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Legislative Review
Induction Workshop for New Researchers and Committee Clerks.
Foreword
As part of its capacity building program for the Parliament of Zimbabwe, SUNY/ZIM has organized this Induction workshop. The purpose of this workshop in part is to equip Parliamentary staff with the relevant skills to be able to analyse legislation effectively and provide Portfolio Committees with appropriate advise on how best to interpret and analyse Legislation. Legislators often wish to know what impact their actions will have or simply which actions are needed. It is therefore essential that the Researcher or Committee Clerk should have appropriate skills not only in interpreting legislation but also in being able to determine what is Good legislation and that which falls short of the minimum standards, so that they can be able to influence directly or indirectly the legislative process.
In preparing for this Workshop, SUNY/ZIM would like to acknowledge the adaptation of materials developed by the Law Review project of South Africa, in particular the employment of their Checklist on Good Legislation. SUNY/ZIM would also like to acknowledge its use of materials from the handbook by Siedman et al. on the legislative process, and from D.Kall Loper from his internet article entitled Legislative Analysis.
LEGISLATIVE ANALYSIS
Good Law Guidelines
A law means a rule promulgated by the State and implemented by state officials–a means by which we seek to achieve an end, so a good law is first of all, one that achieves its end. But, like everything in life, law comes at a cost and for law to be good, the cost must be no greater than necessary, and not excessive in relation not to the goal that the law aims to achieve, but to the benefit it actually achieves.[1]
So a good law is law that achieves its objective, to a reasonable extent, at a cost, that is not excessive.[2]
There are a number of tried and trusted rules about how a good law should be drafted if it is to be a good law. As with any instrument many of these rules apply whatever the purpose of the law may be; just as if you were asked what is a good car? You could list a number of requirements without knowing what the car is to be used for. But, just as before you buy the actual car, you need to know not only if it is a good car, but that it is right for the purpose you are buying it.
So a particular piece of legislation, in addition to complying with the general rules of a good law, has to be right for its particular purpose.[3]
THE GENERAL RULES OF GOOD LAW
The rules that a good law should conform with are of two kinds:
(i) those that are specifically required by the Constitution of Zimbabwe; and (ii) those that inevitably follow from the very nature of law itself.
Rules that follow from the very nature of law
The purpose of a law is that it should be observed: People cannot observe a law that does not exist, so a law cannot be retrospective. What purports to be a retrospective law has occasionally been passed, but it is not really a law. Generally these are acts of tyranny.[4]
For any law to be properly observed by the people for whom it is intended it is imperative that the law be clear and unambiguous. It should be easy to comprehend and if it is capable of more that one interpretation such a law is not good law.
Constitutional requirements
The Constitution of Zimbabwe, in terms of section 32, vests the legislative authority of Zimbabwe in the Legislature, which consists of the President and Parliament.
Section 50 of the Constitution goes on to state that, Parliament may make laws for the peace, order and good security of Zimbabwe.
Legislation that oversteps the limits set by the Constitution and fails to follow the mode of exercising legislative powers provided for in the Constitution is not valid.
Chapter III, of the Constitution of Zimbabwe contains the Declaration of Rights, this limits what may be done by the legislature and sets clear guidelines for what may and what may not be contained in legislation.
The Zimbabwean Constitution provides for a clear separation of powers between the three separate and independent arms of government, i.e. the Legislature, the Judiciary and the Executive. Parliament makes laws, the Executive administers and implements the laws and the Judiciary interprets the laws. It is normally the Executive that initiates laws by drafting proposed laws and presenting them to Parliament for their approval. Parliament may pass such laws, with or without amendments or reject such laws. There is provision for Parliament itself to initiate laws by proposing Private Members Bills. These are Bills composed by individual Members of Parliament and presented to Parliament for its approval.
The Zimbabwean government, like most other governments, sometimes enters into international agreements, which limit its freedom of action. Where the Government has made itself party to such an agreement, its laws complies with the obligations that it has undertaken.
