Proposals for sustainable capacity building

1. Drafting Instructions Manual

In my understanding drafting of laws and regulations has become international and regional phenomenon. It is no more domestic. There are internationally accepted drafting processes, procedures and standards essential for democracy, good governance, and rule of law, transparency, participation and accountability. The Manual must contain step by step instructions and standardized forms on:

i. Proposal development processii. Legislative process

iii. Drafting processiv. amending legislation or articles/provisions in a lawv. repealing clauses in a draft law

vi. definitions throughout the body of legislationvii. enacting and effective date clauses,

viii. dispute resolution provisions-arbitration and mediation clausesix. saving /exception/proviso provisions,x. transitional provisions

xi. retrospective/retroactive provisions in a draft law,xii. duration provisions/sun set and sun rise clauses

xiii. consequential amendment provisions, xiv. validation provisions and legalizing clauses xv. subordinate regulation clauses,

xvi. schedules2. Consultation process

Currently there is no consultation process and no legal requirement and no practice. Consultation is very essential for effective and efficient laws and regulations and for determining the contents of a law. It facilitates compliance and enhances public confidence, trust in law and rule of law. Introduce open, well publicized and time bound consultation process. There real solution to this lies in making consultation and RIA mandatory through a law. Bosnia draft law on consultation process.

3. Publication and communication process

Design Publication and process for distribution of laws and regulations. State must make sure that law is published, communicated and understood by those regulated by the law.

4. Design and develop standardized drafts verification checks carried out by lead/senior drafter on a draft( see below)

5. Design and develop various checks carried out on regulations/subordinate legislation/delegated legislation (see below).

6. Amending Form Manual to make amendments consistent, easily available and reflected in the original law

7. Legal informatics and management of legislative documents-An IT Inspired legislative drafting process

8. Better Regulation Commission There is need for non-departmental public body, independent of government. Its role should be to advise the Government on action to reduce unnecessary regulatory and administrative burdens, and ensure that regulation and its enforcement are proportionate, accountable, consistent, transparent and targeted. This commission may be part of consultation process or this responsibility should be specifically given to present Constitutional Compliance Commission in the President Office.

9. Line Ministries

Design and develop plan for capacity building of other ministries in proposal development, consultation and preparing initial draft. It is very important to develop capacity of other ministries and independent bodies cause first draft is developed by them.

Secondly, Ministries are drafting bye laws and rules at ministry level and there is no oversight on rules and bye-laws and in many cases rules and bye-laws are against some provisions of primary law. That is adversely impacting on rule of law, public trust, confidence etc.

10. Management Training for heads of Legislative Departments in following areasHeads of legislative Department will benefit exponentially from trainings in following areas:

1. Principles of good and effective management

2. Effectively managing a legislative office

3. Techniques for evaluation of a drafti. Text focused approaches

ii. Expert-judgment focused approaches like peer review, editorial review and external review

iii. Reader focused evaluationiv. A hybrid method.v. The best approach for legislative Counsel

4. Checklist for verification of draft

a. Constitutional compliance

b. Compliance with the existing law and legal system

c. Compliance with other international obligations-a checklist may be developed

d. Implementation checks

e. Checks on legal from, clarity and comprehensibility

f. Post drafting policy checks

g. Administrative requirements checks

h. Cost and economic impact checks

i. Efficiency checks

j. Practicability checks

k. Implementation checks

5. Principles of good decision making

6. The right decision making process

7. Effective problem solving

8. Legislative Innovations