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July 28, 2023
• Observes the force manifests colonial-era mindset, should be transformed into people-friendly agency
• Declares role of CM, cabinet and experts in postings, formation of police regions ‘advisory’
KARACHI: The Sindh High Court on Thursday struck down an amendment made to the police order in 2019 to essentially accord primacy to chief minister in the posting of senior police officers and ruled that the role of CM was advisory only.
The court also declared that henceforth, any exercise of powers by Sindh government through its cabinet for the appointment of experts to assist provincial or city police officer and formation of police regions/divisions would require meaningful consultation with the inspector general of police.
A bench comprising Chief Justice Ahmed Ali M. Shaikh and Justice Yousuf Ali Sayeed further declared that any move to remove an IG from the post prior to conclusion of three-year term would be subject to the rule laid down by the Supreme Court and SHC in the cases of Anita Turab and Karamat Ali.
It said that role of chief minister regarding constitution of police regions/divisions and transfer of senior police officers under exceptional circumstances would be advisory only.
The bench directed the authorities concerned that provincial and district public safety and police complaints commissions were to be activated and meetings thereof were to be convened at least once in a month until proper rules were framed in this regard.
It also asked the respondents and all instrumentalities of the provincial government as well as federal government to give full, immediate and meaningful effect to these directives and the respondents were also restrained from acting in any manner that was either inconsistent with or which contradicts any such orders or directions.
Political favour
The judgement, authored by Justice Sayeed, said: “Additionally, touching upon the subject of entrepreneurialism, as alluded to during the course of arguments, we are conscious that an unfortunate reality and uncomfortable truth is that there may be functionaries of the police, and indeed other services, who may actively seek out political alliances and ends or place themselves at the disposal of political forces so as to curry favour for personal benefit, but that does not mean that a proper enabling environment should not be ensured for those officers who wish to protect and serve with dignity and honest intent in accordance with the best traditions of policing, whilst asserting their independence. That being said, we leave the final reality of such matters to divine providence and end this judgment with a silent prayer for betterment”.
The bench passed the judgement while disposing of three petitions filed by Jibran Nasir, Arif Hasan, Syed Zafar Ali Shah and others between 2019 and 2021 mainly pertaining to the Police Order 2002 as revived vide the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 promulgated by the Sindh Assembly on June 26, 2019.
Complaint redressal mechanism
The petitioners essentially impugned certain provisions of the Police Order about constitution and administration of the police force, posting of various key officials, challenging the statute as a whole and questioning the vires of two chapters of Police Order dealing with the police oversight and complaint redressal mechanism as well as deletion of chapter-X which had dealt with the subject of the police complaints authority.
While representing the petitioners Faisal Siddiqui, Basil Nabi Malik and other lawyers advanced their arguments and Umair Usman and Junaid Ahmed argued the matter on behalf of interveners while Advocate General Hassan Akbar, along with other law officers, represented the Sindh government.
Colonial era mindset
The bench observed that the former colonial rulers of the subcontinent developed the police as an armed force and as an organisation-oriented gear not to the service of the people but to the maintenance of public order in the interest of preserving the authority of the British Crown.
As a product of that time, the Police Act thus represented a piece of colonial legislation enacted to perpetuate an oppressive foreign rule, where the police force was often an agency of oppression and subjugation, with the relationship between the police and the public being one of suspicion, it added.
However, the bench noted, in today’s paradigm with independence and self-governance under a constitutional framework, the aspirations and expectations of the people had grown and it was sufficiently clear that there existed a duty of the state to protect and safeguard fundamental rights.
Therefore, it is manifest that a people-friendly and service-oriented police force is the requirement of the day, with there being a need for the system to inspire public confidence by serving all communities fairly, so as to usher in compliance with the rule of law, it maintained.
Rule of law
“The rule of law is a fundamental feature of our constitution. No one, not even the minister in charge of the police administration, has the power to direct the police as to how it would exercise its statutory powers, duties and discretion,” it added.
The SHC also observed that edifice and functioning of the police needed to be reimagined and restructured so as to make it a people’s police, which can best be done by striking correct balance between autonomy and accountability.
The judgement further said: “It is declared that, henceforth, any exercise of powers by the government through the cabinet under Sections 7 [constitution of police] and 14 [appointment of experts] would require meaningful consultation with the IGP, who would be invited to attend the relevant meeting, with proper and sufficient notice to necessarily be given and the relevant papers provided so as to enable the IGP to attend and participate in the meeting and make a representation, if the IGP so desires”.
It is also declared the role of any experts as may be appointed under Section 14 is purely advisory and it would be the prerogative of the IGP to seek out and draw on such expertise at his discretion, but on no account can any expert dictate the IGP on any matter falling within his competence, it added.
The SHC also ruled: “The proviso to sub-section (1) of Section 15 of the Police Order is struck down, and in terms of the Ghaidan approach, the term “approval”, as appearing in sub-section (3) thereof is to be read as “consultation”. Section 21 of the Police Order relating to the constitution of police regions and divisions is read down so that the word “approval” is to be read as “consultation” of the CM”.
