Tahir Maqsood Chheena
Have we ever enquired that the appointment process of the inspector general of Police is against the constitution and law? How, let the argument be crossed!
Firstly, the post of IG is purely a provincial post. The provincial assembly legislates it, and the Home Department needs to notify it. Thus, it is a post that belongs to the provincial Home departments. Furthermore, provincial legislative, executive and financial authority covers the post of IG according to article 240 (b), 137 and 119 of the constitution of Pakistan read with PCS Acts, 1974, provincial government rules of Business. Therefore, it is a constitutional fact that the post of IG is a provincial post. Now, a question arises: how can the federal government extend its executive authority on a provincial post? How can the federal government appoint an IG, and that too, from a federal police service?
There is no constitutional, lawful or even legal provision available in this regard. The federal government posted the IG on a few executive orders, which are unconstitutional, unlawful and even fraudulent. It is not less than an administrative joke that the federal government appointed IG with reference to the agreement of 1993 and PSP rules, 1985, which can not extend to the posts connected to the affairs of the provinces. How can the federal government break the constitutional legislative, executive and financial authority of the province while posting IG purely on a provincial post?
Then, the functions of the police and the establishment of the police are different subjects altogether. There is a concurrence of criminal law, criminal procedure and evidence under Article 142 (b) of the constitution of Pakistan. However, this concurrence is only for functions. It has nothing to do with the establishment of police, which is altogether a different dimension. The establishment of police is the prerogative of the Home Department as per the rules of business. Therefore, the federal government can not extend its authority on provincial posts, and therefore, it can not appoint an IG to a provincial post. Hence, the appointment process of the IG by the Federal Government is unconstitutional, unlawful and illegal in the federation of Pakistan, as read in Schedule IV of the Constitution.
Police reforms are critical for Pakistan. Then, the creation of a provincial Police service is the fundamental obligation of the police reforms. Civil service reforms in Pakistan have been an eyewash. These often fail even before they start. Unfortunately, there are civil service monopolies in the administrative corridors of power, and politicians have yet to be able to dissect and lead the processes of administration. Consequently, politicians are dependent upon the craft of civil servants in the affairs of administration and even to reform the services. Who will reform the civil service? Constitutionally, it is the mandate and obligation of the political executive to reform civil services, but this has never been the case. Politicians always empower the federal bureaucrats to reform civil services who cunningly uphold the colonial scheme of reserving provincial posts for central services. Therefore, the service reforms have only been restricted to changes in the nomenclature of the services. The existing scheme of reserving provincial posts for central services conflicts with constitutional federalism and the Provincial Civil Servants Act. Consequently, the objectives of civil service reforms can only be realized if independent constitutional and structural experts are empowered to reform the civil services.
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Police reforms require fundamental constitutional alignment. Should the Police be organized centrally or provincially? The administration of the Police is a provincial subject according to Article 70(4) and Schedule IV of the constitution. Chapter two of the constitution enforcing principles of policy under article 37 (i) categorically makes sure to decentralize the administration to facilitate expeditious disposal of its Business to meet the convenience and requirements of the public. Yet, in consonance with the constitutional provisions, it is constitutionally required to raise police service provincially, not centrally. Hence, the best process for reforming the Police is to implement the constitution. Law and order is a provincial subject. Article 240 (b) of the constitution empowers the provincial assembly to legislate provincial posts and services. For example, the Punjab government Rules of Business, 2011 empowers the Home Department of the province to raise provincial police service. However, against the constitutional scheme, the Police are organized centrally in the form of the Police Service of Pakistan (PSP) without enactment and legal instruments.
The pinnacle of police reforms is the creation of the Provincial Police Service (PPS) on posts connected with the affairs of the Home Department. This is a constitutional obligation. The law does not allow the maintenance of a Federal PSP on posts of the Provincial Home Department. How can provinces perform operations of policing where federal PSP officers are posted on provincial posts and not accountable to provincial political executives and law? Abolishing the class system in the police force is a structural requirement for proficiency and career progression. How can superior and inferior ranks form a joint police force? The Police should be organized at a lower level and promoted systematically to the higher ranks without lateral entry or recruitment. Policing is not showcasing administrative skills only but developing core skills of operations, investigation, prosecution and then administration. Is it justifiable to recruit a superior human resource only for the matters of administration, excluding the core matters of operations, investigation, and prosecution?
Policing is a devolved subject all over the world. The Constitution of Pakistan organizes it provincially. Article 240 of the constitution provides three types of services. Federal and all Pakistan services with their connected posts are regulated under an organic act of a parliament, whereas provincial posts and services are required to be regulated by an act of provincial assembly. Articles 153 and 154 create the Council of Common Interests, which is constitutionally required to control the subjects of the Federal legislative list part II. This is a common and connected place between the federation and provinces to raise all of Pakistan’s services and posts. Hence, neither a federal nor an all-Pakistan service can be raised on provincial posts. Similarly, there is no constitutional support for the creation of a district police service.
However, provincial Police can be devolved to districts by an act of provincial assembly. Last but not least, political intervention in the affairs of the Police requires lawful scrutiny. There is a difference between political executives and politicians. The political executive is the leading part of the executive and should always lead the Police according to law and processes. But the Police should legally be provided with lawful guarantees to avoid illegal intervention by political executives and general politicians alike.
Lastly, there is an urgent need to reform the police in Pakistan. It must begin with creating a provincial police service PPS and appointing the IG by the Provincial government from the PPS. Law and order is a provincial subject, and the police are the primary agency to implement it. How can a federal Police service implement the provincial subject of law and order? Therefore, the police reforms according to the constitution of Pakistan are critical for good governance and functional policing.
