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Official Citation: 2023 PLD 440
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-07-27
Parties: Muhammad Jibran Nasir & others, Arif Hasan & others, Syed Zafar Ali Shah vs Federation of Pakistan and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-07-27, officially reported as 2023 PLD 440. In this matter between Muhammad Jibran Nasir & others, Arif Hasan & others, Syed Zafar Ali Shah and Federation of Pakistan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2023 Sindh 440
Court Name: Sindh High Court Judge(s): Yousuf Ali Sayeed, Ahmed Ali M. Shaikh (C.J) Title:Muhammad Jibran Nasir & others, Arif Hasan & others, Syed Zafar Ali Shah
vs Federation of Pakistan and others Case No.: C.P No. D-6382 of 2019, C.P No. D-864 of 2020, C.P No. D-53 of 2021 Date of Judgment:2023-07-27 Reported As: 2023 SHC 451, PLD 2023 Sindh 440 Result: Petition Disposed of Judgment ORDER YOUSUF ALI SAYEED, J. - The three petitions at hand pertain to the Police Order 2002 (the "Police Order"), as revived vide the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 (the "Amendment Act") promulgated by the Provincial Assembly of Sindh on 26.06.2019, and have been brought by the respective Petitioners in their capacity as concerned citizens or NGOs as a matter of public interest. 2. As the somewhat convoluted title of the Amendment Act reflects, the law on the subject of policing in the province has remained in a state of flux, with the Police Act, 1861 (the "Police Act") and Police Order having interchangeably held the field from time to time. The Police Order, as firstly promulgated on 14.08.2002, repealed the Police Act and was then in turn itself repealed through the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 promulgated on 14.07.2011, which also revived the Police Act with immediate effect as it stood on 13.08.2002, inclusive of the amendments made thereto vide the Police (Amendment) Order, 2001. The Amendment Act was then promulgated on 26.06.2019 so as to revive the Police Order on and from 13.07.2011, albeit in an altered form, and to once again repeal the Police Act. Thus, the Police Order, in its amended form, presently represents the principal statute on the subject of the police and the function of "policing" in force in the province. 3. Of the Petitions, C.P. No. D-6382 of 2019 essentially impugns certain provisions of the Police Order falling under Chapter I thereof, pertaining to the constitution and administration of the police force and the postings of various key officials, whereas C.P. No. D-53 of 2021 casts a wider challenge to the statute as a whole, but as will be discussed in due course, came to be confined during the
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course of arguments in a manner similar to the earlier matter. On the other hand, C.P. No. 864 of 2020 challenges the vires of Chapters V and VIII, dealing with the Police Oversight and Complaint Redressal Mechanism, and impugns the deletion of Chapter X, which had dealt with the subject of the Police Complaints Authority. 4. Apart from pertaining to the same subject (i.e. the Police Order, as amended), the Petitions are bound by yet another common thread - being their predication on the tenets of "autonomy of command" and "independence of operations", free of interference from political interference, as have been held to be a sine qua non for proper policing and intertwined with the safeguarding of the fundamental rights of the public at large in a seminal judgment rendered on 07.09.2017 by a learned Division Bench of this Court in Constitutional Petitions Numbers D-7096 of 2016 and 131 of 2017, since reported as Karamat Ali and others v. Federation of Pakistan and others PLD 2018 Sindh 8 ("Karamat Ali") and upheld by the Supreme Court vide an Order dated 22.03.2018 in Civil Appeals Numbers 148 to 150 of 2018 (the "SC Order"). 5. Succinctly stated, in Karamat Ali, whilst interpreting and adjudicating upon the erstwhile Police Act, as had then been revived and restored by the Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011, the learned Division Bench considered and applied an approach formulated by the House of Lords in the case of Ghaidan v. Mendoza [2004] UKHL 30, [2004] 3 All ER 411 ("Ghaidan"), as came to be summarized by the Court of Appeal in Vodafone2 v. Commissioners [2009] EWCA Civ 446, [2010] Ch 77, with that summation being then referred to with approval by Lord Mance in his minority judgment in the UK Supreme Court in Assange v. The Swedish Prosecution Authority [2012] UKSC 22, [2012] 4 All ER 1249. 