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Universal responsibility to draft democratic, participatory, effective and efficient laws and

law reforms projects1

ABSTRACT

This paper seeks to demonstrate that laws developed through consultative, participative,

transparent and accountable process by an independent, impartial and competent drafting entity

are an important missing link for advancing democracies, market economies, human rights,

sustainable development, social harmonies and integration, legal empowerment of the poor,

security and peace at national, regional and international level and for effective states. States

draw strength from constitution and laws; depend on institutions to balance conflicting interests,

transform tensions into positive forces and universal cultural programming. If a state fails,

people make groups and fight their way even against state.

The paper highlights the capture of drafting process by private sector and those in power,

excluding the marginalized and vulnerable in majority of the states and forcefully makes the case

for setting universal standards for policy making, drafting of primary and secondary laws to

ensure that voices of the poor, the vulnerable and marginalized are reflected through laws and

enforced by transparent and accountable institutions. There have been a lot of discussions and

actions about independent judiciary, prosecutors, lawyers and human rights standards but very

less or none about independent legislative office. The latter lay the very foundation for legal and

institutional framework.

The paper then describes characteristics and core elements of sustainable laws and law reform

projects and seeks to provide policy, legal and institutions prescription for crisis wracked

developing and post conflict countries. The paper discusses practical tools, techniques and

process to draft high quality laws for development of responsive, transparent, inclusive and

accountable institutions.

A. The global situation

Legal reforms present a scene of a great disorder; legal reform projects a scene of chaos without

any clear directions and standards. This situation is damaging heavily citizens’ trust and

                                                                                                                         1  Judge  Zafar  Gondal,  Independent  Legislative  and  Development  professional  and  Director  SLI  

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confidence in international governance, state, state institutions, democracies, market economies

and human nature. It is wastage of human resources, intellect, money, time, and faith in system.

Citizens are losing interest in reform and system as a whole. It is time to act and time to sit

together and determine direction and set standards for drafting laws, for law reforms projects and

for institutions compatible with needs of modern societies. Billions are being poured into

conflict ridden countries but situation remains same and in many cases is worsening.2 The justice

system remains weak and compromised. The abuses of human rights are on the rise and there is

no fair and accessible grievances redress mechanism.

The research shows that the main causes for undemocratic laws are similar in developing and

underdeveloped countries. Those are; lack of research, lack of effective consultation, lack of

participation, non–transparency, domination by the interested groups and exclusion of

marginalized groups and the poor. The history confirms that societies disintegrate and slip into

cycle of conflict and poverty by not taking advantage of huge potential for growth unleashed by

quality laws and responsive institutions. This type of slow, grinding failure leaves many

countries in Eastern Europe, Africa, Asia, and Latin America with living standards far, far below

those in the West. The more tragic is that this failure is by design. These states collapse because

they are ruled by corrupt and ineffective institutions and unfair laws captured by the elite, which

destroy incentives, discourage innovation, and sap the talent of their citizens by creating a tilted

playing field and robbing them of opportunities. These institutions are not in place by mistake

but on purpose by those who are in power.3

B. Need for Universal Standards for Law Drafting and Law Reforms

No one can dispute the fact that we are in a critical moments of history, a time when humanity

must choose its future, a future that leads to collective prosperity or a future that leads to

collective miseries. As the world becomes increasingly interdependent and fragile, the future at

once holds great peril and great promise. To move forward we must recognize that despite all

diversity of cultures and life forms we are one human family and one earth community with a

                                                                                                                         2 The world has spent $55 billion in nonmilitary aid on Afghanistan since 2002. 3  Drafting  for  a  Post  Conflict  and  Collapsed  State-­‐the  Case  of  Afghanistan,  by  Zafar  Gondal,  European Journal of Law Reform, Vol. XI, no. 3, pp. 369-402, Eleven International Publishing 2010.

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common destiny. We must join together to bring forth a sustainable global society founded on

respect for nature, respect for diversity, universal human rights, economic justice, and a culture

of peace.