HOW LAWS ARE MADE
Taken from Parliament of Zimbabwe website
INTRODUCTION
The mission statement of our Parliament of Zimbabwe is "To Make Laws for the Good Government of the Country." However, Parliament on its own cannot make good laws. Good laws are made only when there are procedures allowing for the cross-section of society to have input in the legislative process. This has been the thrust of the Parliamentary Reform programme, of making the people ultimately responsible for the laws that are passed.
The two types of Bills that can be brought to Parliament and people can participate in are Private Bills and Public Bills.
Private Bills are those which are of particular interest or benefit to any person or group of persons, public company, corporation, or local authority. Such Bills can only be introduced into Parliament after a petition and a copy of the proposed bill have been presented and adopted.
Public Bills are those bills, which relate to matters of general public interest and are introduced upon notice given by a Member of Parliament. They are further divided into Government Bills and Private Member’s Bills.
Government Bills are piloted through Parliament by government ministers and the latter by Private Members or Backbenchers.
In the past, Private Members had to meet the cost of bills they proposed to Parliament. Because they had to finance the Bills from start to finish, an exercise which was very expensive, very few, if any, members presented Bills to Parliament. However, under the new system Parliament will meet the cost of Private Member’s Bills. Such a provision makes it easier for Backbenchers to propose bills of national importance.
The Preliminary Process
Preliminary Processes at the Executive Level
Public Bills generally go through various preliminaries, even long before they come to Parliament. A minister in charge of a bill first puts his proposal to the Cabinet, which examines it, ensuring that it is in line with government policy and does not violate any provision of the Constitution of Zimbabwe. If the proposals are accepted, the minister is directed to prepare a bill on the broad lines. The Legal Drafting Department in the Attorney-General's office then prepares a Draft Bill which is printed for presentation and consideration by the Cabinet Committee on Legislation chaired by the Minister of Justice, Legal and Parliamentary Affairs. After its approval by Cabinet, the Bill is published in the Government Gazette at least two weeks before its introduction in Parliament.
Stages of a Bill in Parliament
After gazetting, the bill is referred to a Portfolio Committee of Parliament which looks into the functions of the Ministry responsible for administering the Bill. The Portfolio Committee conducts public hearings with members of the public especially interest groups, to enable them to make an input.
First Reading
Prior to the First Reading, the minister gives notice in either of the two Houses of his intention to present a bill. On the appointed day the minister presents the Bill by reading the long title. No debate takes place at this stage which is the formal introduction of the Bill before the House. The Bill is referred to the Parliamentary Legal Committee in terms of the Constitution and Standing Orders to determine whether, if enacted, the Bill would
be in contravention of the Declaration of Rights or any other provision of the Constitution.
Second Reading
At the second reading stage, the Minister explains the principles of the bill. The Parliamentary Portfolio Committee presents its report containing its findings and recommendations. The debate on the Bill then ensues. The Bill is then read a second time. If any amendments are proposed to the bill, the House may refer the Bill back to the Committee to make prepare the necessary amendments for the Committee Stage in the Committee of the Whole House.
Committee Stage
The whole House resolves into a committee for the purpose of considering the Bill in detail clause by clause. The guiding principle is that the committee should make such amendments in the Bill as may seem likely to render it more acceptable. The Committee, however, should make sure that it does not amend the Bill in a manner that is in sharp conflict with the principles of the Bill. The committee will also consider the recommendations made by the relevant portfolio committee.
Report Stage
This is a purely formal stage where the Chairman of the Committee of the whole House reports the recommendations made to the bill and these are either accepted or rejected, thus ensuring that the Bill represents the opinion of the majority of the House.
Third Reading
At the Third Reading Stage, debate may take place, as at the Second Reading, on the principles of the Bill. However, no new issues which were not raised during the Second Reading may be raised. The Third Reading is the final stage and the Bill can now be said have been passed by the house in which it was introduced, it is then transmitted to the lower or upper house whichever is the case.