6. As the relevant passages of Ghaidan have been extensively quoted in Karamat Ali (from paras 76 to 79), it is unnecessary to burden this Judgment with further reproduction thereof, other than to note the submission of the relevant principles of the Ghaidan approach and its exceptions, which were recorded by the learned Division Bench as follows: "(a) It [i.e., the Ghaidan approach] is not constrained by conventional rules of construction; (b) It does not require ambiguity in the legislative language; (c) It is not an exercise in semantics or linguistics; (d) It permits departure from the strict and literal application of the words which the legislature has elected to use; (e) It permits the implication of words necessary to comply with Community law [and Convention] obligations; and (f) The precise form of the words to be implied does not matter. The Ghaidan approach is however subject to the following limitations, which are the "only constraints on the broad and far-reaching nature of the interpretative obligation": (a) The meaning should "go with the grain of the legislation" and be "compatible with the underlying thrust of the legislation being construed." An interpretation should not be adopted which is inconsistent with a fundamental or cardinal feature of the legislation since this would cross the boundary between interpretation and amendment; and (b) The exercise of the interpretative obligation cannot require the courts to make decisions for which they are not equipped or give rise to important practical repercussions which the court is not equipped to evaluate." 7. Keeping those principles and limitations in mind, the learned Division Bench observed that: "81. In our view, the Ghaidan approach can usefully be adopted for purposes of Article 199, and especially clause (1)(c), and regarded as providing the necessary jurisprudential framework that allows for a statute, whose meaning is otherwise clear in terms of standard model interpretation, being nonetheless interpreted and applied in some other manner so as to enforce fundamental
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rights. Insofar as the High Court is concerned, the Ghaidan approach is to be applied in relation to Article 199 subject to the limitations noted above." 8. Testing the various provisions of the Police Act on that touchstone, the learned Division Bench went on to consider "(i) whether the enforcement of fundamental rights requires the Police Act to be interpreted by applying the Ghaidan approach; and if so, (ii) what would be the appropriate basis for such interpretation?" (at Para 82) 9. In that particular context, the autonomy of command and independence of operation was identified as best addressing the objective of ensuring an effective, functional and efficient police, being essential for maintaining the rule of law and providing an environment and framework in which fundamental rights could thrive and be guaranteed. It was held inter alia (Munib Akhtar, J, speaking for the Court) that: "84. ...It is of course undeniable that proper policing and an efficient and effective police force have a connection with many, and perhaps most, fundamental rights. This is true not merely because, in a general sense, fundamental rights are best enjoyed in an environment where the rule of law is respected and properly enforced, and the rule of law is in essential part dependent on the law and order situation, which in turn depends on effective policing. The nexus is deeper and more intimate. Some individual rights have a direct connection with policing. Obvious examples include Articles 9 and 10, which preserve the right to life and liberty and protect against arrest and detention. These rights are, in a most basic and direct sense, dependent on a police force that is properly responsive to the rule of law. Another example is Article 14(2), which prohibits the use of torture for the purpose of extracting evidence; the link here requires no explanation. Other fundamental rights also, on a moment s reflection, lead to the same conclusion. Here, one can refer to Article 15 (the right to free movement) and Article 16 (freedom of assembly). It must also be remembered that most fundamental rights are not cast in (apparently) absolute terms, but expressly allow the State to impose reasonable restrictions in certain specified circumstances (which vary from right to right). Where such restrictions are legitimately imposed, they may take the form of prohibitions that are backed by penal sanctions, i.e., are criminal offences. Here again, the connection between the fundamental right and proper policing is obvious. We may note that while an efficient police force is necessary for enforcing the rule of law and hence fundamental rights, efficiency in and of itself is not enough. A police force may be efficient but no respecter of fundamental rights. To some, that may be a legitimate tradeoff; the Constitution however, takes a different view. But, it cannot be denied that a functional police force and one that is effective at doing its job is a sine qua non for the proper enforcement of fundamental rights. There is in addition another aspect in which effective policing is necessary for such purposes. The traditional approach to fundamental rights is to emphasize the "negative" role of the State, i.e., to focus on what the State cannot do. From this perspective, it is State inaction that is called for. However, it is