13 January 2023
By Rehan Piracha
A bill on enforced disappearance is once again in parliamentary limbo following its second passage in the National Assembly which, according to Senator Raza Rabbani, broke parliamentary tradition and rules by passing amendments in the Senate’s amended version to its original bill.
In a letter to National Assembly Speaker Raja Pervez Ashraf, Senator Rabbani of the Pakistan Peoples Party, who is also a former chairman of the Senate, pointed out the anomaly in the passage of the Criminal Laws (Amendment) Bill, 2022, relating to enforced disappearances that the National Assembly passed with additional amendments after the bill was already passed by Senate with amendments on October 21, 2022.
Rabbani said the objectives of this proposed legislation are to criminalize enforced disappearance with impunity that surrounds this practice and to provide closure to the families who are in immense pain because the fate and whereabouts of their loved ones are still unknown.
The bill on enforced disappearances was initially passed by the National Assembly on November 8, 2021. In pursuance of Article 70 of the Constitution of Pakistan, 1973, read with rule 140 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 [‘the Rules’], ‘the Bill, 2022’ was transmitted to the Senate of Pakistan for consideration, Rabbani said. The Senate passed the Criminal Laws (Amendment) Bill, 2022’ with amendments on October 20 and the bill was returned to the National Assembly for consideration, he added.
“The National Assembly of Pakistan in terms of Article 70 of the Constitution of Pakistan, 1973, read with rule 154 of ‘the Rules’, considered the ‘Bill, 2022’, as amended and passed by the Senate and in an unconventional move, passed the said the bill with further amendments,” Rabbani pointed out in his letter to the NA speaker.
In his view on how to overcome the anomaly, Rabbani stated that it was the first time in Pakistan’s parliamentary history that a bill passed with the amendments by the other House, is passed with those amendments, and also the House, in which it originated, has made the additional amendment and passed the bill ‘as amended’. In the letter, Rabbani referred to Article 70 of the Constitution, 1973, which provides the parameters of legislative procedures.
“(1) A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall if it is passed by the House in which it originated, be transmitted to the other House; and, if the Bill is passed without amendment, by the other House also, it shall he presented to the President for assent. (2) If a Bill transmitted to a House under clause (1) is passed with amendments it shall be sent back to the House in which it originated and if that House passes the Bill with those amendments it shall be presented to the President for assent. (3) If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House in which it originated, shall be considered in a joint sitting and if 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. (4) In this Article and the succeeding provisions of the Constitution, ‘Federal Legislative List’ means the Federal Legislative List and the in the Fourth Schedule,” reads Article 70.
Rabbani viewed that the bill could not be transmitted back to the Senate, as it is no longer a bill that has originated in the National Assembly in terms of Rule 120, of ‘the Rules’, and Article 70 of the Constitution. “The bill cannot be sent to a Joint Sitting of Parliament by the House in which it originated because the Member-in-Charge of the Bill chose to give notice and move a motion for consideration and passage of the Bill as passed by the Senate,” he added.
In addition, Rabbani said, the clog contained in the Rules, and requirements of Clause (3) of Article 70 make a referral of the bill to the Joint Sitting of the Parliament in the existing situation, impossible and unconstitutional.
Senator Raza Rabbani said the National Assembly, has made a ‘new amendment‘ while passing the bill as amended by the Senate, giving rise to a situation not provided for in the Rules. Therefore, the Speaker, using his residuary powers, should rule that the government may move a motion to rescind or withdraw the motion for the passage of the Bill, 2022, as amended. “The government may move a Motion that the bill, 2022, as amended and passed by the Senate, be referred to the Joint Sitting of Parliament,” he suggested to the NA speaker in his letter.
Rabbani urged the NA speaker to expedite the legislative process of the bill as it was the most significant legislation in the public interest which could go a long way in mending the issue of enforced disappearances.
Removal of controversial clause for false allegations of enforced disappearance
Human rights activists and families of victims of enforced disappearances had objected to the controversial clause in the bill for the criminalization of enforced disappearances passed by the National Assembly in November 2021 that stipulated a punishment of five years for anyone lodging a false complaint. In December 2021, the United Nations Working Group on Enforced or Involuntary Disappearances also called on Pakistan to halt the approval of an amendment to a bill criminalizing enforced disappearances that would harshly penalize families and other sources for reporting alleged cases.
“Whoever files a complaint or gives information that proves to be false he or another person has been subjected to Enforced, Forcible or Involuntary Disappearance or an attempt has been made in this regard, he shall be guilty of an offense punishable up to five years imprisonment and fine up to one hundred thousand rupees,” reads the new Section 514 that is to be inserted in the Pakistan Penal Code under the bill. The Senate did not amend the controversial clause when it passed an amended version on October 20, 2022.
However, government coalition allies BNP chief Muhammad Akhtar Mengal, MQM MNA Usama Qadri, JUI-F MNA Muhammad Jamal Ud Din, and MNA Mohsin Dawar objected to the punishment clause for false allegations when the bill was brought for consideration in the National Assembly. Law Minister Azam Tarar told the house that the government would consider the objections. Subsequently, MNA Naveed Qamar proposed an amendment to the bill that struck off the controversial clause of punishment. The National Assembly passed Criminal Laws (Amendment) Bill, 2022 with additional amendments to the version passed by the Senate.
The bill also proposed the insertion of new sections 512 and 513 in the Pakistan Penal Code. According to Section 512, the perpetrator of an offense of forcible or involuntary disappearances is defined as whoever commits, orders, solicits, or induces the commission of attempts to commit, is an accomplice to or participation in the forcible or involuntary disappearances of a person or group of persons. Under Section 513, the punishment for forcible or involuntary disappearances of any person from Pakistan or within Pakistan has been set at imprisonment for up to 10 years along with a fine. The offense of forcible or involuntary disappearances, which will be non-bailable and non-compoundable, will be tried in a sessions court.