STATE OF JUSTICE SYSTEM IN PAKISTAN
In assessing the justice system of Pakistan, predominantly, it is assumed that the real issue is with the criminal justice system. This, however, is not supported by the statistics. The latest rankings of the Rule of Law Index 2015 (Global) ranked Pakistan at 98 out of 102 countries. It showed that Pakistan did fairly poor on both sides of the justice system: criminal as well as civil. The view got reaffirmed in the latest Provincial Rule of Law Index 2016 issued by the Pakistan Institute of Legislative Development and Transparency (PILDAT), in collaboration with the World Justice Project (WJP). The PRLI 2016 noted, through statistics, that the provinces of the Punjab and the KPK have civil justice systems that are less functional than their respective criminal justice systems.
ALTERNATE DISPUTE RESOLUTION MECHANISM
With a justice system in which its civil justice arm is less functional than the criminal justice one, as is the case with Punjab and KPK and as is evinced by the Provincial Rule of Law Index 2016, there is surely a need to examine ways and means to improve the system radically. Amongst others, one peculiar strategy is to introduce alternate dispute resolution (ADR) mechanisms. In the case of Pakistan, typically, the ADR regime has been introduced into the law by amending the civil law (e.g. by adding Section 89-A to the Civil Procedure Code, 1908), or by amending the Arbitration Act, 1940. More often than not, efforts have been made to keep the ADR mechanism away from the formal and coercive apparatus of the state. Contrary to this established path, Khyber Pakhtunkhwa has taken a different approach; it has tried to introduce ADR mechanism through policing law. Here we will examine this new approach by first introducing the latest amendment to the Police Order, 2002, and then, by briefly underlying some legal issues that relate to it.
THE KHYBER PAKHTUNKHWA POLICE ORDER (AMENDMENT) ACT, 2015
In 2015, the Provincial Assembly of Khyber Pakhtunkhwa amended the Police Order, 2002 and introduced a new legal provision (Article 168-A) to it. The new legal provision is reproduced hereunder:
WHEREAS it is expedient further to amend the Police Order, 2002 (Chief Executive’s Order No. 22 of 2002), for the purposes hereinafter appearing;
It is hereby enacted as follows:
1. Short title and commencement.
(1) This Act may be called the Khyber Pakhtunkhwa Police Order (Amendment) Act, 2015.
(2) It shall come into force at once and shall be deemed to have taken effect from 1st January, 2014.
2. Insertion of Article 168A to Chief Executive’s Order No. 22 of 2002. — In the Police Order, 2002 (Chief Executive’s Order No. 22 of 2002), after Article 168, the following new Article shall be inserted, namely:
“168A. Dispute Resolution Council. — The Provincial Police Officer for out of Court amicable settlement of petty nature cases, may constitute, Dispute Resolution Councils at District, Sub-Division or Police Station level, which shall consist of such number of members who have respect and repute in the society for their honesty and impartiality and shall include minimum one female member and shall conduct its business in such a manner as may be prescribed:
Provided that the Dispute Resolution Councils already constituted by the Provincial Police Officer shall be deemed to have been validly constituted under this Order and all the actions taken, decisions made or order passed by such Dispute Resolution Councils shall be deemed to have been validly taken, made or passed under this Order.
Explanation: For the purpose of this section, petty nature case means and includes a small, minor, of less or inconsiderable importance and affected amity in the society or any cause pleading towards provocation which may lead to a criminal offence.
The legalese of the new law invites constitutional issues. In the first place, the amendment needs to be put in the perspective of the Eighteenth Amendment to the Constitution of Pakistan, 1973. After the abolition of the Concurrent Legislative List from the Constitution, and after introduction of new legislative field dealing with criminal law, criminal procedure and evidence, (as envisaged under Articles 142 and 143 of the Constitution), there is little space for the provinces to amend the federal legislation related to criminal law. Besides, the Supreme Court of Pakistan, in its latest order in the case of Haider Ali vs. the DPO Chakwal (Civil Petition No. 1282 of 2014), has observed that the constitutionality of the amending/ repealing of the Police Order 2002 needs to be examined; it ordered the office of the Attorney General for Pakistan to assess the constitutionality of the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 and the Balochistan Police Act, 2011, and to submit its opinion to the apex court for its examination. Pending the opinion, the amendment to the Police Order, 2002 needs to be taken with the caveat of constitutionality. Retrospective effect of the amendment, as contained in Section 1(2) of the Khyber Pakhtunkhwa Police Order (Amendment) Act, 2015, is the second point that needs consideration.
The retrospective effect of a law is a dodgy matter in the sense that it has constitutional implications as Article 12 of the Constitution of Pakistan prohibits retrospective punishments, and in this sense, a decision of a Dispute Resolution Council constituted under the law prior to the enactment, may have the effect of being void and non est.
The third matter that may be worth examining is the definition of ‘petty matters’: what is a petty matter? And, as contained in the Explanation to the new Article 168-A, should it have some nexus with ‘the criminal act’? What about the legal interface and the scope of application between the instant new amendment to the Police Order, 2002, and other legislation like the Establishment of the Civil Mobile Courts Act, 2015 and the Small Claims and Minor Offences Courts Ordinance, 2002. These legal and constitutional aspects of the amendment cannot be discounted for in the post-18th Amendment scenario in the country.
IS IT SUCCESSFUL OR NOT? SHOULD IT BE REPLICATED IN OTHER PROVINCES?
With these legal and constitutional questions hang fire in the legal system of Pakistan, it may be unfair and premature to surmise about the success or otherwise of the new law. The credit, however, has to be given to the KPK police officers for going an extra mile in helping the common man by offering the service of the police department to dispense alternate remedy for civil justice. On the other hand, involving the coercive machinery of the state in settling disputes of small nature has its own share of pitfalls.
In the context of the KPK, the amendment may be culturally suitable as formal justice system is not very well placed in the province and its adjoining areas and territories. But, if that were true, then why the Punjab Local Government Act, 2013, contains enabling legal provisions for punchayat and masalahat anjuman (Sections 94 to 99), the indigenous ADR mechanisms? There may not be any straight answer to this question; the fact of the matter is that the very architecture of the justice and legal system in Pakistan needs serious reconsideration; resources have to be devoted to conduct serious and independent research and then to propose suitable solutions. In this regard, the will of the state is pivotal as without proper diagnosis, the solutions are likely to be ad hoc and temporal in nature, and surely, emulating the idea contained in the new law in form of a policy consideration for other provinces requires serious consideration before its introduction to them.