Pakistan: Fault lines in law-making

ABOUT a score of laws have been amended through
extraordinary methods over the last few weeks.
One measure has been widely hailed and another
strongly resented while the rest of the changes
have been received with customary indifference.
This is something to be regretted because the
amendments raise substantial doubts about the
lawmakers’ comprehension of the issues before
them, their methodology and the effect of their
assumptions about the sections of society sought
to be extended relief.

At the moment the centre of debate is the
ordinance promulgated by President General
Musharraf on July 7, 2006, to amend Section 497
of the Criminal Procedure Code. The ordinance
added a proviso to the section to the effect that
except for terrorism, financial corruption and
murder, all offences committed by women,
including offences under the Hudood ordinances,
had been made bailable.

The noise made by official spokespersons for
days, both before and after the ordinance was
issued, gave the impression that the women had
been favoured with something they had not been
entitled to earlier. In fact, the law already
provided for special treatment for women and the
effort to enhance relief for them had been going
on for quite some time. As for allowing bail in
non-bailable cases, the relevant CrPC provision
deals only with bail in such cases and a great
many people are released every year under it.

Let us take a look at this provision as it stood before July 7:

"497. When bail may be taken in cases of
non-bailable offence: (1) When any person accused
of a non-bailable offence is arrested or detained
without warrant by an officer-in-charge of a
police station, or appears or is brought before a
court, he may be released on bail, but he shall
not be so released if there appears reasonable
grounds for believing that he has been guilty of
an offence punishable with death or imprisonment
for life or imprisonment for 10 years.

Provided that the court may direct that any
person under the age of 16 years or any woman or
any sick or infirm person accused of such an
offence be released on bail.

Provided further that a person accused of an
offence as aforesaid shall not be released on
bail unless the prosecution has been given notice
to show cause why he should not be so released."

What the new ordinance does is this: The words
’or any woman’ are deleted from the first proviso
and a new proviso is added that says a woman
accused of a non-bailable offence shall be
released on bail as if her offence is bailable.
However, the bar to bail mentioned in the main
provision given above will apply to women, and no
woman will be allowed bail if the court has
grounds to believe that she has been guilty of an
offence "relating to terrorism, financial
corruption and murder" and the offence is
punishable with death, life imprisonment or jail
for 10 years. (It is easy to guess the name of
the famous woman the drafter had in mind while
putting the words “financial corruption” into the
amendment, since they did not occur in the
section earlier.) The new ordinance also offers
relief to women whose trial does not begin for
six months for no fault of theirs.

The ordinance has made it easier for over a
thousand women to be released on bail and made
the grant of bail mandatory in many cases in
future. As such the measure is welcome and the
relief offered to hundreds of women prisoners is
substantial.

But was Section 497 the sole cause of women’s
extended distress on coming, or being pushed,
into conflict with law? As pointed out above, the
law as it stood before July 7 did admit the
possibility of bail being granted in non-bailable
cases and included a special provision favouring
women of all ages, both healthy and infirm.

The issue was, partly, that women could not avail
themselves of bail mostly for want of sureties.
This because in most cases they were poor and
suffered as a result of the social tradition that
abandons women accused of Hudood or drug
offences. Indeed, in many instances those who
could arrange surety for them (parents, siblings,
husbands) were the complainants and prosecutors.
Women also suffered as a result of the
subordinate judiciary’s extreme reluctance to
allow bail under the unduly sanctified Hudood,
anti-terrorist or narcotics laws. At the moment
the state is providing surety for bail. Is it
feasible to make such arrangements permanent and
for women across the country?

As regards the Hudood laws, especially the main
instrument of women’s torture, the Zina
Ordinance, the bail facility may be accepted as a
mitigating factor but it offers no protection
against unjustified prosecution, humiliation and
disruption of normal life that results whenever a
woman is charged under these patently bad and
arbitrary laws.

Besides, how does one explain the government’s
failure to act on moves made earlier to
facilitate the grant of bail to women? The law
commission had proposed in 2002 an amendment in
the law to make the grant of bail to women easier.

Then, on November 10, 2003, the government moved
a bill in the National Assembly - Code of
Criminal Procedure (Second Amendment) Bill, Bill
No. 12 of 2003 - to provide for mandatory bail to
a woman accused of a non-bailable offence
punishable with less than a 10-year prison
sentence. The statement of objects said the women
accused of non-bailable offences and committed to
prison pending trial "often fall prey to sexual
harassment and other illegal demands of the
unscrupulous elements in jail - There are many
complaints of such happenings in the jails."

This was called the second amendment of 2003 to
the CrPC because on the same date another bill to
amend the CrPC had been tabled in the National
Assembly. It was meant to make the offence of
rioting under Section 147 and 148 of the PPC
compoundable if committed along with other
compoundable offences. This bill was titled Code
of Criminal Procedure (Amendment) Bill.
Obviously, the law ministry gave greater
importance to providing relief to rioters than to
women in prisons.

Quite obviously, there is need to pay more timely
attention to the reform proposals made by the law
and justice commission. Somebody should also be
answerable for the lopsided priorities in
legislative work. If a parliament can adopt bills
favouring the rulers in a matter of days and does
not proceed with due speed on a bill promising
relief to women, the inescapable conclusion is
that display of concern for poor women is merely
a seasonal fit of politically motivated
emotionalism.