Presidential Assent
When a Bill has been duly passed in terms of the provisions of the Constitution or the requirements of the Standing Orders and signed by the Clerk of Parliament, it must be presented to the Head of State for assent within twenty-one days in terms of the Constitution. The President grants His assent by authenticating a fair copy of the Act with his signature and attaches the public seal.
If the President withholds his assent, he must return the Bill to Parliament.
Enrolment of an Act
After Presidential assent the Clerk of Parliament must cause the authenticated copy of the Act to be enrolled on record in the office of the Registrar of the High Court and such copy will be conclusive evidence of the provisions of such Act.
The Act will come into operation on date published in the Government Gazette on agreement.
Requirements of effective law
It has to be considered that in defining the effectiveness of a law there are certain fundamental points that have to be accepted.
- The effectiveness of a law should not be judged by what it seeks to achieve, rather by what it actually succeeds in achieving. For example, a drug may be intended to cure an ailment but does not actually do so. It does not matter that its purpose is the curing of an ailment; if it does not do so then it is not effective.
- A law is not automatically effective. In order to be effective a law has to be obeyed. The effectiveness of a law depends to a large extent on how far the State is willing to and is able to enforce it, and how far the people are able and willing to obey it.
- No law will be completely effective. What is sought is that the law will be effective to a reasonable extent. What is reasonable depends on the seriousness of the evil that is being addressed.
- Laws come at a cost and consequently should not be resorted to for trivial reasons. That particular applies to the creation of criminal laws.
- Laws like drugs have side effects; the side effects of any law must be weighted against the value or importance of the goal being pursued.
- Since laws have to be enforced and complied with, laws that are impossible to comply with should not be passed. It is always desirable to pass laws that serve the public interest, but again the question to ask is at what economic and social cost is the law being passed?
Evaluating the social purpose of a Bill
This section provides a series of questions that need to be asked when evaluating the social purposes of Bills and whether the legislation in question will be likely successfully to address the social problems that it seeks to solve.
For each question, a further question should always be asked: on what evidence do you base your answer?
(1) The social problem
- What social problem does the Bill attempt to solve?
- What behaviour and by whom has caused the social problems that this Bill is seeking to resolve?
- Who benefits and who suffers from the present situation?
- Do the existing rules forbid the problematic behaviour?
- Do the present rules expressly require or permit the problematic behaviors?
- In what respect do the laws’ provisions seem insufficient to limit the individual’s discretion in deciding how to behave?
(2) How the Bill seeks to address the social problem
- How would you summarize the ways in which the Bill proposes to address the social problem?
- Where and how does the Bill fit into the government’s larger legislative programme?
- What might you learn from the efforts to deal with this social problem in the past in Zimbabwe and other countries? Does this help to understand the reasons for introducing this Bill in its current form?
- Does the decision making process defined by the rules seem likely to induce accountable, transparent, participatory behaviour?
(3) Do the Bill’s detailed provisions logically seem likely to overcome the problematic behaviour?
- Request a detailed description and explanation of the Bill’s major provisions---in plain language. (This is already contained in the explanatory memoranda accompanying all legislation)
- Does a review of Zimbabwe’s history of efforts to use law or other countries’ laws and experience, provide insights into possible solutions other than the one that is proposed in the Bill?
- What alternative solutions did the proponents of the Bill consider?
- Do the Bill’s provisions with respect to the implementing agency and
officials
ensure a transparent, accountable, decision making process; seek to change the causes of the problematic behaviour; induce people to behave in socially desirable ways?
(3) Capacity
Do the individuals have the capacity-the skills, knowledge, and resources-to obey the law? Contrary to that, do they have the special capacity to disobey the law?
(4) Costs
- Do the Bill’s estimated long term social and economic benefits seem likely to outweigh its estimated long term social and economic costs?
