The mismatch between the existence and actual implementation of laws is itself a reflection of state capacity in Pakistan.
From 1861 to 2002, the question that was primarily asked was who would watch the watchmen? After the promulgation of Police Order 2002, the question slightly evolved as to how the watchmen were to be watched. The watchmen in this case are the police and those who have been assigned the duty to keep watch.
For the past two years, Punjab police has been facing a commandant turmoil. Five Inspector Generals of the province have been changed within a period of two years. Without going into the political connotations and the volatile situation of the command-less civil force, this article will highlight the legal composition of the police department empowered by the Police Order 2002 and the judgments of superior courts.
Article 11 of the Police Order 2002 outlines how a provincial police officer such as the Inspector General (IG) is to be posted. Clause 1 of the article states the following:
“The Provincial Government shall, out of a panel of three police officers recommended by the Federal Government, post a police officer of the rank of Inspector General of Police as Provincial Police Officer of the Province.”
Before a police officer is posted as a provincial police officer under clause 1, the federal government is to place his or her services at the disposal of the provincial government.
Clause 2 of Article 11 can be divided into three parts to explain how an Inspector General is to be legally appointed:
I: Three senior most officers, not below the rank of Additional Inspector General of Police, are to be recommended by the National Public Safety Commission.
The National Public Safety Commission was formed in 2006 under the Police Order 2002. The Commission consists of twelve members and the ex-officio Chair. The Commission is designed to oversee the functioning of the Federal Investigation Agency, Pakistan Railways, Anti-Narcotics Force, Frontier Constabulary and Pakistan Motorway and Highway Police.
The Commission recommends to the federal government a panel of three police officers for appointment of the Capital City Police Officer for Islamabad and heads of FIA, Pakistan Railways, Pakistan Motorway and Highway Police and Frontier Constabulary (Article 11).
The National Public Safety Commission is to recommend a premature transfer of the Capital City Police Officer for Islamabad, FIA, Pakistan Railways, Anti-Narcotics Force, Frontier Constabulary and Pakistan Motorway and Highway Police for unsatisfactory performance of duties (Article 12).
II: After receiving recommendations from the National Public Safety Commission, the provincial government is to post a police officer as the Provincial Police Officer (IG).
III (alternative remedy): Posting can also be done on the “recommendation” of the Provincial Police Officer.
Clause 3 further empowers the federal government to appoint anyone recommended by the National Public Safety Commission to head the Federal Investigation Agency, Pakistan Railway Police, Pakistan Motorway, Highway Police and Frontier Constabulary.
After shortlisting recommended names, the Inspector General of police is finalized.
At this point, the Fourth Schedule of the Punjab Government Rules of Business 2011 gets activated. It lists down the “cases relating to appointments, promotions, postings and transfers requiring approval of the Chief Minister”. Serial No. 10 of the Forth Schedule states that after the approval of the Chief Minister, the Inspector General of Punjab Police is appointed.
The procedure outlined above is the basic procedure for appointing the Inspector General. Article 12 of Police Order 2002 specifies the length of term for which the Inspector General is to be posted. Clause 1 of the article states the following:
“The term of office of Provincial Police Officer, Capital City Police Officer and Head of a Federal Law Enforcement Agency posted under Article 11 shall be three years from the date of posting.”
On the other hand, Clause 2 of article 12 also allows the provincial government to transfer the Provincial Police Officer before the expiry of tenure.
It is to be noted that the above-mentioned ‘premature’ transfer of the senior-most Provincial Police Officer is subject to ‘unsatisfactory performance’. Clause 3 of article 12 states the following:
“The Provincial Government or the respective Public Safety Commission may initiate the case of premature transfer of the officers mentioned in clause (2) for unsatisfactory performance of duties.”
If departmental proceedings under clause 3, article 12 get initiated against the Inspector General, clause 5, article 12 can provide a defense to the aggrieved Inspector General as it debars the federal and the provincial governments to act individually. Clause 5 of article 12 states the following:
“The Federal Government or the National Public Safety Commission may initiate premature transfer of the officer mentioned in clause (4) for unsatisfactory performance of duties:
Provided that before premature transfer of the officers mentioned in clause (3) and clause (5) the appropriate Commission shall give the concerned officer an opportunity of being heard in person.”
Similarly, the federal government and the provincial government alone do not have the authority to act without providing the officer in question an opportunity to be heard in person. Clause 6 of article 12, Police Order 2002 states the following:
“The Federal Government may, with the agreement of the National Public Safety Commission, recall a Provincial Police Officer or the Capital City Police Officer.”
The recent dismissal of the former IG Police, Punjab and five others before him is not just against Police Order 2002, Rules of Business and judgments of the Supreme Court of Pakistan, but is also in clear in violation of the universal maxim “audi alteram partem” (‘no one should be condemned unheard’).
Neither has the new IG been appointed as per the procedure mentioned above, nor has the sacked IG been given an opportunity to be heard in person (if he had been performing his duties in an unsatisfactory manner). Such actions may be classified as politically motivated moves, which, if viewed from a legal perspective, are arbitrary and discriminatory.
The Supreme court has ruled against such discriminatory practices. In Nizamud Deen vs Civil Aviation Authority [1999 SCMR 467], the court held the following:
“Government is not supposed to discriminate between the citizens and its functionaries; cannot be allowed to exercise discretion at their whim, sweet will or as they please rather they are bound to act fairly, evenly and justly.”
[The next article will outline the legal remedies available to the police commander who has been sacked].
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
