Federal Legislation In 2016

LegislativeUpdate

Federal Legislation In 2016

In the year 2016, the National Assembly passed 51 Acts but the Majlis-e-Shura (Parliament) altogether passed just seven, out of which two were new laws and five were amendments to the existing laws.[1] The Parliament of Pakistan consists of the President, National Assembly and Senate as per Article 50 of the Constitution and therefore with the exception of money bills (i.e. the National Budget), all the bills relating to the Federal Legislative List can originate in either of the Houses and if both Houses pass a bill and the President assents to it, the bill becomes a law. If Parliament is not in session, the President can issue ordinances as per the powers given to him under Article 89 of the Constitution. There were six Ordinances issued by the President under such powers, one of which, the Companies Ordinance 2016 (Ord. No. VI of 2016), issued in November, created a state of suspicion among the Opposition, anxiety among businesses, confusion among lawyers and embarrassment to the government.

Analyzing all Acts passed by the National Assembly, all laws passed by Parliament and all Ordinances issued by the President would not be possible in this article, hence I will discuss some of the main aspects of laws passed by Parliament. The objective is to bring together all laws passed in the year 2016 and present their summary.

Bills Passed by the Majlis-e-Shura (Parliament)

As discussed briefly, the Majlis-e-Shura passed 7 laws in the year 2016, two of which were new laws and 5 were amendments to existing laws. The major aspects of these laws are given below:

1) Pakistan International Airlines Corporation (Conversion) Act 2016

One of the most talked about laws passed by Parliament in 2016 was the Pakistan International Airlines Corporation (Conversion) Act 2016. After much deliberation and hiccups, the Bill to convert Pakistan International Airlines (PIA) into a public limited company was passed unanimously by Parliament. The PIA, established under Pakistan International Airlines Corporation Act 1956 had become a financial burden for the government and an overhaul of the legal structure was in the pipeline for various years.

The PIA Corporation has now been turned into a public limited company under the Companies Ordinance 1984 under the new law. As per Section 4 of the Act, the “company” shall be deemed to have substituted for the name of the “corporation” in all contracts and records. Moreover, as per S.7, the name of the company cannot be changed without the consent of federal government. As per S.3 of the Act, the company is deemed to hold and own all assets and liabilities of the corporation without any further act needed and all the shareholders of the new “company” “shall be deemed without any fresh issuance of shares to own and hold the same number of fully paid shares with such rights and privileges as they owned….” Another important clause of the Act as far as company employees are concerned is that of S.3 (4) which stipulates that all employees of the corporation shall be deemed to be the employees of the company on the “same remuneration and other conditions of service…”. This clause further restricts the company to change any salaries, terms of service or pension of existing employees and obligations to the disadvantage of such employees.

Let’s hope that the new law brings a positive change to the airline. However, at this point all fingers are crossed as massive investment is required for the carrier to bring itself out of its current financial quagmire. A lot is expected from the new Acting CEO and COO, Mr. Bernd Hildenbrand.

2) Criminal Law (Amendment) (Offences in the Name or Pretext of Honour) Act 2016

The object of this Act is to prevent offences in the name of honour that take hundreds of lives every year. It may be noticed that this Act was passed three months after the Qandeel Baloch saga as the model was murdered in July 2016 and the law was passed by the Majlis-e-Shura in October 2016.  This Act also changed some provisions of the Pakistan Penal Code (PPC) and Code of Criminal Procedure (CrPC).

The Act includes offence committed in the pretext of honour as fasad-fil-arz. As per one of the amendments in the PPC, S.302 has been made punishable only with death or imprisonment for life for such offences and clause (c) of s.302 has been made inapplicable to the offences involving fasad-fil-arz. Moreover, as per the amendments made in S.309 and 310, the right to waive qisas without compensation or through badl-e-sulh has been made subject to S.11 of PPC which itself has been amended to restrict the punishment in cases involving honour to at least life imprisonment.

The CrPC has also been amended to this effect and the relevant S.345 of CrPC has been amended to make any compounding subject to new laws and subject to S.11 PPC and S.345 CrPC. Schedule II of CrPC has also been amended to update the punishment for honour crimes to be either life imprisonment or death.

