Police Order 2002 was validly repealed,home department tells SHC

Home secretary says police law is not criminal law,

advises against mixing up the two

The Police Order 2002 was validly repealed, and a legislated statute through the Sindh (Repeal of the Police Order 2002 and Revival of the Police Act 1861) Act 2011 had replaced it, the home department told the Sindh High Court on Thursday.

Filing comments on a petition filed by Karamat Ali and other rights activists and non-governmental organisations against the repeal of the Police Order 2002 and the “illegal action of the provincial government to render Sindh police chief AD Khowaja ineffective”, the home department said the police was a provincial subject and it had no relevance to the concurrent jurisdiction of the Parliament and the provincial assembly.

The home department’s secretary said the police was neither part of the federal legislative list nor the concurrent list and was a subject entrusted to the provinces, adding that the 18th amendment did not disturb or change the position.

He told the court that the police law was not a criminal law but an organisation law; therefore, mixing up the police act with criminal law was nothing but lack of legal understanding of the petitioners regarding the constitutional position.

He said the legislature was the competent authority to amend, alter or repeal the law governing the police force, including the police order.

The home department’s view on the allegation of politicising the police was that there was no provision in the 2011 act that led to the practice.

Regarding transparent appointment of 20,000 police personnel, the department said the posts were created by the Sindh government and the decision to recruit them was taken by the apex committee constituted under the National Action Plan and chaired by the chief minister, adding that the police chief had implemented the orders of the CM.

Regarding the three-year tenure of the police chief, the home secretary said none of the chiefs appointed between 2005 and 2011 had completed their tenure, even when the Police Order 2002 was effective.

He said Asad Jehangir’s tenure lasted 10 months, Jehangir Mirza’s 15 months, Niaz Siddiqui’s two months, Ziaul Hasan Khan’s seven months, Azhar Ali Farooqi’s four months, Dr Shoaib Suddle’s two and a half months and Fayyaz Leghari’s five months.

The court was informed that Khowaja had resumed his duties at the beginning of the new year after his leave ended. Advocate General Zamir Ghumro said the government had no intention of removing him from his post.

The division bench, headed by Chief Justice Sajjad Ali Shah, remarked that the law regarding appointment and removal of the police chief needed to be addressed. After bringing the comments of the home department and other respondents on record, the court directed the remaining respondents to file their comments and adjourned the hearing until February 15.

In the meantime, the court continued the interim order, directing the government that the issue of removing the police chief should not be dealt with in violation and contradiction of the Supreme Court’s judgments.

Rights activists and organisations had moved the court against the repeal of the Police Order 2002, lack of implementation of the Police Order 2002 and the issue of the police chief.

Petitioners’ counsel Faisal Siddiqui said the Police Order 2002 was repealed by the Sindh government in 2011 by reviving the Police Act 1861, despite the fact that the Police Order 2002 was protected under Article 142(b) of the Constitution, which conferred concurrent jurisdiction of Parliament and the provincial assembly to make laws with respect to criminal law, criminal procedure and evidence.

The court was requested to declare Sindh (Repeal of the Police Order 2002 and Revival of the Police Act 1861) Act 2011 “unconstitutional” and the Police Order 2002 “constitutionally and legally valid”.

They also sought a restraining order against the provincial government from taking any adverse action against the police chief, including but not limited to sending him on forced leave or his removal or transfer, except in accordance with the Police Order 2002.