Don’t violate Supreme Court verdict, SHC tells Sindh govt

Court seeks advocate general and additional attorney general’s comments on
petition filed by rights activists against IGP AD Khowaja’s ‘forced leave’

The Sindh High Court ordered the provincial government on Wednesday to not violate the apex court’s judgements that protected the tenure of federal and provincial police heads for three years while dealing with the issue of IGP AD Khowaja’s transfer or removal.

The directives came on a petition filed by Karamat Ali and other right activists against the repeal of the Police Order, 2002, purportedly through the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011, the lack of implementation of the Police Order, 2002, and the illegal action of the Sindh government to interfere and remove IGP AD Khowaja.

The petitioner’s counsel, Faisal Siddiqui, submitted that the Police Order 2002 was repealed by the Sindh government in 2011 by reviving the Police Act 1861 even though the Police Order 2002 was protected under Article 142(b) of the Constitution that conferred concurrent jurisdiction of the parliament and the provincial assembly to legislate on criminal law, procedure and evidence.

The counsel contented that there was no specific entry in the concurrent list to confer the jurisdiction either on the parliament or the provincial assembly to legislate laws for the police and such laws were legislated on basis of entry 1 and 2 available in the concurrent list.

He argued that these entries were removed from the concurrent list through the 18th Amendment, but the provincial government misconstrued that it fell in its domain and legislated the 2011 Act, which was a federal legislation.

He submitted that through the 18th Amendment, the introduction of the sub-clause (b) to Article 142 instantly filled the void and empowered the parliament and the provincial assemblies to legislate matters related to criminal law, procedure and evidence rendering it as an occupied field and accordingly the provincial legislature was not entrusted with singular authority of legislating in respect of these subjects; rather these subjects continued to be legislated by the parliament and provincial assembly concurrently.

The counsel submitted that the act of the provincial government which resulted in promulgation of the Revival of the Police Act 2011 had no constitutional merit and besides the Article 143 provided that where there is an inconsistency between federal and provincial laws, the federal laws prevailed; therefore the repeal of a federal law by provincial legislators through the 2011 Act was in direct violation of these constitutional provisions.

He also drew the attention of the court to the “forced leave” controversy of the IGP and submitted that the provincial government was about to remove Khowaja, who was appointed on March 12 this year, despite the protection of three years of tenure under Sindh government rules of business as well as the judgements of the Supreme Court in the Anita Turab and Haider Ali cases.

The petitioner’s counsel submitted that tenure of the heads of federal and provincial police had been protected by the Supreme Court for three years and requested the court to restrain the provincial government from removing the IGP who had allegedly seen sent on forced leave and there were strong apprehensions that he would be removed from his post by the provincial government.

The counsel further submitted that subsequent to the forced leave of the IGP, the provincial government was trying to interfere in the process of police force recruitment by reducing the passing marks of NTS from 40 to 35, solely aimed to induct individuals, who had initially failed.

The court was requested to declare the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011, unconstitutional as the Police Order, 2002, was constitutionally and legally valid and in force and had not been repealed by through the provincial legislation.

He also sought a restraining order against the provincial government to prevent it from taking any adverse action against the IGP.

An SHC division bench headed by Chief Justice Sajjad Ali Shah observed that the contention in the petition required consideration and issued notices to the advocate general and the additional attorney general for January 12 seeking their comments. The court in the meantime directed that the IGP’s removal would not be dealt with in a manner that violated the apex court’s judgements.