not merely enough for the State not to do anything that violates fundamental rights. It may sometimes also be necessary for the State to play a "positive" role, i.e., take action and do things that lead to the enforcement of fundamental rights. (The exact scope of this obligation must be regarded as subject to further analysis and consideration in future.) The most basic of fundamental rights, that of life and liberty enshrined in Article 9, is dependent on proper and effective policing for its proper enjoyment. The State is not merely under an obligation not to take away life or liberty, save in accordance with law. Surely, it is also under a duty to ensure that all persons can even otherwise enjoy these rights without fear or interference from others. At its most basic level, this requires a police force vigilant in the preservation of law and order. Other examples can be cited. Take, for example, Article 15, the right of free movement. It is necessary for the State not to do anything that curtails this freedom (although it may impose reasonable restrictions in the circumstances listed in the Article). However, even if the State does nothing (i.e., imposes no restrictions at all) what good is this right if
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a citizen cannot move from place A to B because the law and order situation along the way is so bad that travel is sharply restricted or even, for some, impossible altogether. Is not the right effectively curtailed in such circumstances? Here, the State may well be under a duty to take the necessary action to ensure that the fundamental right can be exercised in a meaningful manner. As is obvious, the police have a vital role to play in this regard. Another example is Article 16, the right of assembly. If citizens wish to assemble peacefully and without arms for any legitimate purpose but are unable or afraid to do so because of (e.g.) hostility from this or that group, it is surely the duty of the State to ensure that the situation on the ground is such as enables the citizens to effectively exercise their right. Here again, proper policing is necessary. These examples can be multiplied across virtually the entire spectrum of fundamental rights, but perhaps enough has been said to make the point. However, if the police force is so inept, demoralized or reduced to such a level of incompetence, or its operations are organized and run in such a manner, that it cannot perform its essential functions and duties, then clearly many fundamental rights are effectively denied to the citizens. It is clear therefore that in appropriate circumstances it may be necessary to make orders and give directions in respect of policing and the police force in terms of Article 199, and in particular under clause (1)(c), to ensure the proper enforcement of fundamental rights." 10. In the same vein, it had earlier been held by the Supreme Court in the case reported as Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 Supreme Court 531 that: "43. Human rights law makes a distinction between positive and negative rights, wherein positive rights usually oblige action and negative rights usually oblige inaction. Similarly, many of the fundamental rights granted by our Constitution pertain to both positive and negative rights. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. 44. Negative rights place a duty on the state not to interfere in certain areas where individuals have rights. The right holder can thereby exercise his right to act a certain way or not to act a certain way and can exercise his or her freedom of choice within the existing right. For instance, the freedom to profess religion and to manage religious institutions (Article 20) encases the right to both profess a certain religion and not to do so. It also places a duty on the State not to interfere with the religious beliefs and ideologies of individuals. Similarly, the freedom of speech and expression (Article 19) encases the right of an individual to express his views and opinions and engage in dialogue without fear of misplaced sanctions and State intervention, but simultaneously possesses the right to remain silent. Negative rights extend to all civil and political rights and thereby also include the Freedom of Assembly and the Freedom of Association (Articles 16 and 17 respectively). 45. Positive Rights place a positive duty on the state and include social and economic rights. The Right to Education (Article 25A), protection of person and property (Article 9 and Article 24 respectively) and the promotion of social justice and eradication of social evils (Article 37) for instance, would be classified as positive rights. The arguments put forth by learned counsel for the appellant explaining the reasons for introducing the panel system however phrased in a manner that reflect positive rights in action, are discriminatory in practice and impede a greater number of fundamental rights than they propose to aid" 11. In Karamat Ali, the learned Bench then went on to state that orders and/or directions of such a nature were appropriate and necessary in the respect of the police in Sindh in order to ensure the proper enforcement of fundamental rights in the province, with it being observed as follows: "85. ...Now, policing as a whole is a broad and complex matter. It is intimately connected with, and is an inseparable part of, the overall criminal justice system. It has many aspects and issues, many
