The Laws’ Delays
couple of months back, I wrote in this series about the Laws’ Delays,
but I was talking then of a very different sort of delay. I was
referring to delays in the application of laws, the manner in which
dates are given ad infinitum (endlessly) for cases, how cases are
adjourned sine die (without a date, so that those who suffer have no
idea when they can get closer to justice), that individuals are remanded
with no idea for how long this might be.
I wrote of women committed to custody who are forgotten, of children
sent to homes without proper records being kept so they do not come to
the attention of the courts again, of cases not taken up because some
information the state should provide is not available, but those
responsible are not told that they should supply this promptly.
I suggested at the time that the state authorities responsible should
have regular coordinating meetings to ensure that everybody knows what
is needed, and they prepare or produce as required, and keep each other
informed of any delay, with a commitment to act by a fixed date.
What I want to address this time however is something quite
different, namely the delay in preparing laws.
We have a Law Commission which is meant to propose legislation, based
not only on the particular requirements of different government
agencies, but also in terms of developing perceptions of social needs.
Thus in recent years the Law Commission has made recommendations about
promoting gender equality, about clarifying conflicting claims with
regard to land rights, about resolving conflicts when the judiciary
feels that legislation is inappropriate (as with regard to provisions
about statutory rape).
In none of these cases, I fear, has the required legislation come
before Parliament. It has to go through several stages before this is
done, and unfortunately the road to fruition is paved with
procrastination. Firstly the suggestions have to go to the Justice
Ministry, which then passes them on to relevant ministries. Given the
proliferation of ministries that has occurred, with no clear hierarchies
established, this can cause confusion as well as delay. In addition,
with regard to several subjects, provincial ministries also need to be
consulted. When there is no obvious lead ministry at the centre, this
also can be a complicated process.
In theory Consultative Committees of Parliament should be consulted,
but this does not always happen. Other mandatory players of the game
include the Legal Draughtsman’s Department, which had made a name for
itself in recent years for delays. This was, not least, because they did
not base their work on drafts that had been provided, but thought it
necessary to reinvent wheels, with a sublime confidence in their own
capacities that was thoroughly misplaced, given the errors that so often
crept in to the work submitted to Parliament.
What can be done about this? Most obviously, there should be more
information about what is done, and what the proposed time schedules
are. For this purpose a dedicated website is desirable, but I gather
that the Law Commission website, begun with much hope some time back,
has collapsed, with funding not being available. In any case I don’t
think it specified what would help, which is a tracking process, showing
who was required to decide for the next step to be taken in bringing
legislation before Parliament. Personally I would also have added a
schedule of expectations, with reminders sent out - I presume by the
Ministry of Justice, since the Law Commission itself does not have
Executive power - to those responsible so as to expedite action.
But even without such systems to promote progress, a website, with
parallel sections on the websites of line ministries to show legislation
in preparation, would at least help to focus the attention of relevant
stakeholders. A regular press conference arranged by the ministry with
input from the Law Commission would also help to raise public awareness
and, more importantly, raise awareness amongst those responsible for
action that they are responsible to the public, not to themselves.
National laws and policies
This would also help with two very important sections of the National
Human Rights Action Plan. That draws attention to the need for
‘transparency in the law making process’, and suggests conducting
‘awareness programmes for the public on underlying policy of proposed
draft legislation’. It also suggests ensuring ‘Participatory democracy’,
for which there should be a standard procedure requiring government
agencies to have consultations in developing national laws and policies.
It would be generally useful then if a system as outlined above, to
provide information, promote discussion and above all ensure action,
were put in place. The benefits would be enormous, and if it were felt,
with regard to national security issues for instance, that
confidentiality were vital, this could be observed. But the principle
should be openness unless otherwise required, not the opposite.