ISLAMABAD - The judgment of Supreme Court in former Inspector General Sindh AD Khawaja Transfer Case, wherein it has observed that the provincial government does not have the freedom to unilaterally disregard the Police Services of Pakistan Rules, will not have any impact on 18th amendment.

The top court in its six-page judgment in the case, heard by former Chief Justice Mian Saqib Nisar, has already declared Police as a concurrent subject on which both federal as well as a provincial government can legislate.

However, the Pakistan People’s Party (PPP)-led Sindh Government is attempting to make few of the SC judgments as basis for setting political scores in the garb of alleged attack on 18th Amendment by Pakistan Tehreek-e-Insaf (PTI)-led federal government and the Supreme Court.

Besides judgment in AD Khwaja Transfer Case, the judgments also include the one wherein it was declared that Jinnah Post Medical Centre (JPMC), National Institute of Cardiovascular Institutes (NICVD) and National Institute of Child Health (NICH) in Sindh fall within the domain of the federal government. A five-judge larger bench headed by former Chief Justice Mian Saqib Nisar had heard the case.

Recently, Chairman PPP Bilawal Bhutto in a press conference in Khairpur had also vowed not to allow anyone to undermine the 18th Amendment and said that besides other options, he was also ready for a long march to foil any bid to roll back the 18th Amendment, which empowered provinces to make administrative decisions on the subjects which are concurrent subjects.

Likewise, Chief Minister Sindh Murad Ali Shah is also critique of top court’s decisions on matters relating to federal legislative list and concurrent legislative list.

Legal experts are also divided on the top court’s judgments relating to administrative powers of federal and provincial governments. One section regarding judgment in AD Khwaja case believes that when the subject of police has already been declared as concurrent subject, there is no question of attacking the 18th Amendment.

However, PPP’s legal wizards say that their party had introduced 18th Amendment to devolve the powers and their party will go to every extent to safeguard provincial autonomy, adding that provincial autonomy is considered to be a salient feature in parliamentary democracy.

They say that the administration of justice, including criminal justice, falls exclusively in the domain of the provinces and therefore legislative competence over the subject of police could be claimed by the provinces.

Pakistan Bar Council (PBC)’s active member Advocate Raheel Kamran Sheikh, who was counsel of one of the appellants in AD Khwaja Case, said that the argument in the instant case was not primarily based on 18th Amendment.

He said that the question was whether or not ‘police’ was a subject covered by the legislative subjects of ‘criminal law’ and ‘criminal procedure’ specified in Article 142(b) of Constitution which have remained concurrent subjects all along before and after the 18th Amendment.

“Secondly, whether police service was part and parcel of All Pakistan Service under Article 240 of the Constitution? One could argue that the subject was not covered by those articles of the Constitution, as did Justice Munib Akhter, but the case was not meant to attack 18th Constitutional Amendment, as being alleged by PPP,” said Advocate Sheikh.

However, regarding Police, the PTI-led federal government believes that it is a provincial subject and not listed in the federal legislative list of the 4th Schedule. It is of the view that Article 268 of Constitution, which pertains to the implementation of the laws, does not curtail the authority of provincial legislature to legislate on police.

The judgment on former IG Sindh states that the Police Services of Pakistan (PSP) is an all Pakistan Service for which the Police Service of Pakistan (Composition, Cadre and Seniority) Rules 1985 framed by the federal government, stipulate in the proviso to Rule 7 that 40% of senior cadre posts in a province shall be allocated to the members of the Police cadre of such province.

In other words, 60% of such senior cadre posts are to be filled by persons who are not members of the Police cadre of such province.

“The PSP officers are in the service of the federation and are subject to its discipline, notwithstanding that they may be working in the provincial government.”

Pursuant to Article 240 of the Constitution and under the arrangement envisaged by the PSP Rules, the appointment and terms of services of PSP officers in a province are necessarily matters that have to be settled collaboratively by the federal government and the provincial government.

“A decision in this respect is to be taken by consultation and cooperation between federal government and the concerned provincial government. Equally, therefore the terms of his service must be respected by both governments and in case of his whimsical treatment by one government the other has good ground to object.”

In this scenario, the judgment adds, the provincial government does not have freedom to unilaterally discharge the PSP Rules backed by Article 240 of the Constitution.