ISLAMABAD: Once hailed as a landmark legislation, the bill to criminalise enforced disappearances is currently in limbo as the Constitution is silent about a way out of the complicated situation the proposed law is in.

The bill, titled Criminal Laws (Amen­dment) Bill, 2022 was introduced in the National Assembly on June 7, 2021, and passed later that year on Nov 8.

The bill then landed in the Senate for subsequent approval. The upper house further amended the bill be­­fore passing it on October 20, 2022.

Since the Constitution mandates that the amended bill must return to the house it originated from, the bill once again landed in the National Assembly. It would have been a routine procedure had the lower house passed the bill with the amendments made by the Senate.

Rabbani suggests govt can place draft law criminalising enforced disappearances before a joint session of parliament

But the National Assembly made further amendments and then passed the bill on Oct 21, 2022, thus catapulting it into a constitutional black hole.

PPP leader and former Senate cha­­ir­man Raza Rabbani, in a recent letter to National Assembly Speaker Raja Pervaiz Ashraf, proffered a way out.

“I am given to understand that a question has arisen whether, as a consequence of the new amendment, made by the National Assembly, the bill be returned to the Senate for consideration and passage or placed before a joint sitting of parliament,” Mr Rabbani added.

Constitutional ‘Catch 22’

In his letter, Mr Rabbani said this was the first time in parliamentary history that a bill passed with amendments in one house was passed with those and additional amendments in the other house.

He also referred to Article 70 of the Constitution, which outlined the legislative procedures.

According to the article any bill which originated and passed in either House shall be sent to the other house, said Mr Rabbani.

If the bill was passed without any amendments by the other house, it will go to the president for assent.

Article 70(2) stated that if the house amends the bill, it will be sent back to the house where it had originated for approval. If the first house approves the amendments made by the other house and passes the bill without any further changes, the bill then lands at the president’s table for assent.

However, in any case, if the bill was rejected or not passed by either house or the house where the bill originated rejected the amendments made by the other house, it will be presented in a joint sitting of the parliament at the request of the house in which it originated, according to Article 70(3).

“[I]f passed by the votes of the majority of the members present and voting in the joint sitting it shall be presented to the President for assent,” the clause added.

However, the article didn’t lay a way out in a situation in which the house — where the bill had origina­ted from — further makes changes to an amended bill returned from the other house.

The way out

In his letter, Mr Rabbani has advised the National Assembly speaker to use his inherent/residuary powers to rule that the government may move a request to withdraw the motion for the passage of the amended bill by the National Assembly.

The speaker may exercise this power under Rule 256 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, Mr Rabbani advised.

Subsequently, the government may move a motion to pass the bill which was amended and passed by the Senate, he advised.

Alternatively, he said the government may move a motion to refer the bill (amended and passed by the Senate) to a joint sitting of the parliament.

Concurring with the PPP leader’s opinion, Ahmed Bilal Mehboob of the Pakistan Institute of Legislative Development and Transparency said the National Assembly committed an “irregularity” by amending the bill returned by the Senate.

Talking to Dawn, he said the NA amendments and the subsequent pas­­­sing of the bill needed to be undone.

“Then, either the National Assembly passes the law as amended by the Senate or sends the bill to joint sitting,” Mr Mehboob said.

Published in Dawn, January 14th, 2023