Week 11Lesson objectives this week The focus this week is on drafting defensively to reduce the potential for corruption. It is the final session of readings and exercises in the A Stream. Please e-mail the completed first drafts of your bill and research report to your editor and group members. Include with your research report a brief statement identifying the places in your bill where officials are required to use discretion, and the devices you’ve used to reduce the possibility that the exercise of that discretion will lead to arbitrary decision-making or corrupt behaviors. All countries experience some arbitrary decision-making and corruption. In developing and transitional countries these behaviors may be particularly pronounced, and the consequences particularly severe: wasted resources in countries that have no resources to waste; ineffective development programs; and the growth of a new exploitive class - and its corollary - the perpetuation of poverty. The most common kinds of corruption are bribery, embezzlement, speculation, patronage and nepotism, and conflict of interest. The behaviors associated with these kinds of corruptions can take many forms. In order to determine the best ways to prevent corruption the drafter must consider the precise causes of corruption. Once again the ROCCIPI factors are helpful in explaining the causes of corrupt behaviors. Both the subjective factors (interest and ideology) and the objective factors suggest a variety of legislative solutions to help curtail corrupt behaviors. One of the most important ways to minimize corruption is to limit grants of discretion to the minimum necessary for the task at hand. A bill grants discretion either directly – “The Minister may make regulations to…”, or indirectly, by use of vague words - “All applications must be made within a reasonable time”. What is “reasonable” will depend on the factual circumstances of a given case and in some instances will require a court or some other authority to make that determination. Sometimes a grant of discretion is created unwittingly by a drafter – for example, when a legislative sentence is ambiguous. A good drafter will be aware of all of a bill’s sections that directly, as well as indirectly, trigger grants of discretion. The drafter may limit a grant of discretion in a number of ways: specifying the kinds of decisions an official is empowered to make; listing the considerations an official is permitted, or required, to take into account before making a decision; and stating the decision-making procedures the official must follow. The underlying features of good governance – rule, transparency, accountability, and participation are the touchstone for guiding the drafter in the task of incorporating appropriate legislative devices to guard against arbitrary decision-making and corrupt behaviors. The B Stream objective this week is to examine the constraints imposed on drafters by the demands of their instructions, their Constitutions, and their Interpretation Acts. More than most writers, drafters write within a “legal cage” of constraints. Each constraint poses its own special problems for the drafter. Drafters have a responsibility to ensure that their bills conform to the Constitution and are consistent with the definitions and rules imposed by the Interpretation Act. The drafter has a further responsibility to ensure that the instructions received from the originating ministry can be carried out legally and with a true appreciation of the causes of the social problem the bill is designed to resolve. The Manual cautions: “More that any other single cause, drafting efforts fail because the drafters do not fully understand the social problem the bill aims to resolve – not to speak of the causes of the behaviors that comprise it”. (p. 280). Assignments • Read Manual, Part IV, Chapter 14 (pp. 341-376) and read pp. 279-290.
• Discuss with your group the answers to the general questions, Study Guide Session A-12, slide #10. (Also see Study Guide, Session B-10.)
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