal government and the provinces in relation to crime prevention, detection and investigation of specified crimes so that the federal government carries out different policing function throughout Pakistan, including the territories of provinces, says the verdict.

“These federal police agencies include the FIA [Federal Investigation Agency], NAB [National Accountability Bureau] and the ANF [Anti-Narcotics Force], Railways Police, the Pakistan Motorways Police and Frontier Constabulary. The performance of policing functions by these federal agencies in the province is not dependent upon the consent or collaboration of the provincial governments.”

It said the Federal Legislative List does not confer authority to perform policing functions outside federal territory, yet the FIA exercises police powers concurrently with the provincial police in relation to offences committed in the territory of a province involving homicide, hurt, kidnappings, cheating etc.

The same is the position under the NAB Ordinance 1999. The source of such policing power can be identified as Article 142(b) of the Constitution read with the overriding effect given to federal legislation by the Article 143, says the judgment.

It says the said constitutional competence in relation to crimes committed in a province subject to enabling legislation be exercised by the federal government to coordinate, supplement or conduct policing functions in such province.

“However, notwithstanding such power and authority, the federation has in deference to provincial rights avoided to make laws in the subject and has instead relied on mutual cooperation and collaboration with the provinces to achieve mutually desired goals,” it adds.

The apex court notes that the SHC failed to consider the effect of the explanation of the Article 240 which defines an ‘All Pakistan Service’ (APS) to mean a service common to the federation and the provinces.

It says the Police Service of Pakistan (PSP) is an all Pakistan service for which the Police Service of Pakistan (composition, cadre and seniority) rules 1985 framed by the federal government stipulate in the proviso to rule 7 that 40 per cent of senior cadre posts in a province shall be allocated to the members of the police cadre of such province.

“The PSP officers are in the service of the federation and are subject to its discipline, notwithstanding that they may be working in the provincial government,” it says.

The court says pursuant to Article 240 and under the PSP rules, appointments of the PSP officers in a province are necessarily matters that have to be settled collaboratively by the federal and provincial governments.

It says the 1993 agreement between federal and provincial governments provides for the appointment of PSP officer as the IGP in a province. A decision in this respect is to be taken by Constitution and cooperation between the federal and concerned provincial government.

Equally, therefore, the terms of his service must be respected by both governments and in case of whimsical treatment by one government the other has good ground to object.

“In this scenario, the provincial government does not have the freedom to unilaterally disregard the PSP rules or the agreement of 1993, both of which are backed by Article 240 of the Constitution,” it says.

Raheel Kamran Sheikh, counsel for applicants, said it is quite interesting that notwithstanding dismissal of appeal filed by former IGPs, the reasons contained in the six-page order support their case that police is not an exclusively provincial matter but concurrent legislative subject covered by Article 142(b).

“This order released in January partly records reasons for the short order dated 22.03.2018 and says further reasons are to be recorded later. So far, no reason for dismissal of the former police officers' appeal has been advanced. This may support their case in review pending in the SC," he adds.

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