The causes of poverty and prosperity are clear now. It is neither culture, nor weather not

geography. The main causes of poverty are wrong policies, unfair allocation of resources, bad

laws and weak and ineffective institutions. The societies that set direction, create incentives,

reward innovations and allow everyone to participate in economic development are the rich and

healthy societies. 4 The most effective way to help move millions of people from vicious cycle

of poverty to sustainable prosperity rests on sustainable laws, substantive and procedural,

effective and responsive institutions. History tells us that countries have same people, same

culture, and same geography and yet one is on the path of development and other on the path of

disintegration. The prosperity and poverty are determined by the incentives created by quality

laws and fit for purpose institutions.

Democracy demands a political community in which there is some form of equality and legally

protected rights of the poor. Legal empowerment of the poor is essential for informed decision

making, flow of information, open debate and new ideas.5 Institutional mechanism for

transparency and accountability in a democracy sets powerful cycle of prosperity in motion. In

fact, information sharing, participation, inclusiveness, equal opportunities, transparency,

accountability are moral foundation of a democracy. Participation is critical element to

establishing legitimacy and political reliability of a state. In order to integrate societies, state

needs educated citizens, openness, accountability, effectiveness, coherence and participation in

decision making. 6

Another reason is existence of diversity of legal culture, values and tradition and relation

between legal systems and economic development.7 These differences in legal cultures and

doctrines require clear and good law making standards to avoid any element of uncertainty.8 Our

world needs standards for laws less dependent on national legal culture and socio–economic

                                                                                                                         4  Why Nation Fail by Darvon Acemoglu and James Robinson, publisher Crown Business, 1ST edition March 2012 5 Making the Law Work for Every One, Volume I&II, Reports of the Commission on Legal Empowerment and UNDP, 2008 6 European Commission ‘ European Governance’, A White Paper 2001 http://europa.eu.int/comm/governance/ 7 The Relation between Legal Systems and Economic Development: Integrative Economics and Cultural Approaches by Amanda J. Perry, Journal of Law and Society, Volume 29, Number 2, June 2002 by Blackwell Publications Ltd 2002 8 See The Washington Consensus

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conditions. The culture is collective programming of mind and a shared system of values. We

need to change culture. Otherwise we allow millions to suffer behind the wall of culture. We

need a global culture. It has become clear that free market and democratic countries enjoy

advantages in raising quality of life.

Moreover, new technologies are extremely disruptive. The needs of modern complex societies

are different from the old agrarian societies. They sweep aside old business models and make

existing skills and organizations obsolete. They redistribute not just income and wealth but also

political power. This gives elites a big incentive to try to stop the march of progress. Good for

them, but not for society. Laws are like firewalls against conflicts, injustices, poverty, insecurity

and inequality in a society. Good and effectives laws, democracy, development, security, fair and

justice are inseparable.

Lastly, there is alarming situation of capture of drafting by private sector, the rich in order to get

laws made in their favors and the poor are excluded. There is need to wake up and make

impartial, independent and competent legislative drafting offices in each jurisdiction. Only by

that way we can bring justice in society, legal empowerment in society, satisfaction and security.

The failure will lead to horrible consequences for all of us. There is no peace without justice, no

development without peace and security and no justice without clear, inclusive, accessible and

effective laws, institutions and procedures.

Before moving to next section, let me answer to those who take refuge under the notion of

legislative sovereignty, legal cultural traditions and public policy. The culture, in fact, is

collective programming of mind, set of values and a pattern of doing things9. There is nothing

permanent in culture. This is the age for international culture and regional culture. It is time to

develop a common culture based on common universal values. Similarly, we are living in a

global world. Each one of us is sharing and exploiting common resources. No state can make a

stand alone public policy. There is a need for integration of domestic, regional and international

policy making aspects. In many areas of law there is need for internationalization of policy

making.10

                                                                                                                         9 Hofstede Geert, Cultures and Organizations: Software of mind, 2004, publisher McGraw-Hill; 2 edition 10 Internationalism of Policy Making, SIGMA paper No.6, OECD Paris Publication 1996

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State has no legislative sovereignty in the age of globalization. The sovereignty, properly

defined, is not a defense for breaches of gross violations of fundamental human rights. It has

never been such, and today it is less a defense than ever. In other words, sovereignty is not -- and

has never been -- an unlimited power to do all that is not expressly forbidden by international

law. It can only be defined as the very criterion of States, by virtue of which such an entity

"possesses the totality of international rights and duties recognized by international law" as long

as it has not limited them in particular terms by concluding a treaty. 11

In short, to put the world on sustainable path, we must provide equal opportunities through

liberty, freedom, free enterprise, good governance, transparency and accountability. All these

concepts have same requirement, same meanings everywhere and for all societies. Sustainable

growth requires governance, rule of law, free market, new ideas, political accountability and rule

based competition. Quality laws, transparent procedures and accessible and accountable

institutions are foundations for such a system.

