Are provinces autonomous?

In 1919, the British Indian government introduced a dichotomous system of governance. It divided the functions of the government into two categories: reserved and transferred subjects.

British officials were responsible for overviewing reserved subjects. While the second category (transferred) came under the control of Indians. Subsequently, concurrent lists were created, outlining the shared responsibilities of constituent units (the provinces of British India) and the centre.

After Partition, the Government of India Act, 1935 and the 1956 and 1973 constitutions of Pakistan continued this tradition.

The concurrent list was finally abolished through the 18th Amendment in 2010. Since then all powers are vested in provinces except those enumerated in the federal legislative list (Schedule 4). Only three subjects, the Pakistan Penal Code 1860, the Code of Criminal Procedure 1898 and the Qanun-e-Shahadat Ordinance 1984 are common between the centre and provinces.

Policing and law and order are not enumerated in the federal list. They are solely provincial subjects. Despite this constitutional bar, the federal government has been controlling the police in the provinces since 1949. The perpetual inability of the provincial civil police forces to deliver services to people lies in this sordid dichotomy. It prevails due to the colonial mindset that is still intact in Islamabad.

Let us repeat, remind and reiterate: policing and law and order are provincial subjects, and parliament can only legislate on subjects enumerated in the federal legislative list. Article 142(C) of the constitution clearly stipulates that provincial assemblies shall and parliament shall not make laws on any subject not enumerated in the federal legislative list. There is no ambiguity whatsoever. Article 142(C) of the constitution unequivocally prohibits the federal government from creating or retaining control over a provincial police force.

Going against this mandate and in clear contravention of the constitution, the federal government refuses to give up control and insists on retaining the right to appoint the senior-most police officers of the provincial police force. This is against Article137 of the constitution.

In 2023, while hearing suo-motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa, SC Justice Mansoor Ali Shah held that “federation is based on the division of powers between the federal government and provinces, and both are independent and autonomous within their constitutional sphere.”

The police station has an essential role in law and order. It is run by sub-inspectors and inspectors of the police service from the subordinate ranks of the provincial forces. The station house officer (SHO) legally possesses all the powers under the Criminal Procedure Code, 1898.

All other supervisory officers – superintendent of police (SP), senior superintendent police (SSP), deputy inspector general (DIQ), additional inspector general (AIG) and inspector general (IG) – come under the federal police service of Pakistan (PSP) and work in provinces on deputation. This is in contravention of the constitution.

These officers are answerable to the federal government, not the provincial governments. While the provincial governments can transfer or request the federal government to post officials guilty of misconduct elsewhere, they cannot take disciplinary action against them; they cannot suspend, remove or dismiss, downgrade or send officers on compulsory retirement even if there are strong cases of misconduct or other charges against them. Control through transfers is fluid and breeds corruption.

The performance (or lack thereof) of the police force is attributed to provincial governments. But how can provincial governments get the police forces under their domain to perform when all their senior officers are appointed by Islamabad?

The Sindh government spends a hefty amount of around Rs150 billion on policing. However, most police stations in the province present a dismal picture. These dilapidated buildings are run by an understaffed, undertrained and overworked workforce and have no budgets of their own.

In contrast, supervisory officers of the PSP are wealthy, well-connected and resourceful. They have dedicated luxury cars, lavish offices and homes and hefty budgets and other attractive perks and privileges. All this at the cost of the provincial exchequer and no accountability to provincial authorities. The provincial home department and the provincial cabinet have virtually no control over them.

After Partition, both the Punjab border police and Sindh Rangers were merged under West Pakistan Rangers, through an ordinance adopted in 1959. This ordinance, being a provincial law, still regulates the Pakistan Rangers.

One Unit was abolished in 1969, restoring the legitimate status of all four provinces. Fifty-five years later, the Islamabad mindset still insists on (unconstitutionally) retaining power and jurisdiction over the Sindh Rangers and with impunity.

While the Sindh government can neither appoint the inspector general (IG) in the province nor the DG Rangers, the responsibility for maintaining law and order rests with it. PSP officers work with the centre, thus undermining and dismantling the writ of the Sindh government.

If Sindh earmarks Rs20 million per police station, it will cost only Rs10 billion to make them effective first responders. Unfortunately, due to machinations and convoluted politics, Sindh spends almost Rs150 billion on policing. A negligible amount actually reaches individual police stations as the rest gets allotted to the higher superior officers of the federal police bureaucracy.

The federal government, unconstitutionally and illegally, retains the two important and powerful functions of policing: issuing the formal orders of the transfer/posting of an IG officers and the retention of the PSP. The authority of police stations, instead of being exercised by people through their elected representatives of the province, has been usurped by police officers working under Islamabad’s diktats. They follow Islamabad’s political objectives at variance with provinces.

The ability to appoint top police officers needs to be devolved to the provinces immediately. The Sindh government is determined to restore peace and tranquillity in the province. The status quo is destroying Sindh’s business environment and economy.

The writer has served as advocate general of Sindh. He tweets/posts@zamirghumro