PERA Criticism and how can we challenge its legality - Khalid Zafar & Associates

The Punjab Enforcement and Regulation Authority (PERA) is established through Punjab Enforcement and Regulation Act, 2024 by the Government of Punjab. The PERA appears to be a parallel system of law-and-order enforcement in addition to the Punjab Police and would prima facie run parallel to police jurisdiction. The police stations in the name of the enforcement centers would be established and PERA officers have a right to inspect, search & seize property, remove encroachments, arrest for non‑compliances, levy fines and conduct electronic surveillance.

The establishment of PERA as a parallel system of police with wide powers given to PERA officers. PERA has to some extent ousted the judicial powers and is designed to take the things out of the ambit of judiciary while giving more powers in the hands of executive. It appears that the Government has either accepted the failure of Punjab Police functioning and had to develop a parallel system, or PERA is enacted for the vested gains of individuals sitting in power corridors. The basic structure of PERA clearly defies the balance created in shape of three pillars created by the Constitution of Pakistan. PERA can be criticized on several possible legal, constitutional and administrative grounds. The possibility to challenge the operation and validity of law can be explored on the following grounds.

  1. The prime ground can be Violation of Constitutional structure as a whole and the imbalance created by giving judicial powers in the hands of executive.
  2. PERA creates parallel enforcement powers that bypass or dilute the authority of police, it may undermine the constitutional scheme of law enforcement through due process of law.
  3. PERA can contradict provisions of Article 4 of the Constitution of Pakistan (i.e. right to be dealt in accordance with law) specifically in cases where PERA officers are granted policing powers without the same accountability, oversight, or training as the police.
  4. PERA lacks check and balances. The summary powers to arrest or search without proper judicial oversight, penalties without due process would be violative of Article 10-A of the Constitution i.e. fair trial. Moreover, exclusion of the provisions of Evidence Act in PERA is against the concept of due process of law.
  5. PERA reposes excessive power on the executive/officers who cannot have a right to give verdict. The enforcing officers have powers to issue Emergency Prohibition Order and have rights to render his decision over the same. The executive has powers to make it an absolute order while bypassed all the provisions of Criminal Procedure Code and other ancillary laws. PERA is reposing excessive judicial power on the executive and is contrary to the laws laid down by Superior Courts of Pakistan since establishment of Pakistan.
  6. There is no plausible plan for double jeopardy in cases of offences specifically keeping in view the present state of affairs and law. The maxim that nobody can be punished twice for the same crime would be defeated.
  7. PERA is ultra vires and is an encroachment on police jurisdiction which is administrative overlap. Police is a provincial subject and the Police Order 2002 governs it. If PERA creates a duplicative or conflicting authority, it is beyond legal powers of the provincial government being ultra vires the legislative competence.
  8. The overlapping mandates may create legal uncertainty and open grounds for judicial scrutiny.
  9. If PERA is selectively applied or targeted at certain segments (which it might) a challenge can be made under Article 25 of the Constitution i.e. equality before law. The PERA is capable of being applied to urban areas, certain class of people or political victimization as vast powers are given to the hands of executives including judicial powers.
  10. The major parts of law are left to rules framed by the executive without adequate legislative oversight, that may be a violation of the doctrine of excessive delegation. This might amount to lack of Parliamentary scrutiny or  delegated legislation issues. A law can be struck down for giving excessive unchecked powers to the executive.
  11. PERA may also be challenged on the touchstone of abuse of discretionary power, or arbitrary use of state force if use of force is done without standard police accountability mechanisms. Judicial review on administrative law principles can be made on grounds of unreasonableness can be made.

Another ground which can reasonably be used in policy debate is that why the existing laws are not properly enforced i.e. enforcement through Punjab Police. However, the same might be very weak legal ground for judicial review that the existing department/laws i.e. enforcement through Punjab Police is not adequately done giving rise to a new law. Generally, the Courts do not typically intervene in legislative policy unless it violates constitutional rights or structure.

Read Also                   PERA: Constitution and Jurisdiction.