Comparison of Provincial Legislation in 2016 – Balochistan
Chapter 1 of Part V of the Constitution of the Islamic Republic of Pakistan deals with the “Distribution of Legislative Powers”. In this regard, Section 141 of the Constitution says, “A Provincial Assembly may make laws for the Province or any part thereof.” Moreover, as per S. 142, Parliament has exclusive powers to make laws with respect to any matter in the Fourth Schedule or “Federal Legislative List” and Provincial Assemblies have exclusive powers of legislating on matters “not” enumerated in the Federal Legislative List. As per the same section, both the provincial and national legislatures can legislate on matters related to criminal law, criminal procedure and evidence.
Under these powers given to provincial legislatures by the Constitution, a total of 81 bills were passed by the assemblies of Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh in the year 2016 and also got the respective governors’ assent.
81 laws in one year by four assemblies signify that enormous legislative work was done by the representatives of the people in 2016. Hence, it is important to analyse the laws passed by these assemblies and figure out in what direction these new laws are being framed. Moreover, this analysis will also help observe the mindsets of different provincial governments and be useful in comparing the legislative performance of these governments. However, this analysis should not be used as an alternative to the original laws or to advise any clients.
The article will be published in parts and will discuss some of the most important, controversial or talked about laws passed by the provinces in 2016.
Total Laws Passed by the Provincial Assemblies
A total of 81 laws were passed by the four legislatures in the year 2016.
I would like to start the analysis with the province of Balochistan and continue in alphabetical order.
Balochistan Assembly passed the following 7 laws in the year 2016.
Among these laws, the Harassment of Women at Workplace Act, the Witness Protection Act, and the Child Protection Act require special attention.
1. The Balochistan Protection Against Harassment of Women at Workplace Act 2016
The Act, passed in January 2016, extends to the whole of Balochistan except the “Provincially Administrated Tribal Areas”. As per the Act, each government or private organisation shall constitute an “Inquiry Committee” consisting of five members with at least two women and one member from the senior management or a senior representative of the employee in absence of any Collective Bargaining Agent. However, a clause of the Act enacts that when a complaint is made against one of the members of the committee, the member shall be replaced by another for that particular case. The lack of detail and clarity in this clause might make an inquiry a never ending process.
As per S. 4 of the Act, the “Inquiry Committee” will inquire into the case and examine documents and witnesses within three days of receipt of a written complaint and as per S. 5, would be able to impose minor and major punishments. The minor punishments include the recovery of compensation payable to the complainant from the pay or any other source of the accused. The major penalties include demotion to a lower post, removal/dismissal from service and a fine ranging from rupees fifty thousand to rupees five hundred thousand, “provided that the amount of fine or a part thereof may be” paid as compensation to the complainant or the victims. This has left the committee with open discretion to distribute the fine and without giving any specific share to the beneficiary. If the committee has a shareholder/director/proprietor as a senior representative and imposes a fine of rupees five hundred thousand, then it means that such inquiry will only benefit the company or the employer, as the case may be, and both the victim and the accused will be punished in terms of time, money and/or reputation.
Any appeal from the decision of the competent authority lies with the ombudsperson under s. 6 of the Act. The ombudsperson is appointed under s. 8 of the Act and shall “preferably” be a woman not less than 45 years of age, possessing an LL.B degree and shall either be qualified to be a judge of a High Court or been in service of Pakistan in BPS 19 or above and be appointed by the government. The powers of the ombudsperson in such cases are the same as those of Civil Court under the Code of Civil Procedure in matters relating to summoning and forcing attendance of any person, compelling the production of evidence and examination of witnesses, etc. under section 10 (1) of the Act. Moreover, the ombudsperson shall have the powers of a High Court in matters relating to its contempt under s. 10 (2) of the Act. The decision of the ombudsperson is challengeable to the Governor of the province within 30 days and the decision of the Governor shall be final.
As per section 11 of the Act, it shall be the responsibility of the employer to ensure implementation of this Act and on failure of such implementation, an employee of an organisation may file a complaint before the ombudsperson who can impose on such employer a fine ranging between twenty-five thousand rupees to one hundred thousand rupees. The threat of maximum penalty of one hundred thousand to a business might not be very potent to force him or her into action. Moreover, even though a company may face a fine of hundred thousand in the case of its failure to establish an Inquiry Committee, it has the potential of gaining five hundred thousand that might go into the pocket of the company along with an opportunity to getting rid of an employee very easily. A wicked use of this law does not seem too difficult given these lacunae.
