Category Archives: Rule of Law

More Laws Less Order

Marcus Tullius Cicero more than two thousand years ago, said, “the more laws, the less justice”. Justice means much more than mere order in society. Order remains missing in everyday life of a common man in this land of the pure. Like other policies of the state, enforcement remains the Achill’s heel of the executives since 2002. Unfortunately, in National Action Plan, reforming the criminal justice system is given the least importance. Senior bureaucrats complain about absence of political will to implement National Action Plan. Changes in legal framework in the Punjab have yet to trickle down at enforcement level. Focus has been on making local and special laws to address misuse of loud speakers or graffiti and even this trend is not followed in other provinces with same zeal.

In FATA age old system is not delivering results and Karachi has temporarily come under control after investing huge resources in the form of Sindh Rangers to shield police from political interference in criminal justice administration. Major urban centres remain under threat of public commotion and prevention of once very ordinary street crimes, like one wheeling, are not tackled effectively. Senior bureaucrats complain about absence of political will to implement National Action Plan. Changes in legal framework in the Punjab have yet to trickle down at enforcement level. If removing graffiti by some sectarian organisations becomes threat to personal safety of law enforcement officers then what to say about preventing illegal road blocks and action against proscribed organisations aka armed militias? How can mere changes in legal frameworks, despite its importance, can yield results?

At least five police laws are operational in Pakistan in federal and provincial territories. In the wake of plethora of changes after the 18th Constitutional (Amendment) Act, 2010, Police Order 2002 (PO 2002) was replaced by the Police Act 1861 (PA 1861) in Sindh. Balochistan followed suit and enacted Balochistan Police Act 2011 which is just another version of Police Act of 1861. The Punjab was only to follow it in 2013 by making fundamental changes in Article 7, 18, 21 and repealing Article 184 which required approval of the Chief Executive, for any province level amendments. This has opened Pandora’s Box for all the provinces to make changes in the Police Laws. It is interesting to note that none of the provinces has made any meaningful changes in eighty years old Police Rules 1934 which deals with functioning of Police Stations and which has direct impact on “service delivery”. Without changing the management style of Police Station, it is not possible to expect any change in organisational culture of Police at ground level.

To top it, new laws are being passed by the legislature like The Fair Trial Act 2013 and The Protection of Pakistan Act 2014. Changes in role of prosecutors, evidence submission procedures and witness protection are brought in pieces without incorporating them in the Penal Code of Pakistan 1860, the Evidence Act 1984 and the prosecution laws of the provinces. Situation is more interesting in federally controlled areas like Islamabad and Gilgit-Baltistan because these areas remained as they were since 1947. Position of Police laws is also not different in Azad Jammu and Kashmir and what to talk about FATA where pundits do not want to bring any change at the cost of rights of people of FATA. Whose interests are served if not the people who want order in their lives through state institutions? International Crisis Group and many other local and international NGOs and experts demand replacing Frontier Crime Regulation of 1901 in FATA with Police Act 2002 and abolishing B areas of Balochistan where poorly trained levies are performing the role of law enforcement agency even in 21st century.

There are two views about legal position of Police Act and role of Federal Government and the Provincial Governments. Proponent of provincial autonomy claim that after the 18th Amendment, Policing is not mentioned in Federal Lists I or II and it is exclusively in the provincial domain to amend the Police Order 2002 or Police Act 1861. In addition Article 142 (b) also empowers the provincial governments to make changes in criminal law and criminal procedure i.e. Cr.P.C. 1898 and Pakistan Penal Code 1860. However, Police Act or Police order is not mentioned in this article specifically.

Advocates of a uniform Policing legal framework make a point that Policing was always a provincial subject in the constitutions of 1934, 1956, 1962 and 1973. However Police laws, just like a centralised and uniform judicial structure, were in the federal ambit to ensure uniformity across the country. Even in 1955 when changes in laws inherited from Indian Constitution of 1934 were brought by the then Governor General, Police Act remained within the scope of the federal government. This point of view is buttressed by the ruling given by the Chief Justice of Pakistan in Karachi law and order case when he declared that Police Order 2002 is a federal law and provinces cannot change it unilaterally.

Rule of law trough a professionally trained police service requires uniform standards of recruitment, training, investigation and prosecutions across the country. If present trend of creating provincial police laws continues there are less chances that interprovincial coordination will improve for exchange of prisoners or for transfer of cases from one province to other under a common legal framework. Uniformity of police laws, just like judicial framework, is pre-condition of an effective policing system in the country. Implementation of National Internal Security Policy is needed which states, “the police system of every province is functioning under different Police Acts but somewhat uniform judicial set up. A uniform and coordinated response needs uniformity in Police Laws and enforcement procedures”.

From international coordination perspective, it makes more sense to have a uniform Policing structure and legal framework in the country. It is hard to liaise with the international community through a variety of local laws and nuances of each law enacted in various federating units of the country. In countries where there are various local laws of counties or states, there is one umbrella law which makes it easy for the other states to coordinate and cooperate on issues of mutual legal assistance. A uniform legal framework of law enforcement was in vogue before and after enactment of PO 2002 and after trying variety of laws in post 18th Amendment scenario, it is pertinent to enforce PO 2002 across the country including FATA, GB, ICT and Azad Jammu and Kashmir.

Is political leadership, with the support of able bureaucrats and police commanders, capable to handle this challenge? Can National Action Plan succeed without implementation of robust uniform police laws and reforming criminal justice system?

Akbar Nasir Khan      (ank@post.harvard.edu)