ASSESSING LEGISLATION - A MANUAL FOR LEGISLATORS

ASSESSING LEGISLATION - A MANUAL FOR LEGISLATORS

Assessing Legislation - A manual for legislators written by Ann Seidman, Robert Seidman, and Nalin Abeysekere with drawings and layout by Judy Seidman

February, 2003
Boston, Massachusetts

CONTENTS

INTRODUCTION: The Plan of this Manual §

PART I: Your task in facilitating social, political economic transformation 3

CHAPTER I: THE IMPORTANCE OF LAW-MAKING 5

A. STATE, LAW AND THE FATAL RACE 5

B. A SOCIETY'S RELATIVE WEALTH AND POVERTY AND ITS

QUALITY OF GOVERNANCE REFLECT ITS INSTITUTIONS 6

C. THE FATAL RACE 11

CHAPTER II: YOUR ROLE AS A LEGISLATOR 17

A. WHY YOU MUST ENACT SERIOUSLY INTENDED, PUBLICLY-

AVOWED POLICIES AS RULES OF LAW 18

CAN LAW INDUCE DELIBERATE SOCIAL CHANGE?
ARGUMENTS PRO AND CON 20

B. YOUR THREE TASKS, AND WHY THEY REQUIRE
YOU TO ASSESS BILLS 22

C. ASSESSING A BILL: POWER VS. FACTS AND REASON 23

D. WHY DO PEOPLE BEHAVE AS THEY DO IN THE
FACE OF A RULE OF LAW? 26

SUMMARY 28

CHAPTER 3: PRIORITIZING PROPOSED BILLS 29

A. HAPHAZARD PRIORITIZATION 30

B. CRITERIA FOR PRIORITIZATION 31

C. PRIORITIZING LEGISLATION FOR ECONOMIC
DEVELOPMENT 34

1. Third world institutions and poverty. 34

2. The economists debates 36

Market vs. Plan Debates: Some basic issues 38

3. Prioritizing legislation for economic transformation 40

SUMMRY 45

CHAPTER 4: READING A BILL 47

A. A BILL'S FORMAL ELEMENTS 48

B. THE LAW'S LANGUAGE 50

C. THE STRUCTURE OF A SECTION 54

D. DISCOVERING THE BILL'S SUBSTANCE 57

SUMMARY: FIVE STEPS TO UNDERSTANDING A BILL 59

PART II: LEGISLATIVE THEORY AND METHODOLOGY:
THE KEY TO A LEGISLATOR'S TASKS 61

CHAPTER FIVE: AN INTRODUCTION TO LEGISLATIVE
THEORY AND METHODOLOGY 63

A PROBLEM-SOLVING METHODOLOGY: A GUIDE

FOR ASKING QUESTIONS AND ASSESSING BILLS 64

B. LEGISLATIVE THEORY'S GUIDE TO FINDING PROBLEMATIC

BEHAVIORS' CAUSES AND SOLUTIONS 70

ROCCIPI

C. DESIGNING A DETAILED LEGISLATIVESOLUTION 76

D. OBTAINING THE FACTS: THE ADVANTAGESOF A RESEARCH

REPORT 82

F. LEARNING FROM EXPERIENCE: HISTORY AND
COMPARATIVE LAW 84

G. A `CHECKLIST' FOR ASKING QUESTIONS 85

CHAPTER 6: ENSURING A LAW'S EFFECTIVE IMPLEMENTATION 91

A. WHY DO SOME AGENCIES FAIL TO IMPLEMENT? 92

B. ASSESSING A BILL'S PROVISIONS FOR ITS OWN
IMPLEMENTATION 100

1. From `sanctions' to `conformity inducing measures' 101
Punishments versus rewards 104

2. Assessing a bill's prescriptions for an implementing agency. 105

C. TRANSITIVE VS. INTRANSITIVE BILLS 115

1. The `deadlock' of development administration — and how to
dissolve it. 116

2. When to write intransitive bills? 119

3. Assessing an intransitive bill. 123

A CHECKLIST FOR FOR ASSESSING AN INTRANSITIVE BILL 123

CHAPTER SEVEN: CAPTURING AND ASSESSING THE FACTS 127

A. FINDING THE RELEVANT FACTS 127

B. GETTING THE FACTS 129

C. SIGNIFICANT FACT-FINDING METHODS: 131

1. Quantitative and qualitative methods compared. 131

2. The kinds of facts you need to assess a bill: 134

3. The Importance of Sampling Techniques. 136

4. Learning from foreign law and experience. 136

SUMMARY 138

CHAPTER 8: ASSESSING A BILL'S FORM 139

A. CRITERIA FOR ASSESSING A BILL'S FORM 139

B. ASSESSING A BILL'S STRUCTURE (OUTLINE) 140

C. CHAINING WORDS TOGETHER TO ENSURE A LEGISLATIVE

SENTENCE'S ACCESSABILITY AND USABILITY 144

D. A BILL AS AN AMENDMENT TO EXISTING LAW 151

E. SUMMARY 153

CHAPTER NINE: ENACTING LEGISLATION TO FOSTER GOOD

GOVERNANCE 155

A. CORRUPT PRACTICES UNDERMINE GOODGOVERNANCE 156

B. EXPLANATIONS FOR CORRUPTION 156

C. LIMITING THE SCOPE OF OFFICIALS'DISCRETION 159

D. ACCOUNTABILITY AND TRANSPARENCY 163

E. COMBATING A `CULTURE OF CORRUPTION' 168

SUMMARY 180

FORWARD AND ACKNOWLEDGMENTS

This Manual aims to equip legislators to assess and, when necessary, to initiate legislation to foster democratic social change in their own countries. It reflects what we have learned over several decades about the use of law to facilitate the kinds of institutional transformation that constitute both development and transition.

