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(Amjad Bhatti)

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Police reforms: lessons learnt

The legitimacy and political ownership of the Police Order 2002, is
compromised by the fact that it was introduced by the last military regime

Amjad Bhatti (More 104

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OCTOBER 8, 2018

Since 1948, there have been nearly 25 attempts and initiatives in

the form of bills, laws, commissions, committees, reports, missions
and legal instruments aspiring to reform the police organisation in
the country. Almost every military and democratic government has
expressed its policy intent to bring changes to the culture and
contours of policing. However, little has been achieved so far after
seventy-one years of independence.

A quick review of reform debates indicate that the focus of intended

reforms remained limited to the proximate causes of the police-
failure, without looking into the structural and systemic dimensions
(Has Urmila converted to Islam? - Daily Times)

of the problem. Has Urmila converted to Islam? - Daily Times

Similar to the judiciary, the basic structure, functions and

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procedures of the police and law enforcement establishments in
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4/11/2019 Police reforms: lessons learnt - Daily Times

contemporary Pakistan deeply relies on the bare-bones of the

criminal justice system introduced in nineteenth century India.
Deliberatively drawing upon the Irish Constabulary Model in post
1857, ‘war of freedom’, the police organisation was established
through the Police Act 1861, making a uni ied police force
exclusively under the provincial government jurisdictions.

The key assumptions shaping the police system in colonial India

has been well documented in the Police Commission Report 1860,
headed by M. H. Court. The Commission suggested, an uni ied force
for the various police establishments, both civil and military, as the
only means of “securing unity of action and system, and a real
control, both departmental and inancial.”

There have been three key structural features of the police re-
organisation in colonial India which have direct bearing on the
contemporary debates on police reforms in Pakistan.

First, the 1861 Police Act was explicitly predicated on the

centralisation and concentration of executive, revenue, judicial,
policing and prosecution authorities and powers in the singular
portfolio of District Magistrate or District Of icer, the Police
Commission Report 1860, noted that the police force was made
subordinate to the Civil Executive Government, “for its being
ef icient instrument in the hands of the Magistrate for the
prevention and detection of crime, and under his control for the
criminal administration of the District”. This feature of the police
system underpins the on-going debates on the relevance, utility and
legitimacy of ‘executive magistracy’.

Second, the controlling authority of this omnipotent of ice at the

district level rested exclusively with the provincial executive or
government without any horizontal accountability at the local
levels. The of ice of the district magistrate has been considered the
of ice of a ‘mini viceroy’ as most of the powers were assigned to this
portfolio.

“
„
(Has Urmila converted to Islam? - Daily Times)

Dual control has also contributed to diluted

Has Urmila converted to Islam? - Daily Times
authority of police, which became more prone
to the instructions of the district magistrate,
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4/11/2019 Police reforms: lessons learnt - Daily Times

with little cognizance to the provincial head of

the department

Third, a dual control was designed for the district head and
superintendent of police force being answerable to the DM at local
level and to the departmental head at the provincial level. This dual
control has also contributed to diluted authority of police which
became more prone to the instructions of the district magistrate
with little cognizance to the provincial head of the department.

The Police Order 2002, promulgated by the last military regime

replaced the Police Act of 1861 in Pakistan’s four Provinces: Punjab,
Sindh, Khyber Pakhtunkhwa, and Balochistan, except Islamabad
Capital Territory, Gilgit Baltistan, and Azad Jammu & Kashmir. The
Federal Government in November 2004,made several amendments
in the order enhancing government’s role in appointment of key
police of icers and altering the composition of public oversight
bodies. The Provincial Police Complaints Authorities were
disbanded and the amendments, according to some analysts, ended
up in providing a statutory basis to police politicisation.

In the wake of the eighteenth Constitutional Amendment, Sindh and

Balochistan repealed the Order and revived the 1861, police law in
2011, while Khyber Pakhtunkhwa repealed the Order in August
2016, and introduced new KP Police Order 2016, and Punjab
amended the Police Order through Punjab Police Order
(Amendment) Act 2013.

Despite being a radical departure from the archaic Police Act of

1861, the legitimacy and political ownership of the Police Order
2002, is compromised by the fact that it was introduced by the last
military regime. Further, there are divergent views on the tenability
of the Police Order 2002.

One school holds that, because the Police Order 2002 was included
in the Sixth Schedule of the Constitution, the eighteenth
amendment deletes its legal validity; it was a Federal Order and
(Has Urmila converted to Islam? - Daily Times)
cannot therefore apply to the provinces. The other group of analyst
Has Urmila converted to Islam? - Daily Times
views are that the eighteenth Amendment introduced Article
270AA (2) of the Constitution which provides for all orders made
between 12 October 1999, and 31 October 2003, to remain in force Read Next Story

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4/11/2019 Police reforms: lessons learnt - Daily Times

across the county. The Police Order 2002 remains in place,

therefore, and cannot be repealed by any other body than the
Federal legislature.

Legal polemics aside, hither are political economy dimensions to

this issue as well. The overall political and policy environment
nurtured by the eighteenth Constitutional Amendment is not
amenable to the notions of recentralisation and federal overreach
on provincial subjects. Police Order 2002, may be a technically
sound but is a ‘politically orphaned’ law — and that also on an
exclusive provincial subject like police — is not likely to make an
easy comeback through any unilateral federal intervention.

There can be three possible scenarios of engagement creating an

inter-provincial ownership and consensus on the repeal of 1860,
law and introduction of new provincial laws regulating police
governance contemporaneously:

First, one or two provinces can invoke Article 144 of the

Constitution through a resolution in the respective provincial
assembly requesting federal legislature to legislate a uni ied law on
police governance — admittedly a provincial subject which is not
enumerated in the Federal Legislative List. After the concurrence of
one or two provinces the federal legislature can regulate the subject
by law. There is a recent precedent of establishing the Drug
Regulatory Authority on essentially a provincial subject through
federal legislation in 2012. This legislation was undertaken to bring
harmony in inter-provincial trade and commerce and to regulate
purchase and distribution of therapeutic drugs.

Second, Article 142(B) empowers both the Parliament and a

Provincial Assembly to make laws with respect to criminal law,
criminal procedure and evidence. Police law being an essential
component of the criminal justice system is indeed a provincial
subject, but it cuts across provinces on many accounts. The issue
can be rede ined as an inter-provincial matter and can be taken up
at the Council of Common Interests (CCI), creating space for a joint
decision through consensus on the broader contours of a
harmonised police governance structure across the provinces.
(Has Urmila converted to Islam? - Daily Times)
According to the entry 10 of the Federal Legislative List-II, the CCI
Has Urmila converted to Islam? - Daily Times
has already been entrusted with a regulatory and supervisory
control over the extension of the powers and jurisdiction of police

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4/11/2019 Police reforms: lessons learnt - Daily Times

force of one province to another province with the consent of the

Government of that Province.

Third, provinces keeping their autonomy intact can initiate a debate

on police reforms in their respective jurisdictions and can work out
adopting the best practices from the Police Order 2002, and other
such examples including Draft Sindh Police Bill 2014, which
recognises the need to depoliticise police and introduces a
Metropolitan Police System.

The writer is an independent researcher with interest in politics of

culture, media and governance. E-mail: amjad.544@gmail.com

Published in Daily Times, September 8th 2018.

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