2. The Balochistan Witness Protection Act 2016
The Act was passed in April 2016 to “provide for protection of witnesses to enable them to give evidence in criminal proceedings in the Province of Balochistan.” It extends to the whole of Balochistan except the Tribal Areas and its provisions apply to investigation, inquiry and trial of heinous offences.
A Witness Protection Program for the safety and protection of witnesses has been established as per S. 4 of the Act in the Home Department of Government of Balochistan, the task of which is to make arrangements for the following:
- To allow a witness to establish a new identity.
- To allow the witness to conceal his or her identity by wearing a mask, changing voice, appearance or any other form of segregation.
- To allow video conferencing to secure the protected person with approval of the concerned authority.
- To protect the witness.
- To provide accommodation and transport as well as financial assistance, if required, to the witness.
- To provide compensation in case the protected person is killed or permanently incapacitated.
In this context, a Witness Protection Advisory Board consisting of the Minister of Home Department as its chair, the Additional Inspector General (CID) as its secretary and other officials like the Chair Standing Committee on Home and Tribal Affairs, Secretaries of Home and Tribal Affairs, Law Department and Finance, the Advocate General, IGs of Police and Prisons, DG (Levies) and the Prosecutor General are to be the members of the board. The unit will be headed by Secretary, Home and Tribal Affairs Department, who shall be the Chief Witness Protection Officer under s. 7 of the Act and be responsible for the protection of witnesses and related persons as per Section 10 of the Act. Moreover, the Chief Witness Protection Officer shall be responsible for deciding the inclusion of a witness in the program as per S. 14 of the Act. As per S. 8, the unit shall provide the framework and procedure for giving protection on behalf of the state. This witness protection board would advise the unit on the formulation of policies, oversight of administration, approval of the budget and other related matters.
As per the mandatory “written protection agreement” between such witnesses and the Chief Witness Protection Officer (CWPO) under s. 15, the Chief Witness Protection Officer will enter into a written agreement with the witness where an obligation to protect such witness would be on the CWPO and a procedure would be laid down in which the witness would be able to take relevant evidence, etc. to the court. Section 18 deals with the termination of protection and assistance to the witness in cases specified therein. It should also be noted that revealing the information of a protected witness or allowing unauthorised access to any protected person, including some issues of compromising the security of a protected person, are all offences as per section 25 of the Act.
The Witness Protection Act was much needed in Balochistan for a long time given the law and order situation in the province and the continuous interference of hostile powers in the region. It is hoped that the use of this law will help the prosecution in bringing terrorists and anarchists to justice and save the courts from unnecessary blame of exonerating terrorists for want of witnesses or evidence.
3. The Balochistan Child Protection Act 2016
This Act is to provide for the “protection of children in Balochistan from all forms of physical or mental violence, injury, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse and matters incidental thereto.”
Section 4 of the Act makes incumbent upon all the state bodies, agencies and organisations, public and private social welfare institutions and civil society organisations to safeguard and promote the best interests of the child in need of protection.
More or less, most of the clauses of this Act are those which are either enshrined in the Constitution of Pakistan like S. 3 of the Act which gives a child an inherent right to life, or which are otherwise illegal under other laws like no child to be “removed from its family home and environment by state intervention” as stipulated in S. 5 of the Act.
The Act obliges the government to establish a Child Protection Commission consisting of Minister/Advisor Social Welfare Department, Secretary Social Welfare Department, four members of the Balochistan Provincial Assembly and secretaries from different departments of the government as per S. 8 of the Act. The Commission would coordinate and monitor the issues relating to child protection, abuse, violence and exploitation of children at the provincial level along with advising on policy, implementation of Convention on the Rights of the Child, and ensuring implementation and support in times of natural disasters and armed conflicts as per S. 9 of the Act.
District Child Protection Units have also been established, headed by the Child Protection Officer under the Act as per S. 11. The Child Protection Officer shall develop a child protection plan which shall include a formal referral to appropriate protection service under s. 14. However, as per S. 15 of the Act, when the Protection Officer suggests that a child’s needs are to be met through protective services, an agreement of parent/legal guardian/current carer would be required. If the child’s guardian/parent/carer is involved in any violation of the child’s rights, the Act provides relief in such a case by directing the Protection Officer to make an application to the Court under s. 16 of this Act, through which the officer would make an application to the court under Section 12 of the Guardian and Wards Act 1890.
Given that certain organisations – including the Child Rights Movement, a group of like-minded civil society organisations – have been trying to get legislation enforced for the welfare of children, the Balochistan Child Protection Act is a good step in at least highlighting the issue, putting responsibility on specified officials and formulating procedures to deal with such cases.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.