Larger SC bench may rule on police status

Centre, provinces insist on provincial authority over legislation

ISLAMABAD: A larger bench of the Supreme Court is likely to rule whether the police falls within the federal legislative competence or otherwise.

The matter was referred to the new chief justice Chief Justice Asif Saeed Khosa by a three-member bench, headed by then chief justice Saqib Nisar, on January 14, while hearing a constitutional petition for declaring the police as a concurrent subject.

In their response to the petition, all the provincial governments, as well as the federation, have contended that police was exclusively a "provincial subject" and neither the Supreme Court bestowed any jurisdiction nor did the Constitution empowered federal legislature to legislate on the subject.

Federal government's reply

The PTI-led federal government in its reply to the ruling, through the interior ministry, has informed the court that the provinces have every authority and the jurisdiction to administer and legislative on this subject.

It contends that police, under the provisions of the Constitution, is a provincial subject and that this subject is neither listed in the federal legislative list of the 4th Schedule nor contained in Article 142 (b) of the Constitution.

It said that Article 268 of the Constitution [which relates to the implementation of the laws] does not curtail the authority of provincial legislature to legislate on police. The reply adds that criminal procedure relates to the investigation and trials in courts, which has nothing to do with the Constitution, operation and maintenance of the police.

K-P government

Similarly, the PTI-led Khyber Pakhtunkhwa government, in its reply, states that police is provincial subject since the promulgation of the Government of India Act, 1935, adding that it remained a provincial subject in 1956 constitution, a residuary subject in 1962 and remained as such under the 1973 Constitution.

There is neither any constitutional mandate nor the legal requirement stipulated under any other enactment that police law should contain independent commissions or that there should be standard police law throughout the country, says the K-P reply.

The province contends that such a delegation is essence of the federal structure introduced for India under the 1935 act and later adopted by successive constitutions of Pakistan, recognising the diverse culture and operational autonomy demands of the federating units constituting Pakistan, it says.

The K-P government states that the police neither represents the nation nor is a guardian of democratic aspirations instead it is an instrumental of the government as are other necessary departments or entities created to deliver the job of the government.

The police remains accountable to the government and government in turn to the parliament. It will distort the whole scheme of governance to raise and treat it as an equivalent to three pillars of the state, it adds.

The K-P government further contends that provincial police is being denied its due share or proper service structure by the federal police officers due to their control for serving on senior positions.

It states that there are no such statutory underpinnings on which it can be claimed that there should be one police law across the country. No democratic country, having vast populations and provinces, has the one police law -- be that India or USA or Australia or Canada.

In all these federations, the police is a provincial subject. English example cannot be cited because England is not a federation but one country within the United Kingdom. It is therefore seems as well thought-out scheme from [British] Raj times to delegate police law as a provincial subject, it said.

The reply says that the federal government did not promulgate the Police Order, but the then chief executive [Pervez Musharraf] promulgated it under the provisional Constitution Order (PCO) 1999, which gave authority to the chief executive to legislate on provincial subjects.

The Federal Investigation Agency (FIA) Act clarifies through its preamble that the act relates to federal offences also. The NAB again was enacted under the PCO, 1999. It created new offences, provided special procedure and a special court and to supplement these a new establishment was raised which is wholly-funded by the federal budget. Lastly, the reply continues, NAB does not create a uniform service like police.

The provincial government also contends that there is a need for understanding that the acts promulgated and the actions taken under a military rule are exceptions to scheme of normal legislative process and the distribution stipulated by the Constitution, therefore, regularised by the parliament after scrutiny through later constitutional amendments.

Such irregular exceptions made in peculiar circumstances cannot be used to undermine and as an alternate to well-defined processes and distribution of legislative scheme, the K-P government further states.

It adds that employees of the police are paid out of provincial budget. If the police would have been a federal subject, the employees should have been receiving pay from the federal budget like the Pakistan Rangers and the FIA.

It also stated that most of the provincial special laws – food laws, forest laws, pesticide laws, local government law etc -- contain offences. If mere provision of an offence makes it a federal subject, the logic will be stretched to make all those laws federal. Such interpretation will bring the provincial legislature to grinding halt.

Punjab

Likewise, the Punjab government through its chief secretary, also contends that the police is a provincial subject because it is neither listed in the Federal Legislative List of 4th Schedule nor contained in Article 142 (b) of the Constitution.

The provinces therefore have every authority and the jurisdiction to administer and legislate on the police, says the reply, which was approved by the provincial cabinet on December 29, 2018.

Balochistan

The Balochistan government in its reply states that judiciary has to intervene only where other organs exceed their respective roles assigned under the Constitution.

Sindh

The Sindh government in its reply contends that administration of justice, including criminal justice, falls exclusively in the domain of the provinces and therefore legislative competence over the subject of police can be claimed by the provinces.

It says that Canada is a classic example where the provinces regulate the subject of police, including constitution of a police force under the entry of administration of justice.

Background of the case

A three-judge of the Supreme Court, headed by then chief justice Saqib Nisar, while hearing a constitutional petition for declaring the police as concurrent subject, had referred the matter to the current Chief Justice to consider whether or not a larger bench should be formed.

However, after the issuance of detailed verdict in former inspector general of police AD Khowaja case, legal experts are urging the chief justice to form a larger bench on this matter. The larger bench constituted by judges belonged to all provinces to adjudicate on the matter.

In its judgment in Khowaja's transfer case, a three-judge bench, headed by then chief justice Nisar and comprising Justice Umar Ata Bandial and Justice Ijazul Ahsan, declared that "police is a concurrent subject" on which both the federal and a provincial government can legislate.

"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.

The verdict says that 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 Supreme Court bench did not agree with a Sindh High Court (SHC) observation that police is not a concurrent subject as parliament lacks legislative competence in relation to it. The verdict says that the SHC judgment, whilst excluding police from the ambit of Article 142(b) failed to deal with certain crucial functions of police.

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, NAB and the ANF [Anti-Narcotics Force], Railways police, Pakistan Motorways Police and Frontier Constabulary (FC). 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 court ruled the Federal Legislative List did 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.

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% 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 necessary 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.