C. International Positive Trends and Factors

Many international, regional and private organizations12 are devoted to standard setting in law

making, rule of law, private enterprise and good governance etc. We have most of the

international standards, models are on the books what we need is serious efforts to set up

institutional framework for law making process, drafting process, law reform projects and

institutions of accountability at domestic levels.

The United Nation Congress on Crime Prevention and Criminal Justice is trying to make

standards work even after fifty years of standards setting.13 Similarly the General Assembly has

also stepped up efforts to strengthen the rule of law at national and international level. The focus

remains on finding better ways to support Member States and their populations to build a just

                                                                                                                         11 State sovereignty and the protection of fundamental human rights: an international law perspective by Alain Pellet, Pugwash Occasional Papers © Feb. 2000. 12 To mention a few: UNCITRAL, HCCH, UNODA, UNIDIR, UNIDROIT, World Bank Doing Business, Washington Consensus, Sales of Goods Contract, Model Laws, Model Guidelines for implementation of UNCAC, 2003, UNTOC, 2000 etc. 13 Workshop 2: Enhancing Criminal Justice Reform, including Restorative Justice, Eleventh United Nations Congress on Crime Prevention and Criminal Justice, 24 February 2005 A/CONF.203/10

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and secure national and international order governed by the rule of law14 and that order require

framework for sustainable laws and fit for the purpose and dynamic institutions.

The Member states reaffirmed their commitment to international order based on the rule of law

and international law, stating that it was essential for coexistence and cooperation among

states.15 According to the United Nations Secretary-General16 , "The protection and promotion of

the universal values of the rule of law, human rights and democracy are ends in themselves. They

are also essential for a world of justice, opportunity and stability."

Another landmark development in setting standards for justice and rule of law is providing a

detailed definition of the rule of law in an effort to promote uniformity in usage and

understanding.17 This document calls for sustained reflection on the rule of law at national and

international levels to strengthen the Charter. It also lays down national framework and standards

for the rule of law and justice and some of the areas are constitution making, national legal

framework, institutions of justice, governance, security and human rights, empowering

individual and civil society, detention, sexual and gender based violence, partnership and

measuring effectiveness and evaluating impact.

Even the International Law Commission (ILC) has realized that there is fragmentation in

international and this is creating difficulties in achieving the objectives.18 Now this is part of the

long term work of the ILC. The General Assembly has also requested the Commission to further

consider the topic in the light of comments of the governments.19 The Working Paper points to

fact that since the end of the cold war, international law has become very fragmented especially

in the areas of economics, the environment, energy, resources, health, and proliferation of

weapons of mass destruction. The paper further observes that there is no homogenous system of

international law and the causes are lack of centralized organs to ensure uniformity,

specialization, difference structure of the legal norms, parallel regulations, competitive

regulations, and different regimes of secondary rules and enlargement of the scope of                                                                                                                          14 Annual Report on Strengthening and Coordinating United Nations rule of law activities, sixty-fourth session1, 17 August 2009 A/64/298. 15 2005 World Summit 16 See (A/59/2005) 17 The Report of Secretary General on the rule of law and transitional justice in conflict and post-conflict societies, 2004, S/2004/616 18 The Report of the International Law Commission on the work of its fifty-second session, 2000 19 The General Assembly Resolution 55/152 of 12 December 2000

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international law. The consequences of such diversification and fragmentation are no less than

very threat to the reliability and credibility of the system. The national legal systems are facing

the similar reliability and credibility challenges if standards are not set up.

Both ILC and the UN have also done a lot of work on shared natural resources of the state.20 The

ILC has enumerated standards such as management and equitable utilization of global commons.

