Crafting effective legislation needs a solid understanding of society

(Above: Muhammad Mushtaq (Joint Secretary – Legislation, National Assembly) and Javid Iqbal (Drafter – Legislation Council, Senate) with Dr Alasdair Allan, Scottish Government Minister for International Development and Europe)

Kashif Mahmood Tariq, a former legislative drafter from Pakistan participated in a WFD organised placement in October 2016. Following his placement he argued that effective legislation needs a solid understanding of society.

Parliaments find it very easy to pass laws. Yet those who work for them often find themselves scratching their heads about how to get them actually implemented. The answer is straightforward enough, argues Kashif Mahmood Tariq of the Pakistani Institute of Parliamentary Services (PIPS). It lies in the laws themselves.

At the theoretical level, he told WFD at the end of a six-week secondment with the UK’s Office of the Parliamentary Counsel, legislation is often biased against the individual because it is used as a mechanism for the state to get its way. The bulk of South Asia’s substantive criminal and civil law was drafted by 19th Century utilitarians: the state has priority over the public, which has priority over the individual. This empowers functionaries and institutions. Yet it is not a very useful approach when legislating for social change in the 21st century.

At the practical level, the problem is that people just say ‘no’. Hence the controversy which surrounded the passage of the Provincial Assembly of Punjab’s Domestic Violence Act into law this February (an achievement which WFD played a role in making possible). This, Mr Tariq says, is why he took a different approach when a National Assembly parliamentarian asked him to draft a similar bill. He and his team drew on principles from sharia law, the Pakistani constitution and the UN’s Convention on the Elimination of Discrimination Against Women (CEDAW). Mr Tariq’s draft focused on combination of consultative mechanisms and remedial measures. “Instead of the preventive approach – the electronic bracelet – I focused on rehabilitation centres,” he says.

Mr Tariq, PIPS’ Deputy Director Legislation, is able to do this because PIPS has a broader remit than the UK’s OPC, which drafts laws narrowly in accordance with instructions from government departments. The PIPS acts on the request of parliamentarians, who may “share their ideas or their issues of their queries”, but don’t usually come up with “the policy action that can be done to address such issues”. This makes Mr Tariq’s role critical to the success of the legislation produced in Pakistan’s National Assembly, Senate and provincial assemblies. It also means he has a licence to innovate, as has been the case with the legislation he has prepared tackling plagiarism in academic work. “In the entire world there is no country which has substantive law to prevent plagiarism,” he points out. “I drafted it. It was entirely my brainchild.”

Mr Tariq’s work covers the full breadth of social issues. This can be a challenge in a cultural context as diverse as Pakistan’s. The most extreme example of the challenge faced by governance in Pakistan is the Federally Administered Tribal Areas (FATA). “You cannot diminish traditions,” Mr Tariq says. “So you have to try to find ways to incorporate those traditions into modern law… If you would try to convince the FATA people that they should respect the CEDAW, they would not listen to you. But if you reach out to them to engage them, you would be able to draft something [effective].”

This approach should be replicated by parliamentarians more broadly, Mr Tariq believes. He suggests organisations like WFD should do more to help bring MPs together with civil society.

Workshops which act as a bridge “between parliamentarians and institutions” other than parliament would help. Another approach could embrace Gandhi’s philosophy that changing one’s home village is the key to changing society. Focusing on basic units – the districts in Pakistan – could be assisted with funding for conflict resolution centres or rehabilitation centres, for example. Thomas Jefferson, one of the United States’ founding fathers, used to say that the individual is the key of civil society. It is a principle Mr Tariq hopes can be embraced by all those engaged in strengthening democracy.

He and his team at PIPS are responsible for providing legislative drafting support for a total of 1,280 parliamentarians across Pakistan. As with many things in life, Mr Tariq says parliamentary strengthening works best when the recipients are willing to engage. “One person can satisfy the hunger of 100 camels if they are thirsty, but 100 persons cannot force a camel to drink water if it is not thirsty.”

Still, all those who work in parliaments around the world wish to see the laws they pass implemented. By building a greater understanding of the needs of both society and citizens into legislation, Mr Tariq believes their capacity to change lives for the better will be dramatically expanded. His is an argument any legislator would be tempted to agree with.

