Matondo Mukulu, Guest Columnist
Quite recently in this paper, Martin Henry engaged in a useful piece of legislative reflection and rightfully highlighted areas where, as a nation, we need to look seriously at aspects of our law that might be in need of reformation.
In some jurisdictions, the State ensures constant legal reform by having a designated body whose job it is to look at laws, conduct research on whether they are serving the public interest, and produce proposals to the legislature. For example, in the United Kingdom (UK), the Law Commission, pursuant to the Law Commission Act 1965, is charged with the responsibility of keeping the laws of the UK under review, by consulting on them with the hope that laws are modern, fair and cost-effective.
The UK is not unique in having a dedicated law commission, as Kenya, New Zealand, Tanzania and India, and many more members of the Commonwealth, do have such commissions. We get a clear flavour of the importance of such an institution when we consider the stated role of the Law Reform Commission of Trinidad and Tobago (located within the Ministry of the Attorney General). Among its roles and functions are:
(a) to receive and consider suggestions for the reform of the law which may be forwarded to it (either on the invitation of the commission or otherwise) by judges, public officials, lawyers and members of the public generally;
(b) provide advice and information to ministries and departments of government and statutory authorities concerned with proposals for the amendment or reform of the law.
While not being able to comment on the success of the work undertaken by the Law Reform Commission of Trinidad and Tobago, a passing glance at the website of either England's commission, or that of Kenya's, does show that they are undertaking some serious work.
We turn our attention to what obtains in Jamaica, as without a doubt, our society requires the amendment and even abolition of a number of laws which, in their current state, predate 1962, when our society was far different from what it is today. Further, as those in the security forces have told us, we need legislation to respond to an array of crimes which were not thought of 20 or so years ago.
Jamaica does not have a law commission in name or structure. A visit to the Ministry of Justice's website informs us that there is a Legal Revision Unit that functions pursuant to the provisions of the Law Revision Act. This unit is unconcerned in its function with the business of consulting on legislative changes as, say, a law commission is. It is concerned, in effect, with ensuring that whenever there have been legislative changes, the official publication is kept updated.
So what drives changes to the law in Jamaica? In a sense, we have been less proactive, but more reactive, and chronically slow. The institutional infrastructure is somewhat lacking, and for this reason we see that the process is, in effect, led by parliamentary committees, where groups are invited to make contributions. We saw this in action during the lead-up to the Charter of Rights.
Frankly, this is not good enough, as it does not offer an informed opportunity for those who are, or will be, affected by a proposed legislative change to engage as a commission would afford stakeholders.
Further, this approach, apart from lacking the institutional advantage of a commission, does not place the country in a position where it is engaged in a process that allows the development of true experts in a given area of law.
Of equal importance is the fact that the parliamentary committee approach is affected not only by time constraints and the regular absence of MPs, but our political experience has shown us that our lawmakers are usually motivated by partisan political concerns.
These party political drivers are not usually ideals, but minor inconsequential issues which have their importance in an MP's desire to either be re-elected or his/her penchant to appeal to a particular, oftentimes, narrow constituency.
No other recent attempt at legislative change demonstrates the weaknesses of the current system than the attempt by the Golding administration to create a system whereby corrupt public officials are prosecuted. The special prosecutor bill, which consisted of 87 clauses, by June 2011 only had 23 passed by the Lower House, and the last time the then PM attempted to get it through, he was criticised for what some considered an obvious clash between the constitutional role of the director of public prosecutions and the special prosecutor, as outlined at Clause 27.
Surely, this type of constitutional conundrum, which we saw with the rushed and badly drafted Independent Commission of Investigation Act 2010 that created INDECOM (good concept, poor law), is one of those things that a law commission would be attuned to.
With this approach, the country stands to benefit immensely from this proposed institution and we would be waving goodbye to self-serving and baseless comments of some of our lawmakers, as they will be forced to contend with the real issues they were elected to tackle.
In a sense, having a law commission is not a cure-all for our legislative problems, but it does offer our country a chance to make a serious push towards creating and reforming our laws so that they are made relevant and easier to understand.
Better laws, less expenditure
On implementation, we would have reduced (not eliminated) the risks and costs associated with having bad laws or laws that infringe our constitutional rights. If this becomes a feature of our legislative institutional framework, the relationship that exists between consumers and sellers would not be a pipe dream.
To this end, I invite readers to give consideration to the issue of whether the laws which govern, for example, loan facilities offered by commercial banks, are skewed towards the banks. Do you feel as if, when taking a loan, you are forced to agree to terms which you deem unreasonable? These are the questions which committees of Parliament are not equipped to deal with, as usually the process is short on detailed research.
A sufficiently staffed law commission is far better placed to deliver legislative balance in such relationships, and I am somewhat amazed as to the failure on the part of groups such as Jamaicans for Justice.
Economic justice is no less important than ensuring that people are not killed unlawfully by agents of the State, as I am a firm believer that economic justice helps to reduce some of those abuses. How can we oppose, or not propose, the establishment of a law commission in this day and age?
Matondo Mukulu is practising barrister at the England and Wales Bar. Email feedback to email@example.com and firstname.lastname@example.org.