Concerns raised over revival of Police Order without adding key court verdicts

 12 May 2019

KARACHI: The Sindh government is in the process of reviving the Police Order, 2002 apparently without incorporating the judgements of the superior judiciary in a bid to take back powers of transfer and posting of senior police officers, it emerged on Saturday.

Many sources believed that the Sindh government was going to revive the Police Order, 2002 to avoid framing rules in compliance with the judgements of the superior courts.

An official told Dawn that the new law will give the chief minister power to transfer and post senior police officers and this move was aimed at evading the judgements of the Sindh High Court and Supreme Court.

The Police Order, 2002 was promulgated in all the provinces on Aug 14, 2002. However, on July 13, 2011 the Sindh Assembly repealed that law and revived the colonial-era Police Act of 1861.

Former Inspector General of Balochistan Police Tariq Khosa told Dawn that the Sindh government’s decision to revive the Police Order, 2002 was a “step in the right direction and in accordance with the January 2019 decision of the Supreme Court about police legislation being on the Concurrent List”.

‘Postings and transfers should not be based on whims and politics’

He, however, suggested that the Sindh government must follow it up by implementing the SHC and SC decisions about administrative and operational autonomy of the police command. “The government exercises superintendence over police, which is to be in accordance with law and not through arbitrary control of police through postings and transfers based on whims and politics.”

Mr Khosa, who was a member of the SC-formed body on police reforms, believed that the Police Order, 2002 “requires de-politicisation, accountability, autonomy, specialisation and community service”.

He hoped that the chief minister of Sindh and his cabinet will show “sagacity and wisdom” in implementing the letter and spirit of the law if they want the rule of law in Sindh.

18 months on, rules made by Khowaja not yet notified

Official sources familiar with the apex court’s ruling recalled that the SHC in what is now known as the A.D. Khowaja case had called for establishing the autonomy of command and independence of operation of the police force governed by the Police Act, 1861.

The court also upheld “tenure posting” of PSP senior cadre posts and declared that transfers and postings on all senior cadre posts shall be made by the order of the IGP “pursuant to transparent rules framed under Section 12 of the Police Act, 1861 framed in consultation with the provincial government”.

Subsequently, as per directions of the apex court, the IGP drafted the rules and submitted them to the government for notifying the same. However, the provincial government had been allegedly delaying the notification of the proposed rules for last 18 months and now intended to revive the Police Order, 2002.

The sources recalled that the Supreme Court while dismissing the appeals of the Sindh government against the SHC judgement had ruled that Sindh shall be entitled to make new laws “conforming with the modern needs and also keeping in view the observations made in the impugned judgment”.

Later, the Sindh government had filed a review petition in the SC, which was still pending.

The official opined that in view of the judgment of superior courts, it was evident that any legislation pertaining to police law cannot contradict the basic parameters of autonomy of command and independent operations of police.

Moreover, the operational and administration autonomy of police is to be exercised by the IGP including the powers of transfer/posting of senior officers.

‘Manipulated legislation’

“The true journey of police reforms has just begun and if the vested interests succeed in getting control of this department that too through a ‘manipulated legislation’ aimed at evading the judgements of the superior courts, it will be a bad omen for all the citizens and their quest for rule of law in the province,” said an official.

“If Police Order is to be revived, its articles in contradiction with the said judgements must be amended to make those compatible with the spirit of the judgements and to bring legislation within the parameters of the observations made in the judgements as ordered by the SC in its judgment,” suggested the official.

“The revival of Police Order, 2002 does not absolve the provincial government of its responsibility to frame transfer, posting rules as ordered by the apex court,” believed the official. “If the provincial government does not notify the transfer, posting rules it will be committing contempt of court.”

A senior official, who wished not to be named, told Dawn that by bypassing the verdicts of the apex court, the Sindh government intended to revive the Police Order which would likely increase political interference.

But, senior lawyer and former advocate general of Sindh Barrister Zamir Ghumro did not agree with the contention of such police officers.

He pointed out that the plea in the Karamat Ali case in the SHC by police was that Police Order, 2002 was a “good law and it may be declared legal”.

Barrister Ghumro recalled that the SHC had declared that it was the prerogative of the provincial assembly to enact a police law. He said as the Supreme Court dismissed the Sindh government’s appeal against the SHC order, “now the SHC judgement is in the field, so the provincial Assembly can enact new law or revive the Police Order, 2002”, as it was in the legislative domain of the elected representatives.

Another official believed that after the apex court’s rulings in favour of the operational autonomy of police, “undue interference” of the chief minister and his ministers in administrative domain of the Sindh police was “eliminated”.

“The government and the home department’s bureaucracy have been upset and they have been trying to regain their authority to control and use the police department for their political and personal motives.”

The officials said that the discipline of the police force and its internal accountability improved considerably when the officers started looking up to their professional commanders rather than political heavyweights.

“Reversing this trend will be a terrible mistake which the people of the province cannot afford,” they said.

Published in Dawn, May 12th, 2019