Further to Tariq’s placement, WFD has been able to support the placements of Muhammad Mushtaq (Joint Secretary – Legislation, National Assembly) and Javid Iqbal (Drafter – Legislation Council, Senate) who undertook two week placements in Cardiff and Edinburgh.

As the federal parliament of Pakistan develops its legislative drafting capacity to meet demand amongst parliamentarians for Private Member’s Bills and to scrutinise and amend legislation, WFD has been able to support the three institutions at the disposal of parliamentarians to fulfil their legislative roles.

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Case study: Protecting Punjab women from domestic violence

“Domestic violence is a big issue in the Punjab, but there hasn’t been a law on it until now,” says Mrs Mumtaz Mughal, Resident Director of the Aurat  Foundation. “So when women go to the police station they are told to go back to their home and accept the violence.”

With over 9,000 reported cases in Punjab province every year, civil society organisations had been unsuccessfully campaigning for legislation covering domestic violence for a decade. “At the provincial level there was a lack of political will on women-related legislation,” Summaya Yousaf of women’s rights group Bedari explains. “We didn’t have the knowledge or the capacity to understand the Assembly and conduct really effective lobbying.”

Westminster Foundation for Democracy (WFD) was able to assist by giving women’s rights groups access to the Provincial Assembly of Punjab for the first time. Instead of focusing on the Assembly’s small women’s caucus, civil society organisations were given the opportunity to engage with its male parliamentarians, allowing groups like the Aurat Foundation to lobby more effectively for specific, targeted legislation. Standing committees were engaged, particularly the Assembly’s social welfare and gender mainstreaming committees. Relationships were also brokered with the Assembly’s secretariat, including the Speaker’s office and legislation branch.

“We thank the Westminster Foundation,” Mrs Mughal says. “They provided a full avenue to build linkages to the secretariat, changing the civil society approach to build a close link to the Assembly and change our engagement strategy.”

Together the CSOs, with technical assistance from WFD, put forwards a draft bill. At this stage the relationships cultivated by the Aurat Foundation and its allies became critical. Some MPAs examining the bill closely in standing committee were concerned that a provision which allowed uniformed police officers to enter the homes of at-risk women could breach privacy. Mrs Mughal was invited by the committee to give expert advice– a rare event, as external experts are not usually consulted at this stage of the legislative process in Punjab.

Mrs Mughal argued that women’s security was paramount. “We guided our members that this is not the issue of privacy because the state is responsible for the scrutiny and safety of any human being,” she recalls. “We asked them that a woman protection officer – not uniformed – can have the authority to go to the home.” This amendment was accepted and formed part of the bill, which eventually passed into law on 29 February 2016.

This was a big moment for all the civil society organisations who had campaigned for the law for so many years. “Legislation is the first step towards a just society,” Ms Yousaf says. “The law itself is a long-term process, but it makes clear that if you hit or slap or control your wife or your daughter or your sister then you will be punished.”

Mrs Mughal recalls sitting in the Speaker’s Office with other CSO members and WFD’s Country Representative as the Punjab Protection of Women Against Violence Act 2015 became law. It covers a range of offences, from stalking and cybercrime to emotional, economic and psychological abuse, and provides for the implementation of residence, protection and monetary court orders to protect women. “I was very happy and we were able to celebrate a big achievement,” Mrs Mughal says. “We were thankful – but also aware there are still a number of challenges for us.”

Securing budgetary allocations for the construction of Violence Against Women Centres across Punjab’s 36 districts is set to be particularly challenging; each costs more than 400 million rupees (£2.9 million). State funding has already been released for one district in South Punjab, which will act as a pilot scheme as part of the Act’s phased implementation. But as the Aurat Foundation and other organisations continue to campaign on behalf of women facing domestic violence, they will use the relationships they have established with politicians in the province’s Assembly.

“We need to be selective in the issues we put forwards to the Assembly,” Ms Yousaf says. “We’ve learned we cannot find the solution to issues in isolation: sometimes we need the support of Assembly members, and sometimes they need our support to be briefed on issues. We complement each other’s work.” The Domestic Violence Act is a result of that engagement – civil society and Assembly members brought together by WFD. As this continues it will lead to “good governance”, Ms Yousaf says.

