Police Order 2002: Sindh has violated Constitution, experts
ISLAMABAD: The Sindh government’s decision to repeal the Police Order 2002 is all set to create a constitutional crisis since being a federal law, the provincial government is not authorised to repeal it, but it can only make certain amendments.
Efforts are on to move the Supreme Court in this respect, a fact confirmed by Daniyal Aziz, the former chairman of the National Reconstruction Bureau (NRB).
While the authors of 18th Amendment are confused on whether or not the order is a federal law, the study of documents and discussions with experts endorse that the order continues to be a federal subject even after the latest surgery of the constitution.
Afzal Shigri, former IG Sindh and one of the architects of the Police Order 2002, termed the Sindh government’s repealing order ‘illegal’. “Criminal laws have been retained through articles 142 and 143,” he said, while talking to The News.
Daniyal Aziz echoed the same opinion. “No province is authorised to repeal this federal legislation.” Daniyal said he together with other likeminded colleagues will knock the door of the Supreme Court to challenge this act of the Sindh government.
However, the architects of 18th Amendment are confused on the question whether the Police Order continues to be a federal law or has become a provincial subject after the latest amendment.
Senator Raza Rabbani said it is a provincial subject. But when confronted that articles 142 and 143 that mention the criminal procedure, criminal laws and evidence, he said he will have to check again, but didn’t reply when contacted to hear his revised opinion.
Senator Waseem Sajjad felt likewise. He argued it as provincial subject, but on the question of Article 142, he said it will have to be examined before giving a final word. Another confusion arises when the police law and policing is bracketed together as the latter has always been a provincial subject even before 18th Amendment, but the police law remains a federal subject.
The order has been protected through Article 142 of the constitution with the following Article 143 describes in unequivocal terms that the provincial legislature cannot override the federal legislation in this respect.
While in the rest of the world the police functions under the uniform laws, with European Union is in the process of bringing a single police for all the member states, Pakistan is gearing backward with Sindh government’s notorious step of repealing a federal law altogether. Not only the Lahore High Court bench presided over by Justice Tasadduq Hussain Jillani, now in Supreme Court, had ruled in 2003 the order as the federal law, it has also been covered in Article 142 of the constitution, after 18th Amendment.
The confusion that has plagued many legal minds is that the order has not been specifically mentioned in the federal list hence it is supposed to be the provincial subject.
But this argument is contested on the ground that the previous law governing police, 1861 Act, was also not specifically mentioned in the constitution since its formation, but remained a federal law throughout and whenever amended, it was done by the federal government. Whether it was previous law or the incumbent Police Order, it has been mentioned as criminal law, criminal procedure and evidence, even in the updated copy of the constitution.
As the Police Order was kept in sixth schedule of the constitution until December 2009, and until that time no amendment could have been made without the prior approval of the president, general public is being confused on this point. The argument that the order can be repealed after December 2009 by any provincial government, is misleading, say the defenders of the order. The order’s omission from sixth schedule of the constitution is being interpreted as its transfer to provinces which is not correct because it has been mentioned nowhere, they say.
According to 17th Amendment, the order could have been altered, amended or repealed after December 2009, but the power of repealing only lies with the parliament, not the provincial assemblies, they say. But the Sindh government in contrast has repealed it without having power to do so. Article 142 (b) states: Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to makes laws with respect to criminal law, criminal procedure and evidence.
It has been subsequently made binding in Article 143 that the provincial legislation cannot be inconsistent with the federal legislation.
“If any provision of an act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the act of the Provincial Assembly shall, to the extent of the repugnancy, be void.” The federations throughout the world are moving towards a single national police force to combat with the growing challenges of modern times with terrorism at the top, Pakistan is even stepping back from retaining federal police law.
Besides the European Union, Malaysia, for example, that used to have diverse police laws for each federating unit has formed a uniform police law and subsequently turned out to be successful in combating worse law and order situation.