Law and order

Protection of life, liberty and property of its citizens and other persons is the paramount duty of a state. These rights are so important for the happiness and well being of an individual that they are termed fundamental rights. Even Parliament cannot take away or abridge them. Almost all Constitutions contain a bill of rights, which protects these and some other important rights. There is a universal consensus that protection of these rights is necessary for human life. Universal Declaration of Human Rights (1948) under the auspices the United Nations recognizes a cluster of these and similar rights. This Declaration is binding on all member states. The Constitution of Pakistan also guarantees these rights under Articles, 4,9,23 and 24. These are individual rights in the sense that if there is a violation of these rights, the Constitution provides remedies for the enforcement of these rights through the High Court and the Supreme Court. Every right however has a corresponding duty towards the state and other individuals. Article 5 of the Constitution provides the corresponding duty of loyalty to the State, Constitution and law.
In return for these rights a state gets monopoly over the coercive power, which is a manifestation of its sovereignty. It prescribes sanctions for disobedience of its command(s). This power is given to a state (exercised through various institutions) to protect those rights but that power is exercised accordance with law and procedure given by a law, which constitutes due process of law.
The expression 'law and order' has several connotations. Maintenance of peace and order is one of these. A state regulates human conduct in different ways. Acts and deeds are generally permissible, which is a rule. Prohibition of any conduct is an exception. It has to be expressly provided by law by Parliament upon whom this power is conferred by the Constitution. This power is further manifested in different sanctions varying from an act being declared as an offence, which is followed by punishments to mere prohibition followed by licensing, fines, fees in furtherance of a regulatory power.
Laws of a state regulate human conduct either through a system of regulations, or by its criminal and civil laws. Businesses, traffic rules and price control are the regulatory functions of a state. Certain acts, which harm other persons or their bodies or property, amount to offences and under the Constitution Parliament and Provincial Assemblies have power to legislate criminal laws and declare certain conduct as offence. The list of offences continues to increase with the passage of time. Both, under Islamic Law and Common Law, certain acts are treated offences.
In addition to providing for penal laws, the state also regulates human conduct through preventive measures. These measures may impinge upon personal liberties and proprietary rights. Article 10 of the Constitution confers this power on the state but at the same time Preventive detentions essentially remain under the control of Executive. Maintenance of Public Order Ordinance, 1960 also remains on the statute book.
With the advent of English legal system in India, State employed an elaborate system of magistracy firstly in the Presidency Towns and then after 1858, throughout India to maintain peace and order. Under the Criminal Procedure Codes (Code), different classes of Magistrates were provided which included Executive Magistrates under section 14of the Code (since repealed). Provincial Governments were empowered to appoint Executive Magistrate or to confer this power on the Executive hierarchy in the Province, starting from Assistant Commissioner/Sub-divisional Magistrate upwards, Deputy Commissioner/District Magistrate, Commissioner etc. Under the Code, elaborate provisions were made to provide for these powers. Chapters IX to XIII (sections 127- 153) of the Code specifically dealt with unlawful assemblies, maintenance of public peace and security, public nuisance, temporary orders in urgent cases of nuisance or apprehended danger. These officers, upon whom Provincial Governments conferred these powers, were actually revenue collectors. They were inducted through the prestigious Indian Civil Service (ICS) and trained to deal with all these matters of maintenance of peace and order including taking of preventive measures. This system was successfully employed throughout the Subcontinent during the British times. Freedom movement since 1920s had taken a violent turn but with an effective system in place, life and property of ordinary folks was safe and protected. This system was continued even after partition of India, both in Pakistan and India. India reenacted its Criminal Code in 1973 but these provisions remained intact.