In addition to the ordinance of July 7, 20 laws
have been amended vide the Finance Act 2006. Only
eight of these laws - Profession Tax Limitation
Act 1941, Public Investments (Financial
Safeguards) Ordinance 1961, Customs Act 1969,
Securities and Exchange Ordinance 1969, Finance
Act 1989, Sales Tax Act 1990, Income Tax
Ordinance 2001, and Federal Excise Act 2005 -
fall in the category of tax-related laws which
alone, it is said, can be changed through a
finance bill. Eight other laws amended vide the
latest Finance Act belong to the labour code -
workmen’s Compensation Act 1923, Factories Act
1934, Industrial and Commercial Establishments
(Standing Orders) Ordinance 1968, Companies
Profits (workers’ participation) Act 1968, Shops
and Establishments Ordinance 1969, Minimum Wages
for Unskilled Workers Ordinance 1969, Workers’
Welfare Ordinance 1971, and Employees Old Age
Benefit Institution Act 1976. Three laws deal
with institutions of different kinds - Price
Control and Prevention of Profiteering and
Hoarding Act 1977, Microfinance Institutions
Ordinance 2001, and Public Procurement Regulatory
Authority 2002. And the 20th law amended by the
Finance Act is the unavoidable Criminal Procedure
Code 1898.

For the present we are concerned with nine
non-tax measures - the eight labour laws and the
CrPC. Let us briefly examine what the amendments
are and how they can be categorised:

1. Criminal Procedure Code: A new section-14-A
has been added to empower provincial governments
to appoint special magistrates to try cases of
violation of price control laws. While ideas such
as price control and trial of traders who exploit
the citizens will be welcomed by people groaning
under spiralling prices, the wisdom of appointing
special magistrates is not clear.

2. Workmen’s Compensation Act: Workers with
higher wages made entitled to compensation, that
is, the number of beneficiaries raised.

3. Factories Act: Working hours in factories
increased and working hours for women also
increased. Change termed anti-labour.

4. Standing Orders: Contract worker included in
the definition of workman. Positive change.

5. Companies Profits Act: Changes in definition
of ’workers’, relaxation of condition of payment
of interest and penalty by an employer who
defaults on creation of a trust, enhancement in
paid-up capital and assets for companies to pay
profit share to workers, and changes in
categories of workers for entitlement to share in
profits. A mixed bag.

6. Shops and Establishment Ordinance: Provides
for non-day weekly rest to each worker and fixes
weekly holiday for establishments, raises
overtime hours per year from 150 to 624 for
adults and from 100 to 165 for young persons (14
to 17 years old), excludes piece-rate workers
from payment of overtime, and limits working
hours upto 12 hours a day.

7. Minimum Wages Act: Raises minimum wage for
unskilled workers from Rs 3,000 to 4,000 per
month. A welcome move.

8. Workers Welfare Fund: Largely technical changes.

9. EOBI: Minimum pension rate revised.

Most of the changes noted above are unlikely to
invite adverse comments except for the increase
in working hours. On this point trade unions have
already launched a vigorous campaign.

Under an amendment to the Factory Act (Section
38) the spread of duty has been extended from
10.5 hours to 12 hours per day in ordinary
factories and from 11.5 hours to 12 hours per day
in seasonal factories. No justification can be
advanced for this increase. Traditionally the
trend in labour legislation has been to reduce
the working hours for factory workers. For
instance, in 1946, when a number of progressive
labour measures were adopted the spread of duty
hours was reduced from 13 hours to 10.5 to 11.5
hours per day for ordinary factories, and
seasonal factories respectively. Now we find a
movement in the opposite direction.

Similarly, the amendment in the Shops and
Establishment Law increases the period of
overtime for adults four-fold from 150 hours in a
year to 624 hours and by more than 50 percent for
children. This can only be described as a
prescription for turning factories and other
commercial establishments into sweat shops.

Further, the extension in working hours for women
cannot be defended. The condition of provision of
transport by employers for requiring women to
work up to 10 clock at night is meaningless in an
environment marked by absence of control and
inspection and where employers are free to throw
workers out at the slightest pretext.

More objectionable than the contents of the
amendments is the manner of making them. It has
been vigorously argued, and with substantial
justification, that the Finance Bill cannot be
made a vehicle for legislation which bears no
nexus with taxation. Backdoor tampering with laws
can under no circumstances be condoned.

Nobody has been told why the amendments are
considered necessary. In case of labour
legislation, the bypassing of the system of
tripartite consultation is always reprehensible.
If the Criminal Procedure Code can be amended
through the Finance Bill the government can bring
all the changes in this code and the Penal Code
and the anti-terrorism laws without going through
the hassle of debate in the houses of parliament.
The quick fix method employed in the instant case
circumvents the need for public debate as well.
Where the call of law-reform institutions is not
heeded, parliament is deprived of its right to
debate legislative proposals, and the public is
completely excluded, such fault lines in
lawmaking can make any state liable to be
indicted for bad governance.

P.S.

* From Dawn, July 13, 2006. Circulated by South Asia Citizens Wire | 14-15 July, 2006 | Dispatch No. 2273.

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