Crafting effective legislation needs a solid understanding of society
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.