Prioritising legislative proposals in the legislative process

Abstract

The most important duty of a government is to create a conducive environment in which citizens can meaningfully participate in the development of the country and also develop their personal capabilities to the fullest extent possible. This article examines the sometimes problematic issue, not generally seen as critically important, of prioritising legislative proposals and, in passing, briefly touches on the catalytic role of the legislative drafter as an agent for change and social transformation. Anyone who has knowledge of legislative drafting will confirm that the drafter is by no means a completely free agent in respect of the manner in which to carry out the task of drafting. Of necessity, there is a political angle to what the drafter does and the reason for this is that the legislative programme of a government lies at the heart of the government’s domestic activities. Bills are political instruments as well as legal instruments. Seen in this light, the drafter is an important player in the machinery of government, as otherwise it would not be possible to translate government policies into effective law.

Notes

¹Government is used here in a generic sense to mean the sovereign power of the state to legislate without making the constitutional distinctions between the legislative, executive and judicial functions.

²See GC Thornton, Legislative Drafting (Butterworths, London 1979) viii. Thornton’s choice of emphasis in this regard contrasts sharply with other writers in so far as drafters are not usually given the power to ‘determine’ laws.

³See BR Atre, Preface to Legislative Drafting (2nd edn Universal Law Publishing Co, Delhi 2006) v, and as to the many problems a drafter faces see VCRAC Crabbe, Legislative Drafting (Cavendish, London 1993) 1.

⁴The position is not made any easier by the need for the drafter to avoid unwittingly giving credence to a popular perception that the drafter is ‘undoubtedly the cause of half the litigation’ engendered by laws composed by the drafter and to also avoid becoming an even easier target for critics who have little appreciation of the job of a drafter.

⁵The UK Human Rights Act 1998. Section 19 of the Act requires a Minister responsible for a Bill before Parliament to make a statement, inter alia, that in his or her view the provisions of the Bill are compatible with the European Human Rights Convention.

⁶See for instance, the constitutions of India, Part IV Articles 36–51: Directive Principles of State Policy; Nigeria, Chapter II Articles 14–25: Fundamental Objectives and Directive Principles of State Policy; Papua New Guinea, National Goals and Directive Principles; Sri Lanka, Chapter VI: Directive Principles of State Policy and Fundamental Duties: Articles 27–29; Uganda, National Objectives and Directive Principles of State Policy: General, Parts I–XXIX; and by contrast Chapter II of the Interim National Constitution of the Republic of Sudan Guiding Principles and Directives, Articles 10–22. Article 22 is a Savings Article rendering the principles and directives enumerated unenforceable per se whereas the Bill of Rights enacted in the same Constitution in Articles 27–48 expressly provides that these Articles are a ‘Covenant’ between the Government and the people of Sudan and are enforceable. See also ‘Advancing Human Rights in South Africa’, 1992 by the eminent South African jurist Albie Sachs at 31 – where he decries the fact that social and economic rights are excluded and made redundant by people who do not wish their taken‐for‐granted lifestyle to be disturbed or diluted.

⁷Prominent among these was Arthur Chaskalson, SC, founder of the South African Legal Resources Centre, who was one of the principal drafters of the new South African Constitution and who subsequently became President of South Africa’s Constitutional Court. It is apparent that Chaskalson shared the views of many other eminent South Africans who fought against apartheid, that the system of justice in South Africa had been so discredited by its role in upholding apartheid that it might not withstand the transition to democracy. This would have weighed heavily in the minds of the drafters when they were drafting the new constitution.

⁸For an incisive examination and appreciation of the role of the drafter in constitution drafting see Jeremy Sarkin, ‘The Drafting of South Africa’s Final Constitution from a Human‐Rights Perspective’ (1999) 47 American Journal of Comparative Law 67. One of the innovative characteristics of the South African Constitution is the inclusion of the concept of the right to administrative justice which is justiciable.

⁹For an examination of a less successful attempt, in circumstances similar to the South African experience, to use legislation as an instrument of change see Theunis Roux, ‘Constitutional Property Rights Review in Southern Africa: Record of the Zimbabwe Supreme Court’ (1996) 8 African Journal of International and Comparative Law 755.

¹⁰See AW Seidman, RB Seidman and Nalin Abeyesekere, Legislative Drafting for Democratic Social Change (Kluwer International, Boston 2001) 53–54 where they express the view that the absence of clear cut criteria or procedures is more likely to lead to haphazard prioritisation. This, however, need not be so, especially if the drafting establishment is well organised and is staffed by experienced drafters who are fully conversant with the government’s general policy and legislative programme. Where the government’s legislative policy is clearly defined and already prioritised in its legislative programme, the drafter would have no discretion in the matter or, at best, his/her discretion would be extremely limited. Where the priorities have not been so predetermined, the drafter has discretion which would then respond to both objective and subjective pressures.

¹¹Ibid 55 et seq.

¹²Ibid 56.

¹³See David Miers and Alan Page, Legislation (Sweet & Maxwell, London 1982) chapter 2, 25–36.

¹⁴For an in‐depth examination of considerations that might influence the decision to legislate, see generally, Seidman et al (n 10) 57–79.

¹⁵For a snippet of a not uncommon manipulative practice that will often compound the debt burden of a developing countries see Karl Maier, This House Has Fallen: Midnight in Nigeria (PublicAffairs, New York 2000) xxii.

¹⁶For a compelling description of the new world of globalisation and what it means to poor developing countries, see Noreena Hertz, The Silent Takeover: Global Capitalism and the Death of Democracy (Heinemann, London 2001) 1–48, 80–113.

¹⁷See Seidman et al (n 10) 59.

¹⁸See ‘Law‐makers and their Instructions to Parliamentary Counsel’ by the Hon. Andrew Wells QC, former Solicitor General and Judge of the Supreme Court of South Australia, contributing article in Essays on Legislative Drafting in honour of JQ Ewens, former First Parliamentary Counsel of Australia (Adelaide Law Review Association, Law School University of Adelaide 1988) at 126.