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of which have at least the appearance of being so intertwined that some may argue that it is not possible to resolve even a few without trying to resolve them all. It is not possible to address all of the myriad issues involved in the scope of this judgment. However, simply because the task may appear to be gargantuan should not deter us. A start must be made somewhere even though, of necessity, our focus must be relatively narrow and specific. Furthermore, particularity has the advantage, important for a court of law, that any orders made or directions given in relation to the enforcement of fundamental rights can be cast in terms that are, if and as necessary, enforceable judicially, readily and in a meaningful manner. Which aspect of policing is therefore most suitable for present purposes in terms as just stated? That is the question that must now be considered. 86. In our view, the proper approach for the Court in this judgment, while disposing off these petitions, is to consider the Police Act itself. The aspect of policing most suitable for present purposes is the police force, with which the statute is directly concerned. At the risk of repetition (and of yet again restating the obvious) an effective, functional and efficient police force is essential for policing, which provides the basis for a stable law and order situation, which is essential for the rule of law, which provides the environment and framework in which fundamental rights can best thrive and be guaranteed. Furthermore, focusing on the Police Act has the advantage of casting the exercise in statutory form, i.e., essentially requires interpretation and application of an enactment. That of course is a matter that is peculiarly the province of the Court. Additionally, the Ghaidan approach is itself concerned foremost with the proper interpretation of statutes in the context of applying them in a manner compatible with fundamental rights, i.e., of enforcing those rights. We will therefore limit ourselves to a consideration of the statute. But even here the exercise needs to be further particularized. A review of every section of the Police Act, testing each in general terms on the anvil of fundamental rights while adopting the Ghaidan approach, would be too broad and diffuse. The exercise needs to be refined further and focused even more sharply. In our view, what is needed is an objective against which select provisions of the Police Act can be measured and analyzed by applying the Ghaidan approach. This will enable, as necessary, for appropriate orders to be made or directions given to ensure the proper enforcement of fundamental rights. Now, the one problem that has been highlighted by the Petitioners is the failure to adhere to the term or tenure associated with the post of Inspector General, which has resulted in a rapid turnover in the officers holding that post, and the all too frequent transfers and postings in the police force in general. As has already been seen above, there can be no doubt that this is a real problem; the abysmal record in this regard is undeniable. It cannot also be doubted that this problem has a seriously negative and indeed deleterious effect on the performance, efficacy and efficiency of the police force. No organization in which the personnel from the highest to the lowest levels are frequently reshuffled can ever hope to even minimally achieve any performance targets or tasks. Stability in the structure of an organization is essential for its professional health and performance. The frequent changes made in the organizational structure have destabilized the police force. The stability, and the balance that comes with it, must be restored. It would therefore be appropriate if the objective that is to be selected especially addresses this particular problem. 87. In our view, the objective that best addresses the problem just noted can be stated as follows: the police force must have autonomy of command and independence of operation. It is this autonomy and independence that must be regained and restored. Autonomy and independence will bring stability and balance to the organizational structure of the police force by curbing and reducing, and ideally eliminating, the farcical frequency of turnover, transfers and postings that now plague the system. This is therefore the objective against which certain specific sections of the Police Act will be measured and interpreted, using the Ghaidan approach for purposes of ensuring enforcement of fundamental rights. We now turn to this exercise."