3) Gas (Theft Control and Recovery) Act 2016

The Gas (Theft Control and Recovery) Ordinance was issued in 2014, as per powers of the President granted under Article 89 of the Constitution. The objective of this Ordinance was to prosecute crimes related to gas theft and other offences. Parliament passed the Act on the matter in March 2016.

The purpose of the Act is to prosecute the offences of gas theft and other crimes relating to gas as well as to provide procedure for expeditious recovery of amounts due to gas utility companies. The law deals with offences like tampering with gas pipelines, gas theft, tampering with domestic, commercial or industrial meters, and damaging pipelines or transmission lines, etc.

According to the Act, Gas Utility Courts are to be set up in the districts with judges from amongst the District and Sessions Courts judiciary and these courts will have exclusive jurisdiction to deal with the cases under this law. Cognizance by the court shall not be taken unless application is made by the gas utility company.

As per S.7 of the Act, leave to defend is required before a defendant can defend his or her case and this application has to be given within 21 days of the first service. In case the court does not give the leave to defend, the allegations in the plaint shall be deemed to be admitted and the court may pass a decree in favour of the plaintiff. The Act lists down circumstances in which the court would not give leave to defend.

It is important to note that the law provides a summary procedure and stipulates to dispose off the case within 90 days of the grant of leave to defend. Moreover, if the case goes beyond this time period, the law requires the defendant to furnish security in such amount as the court deems fit. Any judgment, decree or final order may be appealed to the High Court within 30 days of such judgment, decree or order. The punishments under the Act range from 6 months to 10 years and the fines range from one hundred thousand to five million rupees in addition to any dues to be recovered. Moreover, anyone found guilty of any offence under sections 14 to 19 shall not be supplied gas for a period of one year.

4) Privatization Commission (Amendment) Act 2016

Some amendments have been made in the Privatization Commission Ordinance 2000 to improve the transparency in the privatization process under the new Act. Section 21, subsections (1) and (2) have been substituted with two other subsections providing for the auditing of privatization transactions by the Auditor General of Pakistan and then by an external auditor. It will be the Privatization Commission’s responsibility to ensure that such transactions are audited in this manner.

5) Emigration (Amendment) Act 2016

In this amendment to the Emigration Act, a new clause has been inserted after clause (j) of section 2 subsection 1, wherein “overseas Pakistani” has been defined as a person under the Pakistan Citizenship Act 1951 or holder of National Identity Card for Overseas Pakistanis (NICOP) under the National Database and Registration Ordinance 2000. Another section 4B has also been also inserted in the Act to protect the interests of overseas Pakistanis. Under this section, a complaint can be made by an overseas Pakistani to the Director General (DG), who is required to forward it within 15 days to the concerned government authority for appropriate action. The DG will submit an annual report to the federal government regarding the status of such complaints received.

6) Civil Servants (Amendment) Act 2016

The Civil Servants Act 1973 has been amended under this Act with an addition of a new Section 10A. This section restricts civil servants, during their service, to serve in any international organisation including an international NGO, international financial institution and foreign donor agency except where the civil servant is posted or deputed by Pakistan with permission of the federal government.

7) Criminal Law (Amendment) (Offences Relating to Rape) Act 2016

According to the statement of objects and reasons of the Act, 103 reported cases of rape had been registered in the Islamabad Capital Territory in the previous five years but none of the culprits or accused had been convicted. [2] Some very important amendments relating to the offence of rape have been made in the PPC, CrPC and Qanun-e-Shahadat Order which are discussed below:

In the PPC, an amendment has been made in S.55 where the government’s powers to commute a sentence have been rescinded in relation to offences under sections 354A, 376, 377 and 377B as well as in cases where fasad-fil-arz is concerned. Therefore, the following offences cannot be commuted by the state from now on:

  • S.354A: Assault or use of criminal force against a woman and stripping her of her clothes;
  • S.376: Punishment for rape;
  • S.376A: Punishment for causing death or causing the vicitim to result in persistent vegetative state;
  • S.377: Unnatural Offences;
  • S.377B: Punishment for sexual abuse.

