On 1st August 2016, the Governor of the Khyber Pakhtunkhwa (hereinafter KP) promulgated a new law, styled as the Khyber Pakhtunkhwa Police Ordinance, 2016, for the KP Police. As the new law is enacted through a temporary legislative device i.e. Ordinance, its ultimate place on the statute books is contingent upon its passage from the provincial assembly of the KP. Thematically, the law follows the scheme of the Police Order, 2002, and quintessentially, addresses five areas: the KP Police organization, the criminal (substantive and procedural) law, the community policing, the civilian oversight mechanism and the constitutional and legal status of the new law. Each one of these areas deserves detailed research and analysis; however, given the paucity of space, each has been discussed briefly in this write-up.
A. The KP Police Organization
In consonance with the Police Order, 2002, the earlier part of the new law reproduces the legal provisions dealing with the duties and attitude of the police. Section 6 of the new law constitutes Police Establishment for the KP Police. The administration of police is vested in the Provincial Police Officer (PPO), whereas its superintendence has been, once again, given to the provincial government through the Chief Secretary and Home Department.
Essentially, the governance scheme is akin to the Police Act, 1861 and the Police Order, 2002. A new Police Policy Board (PPB) comprising eight senior police officers has been established under Section 9 and has been given the task to formulate ‘strategies to ensure efficient and transparent administration and public service delivery’. The PPB is a departure from the military model of Pakistan’s police organizations, where ‘command’ is the test of survival. Besides, the PPB can make the top of KP heavy. In any case, actual working will be its real test and no opinion should be formed unless its working is observed.
Section 12 is an improvement on the Police Order, 2002, in the sense that, for the first time, it aims at providing statutory basis for the Counter Terrorism Department and the Special Branch. Likewise, the organization of the KP Police has been elaborated in detail in Section 12. A new Internal Accountability Branch to be headed by an officer not below the rank of an Additional Inspector General of Police (an officer of BS-21) shows that the internal accountability mechanism to be implemented will comprise dedicated senior officers, hence, making it immune to mechanics of low-level internal accountability mechanisms. The same legal provision has constituted the specialized training institutions of police for investigation, intelligence, tactics, public disorder and riot management, explosive handling, information technology, traffic management, telecommunications and elite force. The specialized training is a very welcome improvement on the earlier police laws in Pakistan, where the training was accorded little or no priority.
Likewise, Sections 27 to 35 deal with appointment in different ranks. The new thing introduced in the law qua appointments is that for the ranks of Deputy Superintendents of Police, Inspectors, Sub-Inspectors, Assistant Sub-Inspectors and Head Constables, fast track promotion regime in addition to the conventional one has been introduced. The new regime will institutionalize incentive system for efficient and hardworking police officers.
Another organizational feature is that whereas, in the earlier Police Order, 2002, only tenure protection for police officers was provided, the new law provides for detailed procedure to regulate entry and exit into the secure tenure system (especially Section 23). In order to improve the financial management of the organization, the PPO will now have powers to ‘investigate’ accounts in addition to the audit system of the Auditor’s General (Section 17). The organizational improvements must be appreciated. However, the sore issue of police corruption, which is usually confused with efficiency and discipline of police has been left out, and as usual, it will be out of the remit of the police department and will be investigated by the anti-corruption/Ehtesab establishment of the province.
B. The Criminal (Substantive & Procedural) Law
The Eighteenth Amendment to the Constitution of Pakistan, after abolishing the concurrent legislative list, introduced Articles 142 and 143 which deal with the legislation of criminal law in Pakistan. The net interpretation of the law places legislation related to the Code of Criminal Procedure and the Pakistan Penal Code in the joint domain of federal and provincial legislatures. Like the Police Order, 2002, the new law in the KP has introduced law related to the change of investigation (criminal procedural law) through a provincial police organizational law (Sections 25 and 26). The offences (Sections 102 to 118) related to public order (criminal substantive law) have also been introduced through the new law. The constitutional appetite related to post Eighteenth Amendment criminal law legislation is yet to be satiated by the constitutional courts of Pakistan. The issue of horizontal and vertical investigations has also not been addressed in the new legislation, and the legality and legitimacy of many a police process hang in balance.
C. Community Policing
Earlier in 2015, the KP Provincial Assembly passed a law entitled the KPK Police Order (Amendment) Act, 2015, by virtue of which, a new Article 168-A was added to the Police Order, 2002. The law had introduced the concept of Dispute Resolution Council, a community based dispute resolution mechanism. The new law introduces Public Liaison Councils at village and neighbourhood levels with no dispute resolution powers. In any case, it’s a positive development as the community policing has to be granted legitimacy through legislation.
D. The Civilian Oversight Mechanism
The scheme of Public Safety Commissions and Complaints Authorities, as envisaged in the Police Order, 2002, has largely been retained. The selection processes and disqualifications have been elaborated. The role of Public Safety Commissions is participatory, whereas, the role of Complaints Authorities is that of external accountability. A new feature of Public Safety Commissions in the new legislation is that its members (at least one) can now become an observer in procurement processes of the police up to purchase of half a million rupees. The tenure protection and removal of the police officers has also been processed in detail in the new law. The legal interplay of efficiency, discipline, anti-corruption and complaints laws has not been neatly laid down, which can affect the ultimate outcome of the whole mechanism.
E. Constitutional and Legal Status
As ever, the extant constitutionality of the new law as of the earlier Police Order, 2002 remains unclear. Section 142 of the new law bifurcates the effect of repeal into ‘Provincial Legislative Field’ (a category alien to the Constitution of Pakistan, 1973) and ‘Federal Legislative Field’. The Police Order, 2002, the new law says, stands repealed to the extent of the ‘Provincial Legislative Field’ whereas it remains in force to the extent of ‘Federal Legislative Field’: this categorization and its application is as ambiguous as it is unusual. With the promulgation of the new law, the KP joins the league of the Sindh and Balochistan, which have introduced new provincial police laws by repealing the Police Order, 2002.
The package of police reforms introduced through the new legislation is a welcome development. It may not be perfect, but it will surely undo the status quo. The police leadership, which comprises officers from the Police Service of Pakistan, will have to think about the internal security of the country and have to offer solutions that can integrate with the other components of the criminal justice system in Pakistan. The new law, for the first time, has given statutory role to the Chief Minister (Section 72), in a policing law in Pakistan: whether this remains under civil oversight mechanism or becomes a tool of interference is yet to be seen.