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12. Moving onwards, the learned Bench considered the Provincial Government's function of superintendence as per Section 3 of the Police Act vis--vis the administration of the police by the Inspector General of Police (the "IGP"), and Deputy Inspectors-General and Assistant Inspectors- General in terms of Section 4 thereof, in juxtaposition with the IGP's power to make rules under Section 12. Those three sections provided as follows: "3. Superintendence in the Provincial Government. The superintendence of the police throughout a general police-district shall vest in and shall be exercised by the Provincial Government to which such district is subordinate; and, except as authorized under the provisions of this Act, no person, officer or Court shall be empowered by the Provincial Government to supersede or control any police functionary." "4. Inspector General of Police etc. The administration of the police throughout a general police- district shall be vested in an officer to be styled the Inspector General of Police, and in such Deputy Inspectors-General and Assistant Inspectors-General, as to the Provincial Government shall seem fit. The administration of the police in a district shall vest in a District Superintendent and such Assistant District Superintendents as the Provincial Government shall consider necessary." "12. Power of Inspector General to make rules. The Inspector-General of Police may, from time to time, subject to the approval of the Provincial Government, frame such orders and rules as he shall deem expedient relative to the organization, classification and distribution of the police force, ... and the particular services to be performed by them ... and all such other orders and rules relative to the police-force as the Inspector-General, shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties." [Note: Section 12 stands reproduced in part, to the extent relevant.] 13. On a holistic reading of the Police Act, those Sections were measure and interpreted as follows: 88. ...The key word in s. 3 which requires consideration is "superintendence". Keeping the objective in mind, and applying the Ghaidan approach, in our view "superintendence" must be given a meaning that moves within a specified locus only. If the word is understood and applied in terms of standard model interpretation, that would be too broad and diffuse. It would easily allow the autonomy of command and independence of operation to be breached, eroded and effectively reduced to a nullity. The stability of the police force would continue to be compromised and undermined. The problem identified above would not be redressed and all efforts to do so would be thwarted. Therefore, the statutory power of the Provincial Cabinet under s. 3 to "superintend" the police force in Sindh must be regarded as limited to taking decisions of high policy only without (directly or indirectly) impacting on, compromising, affecting, negating, eroding or otherwise curtailing or reducing the force's autonomy of command and independence of operation. Furthermore, the views of the police hierarchy, acting through the Inspector General, must be taken, and the Inspector General must be invited to attend the Cabinet meeting at which the high policy is to be formulated. Indeed, the Inspector General must be likewise invited to attend all Cabinet meetings in which one or more agenda items relate directly or indirectly to law and order, or state security, or policing or the police force so that the views of the police hierarchy can be obtained. He cannot be sidelined. The Inspector General may comment in writing on any proposed policy, and if the Cabinet decides on a policy inconsistent with the views expressed by the Inspector General, then the reasons for the disagreement must be properly recorded and minuted. Furthermore, any high policy that is formulated can only be implemented through the police hierarchy acting through the Inspector General in an autonomous manner, on its own independent assessment of what needs to be done to best achieve the goals of the policy. The objective of autonomy of command and independence of performance cannot be nullified in the guise of enforcing or
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giving effect to a policy decision. Additionally, if there is any reasonable difference or disagreement as to whether any proposed action or matter is one of high policy or not, then it must be resolved in favor of the police force, i.e., regarded as not being high policy and hence outside the scope of s. 3. In other words, the difference between policy simpliciter and high policy must be recognized, maintained and given due effect. Matters of policy simpliciter are to be dealt with by the police hierarchy itself acting through the Inspector General in terms, inter alia, of ss. 4 and 12 in the manner as elaborated below. 89. ...The key word in s. 4 which requires consideration is "administration". Keeping the objective in mind, and applying the Ghaidan approach, in our view "administration" must be given a broad and expansive…
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