LAHORE: The Lahore High Court has ordered the Punjab caretaker government to nominate from amongst the lastly-elected representatives of the local governments for the establishment of the public safety commissions as envisaged under the Police Order 2002.

Justice Shahid Jamil Khan passed the order on a petition, pending since 2017, challenging the non-constitution of District Public Safety Commission, Provincial Public Safety Commission, and Police Complaints Authority, as required by Section 37 of the Police Order, despite the passage of two decades of the enactment of the law.

The judge observed that Article 140A of the Constitution 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devolution of political, administrative and financial responsibility and authority is one-time act which cannot be withdrawn after insertion of the Article 140A,” Justice Khan maintains in his judgement.

Members to be selected from amongst lastly-elected LG representatives

Pointing out the difference between delegation and devolution, the judge explained: “The delegation is a power of the superior forum like the provincial government, which can be withdrawn at any time. The devolution of responsibility and authority under the Constitution once given cannot be revoked.”

The judge asserted that there has to be continuity of elected representation of the people which is the essence of the Constitution for exercising sovereignty.

He held that the section 37 of the Police Order, 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.

The judge asked Punjab Advocate General Khalid Ishaq to assist the court regarding the consequence of denying compliance with its statutory obligation by the provincial government, which may be a caretaker.

The AGP expressed incapacity of the provincial government to establish the Public Safety Commissions for the districts and capital city due to absence of elected members of the Zila Councils.

However, Justice Khan, in his order, rejected the excuse placed by the advocate general, saying it was not in accordance with the spirit of the Constitution and the law.

The judge remarked that the purpose of the safety commissions is to have a check on the discretionary powers of the police.

“Unfortunately, the statutory obligation has been overlooked by the elected as well as caretaker governments,” he adds in the verdict.

The judge observed that if any public authority overlooks or abdicates a statutory duty, it violates the law and the Constitution.

“It is, therefore, held at least for the purpose of 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,” the judge wrote.

He said loyalty of the public servant has to be with the state without any political tilt or influence.

Justice Khan maintained that there cannot be a gap for the people to exercise sovereignty through their elected representation.

The judge directed the caretaker provincial government to comply with the obligation of section 37 of the Police Order within 30 days, without fail, by nominating from amongst the last representatives of the respective local government.

So far allocation of funds or budget, the judge said it can be followed by the establishment of commissions’ notification and hardship being faced by the caretaker government to be placed before the court, along with a compliance report.

Advocate Usama Khawar Ghumman had argued on behalf of the petitioner, saying the Police Order and Rules of Business are binding and must be adhered to as they do not exist or apply at the government’s pleasure.

He said since promulgation of the Police Order, the public safety commissions had never been established.

Published in Dawn, December 14th, 2023