This Manual rests on the legislative theory and methodology set out in Legislative Drafting for Democratic Social Change: A Manual for Drafters (London: Kluwer Law International, 2001). It carries forward the work of Boston University School of Law's Program on Legislative Drafting for Democratic Social Change (visit www.bu.edu/law/lawdrafting).

In every country that we have visited in the developing and transitional worlds, the members of their national legislatures have impressed us _ their idealism, their intelligence, their genuine desire to advance development and transition. Despite those excellent qualities, the way most of those deputies have used their legislative power has ended, not in improving the quality of their peoples' lives, but a bare miserable existence for most of the world's peoples. This book arose out of the conviction that that sad outcome resulted, not — as much of the popular press supposes _ from the legislators' cynicism and corruption, but from their lack of capacity to utilize the legislative power. Developing and transitional world legislators win elections for all sorts of reasons, most of them related to merit. They do not, however, win because they know how to assess a law in terms of its likelihood to induce beneficent social change.

We would like to express our appreciation to all those who have and are helping us to write and distribute this Manual, especially those who have participated in the Program described in website cited above; the officials of the United Nations Development Programme (UNDP) who suggested that, to ensure its widest possible availability, their country offices would download and distribute the Manual free of charge; and all the other donor agencies who have agreed to make it available through their web-sites. We particularly want to acknowledge the moral support given by Associate Dean Stephen Marks of Boston University School of Law; Professor Cynthia Barr, a rock in connection with the entire Program; and colleagues on the BU faculty, who gave much-valued critiques and advice about the entire Program on the several occasions that we presented the material. This Manual elaborates a paper we gave at a World Bank seminar in 2001; we thank Professor William J. Chambliss for inviting us to that seminar. During the writing of this Manual, Stephanie Rosander and Wei Chen served as our research assistants and as the administrators for the entire program, which gave us more time to write it. Finally, we owe a great debt of gratitude to Sue Morrison, an able, devoted and an altogether wonderful office helpmate, who makes things happen. Obviously, none of these fine people have any responsibility for mistakes. As to that, any mistake was the other guy's fault.

- Ann Seidman, Robert B. Seidman, Nalin Abeyesekera, and Judy Seidman

About the Authors

More than forty years ago, when they began teaching in the University of Ghana, Ann and Bob Seidman first began to develop an interest in law and development. They taught for twelve years in six African countries, and one in China. Increasingly, Bob centered his attention on the use of law to facilitate development. An economist, Ann realized that, unless developing and transitional country governments changed dysfunctional inherited institutions, research directed to improving resource use could do little to end developing countries' poverty. Working together, they focused more and more on drafting legislation to foster social transformation.

After 1966, in the University of Wisconsin, Ann and Bob co-taught seminars for third world students concerned with law and development. Then, for the next quarter of a century, at Boston University, Bob taught a clinical legislative drafting course in which students drafted bills for the state legislature. He developed teaching materials that, in part, they used in teaching drafting for African and other students abroad. In 1980, in Zimbabwe, Bob and Ann first jointly taught a seminar in legislative drafting for southern African lawyers. Over the next two decades, in China, Lao PDR, Sri Lanka , Bhutan, Nepal, Kazakhstan, South Africa, Indonesia, Vietnam, Cambodia, Guyana, and elsewhere, they steadily improved the `learning-by-doing' process to help drafters, by engaging in drafting real bills, to learn legislative drafting theory, methodology and techniques. In Mozambique, after the civil war ended, they conducted two workshops for that country's newly-elected national legislators. They came to understand the need for a Manual, not only for drafters, but for legislators who must assess the drafters' work, and for concerned citizens who must work together with the deputies to ensure enactment of laws that foster democratic social change. That experience planted the seeds from which this Manual grew.

Called to the English Bar from Lincoln's Inn in 1964, Nalin Abeyesekera joined the Legal Draftsman's Department in Sri Lanka in 1971. He studied further in the Indian Law Institute (1975), and as a Fellow of the Australian Institute of legal Drafting in 1980. After serving briefly as the Legal Draftsman of the Seychelles, he became the Legal Draftsman for Sri Lanka in 1984, a post that he held until he retired in 2000. He added to his duties those of President's Counsel (1990), and member of the Law Commission of Sri Lanka. A founder member of the Commonwealth Association of Legislative Counsel, he served as a member of its Council (1986-96 and again from 1999 to the present).

In 1998, at Nalin's request, the UNDP asked the Seidmans to come to Sri Lanka as consultants, in the context of efforts to devolve power to the provinces, to help formulate and implement a program to strengthen provincial drafting capacity. Working together, the three of them introduced a UNDP-funded learning process that enabled its Sri Lankan participants to multiply its impact. Nalin agreed to join Ann and Bob to write "Legislative Drafting for Democratic Social Change _ a Manual for Drafters" (Kluwer, 2000). That Drafters' Manual, designed to serve academics as well as drafters, documented in detail the sources from which the authors culled the ingredients for this Manual's underlying legislative theory, methodology and techniques.

Judy Seidman, an artist who works in South Africa, provided the layout and pictures. These make the Manual accessible to the elected legislators and concerned citizens. In the course of doing that, she creatively edited the entire Manual, adding to it many new ideas and formulations.

February, 2003
Boston, Massachusetts