That is WFD’s aim in Pakistan, a country on the path to an inclusive democracy after 2013 saw the first ever transition of power between civilian governments at the federal level. By working to create effective provincial assemblies that apply checks and balance on the federal state, Pakistan can build strong parliamentary systems which benefit all citizens. WFD seeks to support this by helping the provincial assemblies generate better policy and represent groups of citizens – including women – more effectively.

In the meantime, vulnerable women’s lives are set to benefit from this engagement. As the focus turns to implementation of the new law, Mrs Mughal hopes progress can be made quickly so that those facing abuse “can live in a violence-free environment in her home”.

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Improving parliamentary performance in Pakistan

By WFD’s programme manager Ali Imran in Lahore

WFD’s programme ‘Deepening democratic engagement in the province of Punjab’ was designed to improve the effectiveness of the Provincial Assembly of the Punjab – Pakistan’s largest province in terms of population and a major contributor to the national economy. By working with the Assembly’s members and secretariat staff the programme has contributed to a greater understanding of legislative, oversight and representative roles.  This has assisted the parliament to pass legislation after devolution – a highly significant development in Pakistan’s recent history when the constitution was amended to allow for greater distribution of powers to the provinces.

Delivering democratic reforms

The programme has delivered reform initiatives to improve governance, including the Assembly’s rules of procedure, making standing committees more effective, shaping policy and passing legislation that protects the rights of women and children.  There has also been progress in more cooperative relations between parliament and civil society.  In addition the programme benefited from ‘south on south’ engagement with parliamentarians gaining insights into how counterparts in other countries have made progress on issues of mutual interest such as greater representation of women in politics.

Ownership was an important consideration in designing the programme which required close consultation with the Speaker’s chamber and the Assembly’s secretariat.

Improving parliamentary performance

The timing of the programme was critical as it coincided with Pakistan’s first ever transition of power from one civilian government to another through the electoral process.  The greater devolution of power to the provinces created new opportunities for better governance of citizens in these provinces.  Welcome as these democratic developments were – they created clear need for support: a striking 55% of newly elected members had no previous parliamentary experience.  The programme succeeded in reaching more than 100 newly elected members through its training sessions which covered topics such as the Assembly’s rules of procedure and parliamentary techniques including questions, resolution and adjournment motions.  Once this understanding was developed the programme focused on other key areas such as budget analysis and developing a deeper understanding of devolution.

South-South engagement

In addition the Punjab Assembly members benefited from gaining insights into how other parliaments and politicians have made progress on issues such as the greater representation of women in politics and engagement with civil society.  WFD’s programmes in the Middle East enabled us to work with Iraqi politicians who shared their experience on forging stronger links between parliament and civil society organisations.  Similarly, a caucus of women members of the Punjab Assembly was able to benefit from the experiences of their counterparts in the Jordanian Parliament and explore how they have tackled adversarial debate to fight for greater legislation to protect women and children. This resulted in a particularly rewarding development when a member of the Punjab Assembly’s women caucus presented a resolution demanding stricter action against child marriage on her return from Jordan.  Earlier this month the government passed a bill to reform existing child marriage law.

                                                                 Britain’s democratic history and the ‘Westminster brand’

Members of the Punjab Assembly also benefited from Britain’s democratic history and were able to find out about parliamentary techniques deployed by their counterparts in the Scottish Parliament and the House of Commons.  The concept of institutional accountability through the scrutiny of departmental standing committees was not only appreciated but also resulted in discussions about how to best reform the Punjab Assembly’s standing committees.  The work of Britain’s regional assemblies proved informative in enabling Pakistani MPs observe at first hand the work of the select committees, parliamentary procedures and how powers had been devolved to the Scottish Parliament and regional assemblies.  Peer-to-peer dialogue was invaluable in advancing this understanding.

                                     Towards greater representation – from aspiration to reality 

Another key area of WFD’s work was in forging cooperative relationships between civil society and the Assembly which resulted in tripartite discussions between MPs, Assembly staff and civil society organisations.  This enabled a range of organisations to really develop their understanding of parliamentary work and seize opportunities for greater advocacy in political life.  In sum the programme resulted in reform initiatives and debates that demonstrate tangible evidence of improving parliamentary performance in Pakistan.  Although the programme is scheduled to close this month its work demonstrates a clear case for continuing to support Pakistan’s fragile democracy and turn more hopes into reality.

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