The more encouraging step is that the UN Secretary General, on August 12, 2012, announced an

initiative to protect oceans from pollution and over-fishing to combat rising sea levels which

threaten hundreds of millions of people.

The worth mentioning are the United Nations Rule of Law Indicators. These indicators provide

various dimensions of rule of law, implementation guidelines and project tools. The 135

indicators are grouped under three institutions: the police, the judicial system and the prisons.

For each institution the indicators are divided into four dimensions: performance, integrity,

transparency and accountability, treatment of vulnerable groups and capacity.21

Let me mention, briefly, the efforts and work of other organizations in standardizing the concepts

of justice, rule of law, access to justice, transparency, participation and accountability. The most

noteworthy are the Rule of Law Index,22 the World Justice Project, Developing Indicators to

Measure the Rule of Law: A Global Approach,23 Strategic Framework: Fragile States and

Societies Emerging from Conflict,24 the CIPE Guide to Governance Reform .25 Similarly,

International Rule of Law Network (INPROL) has developed common standards in several areas

in efforts to combine and harmonize different traditions and standards.26

                                                                                                                         20 Yearbook . . . 1996, vol. II (Part Two), p. 141-, document A/51/10, Annex II. 21 the United Nations Rule of Law Indicators, 1st edition, United Nations publication Sales No.: E.11.I.13 22 the Rule of Law Index,22 the World Justice Project, 2011 by Mark David Agrast, Juan Carlos Botero And Alejandro Ponce

23 Developing Indicators to Measure the Rule of Law: A Global Approach, A to the World Justice Project, July 2008 24 United States Institute of Peace Press, August 2007(www.usip.org) 25 CIPE Partner Edition, 2009 Editor Kim Eric Bettcher, Ph.D., Knowledge Management Officer 26 Setting up System for Protective Detention, July 2012, by Dr. Vivienne O’Connor Fiona Mangan; Prosecution of rape as a War Crime, July 2012 by Dr. Vivienne O’Connor

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D. Wayforwad-Universal Language and Standards for Justice

The main purpose of setting standards and models in shared areas of law27is developing uniform

and common understanding, articulating common language of justice for all 28 and to make law

work for everyone in the society.29All decisions must be made at local level by those who are

going to be affected. The justice institutions must be tailored to the local needs and manned by

the locals. The local justice mechanism must have same substantive laws and procedural laws.

The state must have the ownership of any legal reforms. However, justice principles, policy and

standards in areas mentioned below should be international and regional. This is not an

exhaustive list. There may be some other areas and new areas may be included from time to time

or the areas may differ from region to region.

The main areas for setting universal standards are:

• Standards for Drafting Organization

• Policy development prior to drafting;

• Standards for consultation;

• Standard process for law drafting

• Setting and maintaining law drafting standards;

• Clear procedures and standards to secondary law-making

• Standards for regulatory analysis and impact assessment

• Standards for Communication, publication and access to legislation

Law drafting organization

Independent, impartial and competent law drafting organization is very crucial. Such an

organization must be transparent and also accountable to public for negligence. Baring few

developed countries, drafting departments in developing and underdeveloped countries are

                                                                                                                         27 The major areas and future setting standards are: international finance, business, trade, energy, climate change, maritime, security, law of sea, environmental governance, development, science and technology, agriculture and food security, health, migration, labor standards, water, human rights, nuclear safety and security, cyber security, transnational organized crime etc. 28 United Nations Security Council, 2004, S/2004/616 29 Making the Law Work for Every One, Volume I&II, Reports of Commission on Legal Empowerment of the Poor and UNDP, 2008

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dominated and captured by interests groups, the rich and private businesses. They shape the laws

to the exclusion of the masses. Such organizations are pawn in the hands of corrupt politicians

and business. The poor haves no voice, no identity and no representation.

The independent, impartial and competent drafting organization is a missing link in efforts for

rule of law, good governance, development, free market, peace and security. The legal

community must draw attention to develop international standards and principles for drafting

organization like we have for judiciary, prosecutors, lawyers and investigators. The creation of

regional oversights bodies is another option to oversee laws and regulations. OECD work in this

regard is a good guideline.30

Policy development

Democracy is rule by the people. Good governance means that government is responsive,

effective and accountable to the people. For achieving efficiency in law, certainty, reliability,

effectiveness and confidence of the governed, the process of policy development is critical.

