LAHORE: All provinces are anxiously awaiting amendments to the Criminal Procedure Code by the federal government which would restore the defunct executive magistracy, allowing them to regain control over many administrative affairs in districts.
The hope has rekindled in view of the recent federal government announcement to amend the law and reintroduce executive magistracy to the extent of enforcing local and special laws.
The executive magistracy was abolished by the Musharraf regime in 2001 in a bid, perceived by many, to seek legitimacy through a new local government system. The AJK, Islamabad Capital Territory and Gilgit-Baltistan retained the institution.
According to senior government officials on Sunday, Punjab is leading other provinces so far as governance is concerned. But still the authorities in the province are not satisfied with service delivery which, they think, can be improved only by restoring the executive magistracy.
It was stated that the Council of Common Interests had okayed the restoration of the executive magistracy which was in vogue during the interregnum of 1996-2001.
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The federal government wanted to have a debate on the issue in the parliament. A bill would be tabled in the parliament in this regard. The powers to be given to the executive magistracy would include the preventive powers under Section 107 to 117, 133, 144, 145 and 147 of CrPC.
The district magistrate would also have the power to restore the abducted females and children and ordering inquest into deaths in police custody under CrPC. The powers to depute a magistrate for anti-corruption raids would also be transferred to the district magistrate.
The officials believed that these powers were of executive nature and their entrustment to the judicial officers in the year 2001 unnecessarily burdened them.
They, however, said as per the game plan police were not being placed under the district magistrate. This would be an important lapse in the restoration exercise, making the district magistrate more of a ceremonial figure than vb an effective DC of the yore years.
Independent sources, nevertheless, said the move of restoration of the executive magistracy was likely to face stiff resistance from police who perceived it as an attempt to restore the control of district magistrate over them.
The officials said the government saw the executive magistracy as the panacea for the skyrocketing prices, adulteration, encroachments and above all, the enforcement of its policies at the grass-roots level. But, the question of support to the executive magistracy remained un-answered as it would have virtually no control over police.
Another surprise resistance was likely to come from none other than the Provincial Management Service officers who were to implement the magistracy system. The PMS officers apprehended a decline in their service prospects.
The PCS/PMS officers have had to work for as long as 18 years to get promotion from magistrate to assistant commissioner/sub-divisional magistrate in the previous system. On the contrary, they were currently getting the post of assistant commissioner after only three years.
Another thing which was giving sleepless nights to the PMS officers was that there was a proposal to split the PMS into two services, namely the PMS (Executive Branch) and the PMS (Secretariat Branch), the officials said.
The institution of executive magistracy was built by the British rulers of India. It remained in vogue till 1967 when the Law Reforms Commission was constituted under Justice Hamoodur Rehman which recommended separation of the judiciary from the executive.
Its recommendations were incorporated in the Law Reforms Ordinance 1972. The Constitution of Pakistan 1973 envisaged separation of the judiciary from the executive in the light of that ordinance.
The ordinance retained the office of the distract magistrate along with the sub-divisional magistrates and the special executive magistrates. The Constitution allowed piecemeal separation of the judiciary from the executive and provided a timeframe for the purpose.
However, the period was extended. Ultimately, the separation was done through Legal Reforms Ordinance 1996 when the Sindh High Court and Supreme Court of Pakistan issued categorical directions in this regard in Sharaf Farid case.
Under the system put in place in 1996, the most crucial powers of taking cognisance of cases under section 190 CrPC, physical remand under section 167 CrPC and the trial under Pakistan Penal Code and of those offences under local and special laws, which carried punishment of more than three years, were transferred to the judicial magistrates.
The civil judges were given the powers of judicial magistrates. Conferment of powers on civil judges was a crucial departure from the Law Reforms Ordinance 1972 which envisaged the separation of civil and criminal functions of judiciary as well and provided for the courts of sessions judge, additional sessions judge, assistant sessions judge and the judicial magistrates of various classes on criminal justice system side; whereas it provided for district judge, additional district judge and civil judges of various classes on civil side.
On the executive magistracy side, the offices of district magistrate, sub-divisional magistrate and executive magistrate were retained. The executive magistracy was given the powers which were necessary for maintenance of law and order and enforcement of government writ particularly in the domain of price control, elimination of adulteration, hoarding and removal of encroachment.
For the purpose those offences of local and special laws and four chapters of Pakistan Penal Code, which carried punishment of imprisonment up to three years, were entrusted to executive magistrates.
But all this was wrapped up by the Musharraf regime after it introduced a local government system in 2001 that included the district administration structure without the executive magistracy.
Published in Dawn, June 9th, 2014