Parliaments have crucial constitutional mandates concerning law-making, oversight, and representation and play a critical role in advancing sustainable development. They provide an essential forum for diverse parts of society to engage in policymaking, express their views, voice concerns, and demand accountability.
Pakistan’s central constitutional principle is parliamentary sovereignty – that, in principle, parliament holds the power. But in practice, a government with a majority wields much of that power. Therefore, parliament’s ability to perform these functions effectively is limited. Government defeats on legislation are rare under a majority or a coalition government. The executive’s strong control of parliamentary mechanisms, not least the National Assembly timetable, means that procedure often prioritises speed and efficiency over opportunities for scrutiny. Recent trends towards passing bills on expedited timetables and increased use of secondary legislation have curtailed opportunities for parliamentary input still further.
The legislative process is a microcosm of the wider parliament–government relationship. Ultimately it is parliament that has the constitutional power to make legislation. A key function of the Parliament of Pakistan is to enable a democratically elected government to deliver on its manifesto pledges through legislation. However, this does not mean that the government should be able to act without constraint. No government can represent the views of the whole of the electorate – indeed, under the first past the post system Pakistani governments rarely receive a majority of votes in a general election.
1) Problems with the current process
There are many political, practical, and procedural problems with the legislative process. It is unhelpfully opaque, even to many parliamentarians, and lacks input from experts – from outside parliament but also within. There is too little interchange between the executive and parliament when first designing legislation, storing up problems for later. Together these prevent parliament from performing its functions well and can result in poor quality legislation. The factors that prevent parliamentarians from performing their constitutional mandate of effective pre-legislative and post-legislative scrutiny include:
First, the legislative process is complex and inaccessible. Parliamentarians and officials all have difficulty understanding parliamentary procedures, requiring resources to help them navigate the system and creating a barrier to participation.
Second, parliamentarians are not always given sufficient time to consider legislation. The volume of legislation proposed during the last few months suggests that the time the National Assembly and the Senate dedicate to considering government bills is on a downward trajectory. The 26th Constitutional Amendment, for example, has led to trends towards government choosing to pass bills on expedited timetables, even when not urgent, giving parliamentarians less time to consider the propositions before them.
Third, governments are introducing bills in parliament before policy is fully developed. Several parliamentary committees have raised concerns about the increased use of delegated powers in lieu of policy detail on the face of the bill; the government is making substantial amendments to bills at late stages more often, again leaving little opportunity for parliamentary scrutiny.
Fourth, parliamentarians do not have the capacity and resources to properly scrutinise the content of legislation. They have many competing demands on their time, which means legislative scrutiny is often not a priority. They, including on opposition frontbenches, have access to only a handful of staff members to help them develop policy or draft amendments. Senators have access to even fewer resources.
Fifth, it is difficult for parliamentarians to amend a bill once it has been introduced into parliament. Government defeats on amendments are rare, and the threshold for government concessions is high. Amendments require further political signoff, analysis, and drafting capacity, which from the government’s point of view can add unwanted time and complexity to a bill’s passage. While this may be understandable, the attitude limits parliament’s ability to influence the content of legislation, beyond what the government has set out in the original bill.
The pre-legislative scrutiny has many benefits: it can be beneficial for the government, helping to smooth out a bill’s passage, preventing defeats down the line, and ultimately improving the quality of legislation
2) Two-stage reform agenda
To assess where and which reforms to the legislative process may be necessary, from policy development to post-legislative scrutiny, we suggest a stock of recommendations for promoting legislative development and eventually the parliamentary sovereignty, the central constitutional principle of the Constitution of Pakistan, 1973.
We identify two areas for further inquiry where there is the greatest potential to improve parliamentary scrutiny and where we can best make a contribution through detailed reform proposals. The first concerns pre-legislative scrutiny. The second concerns the standing committee's stage–the National Assembly and the Senate – the main opportunity for detailed scrutiny and to bring outside perspectives into the process – which is undervalued and where again greater use would likely improve the process as a whole.
2.1) First-stage: Reforming pre-legislative scrutiny process
The pre-legislative scrutiny is a most common parliamentary recommendation, and there is broad consensus that its greater use could improve outcomes – but there has been a persistent lack of government uptake. This should change. The pre-legislative scrutiny has many benefits: it can be beneficial for the government, helping to smooth out a bill’s passage, preventing defeats down the line, and ultimately improving the quality of legislation. It also creates opportunities for parliament to influence legislation at an early stage when it can have the most impact – including calling for further policy development, drawing upon members’ policy expertise, and creating opportunities for civil society engagement. While this is not guaranteed to result in greater parliamentary influence, it creates additional opportunities for it to happen.