There is need for setting standards for policy analysis, impact assessment of the proposed

legislation even if proposed by parliament and effective consultation process. The main areas for

policy assessment are defining the problem, possible solutions, social, economic, environmental

impact, regional and international impacts, administrative requirements, efficiency, practicability

and implementation.31 There is need for mandatory transparent, consistent, comprehensible and

accessible regulatory and institutional framework for policy development. The policy

development methods and criteria should be clear, transparent, predictable and accessible to all

interested inside and outside the government.

Effective consultation process

Inter-ministerial and non-governmental consultation mechanism and procedures must be open

and time bound to all inside and outside government.32 Well published, well organized, highly

accessible, clear line of accountability, open to all interested parties, transparency and clear

                                                                                                                         30 Checklist on Law Drafting and Regulatory Management in Central and Eastern Europe, SIGMA paper No. 15 http://www.oecd.org/puma/sigmaweb 31 Improving the Quality of Laws and Regulations: Economic, Legal and Managerial Techniques, 1994(OCDE/GD(94)59) 32 Integrated Checklist on Regulatory Reform APEC-OECD, 1997

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guidance on conducting consultation are some of the standards for effective consultation. Such a

system promotes fairness, justice, public confidence and encourages innovations and set

development and prosperity cycle in motion.

Process of law drafting

The process of legislation is vital for survival and progress of current international, regional and

domestic justice systems. The process is more important than the outcome. The transparent,

clear, time bound and participative process enhances the confidence to cooperate with others. In

most of the countries it is secretive and dominated by government and business excluding the

masses and vulnerable. Democracy needs representation that is transparent, inclusive,

democratic and participative. Laws and regulations are clear, consistent and provide social

benefits that outweigh the costs. International community and entities must emphasize

governments to establish an authoritative and mandatory regulatory framework for law drafting,

legislative programming and timetabling, coordination of all entities, setting drafting standards,

review and revision and performance measures for the existing legislation.33 The idea for setting

of regulatory oversight body would be of much assistance in this regard. Such an oversight

bodies must have international standards. We have several standard setting and oversight

international bodies. One for legislative drafting is need of the time.

Standards for drafting of primary legislation

This paper is not attempt to suggest that all areas of primary and secondary legislation must be

standardized. There is beauty in diversity as well and local problems need local solutions

through laws understandable and accessible by the users. However, there are many areas which

create problem and need to be standardized. Some of those areas are:

• Standards for drafting process

• Standards for parliamentary processes and transparency

• Standards for legislative process monitoring

• Standards for verifications of draft legislation

• Consistency, fairness and due process in implementation;                                                                                                                          33 Checklist on Law Drafting and Regulatory Management in Central and Eastern Europe, SIGMA paper No. 15 http://www.oecd.org/puma/sigmaweb

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• Repeal and amendment clauses and procedures international accepted and consistent

• Internationally accepted ,standard, consistent and uniform definitions • Consistent and standardized enacting and effective date clauses, • Internationally accepted, standard dispute resolution provisions • Internationally accepted, consistent and standard saving /exception/proviso provisions, • Standard transitional provisions • Standard retrospective/retroactive provisions in a draft law, • Standard duration provisions/sun set and sun rise clauses • Internationally accepted, consistent and standard consequential amendment provisions, • Standard validation provisions and legalizing clauses • Standard, uniform and consistent subordinate regulation clauses • Standard post draft compliance checklist like compliance with international treaties,

regional obligation, standards of fairness, transparency, efficiency etc.