In Pakistan however till 2001, Executive Magistracy remained in place. During the last Martial Law regime several unsuccessful experiments were made by the so-called Reconstruction Bureau under former General Naqvi, which further damaged the system. In fact, the process to change this system started in 1989, when the Sindh High Court, in a petition filed way back in 1974, (that was amended in 1989) held that Executive Magistracy had to be separated from Judicial Magistracy in view of the mandate of Article 175 (3) of the Constitution. One of these petitions was filed by an advocate, Sharaf Faridi, on the ground that these powers were essentially judicial and as provided under Article 175 (3) of the Constitution, judiciary had to be separated from the Executive, therefore, these provisions were ultra vires of Constitution. Sindh High Court in its judgement (by 7 judges) held that Executive Magistracy had to be separated from the Judicial Magistracy. It further held that Judicial Magistrates should be brought under the control of the respective High Courts in so far as their appointments and conferment of powers were concerned. When this matter came up before the Supreme Court in appeal, it upheld the decision of the Sindh High Court in 1994. Directions were issued to the Government(s) to separate Judiciary from the Executive. Earlier, in Aziz Ullah Memon v. Government of Balochistan (1993) similar was taken by the Supreme Court. These judgements however nowhere stated that Executive Magistrates could not be appointed.
It would be seen that during the 1990s, due to an unparalleled interference from the Executive, the Judiciary protected itself and swung the balance in its favour in the matter of appointment of judges of superior courts and subordinate judiciary. Today, Judiciary appoints itself. Executive and Parliament have no role at all. Independence of Judiciary is very important but this independence in the ultimate analysis is a means to an end, the end is: justice. The Al-Jehad Trust (1996) case was based on a judgment of the Indian Supreme Court given in the case of Advocates on Record (1994) whereunder the Judiciary effectively arrogated itself the power of appointment of judges. Fali S. Nariman, an eminent jurist and one of the advocates who appeared in those cases and spearheaded the movement for independence of judiciary regretted it in his autobiography 'Before the Memory Fades'.
Since 1990s there began, in all parts of the country, a slow process of deterioration of law and order which ended in the total collapse of the system. Police was replaced with the Rangers and criminal courts with anti-terrorism courts and then military courts. Military operations were also conducted and often armed forces were called in aid of civil power, which effectively meant that civil liberties were totally at peril. Competing values and interests were not taken into consideration while bringing in changes in the system or passing judgements. Under the old system, there was an elaborate system of policing and civil administration worked in unison with the police to control law and order. The Deputy Commissioner had resources and power to control unlawful assemblies and local police was answerable to it. Politicization of almost all institutions particularly the police and lack of merit played havoc and today the nation faces a huge crisis. In order to keep in check the police and executive, High Courts were granted powers under Article 199 of the Constitution. Through an amendment in the Code Executive Magistrates were removed. Under the existing system, magisterial powers have been conferred on civil judges who are not trained in maintaining and controlling law and order, unlawful assemblies, or taking preventive measures or managing nuisance in different forms. Under the Indian Criminal Procedure Code of 1973, elaborate provisions have been made for the Executive Magistrates and Special Executive Magistrates under sections 21 and 22 of the said Code. High Courts effectively exercise control over the Executive through writ jurisdiction. Interestingly, there is a similar provision in the Indian Constitution under Article 50, which was noted, in the aforesaid judgement of Sindh High Court but it decided to interpret Article 175(3) of the Constitution in a different way.
During the last few years, our society has witnessed continuing increases in violence. The Code provides for passing of orders under section 144 but these orders remain ineffective because the necessary machinery to enforce these orders to maintain law and order or control unlawful assemblies. In 2014, the sit-in (dharna) continued for months before the Supreme Court but the Executive cut a sorry figure during the Court proceedings. Police officers were beaten by the mob. TV station was attacked but nothing could be done. It is time that an intrusive review takes place of our laws and steps are taken for remedial measures to protect our liberties.
Today there is a need for economic uplift. Law and order is so fundamental for the business community and for the progress of economy that it should be foremost priority of the next governments. After all everyone learns from mistakes. Problem arises when mistakes are repeated.