- What facts do the Bill’s proponents provide about-short and long term economic costs and benefits?
- What facts are provided about non-quantifiable social costs and benefits?
- What social impact will the Bill be likely have for-
- different social groups, especially the poor, women, children and minorities;
- valued but typically poorly-represented community concerns, especially the environment, human rights and the rule of law?
(5) Dispute Settlement
Do the Bill’s dispute settlement provisions seem appropriate and adequate to take care of anticipated disputes?
(6) Funding
Does the Bill or other relevant laws provide adequate funding to ensure implementation?
(7) Instructions
- Are all the key terms used in the legislation adequately defined in the definition clause?
- Does it contain the necessary amendments to existing laws to avoid conflicts?
- Does it provide for coming into force at an appropriate date? (Laws in Zimbabwe come into effect on promulgation unless otherwise stated)
- Does the Bill contain a general principles (or objectives) clause sufficiently narrowly drawn to guide the relevant official in drafting regulations under the new law?
- Does the Bill contain appropriate instructions to judges and others who must ensure it fits into the existing body of the law?
(8) Monitoring
Does the Bill provide an adequate mechanism for monitoring and evaluating whether, after its enactment the law proves effectively implemented and produces the desired social impact?
”.
Legislative Analysis Explained.
Legislative Analysis is a generic name applied to the results of a systematic policy analysis conducted for or in consultation with a legislative body. The steps of this process differ depending on the analyst and the purpose, but there are general recommendations for the process and indispensable elements for the presentation.
Legislative Analysis Outline
Executive Summary
Heading
This requires a quick identification of the subject. The analyst should use the legislative identification system of the appropriate jurisdiction(i.e. Broadcasting Services
Amendment bill,2002, H.B. 14, 2002)
Statement of the Policy Proposition(s)/Provisions
Bills are often subject to revision in the political or parliamentary process. Interest groups often actually write up the draft of the proposed legislation and submit it to the legislative sponsor. Committees can revise the proposed bill to gather support or achieve consensus. These facts can present a problem to the policy analyst. Which version of the law or which particular policy is under consideration? Later, readers of an outdated policy analysis may be confused by a critique of a portion that was omitted or fundamentally changed (often because of the critique).The first step in the presentation of any policy analysis should be to establish what policy or which version of the policy is under analysis. It has been suggested that the legislative analysis should begin with a clear, uncluttered, and brief statement of the law…..that is being proposed.
General concepts
This section offers an opportunity for the analyst to define the problem and introduce factual data related to the Bill or proposal. The basis of the analysis is introduced. If a framework will be used in the analysis, it should be explicitly stated.
Questions to ask: How did the issue first come to the attention of decision makers? Who supports this law and why?
Intended and Possible unintended effects
This section describes foreseeable effects of the legislation in question. Because this section is paired with the later “ fiscal implications” section, monetory effects need not be considered here.
Fiscal Implications
Assuming that human cost issues have been addressed…the analyst should not only shed light upon the revenue and expenditure…but also upon the fiscal implications of not taking action. Opportunity cost are often easy to overlook. In this case, the cost of not acting may lead to fines by the courts and costly settlements in suits.
Questions to ask: Who benefits from this Legislation?
Who loses?.
How does the legislation affect marginalized groups?. Can the law be enforced and if so by whom?
Advantages and Disadvantages
This section concisely lists the arguments for and against the proposed legislation.
Questions to ask: Is this something ordinary people will understand
Recommendations
Recommendations are appropriate in the majority of policy analysis. Some non-partisan analyses will not make recommendations, leaving legislators to draw conclusions from the fact presented. Recommendations must be consistent with the stance of the analyst.
Questions to ask: Is the law consistent with the Bill of Rights and /or Constitution?
[1] Law Review Project, South Africa, 2003
[2] supra
[3] supra
[4] supra