Standards and procedures for secondary legislation

Delegated legislation is a necessity in any modern, dynamic and effective legal system. While

there is no escape from this phenomenon, there is a need for harmonized, effective and efficient,

transparent mechanism for drafting, promulgation and oversight of delegated legislation. Failure

to do so impacts adversely upon human rights, democracy, rule of law, good governance

principles, social justice and principle of separation of powers, on which the very concept of

liberal democracy hinges. The primary laws are implemented through secondary legislation and

common people are dealing with day to day procedures and rules. Secondary legislation must

have certain standards for operational principles, due diligence, fairness, and accessibility, access

to fair judicial remedy and standards for non-judicial grievance mechanism. Another area for

standard setting is what should contain primary legislation and what should contain secondary

legislation. My experience shows secondary legislation is misused in many countries because

there is no process and no oversight and is in complete control of political power. There is

consensus on many of these areas.34 What is required is to consolidate, agree and enforce

common standards at regional and international levels.

                                                                                                                         34  Guiding  Principles  on  Business  and  Human  Rights:  Implementing  the  United  Nations  “Protect,  Respect  and  Remedy”  Framework,  Human  Rights  Council,  A/HRC/17/31,  21  March  2011  

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Regulatory analysis of draft and impact assessment of existing legislation

A major element in the legislative process is determining the effectiveness of existing or

proposed legislation. This should cover all aspects of legislation.

There are different ways of evaluation. Whatever is suitable must be used in post conflict

countries. The Regulatory Impact Assessment (RIA) developed by the EU is very useful and

practical document.35 It includes the following steps:

• Identification of responsible bodies for RIA and allocation of adequate resources

• Identification and clear determination of problems and objectives that the normative act

aims to regulate;

• Identification of the form of intervention (legal and non-legal forms) and selecting one

for addressing the problem;

• Collection of information and identification of interested parties;

• Consultation with interested parties;

• Pre- and post-impact assessment that includes a cost and benefit analysis after and before

the implementation of the law;

• Standards for Post drafting policy checks including administrative requirements, cost and

economic impact, practicability and implementation

• Publication of the documents drafted as a result of impact assessment.

There is a need for prospective and retrospective assessment standards of all legislation on the

criteria of its effectiveness, efficiency, and efficacy, and practicability, regional and international

impacts. That is the only way to ensure quality legislation at all levels. Currently, most of the

countries in vicious circle of poverty have no mechanism for evaluation of impact of the existing

laws and institutions. The vicious cycle of poverty goes on and on. The causes are laws and

institution and solutions are laws and institutions.

Communication, publication and access to Legislation

                                                                                                                         35  Improving  Policy  Instrument  through  Impact  Assessment,  SIGMA  paper  31,  OECD  Publishing  2001;  Improving  the  Quality  of  Laws  and  Regulations:  Economics,  Legal  and  Management  Techniques,  1994(OCDE/GD(94)  59)  

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Access to laws and institutions is basic human rights and are foundation of rule of law,

democracy and market economy. In post conflict countries and in almost all developing countries

laws are made in government offices and often there is no proper publication. This creates a

problem of access to laws and regulations. There is urgent need for standards in this area.

Publication of laws is basically the responsibility of state and negligence should lead to

consequences. The state institutions must reach the citizens and make laws and services available

to them. Remember the state institutions are in competition with customary system and non-state

actors. There is need for international standards registration of all legislations, for maintenance

of legislation, collection of authentic laws, format of published laws, and computerized data of

laws and, consolidation of laws. This is the proper responsibility of government and negligence

must be punished.

Conclusion

Drawing upon my extensive research and experience of justice institutions, I conclude that all

human rights violations and corrupt acts are born and raised under the nose of laws drafted

through backdoor processes, dominated, influenced and captured by powerful business or the

elite classes and non-transparent and unaccountable institutions. In order to foster the principles

of rule of law, good governance, there is urgent need and right time for setting global framework

for drafting of laws and regulations with common language and understanding and standards for

independent, impartial and competent drafting organization and, also give serious thought to

establish international or regional oversight body. Such a global framework will simultaneously

promote human rights, good governance, the rule of law, transparent and accountable

institutions, legal transparency consistent with international human rights norms and standards as

envisioned and defined by United Nations Security Council.36

Laws developed and institutions established through consultative, participative, transparent and

accountable process by an independent, impartial and competent drafting entity are as crucial as

independent judiciaries for continuous prosperity, human rights, sustainable development, social

harmonies and integration, legal empowerment of the poor, security and peace at national,

regional and international level and for effective and reliable states.

                                                                                                                         36  2004  S/2004/616  

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