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October 28, 2016

How not to legislate


October 28, 2016

Part - II

The Criminal Law Amendment (Offences in the name or on the pretext of honour) Act, 2016 draws a lot from the draft bill presented by former senator Sughra Imam and passed in the Senate in 2015. The same bill was taken up in the Parliamentary Committee of the Joint Sitting on Bills in July this year. The Ministry of Law and Justice is said to have examined the bill and proposed amendments to it, which were carried forward.

It is obvious the ministry did not conduct enough research on the proposed draft. There is nothing on record in the public domain to suggest that it called experts for their opinion or asked them to raise questions on the issue of ‘honour’ crimes. Apparently, the ministry failed to conduct public consultations with practising lawyers and civil society actors who have worked on this issue.

Several other aspects of the pre-existing legal framework were not analysed. For instance, it has been pointed that the definition of ‘honour’ is not appropriately provided. Still, no attention has been given to it. No attempt was made to find out why so many cases of ‘honour’ killings are compromised at the early stages of the investigation and prosecution.

The impact of section 345(2) of the CrPC which allows ‘compounding’ (dropping of prosecution) ‘with the permission of the court before which any prosecution for such offence is pending’, has not been assessed either; this remains part of the statute. Further, sub-section 2A under section 345 of the CrPC, another problematic provision, has been allowed to stay while making it subject to sub-section 7. Sughra Imam’s original bill tried to address both these aspects.

All this makes the amended law confusing and difficult to understand for ordinary lawyers, prosecutors and judges in the district judiciary. This manner of drafting is in violation of the modern principles of easy-to-read legislation.

The Criminal Law Amendment Act I of 2005 meant to curb ‘honour’ killings was enacted in a somewhat similar manner, without enough consultation and consideration, and followed poor drafting methodology. That amendment too could not erase the loopholes from the law to ensure better prosecution of ‘honour’ killings. Earlier this year, a law relating to human trafficking was amended without due diligence. There are several other laws which have been introduced and enacted in haste.

One reason for this state of affairs is that the institutions which are meant to provide support to parliament and provincial legislatures either do not work at all or work on an ad-hoc basis, without consistency and due diligence, and/or they’re not provided enough resources. The Law and Justice Commission of Pakistan (LJCP) is one such institution which needs to be pushed into fulfilling its mandate. At present, it has the honourable chief justice of Pakistan’s speeches on its website at the top in the segment titled ‘Reports & Publications’. Apart from outdated reports there is little else on the website that is worthy of mention.

Civil society organisations that work for civil rights do not also give attention to detail. Often, even if they manage to sense a problem with the proposed laws, they do not have the capacity to suggest a well-considered alternative draft. There is not a single independent organisation devoted to the promotion of well-drafted legislation.

Though the Pakistani state would like us to refrain from ‘Indian content’, one feels compelled to cite Indian examples in this context. In Dec 2012, when a young woman was brutally raped and murdered in Delhi, Justices J S Verma and Leila Seth along with a senior lawyer Gopal Subramanium were assigned the task of revisiting the law relating to rape in India. The team, with the help of dozens of researchers and other state and non-state institutions and a serious consultative process, came up with a well-documented 600-page report containing several considered and well-meaning recommendations to change the law within one month. Several of the recommendations were incorporated in the law and related mechanisms for rape prosecution.

Crimes of ‘honour’ are a serious issue which affects the lives of many women in our country. Did our government and the concerned ministry take adequate steps to provide support to our parliamentarians, some of whom – including Senator Farhatullah Babar – have led the initiative? Unfortunately, not. But all is not in vain: some good has come out of this exercise, and we owe it to our seasoned parliamentarians. There is now a kind agreement among various political parties that to introduce a change to the law relating to ‘honour’ crimes is not an ideological question anymore; it is only a matter of political support. This is reflected in the broadening of the scope of fasad-fil-arz – all offences relating to human body committed in the name of ‘honour’ are now fasad fil arz and the state may introduce further legislation under the umbrella of ta’azir.

Talking to this writer, a senior senator said a few days ago that he was ready to go many steps further in this direction. “But let us do our homework first”, he added.

In India again, there’s an independent organisation, PRS Legislative Research, which keeps a track of the functioning of the Indian parliament and works with MPs from the Lok Sabha and Rajya Sabha across political parties, and with MLAs from various states. It does a great deal of good work.

In Pakistan, too, we have a statutory body called the Pakistan Institute of Parliamentary Services (PIPS) which is supposed to provide support in all the tasks a parliament needs. Recently, a capable person with impeccable credentials has been appointed as its executive director to run this institution. But PIPS does not have enough funds to fulfil its mandate. The government must do all that needs to be done to let PIPS function and promote the good quality work.

Simultaneously, steps should also be taken to activate LJCP. In this regard, the performance of the Law Commission of India may be considered and emulated if appropriate.


The writer is a lawyer.

Twitter @LegalPolitical


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