SHC strikes down police order sections to stop govt from dictating to IGP
Ishaq TanoliJuly 28, 2023
• Observes the force manifests colonial-era mindset, should be transformed into people-friendly agency
• Declares role of CM, cabinet and experts in postings, formation of police regions ‘advisory’
KARACHI: The Sindh High Court on Thursday struck down an amendment made to the police order in 2019 to essentially accord primacy to chief minister in the posting of senior police officers and ruled that the role of CM was advisory only.
The court also declared that henceforth, any exercise of powers by Sindh government through its cabinet for the appointment of experts to assist provincial or city police officer and formation of police regions/divisions would require meaningful consultation with the inspector general of police.
A bench comprising Chief Justice Ahmed Ali M. Shaikh and Justice Yousuf Ali Sayeed further declared that any move to remove an IG from the post prior to conclusion of three-year term would be subject to the rule laid down by the Supreme Court and SHC in the cases of Anita Turab and Karamat Ali.
It said that role of chief minister regarding constitution of police regions/divisions and transfer of senior police officers under exceptional circumstances would be advisory only.
The bench directed the authorities concerned that provincial and district public safety and police complaints commissions were to be activated and meetings thereof were to be convened at least once in a month until proper rules were framed in this regard.
It also asked the respondents and all instrumentalities of the provincial government as well as federal government to give full, immediate and meaningful effect to these directives and the respondents were also restrained from acting in any manner that was either inconsistent with or which contradicts any such orders or directions.
Political favour
The judgement, authored by Justice Sayeed, said: “Additionally, touching upon the subject of entrepreneurialism, as alluded to during the course of arguments, we are conscious that an unfortunate reality and uncomfortable truth is that there may be functionaries of the police, and indeed other services, who may actively seek out political alliances and ends or place themselves at the disposal of political forces so as to curry favour for personal benefit, but that does not mean that a proper enabling environment should not be ensured for those officers who wish to protect and serve with dignity and honest intent in accordance with the best traditions of policing, whilst asserting their independence. That being said, we leave the final reality of such matters to divine providence and end this judgment with a silent prayer for betterment”.
The bench passed the judgement while disposing of three petitions filed by Jibran Nasir, Arif Hasan, Syed Zafar Ali Shah and others between 2019 and 2021 mainly pertaining to the Police Order 2002 as revived vide the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 promulgated by the Sindh Assembly on June 26, 2019.
Complaint redressal mechanism
The petitioners essentially impugned certain provisions of the Police Order about constitution and administration of the police force, posting of various key officials, challenging the statute as a whole and questioning the vires of two chapters of Police Order dealing with the police oversight and complaint redressal mechanism as well as deletion of chapter-X which had dealt with the subject of the police complaints authority.
While representing the petitioners Faisal Siddiqui, Basil Nabi Malik and other lawyers advanced their arguments and Umair Usman and Junaid Ahmed argued the matter on behalf of interveners while Advocate General Hassan Akbar, along with other law officers, represented the Sindh government.
Colonial era mindset
The bench observed that the former colonial rulers of the subcontinent developed the police as an armed force and as an organisation-oriented gear not to the service of the people but to the maintenance of public order in the interest of preserving the authority of the British Crown.
As a product of that time, the Police Act thus represented a piece of colonial legislation enacted to perpetuate an oppressive foreign rule, where the police force was often an agency of oppression and subjugation, with the relationship between the police and the public being one of suspicion, it added.
However, the bench noted, in today’s paradigm with independence and self-governance under a constitutional framework, the aspirations and expectations of the people had grown and it was sufficiently clear that there existed a duty of the state to protect and safeguard fundamental rights.
Therefore, it is manifest that a people-friendly and service-oriented police force is the requirement of the day, with there being a need for the system to inspire public confidence by serving all communities fairly, so as to usher in compliance with the rule of law, it maintained.
Rule of law
“The rule of law is a fundamental feature of our constitution. No one, not even the minister in charge of the police administration, has the power to direct the police as to how it would exercise its statutory powers, duties and discretion,” it added.
The SHC also observed that edifice and functioning of the police needed to be reimagined and restructured so as to make it a people’s police, which can best be done by striking correct balance between autonomy and accountability.
The judgement further said: “It is declared that, henceforth, any exercise of powers by the government through the cabinet under Sections 7 [constitution of police] and 14 [appointment of experts] would require meaningful consultation with the IGP, who would be invited to attend the relevant meeting, with proper and sufficient notice to necessarily be given and the relevant papers provided so as to enable the IGP to attend and participate in the meeting and make a representation, if the IGP so desires”.
It is also declared the role of any experts as may be appointed under Section 14 is purely advisory and it would be the prerogative of the IGP to seek out and draw on such expertise at his discretion, but on no account can any expert dictate the IGP on any matter falling within his competence, it added.
The SHC also ruled: “The proviso to sub-section (1) of Section 15 of the Police Order is struck down, and in terms of the Ghaidan approach, the term “approval”, as appearing in sub-section (3) thereof is to be read as “consultation”. Section 21 of the Police Order relating to the constitution of police regions and divisions is read down so that the word “approval” is to be read as “consultation” of the CM”.
SHC strikes down police order sections to stop govt from dictating to IGP
Observes the force manifests colonial-era mindset, should be transformed into people-friendly agency; declares role of CM as "advisory".
www.dawn.com