However, there are practical and political barriers to the greater use of pre-legislative scrutiny. Most important is time – it can take up to four months for a committee to report, although there have been examples of committees considering draft clauses or holding one-off evidence sessions. Ministers are often reluctant to delay legislation out of a desire to deliver on their policy objectives, perhaps led by concern that their political fortunes might change before they can do so. The current system used for pre-legislative scrutiny is discretionary, meaning it is up to the government to decide whether to publish a bill in draft for pre-legislative scrutiny. While there have been bursts of enthusiasm for this process, uptake remains low.
Therefore, it is recommended a more formal procedure be put in place – albeit with the flexibility to respond to the government’s concerns about its implications for legislative timetables. Drawing on the example of the Irish parliament, in which committees are given the opportunity to conduct pre-legislative scrutiny on all government bills, we recommend:
First, the government should be required to publish all bills in draft. In the case of urgent or emergency legislation, there should be a mechanism through which the National Assembly of Pakistan can agree to grant a waiver.
Second, the Assembly’s standing committees should be given the opportunity to request pre-legislative scrutiny on any bills in their departmental remit, unless the government chooses to establish a joint or a parliamentary committee to scrutinise a specific bill.
Third, there should be a ‘menu’ of options for pre-legislative scrutiny to allow for flexibility within the process and prevent adding significant additional time to a bill’s timetable in all cases. These should include: a full committee inquiry and report on the whole bill, scrutiny of draft clauses, a shorter pre-legislative scrutiny inquiry, or holding a one-off evidence session before the formal introduction of the bill.
2.2) Second stage: Reforming standing committee procedures
It is observed that while the level of activity of standing committees of the Assembly and the Senate in legislative business and oversight of the executive has increased during recent years, their impact on government legislation has decreased. Committee members are often chosen by their party whips for loyalty over expertise and are given little policy support or advice once in the role. This has resulted in a high volume but low quality of amendments tabled – few of which are successful. The highly partisan nature of these forums hampers constructive interchange between parliament and the government, limiting opportunities for parliamentarians to exert more subtle forms of influence that might otherwise compel the government to introduce changes at a later point in the process.
The parliament of Pakistan represents the whole electorate rather than just the governing party, and so should be able to scrutinise, influence, and in rare circumstances reject government legislative proposals
Opportunities to bring in more expertise and a more diverse range of perspectives into the committee stage, and to help backbench and opposition parliamentarians exert greater pressure on the government, are being missed. What is recommended is one proposal, already adopted by the UK’s devolved parliaments, that is to abolish bill committees altogether and give select committees responsibility for scrutinising legislation. This approach would have many benefits – including drawing on the greater expertise of select committee members – but would risk undermining the independence that select committees have developed in recent years, and given the time required could also dominate their work, leaving less time for important proactive scrutiny of government policy and agenda. On balance, we consider that the disadvantages would outweigh the benefits.
That is not to say there is not a useful role standing committees can play in the legislative process. We believe that a formal role for the committees could be created, building on the ad hoc or informal inquiries many already undertake. For reform to promote an effective role of committees, the following points need to be considered:
First, there should be a minimum of two or three relevant standing committee members on each public bill, to ensure a strong link between the parliament and the government.
Second, the committees should be able to request a ‘select committee’ stage on all government bills, creating the opportunity to take evidence and for the committee to set out its view on the bill.
Third, the practice of oral evidence-taking should be expanded to include bills that start in the Senate, and those put to committee of the whole house, through the split committal process.
Fourth, presiding officers –Speaker of the National Assembly and the Chairman of the Senate – should review the resources available for members to support legislative scrutiny, including expert policy and legal resources.
It is recognised that many of these recommendations may add time and potential friction to the legislative process. But legislating is a serious business – policy is more likely to succeed where it has been robustly tested and where it has broad support from the people’s representatives. The government’s short-term desire for efficiency, should not overrule the long-term objective of effectiveness. The parliament of Pakistan represents the whole electorate rather than just the governing party, and so should be able to scrutinise, influence, and in rare circumstances reject government legislative proposals. Beyond constitutional principle, legislative scrutiny is also essential to ensure that government policies and proposals for implementing them are robustly tested, to allow interest groups and the public to raise concerns in a public forum, and to secure political endorsement for key government activities.