Proper drafting of laws

July 18, 2019

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I.A. Rehman
I.A. Rehman

THE Legislative Drafting Manual for Punjab that was launched recently in Lahore will also be found useful by law draftsmen, legislators in the other provinces and by the federation. The civil society organisation Musavi that is responsible for preparing the manual and holding a workshop on it believes that the “manual employs a wider conception of legislative drafting as including both considerations in conceiving and formulating laws by legislators, and the specific act of translating the same in legislative form and style by legislative drafters”.

The need for adopting the principles mentioned in the above quote is particularly urgent in Pakistan where hurriedly drafted bills and lack of due scrutiny by legislators have often adversely affected the quality of legislation. While the senior federal draftsman present at the workshop assured the gathering that his department kept up with the times, the same cannot be said about legislators. The public is also aware of the need for careful drafting of legislative texts and of deciding where to put the comas, full stops and semicolons.

Pakistan’s legislators will find the Regula­tory Impact Assessment methodology, devised by the Organisation for Economic Cooperation & Development, extremely helpful while drafting laws and policies. This RIA consists of the following 10 questions:

There is much to be said in favour of regular interaction between the legislative drafters and legislators.

  1. Is the objective of the law/ regulation correctly defined?

  2. Is the government action justified?

  3. Is the law/ regulation the best form of government action?

  4. Is there a legal basis for the law/ regulation?

  5. What is the appropriate level of government for this action?

  6. Do the benefits of the law/ regulation justify the cost?

  7. Is the distribution of the effects across society transparent?

  8. Is the law/ regulation clear, consistent, comprehensible and accessible to users?

  9. Have all interested parties had the opportunity to present their views?

  10. How will compliance be achieved?

The manual explains how the RIA conditions are to be met through consultation with stakeholders and assessment of problems, defining the objectives, consideration of options, assessment of legal impact of action, cost-benefit analysis, etc. The legislative draft should then be checked for any conflict with the Constitution (Articles 9, 10, 10-A, 11, 12, 13, 14, 15, 16, 17, 17(2), 17(3), 18, 19, 19-A, 20, 21, 22, 23, 24, 25, 25-A, 26, 27 and the injunctions of Islam).

Next the proposed law’s possible conflict with international instruments (UN treaties, SDGs) and pledges needs to be checked. In addition to the requirements of proper legislation discussed in the manual, other matters in Pakistan’s context need to be considered too.

The state has a tendency to make laws in its own interest to strengthen the sinews of coercion or to collect revenue, and it is necessary to maintain a balance between such laws and measures needed in the public interest.

Except for the period 2011—2013, when the government supported private members’ bills, and with extremely good results, various governments have been hostile to adopting such bills. The practice is that a private members’ bill cannot be admitted if the government is opposed to it. Scores of bills have died at the admission stage — this in a country whose founder had earned the distinction of moving a private members’ bill regarding Muslim auqaf, soon after being elected to the Central Assembly of India, and getting it enacted. The relevant rules need to be revised.

There is much to be said in favour of regular interaction between the legislative drafters and legislators. It will be good if the former are allowed to attend meetings of standing committees.

Laws made in Pakistan cannot be enforced until long after they are adopted because the necessary rules are not promptly made. These rules are drafted by federal or provincial governments and are sometimes not in accordance with the law. The manual offers a sound comment on this problem: “Delegated or subordinate legislation usually takes the form of rules, regulations and by-laws made by subordinate authorities for the implementation and enforcement of a law or legislative policy enacted by the legislature. It is important to note that almost every law passed by the legislature provides that rules and subordinate legislation under it will be formed or created. However, the essential legislative function of determining a legislative policy and formulating it as a binding rule of conduct cannot be delegated to subordinate authorities as it is absolute and remains with the legislature alone.”

During the colonial period, no important piece of legislation was adopted by a legislature without its being circulated for eliciting public opinion. The practice needs to be revived. Apart from the need to consult the largest possible number of stakeholders, it partially meets the condition that legislative measures should be extensively debated not only in the legislatures but also at non-official forums.

The government does not have a complete monopoly over proposing legislative measures. The Law and Justice Commission has been making recommendations for making new laws or amending existing ones. Action on such recommendations is taken by the government after long delays. Similar is the fate of recommendations made by the superior judiciary. For example, it is many years since the Supreme Court expressed serious concern about cases involving mandatory death penalty. It said it had to acquit persons who were not completely innocent and deserved some punishment although they could not be awarded capital punishment. The problem could be solved by adding lesser punishments to the death sentence. The government has paid no attention.

There is no system of ascertaining whether a new law is achieving its objectives. It may be useful to review the implementation of each new law every few years.

The moral of the story is that parliamentarians must not remain bonded to the official agenda; they must play a proactive role in giving the country benevolent, clearly drafted and easily accessible laws.

Published in Dawn, July 18th, 2019