Judgment: Shahid Jamil Khan, J:- This judgment shall decide captioned writ petition along with W.P.No.24512 of 2019, which have been filed in public interest regarding police reforms under the provisions of Police Order, 2002. It is alleged that statutory bodies i.e. Provincial Public Safety Commission and District Public Safety Commission have not been constituted.
2. This court in number of orders passed directions to the respondents to comply with the mandatory provisions of law. In response a report in compliance of direction by this court was submitted, which is reproduced:- COMPLIANCE REPORT The report is being filed in compliance with the order dated 22.05.2023 passed by this Honorable Court which is reproduced as under: "Additional Secretary (Police), Home Department, present before the Court, is confronted about constitution of District Public Safety Commission and Police Complaint Commission. He could not show from record and requests for some time for proper assistance. Also submits that due to non-availability of elected representatives for constitution of Commissions, it has been deferred when moved for placement before the Cabinet.
2. The forums, meant for relief or enforcement of public rights, cannot be kept non-functional or non-constituted on mere technicalities and for non-availability of some of the members.
3. Learned AAG shall assist the Court, by referring to relevant provisions and rules, why these Commissions cannot be constituted. The Additional Secretary is directed to move a summary, to be placed before the Cabinet and Cabinet decide regarding constitution of the Commissions, at first instance."
2. In pursuance of the above directions of the Honourable Court, a meeting of the Committee constituted by the Chief Minister vide Notification dated 04.11.2020 (Annex-A) to review the matter of establishment of institutions / commissions / authority / committee envisaged under Police Order, 2002, was convened on 05.06.2023 under the Convenership of Advisor to Chief Minister for Law & Parliamentary Affairs Department to deliberate upon the matter.
3. After detailed deliberations, the Committee unanimously decided that in compliance with Honourable Lahore High Court, Lahore's order dated 22.05.2023 a Summary for Chief Minister may be moved requesting for placing the matter before the Caretaker Provincial Cabinet for appropriate decision.
4. Accordingly, in compliance with the above order dated 22.05.2023 of this Honourable Court, a Summary for Chief Minister has been initiated / moved on 07.06.2023 requesting to place the matter before the Caretaker Provincial Cabinet for appropriate decision. This Honourable Court will be apprised about the decision taken by the Caretaker Provincial Cabinet as soon as arrived.
5. Foregoing in view, the direction of the Honourable Lahore High Court to move a Summary for Chief Minister has been complied with in letter and spirit.
6. Submitted please.
Learned Law Officer also placed on record the Cabinet's decision, relevant paragraph of which is reproduced:- "The Cabinet unanimously ratified minutes of subject agendas of 4th meeting of the Caretaker Standing Committee of Cabinet on Legislative Business & Privatization held on 11.07.2023."
While ratifying the decision of Caretaker Standing Committee of the Cabinet, it was decided that matter shall be taken up by the new government based on elected representatives. The recommendations of the Standing Committee are also reproduced:- "The Standing committee of Cabinet on Legislative Business and Privatization considered and recommended that the matter of the establishment of Provincial Public Safety Commission and District Public Safety may be placed before the new elected Provincial Assembly/Chief Minister as and when formed after forthcoming elections."
3. Bare perusal of the recommendations shows that no law has been referred for deferring the matter, showing incompetence by the Caretaker Government. The Provincial Public Safety Commission and District Public Safety Commission are to be constituted by the Provincial Government under Section 37 of The Police Order 2002, which is reproduced:- "37. Establishment of District Public Safety and Police Complaints Commission. (1) The Provincial Government shall establish a District Public Safety and Police Complaints Commission in every District, including Capital City District, consisting of nine members one of whom shall be the Chairperson.
(2) The Commission shall have its independent budget under a separate budgetary head of account, Drawing and Disbursing Officer and the Chairperson of the Commission shall be its Principal Accounting Officer."
It is statutory duty of the Provincial Government to comply with the provisions, enforcement of which is sought through this writ petition. The decision by the Cabinet and recommendations of the Standing Committee, as noted above, do not show a plausible reason under the law for abdicating the responsibility. The Advocate General, Punjab was directed to assist the Court regarding consequence of denying to comply with statutory obligation by the Provincial Government which may be a Caretaker Government.
4. Learned Advocate General, Punjab has shown Provincial Government's incapacity for establishment of District Public Safety Commission and Provincial Public Safety Commission for the reason that elected Members of the Zila Councils for the District and Capital City are not available.
He is confronted that establishment of Commission and notification of the members are two different steps. Under Subsection (2) of Section 37 of the Police Order 2002, independent budget has to be allocated whereafter notification of the Members shall be a routine wherein elected members can be notified or re-notified from time to time. It is admitted position that since promulgation of Police Order 2002, the Public Safety Commission has never been established. The excuse of leaving this matter for elected government is that elected Members for constitution of the Commission are not available. The rational behind presence of elected Members is only representation of the public for whose safety, these Commissions are to be constituted. The purpose of the Commissions is to have check on the discretionary powers of the police.
Unfortunately, the statutory obligation has been overlooked by the elected as well as caretaker governments. The excuse of absence of elected representation could not have been taken after establishment of the Commission. This court has no hesitation and doubt to observe that any public authority if overlooks or abdicates a statutory duty, is violating the law and Article 5 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"). The loyalty of the public servant has to be with the State without any political tilt or influence.
5. Sovereignty stemming from the Constitution is exercised by the public authorities in their respective domains by the respective laws. The law imposes an obligation upon the public officers, abdication of which, without excuse, necessarily raises question about their loyalty to the State and in particular for public or the State.
The sovereignty is best defined in the Constitution, declaring that it belongs to Allah Almighty and is sacred trust to be exercised by the people of Pakistan through chosen representatives.
Unfortunately, there is and has been absence in continuity of chosen representation in the country.
In particular, right of the people to govern themselves through chosen representation at local government level has always been ignored for one reason or the other. Even after insertion of Article 140A in the Constitution, the spirit is not being followed for the last thirteen years. Article 140A is reproduced:- "140A.(1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government.
(2) Elections to the local governments shall be held by the Election Commission of Pakistan."
Article 140A envisages establishment of local government and thereafter devolution of political, administrative and financial responsibility and authority to the elected representatives of the local governments.
In this court's opinion, devolution of political, administrative and financial responsibility and authority is one time act which cannot be withdrawn after insertion of the Article 140A. There is difference between delegation and devolution. The delegation is a power of the superior forum like provincial government, which can be withdrawn at any time. The devolution of responsibility and authority under the Constitution once given cannot be revoked. Through the dissolution of local government and role of the provincial government after devolution is not directly in question yet in this court's opinion, there has to be a continuity for elected representation of the people which is essence of the Constitution for exercising sovereignty. Section 37 of the Police Order 2002, if read with the preamble and Article 140A of the Constitution, clarifies without any doubt that a public check, through their chosen representatives, is envisaged on the misuse of power by the police.
6. In this court's opinion, the excuse placed before this court by learned Advocate General, Punjab is not in accordance with the spirit of the Constitution and the law, therefore, is rejected.
It is, therefore, held at least for the purpose of the Section 37 that in absence of newly elected representation, the representatives lastly elected by the people shall continue to represent the people unless newly elected representatives replace them. It is reiterated that there cannot be a gap for the people to exercise sovereignty through their elected representation. The provincial government is directed to comply with the obligation of Section 37 of the Police Order 2002 within 30-days, without fail by nominating amongst last representatives of the respective local government.
So far allocation of fund or budget is concerned, that can be followed by establishment of Commission's notification and hardship being faced by the caretaker government to be placed before this court along with compliance report.
Disposed of.