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OVER the years, discussions about the ‘deteriorating law and order situation in Pakistan’ have become commonplace. Whilst some blame law-enforcement agencies for failing to do their duty, others trace all problems to a colonial, and therefore alien, legal system. Still others hold the judiciary responsible for failing to dispense justice.
And many consider parliament quite irrelevant in this regard, believing at best, that parliament’s job is done once the law has been enacted, and at worst that parliamentarians are driven by self-interest rather than by concern for their constituents.
Although there is some truth in both criticisms of parliament, the real picture is somewhat more complicated. First, parliament is entirely relevant to the law and order situation in the country because the manner in which laws are made has a considerable bearing on how they are subsequently implemented.
Secondly, whilst parliamentarians are indeed motivated by self and party interest that itself is largely due to the fact that parliament, as an institution, has not quite matured to a level where lawmakers can appreciate that their or their party’s interest is inextricably linked to the interests of their constituents.
The manner in which laws are made affects their suitability for the country’s specific needs as well as their legitimacy. These factors, in turn, determine the extent to which these laws are subsequently implemented and obeyed. A law is more likely to be suitable for the country if it is drafted with specific knowledge of local systems and culture and more likely to be perceived as legitimate if it is enacted with the consent of the people for which it is intended.
Lawmaking through parliament allows for both: parliamentarians may bring their knowledge of local conditions to bear on the law as well as to consent to the law on behalf of the people they represent. It is to garner such consent — and because obtaining direct consent on every issue is impractical if not impossible — that legislative procedures are often designed on the principle of representative consent.
Many laws are made without consultation and without an attempt to educate the public.
In an ideal world, representative consent allows voters a voice in the lawmaking process. They elect representatives who engage with the people to understand their concerns and then either propose laws in parliament or respond to laws proposed by others. Debates in parliament or through standing committees, allow laws to be amended to reflect local knowledge, the concerns of specialist stakeholders and of the voting public.
Consequently, when these amended drafts are passed as acts of parliament they embody not only the authority of parliament and the assent of the president but also the interests of the majority of the voters. Of course, the quality and appropriateness of such laws varies according to the education levels of voters and the understanding and integrity of parliamentarians.
In Pakistan, parliament has often failed to live up to this ideal or indeed to work at an optimum level due partly to its youth, relative inexperience and insecurity which stems from the country’s chequered constitutional history.
For the first nine years of its existence, from 1947 until 1956, Pakistan did not have a constitution and was governed by the Government of India Act, 1935. The constituent assembly (as the legislature was called at the time) was focused on the task of drafting a constitution which was delayed by the fact that during this period, the governance of Pakistan passed through four governor generals and four prime ministers, each serving for less than his mandated period.
The 1956 constitution had only been in force for a short time when martial law was imposed and the constitution suspended. Pakistan adopted its next constitution in 1962, which had been drafted under a military government. However, this too was soon suspended. Finally, in 1973, Pakistan adopted its third constitution, which despite being amended 22 times and suspended three times — in 1977, 1999 and 2007 — remains in force.
These successive suspensions of the Constitution had a deep adverse impact on parliament, weakening its confidence, making it subservient to an all-powerful president (until a few years ago), rather than answerable to the electorate, and, most damagingly, promoting the practice of legislating by ordinance.
Legislating by ordinance, whilst perfectly legal, is a constitutional short cut. It confers on the president the power to make laws when parliament is not in session and there is an urgent need to make the law.
Unfortunately, however, this emergency power has been, and continues to be, abused. Whilst successive military regimes have promulgated ordinances, sometimes even when parliament has only been on short recess, and then have simply amended the Constitution to provide legal cover to such ordinances (the National Reconciliation Ordinance being a recent example) even civilian governments have resorted to ordinances to avoid facing awkward questions in parliament or to introduce laws favouring a particular agenda.
The argument often offered for legislating by ordinance, and indeed, for suspending parliament is that the latter is not functioning properly. However, very little attention is paid to the fact that these practices have been blamed for further weakening parliament rather than strengthening it.
Lawmakers have become increasingly interested in preserving their position rather than exploring their potential as true representatives of the people. And the fact that so many laws are made without consultation and without an attempt to educate the public means that people themselves have remained ignorant of them and unable to appropriately utilise them.
Ultimately, however, it is the entire country that has suffered. Every segment of society has become more and more alienated from the other. The bonds of trust, communication and accountability between the state, its organs and the people that must exist for a country to thrive and grow, lie in tatters. A strong parliament may not be a complete answer to all the country’s ills but it is a significant first step in restoring these bonds. Other answers would then have no choice but to follow.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
Published in Dawn September 20th, 2016