Another amendment has been made to S.166 of the PPC which now enacts that where any public servant is entrusted with the investigation of a case and fails to carry out the investigation properly or diligently or even fails to pursue the case in any court of law, he or she shall be punished with imprisonment which may extend to three years, or with fine, or both. Given the state of investigations in this country by investigative agencies, the implementation of this section should be aggressively pursued by the government by prosecuting corrupt or negligent investigators.

Another related amendment has been made in S.186 of the PPC – obstructing a public servant to carry out his or her duties had previously been punishable with imprisonment of three months fine of five hundred rupees – this has now been increased to one year punishment and fifty thousand rupees fine. Moreover, another clause has also been added in the section which penalizes anyone who intentionally misleads or hampers or defeats an investigation or issues a defective report. This crime has been made punishable with imprisonment of up to three years, or with fine, or both. Amendments in sections 166 and 186 have long been craved by the country given unleashed investigators playing with justice and spreading corruption for decades.

Another very commendable amendment has been made in S.376 of the PPC where subsections 3 and 4 have added punishment as death or imprisonment for life and fine to any person who commits rape of a minor or a person with mental or physical disability. Public servants, including police officers, medical officers or a jailors, who take advantage of their position to commit rape are also to be punished with death or imprisonment for life. Moreover, disclosure of identity of the victim of rape has also been made a crime punishable with imprisonment of upto three years.

The criminal procedure laws have also been amended with the following amendments made in the Criminal Procedure Act 1898:

A new Section 53A has been incorporated in the Act which allows a medical officer of a hospital run by the government or a local authority to examine an accused for having committed rape, unnatural offence, attempt to rape or sexual abuse. On conducting such examination, the registered medical officer shall prepare a report of the examination giving particulars like name, address, age, marks of injury, description of material taken for DNA and other relevant details. Moreover, Sections 164A and B have been added where medical examination of the victim of such crimes has been made compulsory by a female medical officer, immediately after the commission of such offence, with the consent of the victim or her guardian. However, what ‘immediately’ means and what the procedure will be when immediate examination is not possible, has been left open to interpretation which the courts may soon decide upon.

As per a new Section 164B, deoxyribonucleic acid (DNA) test has been allowed and samples are to be taken for the said test, when practicable, from the victim with her consent and from the accused, and sent to a forensic laboratory.

As per a new section that has been incorporated (Sec 344A), the cases under sections 354A, 376, 377 and 377B of the PPC shall be decided within three months, failing which the matter would be taken to the Chief Justice of the concerned High Court for appropriate decision. The appeals against any order of conviction or acquittal under the said sections shall be decided within six months as per the amendment made in Sec 417.

Another amendment made within CrPC has been to section 352 which stipulates that trials are generally to be conducted in open courts. The cases under sections 354A, 376, 376A, 377 and 377B of the PPC shall be conducted ‘in camera’ (i.e. private; where the public and press are not allowed to observe the procedure or process) under the amendment made in section 352 of the Act.

In the same Act, impeachment for the credit of a witness where, in case of rape or attempt to ravish, the prosecutrix had been shown to be of immoral character, has also been done away with from the Qanun-e-Shahadat Order 1984. Article 151, therefore has been removed which is generally appreciated as this would save female victims in court from filthy arguments to prove them to be of immoral character. Moreover, it is a step in the right direction because rape or any such offence is a crime which should never be justified on the pretext that the other person did not have a pure character.

Conclusion

Enacting laws is one thing, their implementation is another. Where it is the duty of the Parliament to make laws considering the ills of a society, the executive holds the duty in sacred trust to implement the same in their true spirit. And then, the lawyers must not forget their role which is to act as “officers of the court” to render true legal assistance. The mere enactment of  laws should not be considered an achievement unless they are implemented in their true spirit as well. We do not lack in the making of laws but fail in implementing them. We can speak with eloquence, write with perfection but most of the times, fail to do what we say, write or even believe in.

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References

[1]http://www.na.gov.pk/en/bills.php?status=pass
[2]http://www.na.gov.pk/uploads/documents/1475761256_380.pdf

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

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Ahmed Ozaif

The writer is an Advocate of the High Court and Programme Manager at Courting The Law. He also holds an MBA degree and a distinction in Masters of Accounting from Sydney Business School, UoW.



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