It is said that the Prime Minister’s vision for police reforms is that the police force is: “…politically neutral, operationally autonomous, accountable and oriented towards professionalism, specialised improved service delivery and enhanced community engagement, in line with the international best practice…” Of course, the role of legislation, as a means of introducing change, in any comprehensive reform project, cannot be undermined. The Khyber Pakhtunkhwa Police Act, 2017, being case in point.

However, the question whether “police” is within the legislative competence of the Federation or the Provinces (or indeed both) is as contemporary and hotly contested as the merits of the legislative instrument that gives rise to such debate: The Eighteenth Amendment.

The Supreme Court of Pakistan has declared, as recently as in January this year (in former Inspector General Sindh AD Khawaja’s Transfer Case), that ‘police is a concurrent subject’ on which both the federal and a provincial government can legislate. Indeed, no sooner was such judgment pronounced that the divisions of legal opinion on the subject matter became blatant, with experts on either side swearing to the merits of their respective perspective. These were followed by review petitions against such order, which remain pending at present.

Rationally speaking (and constitutionally), “Police” as a legislative subject-matter could fall within three possible competences:

Option A: the Federal;

Option B: the Provincial; or

Option C: the Concurrent.

Few advocate for Option A. Of the various entries in the Federal Legislative List of the Constitution (both Part I and II), “Police” is not one. “Not as such”, at the very least. This, for those in the know-how, is a pre-condition for validity of Option A.

Those who advocate for Option B are pre-dominantly (if not exclusively) also standard-bearers for greater provincial autonomy. Their primary justifications centre on the absence of “Police” from the Federal Legislative List of the Constitution and the primary purpose of the 18th Amendment: devolution of power. This, it is suggested, is inclusive of the “policing power”, or the maintenance of public order.

Those siding with Option C (inclusive of the Supreme Court, as would appear), suggest that “Police”, as a subject, is covered by the legislative subjects of ‘criminal law’ and ‘criminal procedure’ specified in Article 142(b) of Constitution. These, are the concurrent subjects.They suggest Article 142(b) confers concurrent competence upon the Federation and the Provinces in relation to crime prevention, detection and investigation of specified crimes. Of course, this is despite of the fact that Article 142(b) does not expressly mention “Police”. Not “as such” at the very least. Clearly, this is not a simple problem. Certainly not from the interpretative perspective.

Indeed, the situation is complicated when appreciating that “The Police Service of Pakistan (PSP)” is an “All-Pakistan Service”. This is not without implication since, per Article 240(a) of the Constitution, the appointments to and the conditions of service of persons in the All-Pakistan Services are to be determined by Act of Parliament!

So let us take a step back.

The Constitution does not explicitly demarcate “Police” as a legislative subject to the Federation. Does it do so implicitly? Enter Entry No. 11 of Part II of the Federal Legislative List and the now not-so-radical-of-a-notion that the word “police” is representative of an entire “profession”, as opposed to just a service:

“I suppose you could sum it all up by saying that in Britain certainly, and I have no doubt elsewhere, the time has come when the police are abandoning their artisan status and are achieving by our ever-increasing variety of services, our integrity, our accountability and our dedication to the public good, a status no less admirable than that of the most learned and distinguished professions…”

(Mark R. (1977) Policing a perplexed society, London: George, Allen and Unwin.)

As manifest, the designation of the police as a profession is not a contemporary idea. Indeed, some go as far as viewing the police as a profession akin to medicine, the law etc. (Neyroud P. (2011) Review of Police Leadership and Training. London). Of course, in Pakistan (and elsewhere), both doctors and lawyers have their respective professional bodies; be they the PMDC or the relevant Bar Councils. The same, unfortunately, cannot be said of the policing profession. If policing can be said to be a profession akin to the legal or medical professions, then it may be beneficial to note that the Parliament may (in terms of Article 142(a) of the Constitution of Pakistan, 1973, read with the earlier noted Entry No. 11 of Part II of the Federal Legislative List) make laws regulating “Legal, medical and other professions”. Since the Entry occurs in Part II of the Legislative, it is the Council of Common Interests, as opposed to the Federal Government, that is responsible for formulating and regulating policies in relation to such subject matter; and for exercising supervision and control over related institutions (Article 154 of the Constitution).

This, naturally, would entail a sense of collective ownership of the professional body in that the membership of the Council consists of the Prime Minister, the respective Chief Ministers of the Provinces and three members of the Federal Government to be nominated by the Prime Minister. Considering on-ground realities, this would also give the present ruling party in the Federation considerable leeway since decisions of the Council are expressed in terms of the opinion of the majority.

In the United Kingdom, the College of Policing was established in 2012 as the professional body for everyone who worked for the police service in the country. The purpose of the College was to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public, and secure public trust. It would, of course, be difficult to resist the suggestion that the nature of policing itself has now reached a position where the evolving nature of the knowledge requirement and skills development within the occupation mean that formal “professionalization” has potentially significant benefits for policing and the public it serves. In particular, a professional body, in the right form, ought to provide the opportunity to provide clearer standards, a service-owned qualification framework, greater focus on professional development across all roles and, as a result, a new, more productive relationship with the public.

So where do we stand vis-à-vis the power to legislate on “police”?

One would suppose not too far from the Supreme Court and that would indeed appear to be the case. If the Eighteenth Amendment sought to completely devolve the policing power, and of the power to legislate on all other matters related to the “police”, then the same, with respect, fell visibly short of its stated purpose. This has resulted in somewhat of an “interesting” constitutional situation where none of our three proposed options seem to fully cater to the problem presented. It would thus appear that, in a sense, there are certain aspects of “police” which are clearly Federal, other manifestly concurrent; everything left, obviously, Provincial.

Of course, one could just as easily replace the word “interesting” with “chaotic” and the statement would be no less true.