9.7 Advice to Government
9.7.1 Strengthening capacity to review legislation
Even if NHRIs are given the power to review legislation, it is not unusual to see this area slip to the background as more urgent matters take over. Sometimes, governments in developing countries do not have an accessible and transparent process for gazetting bills and ensuring public access. Governments can be resistant to sharing advance drafts, and developing a review process is easier said than done.
A newly established NHRI begins to comment on laws that are passed by the legislature. The NHRI leadership quickly realises that commenting after the fact is far less effective than commenting on earlier drafts. However, the government does not systematically publish or gazette draft bills, so it is very difficult to access the legislative development process at an earlier point in time. The only way for NHRI officials to intervene is if an elected official in opposition or a sympathetic public servant tipped off an NHRI official who obtains the bill informally. The NHRI then petitions the office of the Justice Minister to request disclosure of bills at the draft stage. The Government responds, stating that the Parliament is supreme that that the NHRI has no authority to supervise acts of the legislature.
The NHRI has come to the UN for guidance. What do you do?
Government officials may view such a request as an infringement of the legislature's supremacy. Officials may not have fully understood that NHRIs have the authority to review and comment on national legislation, or they may have understood, but are resistant. In such cases, UNCTs can help by facilitating discussions about this power and its implications in the pre-establishment phase (see Chapter 7), or later on in the context of seminars or meetings on the issue of legislative review post-establishment.
Government officials must understand that the NHRI power to review legislation is not a supervisory power but a review power, and that it does not, of course, bind the legislature. Reviews can also be done in a confidential manner. Optimally, the government may be encouraged to follow a more systematic approach to the publication and dissemination of gazetted bills, which is an overall improvement for transparency in the country.
The sooner NHRIs become involved in dialogue with government on the issue of legislative review, the easier it will be to influence positive outcomes. Government officials will have invested time and effort towards a certain end: this is time and effort that they might be unwilling to see go wasted if extensive critiques are delivered too late in the process. Often, proposals for legislative action start in Ministries responsible for the particular subject. By the time they reach the Ministry of Justice, which generally has responsibility to prepare the legal draft and review its constitutionality, all the hard thinking as to the content of the legislation will have been completed. Entering into discussions at this point may be too late.
Getting access to draft legislation:
To ensure that NHRIs can comment on proposals, and do so early in their development, an institution should develop and maintain regular and substantive contact, at the staff level, with those who are responsible for preparing initial drafts of legislation, regulations, policy and procedures. More senior NHRI officials should maintain contacts, through regular courtesy visits, with more senior officials. Establishing these working relationships helps ensure that the institution is aware of planned initiatives early in their life cycle and is positioned to influence change as necessary.
Influencing change
Although an NHRI should seek to influence change at the earliest possible stage, an institution must be aware and take advantage of the opportunities that present themselves. A Parliamentary Committee may examine draft legislation. Institutions should take the initiative to put their views of proposed legislation on the record at this stage and, where necessary, use publicity and lobbying to influence positive change.
Steps in reviewing legislation The following steps are generally used for NHRIs that review proposed legislation and/or policy. UNCTs should be aware of these steps and provide advice on them, if asked, and as appropriate in the circumstances.
- Identify legislative drafts or policy initiatives with human rights content or with human rights implications. These may include, inter alia, proposed laws or policies relating to crime and the administration of justice, emergency or security regulations, matters regarding the family (divorce, maintenance, custody), labour standards, immigration, elections reform, nationality and citizenship laws, and social welfare legislation;
- Ascertain the degree to which the draft law or proposed policy complies with the State's international and domestic human rights obligations; NRHI should focus on the technical legal aspects: with references to relevant international law, constitutional texts, practice, etc. so that its engagement is seen not as political, but as juridical. Similarly, policy oriented comments should be grounded in references to applicable instruments;
- Assess the potential human rights implications of the draft law or proposed policy;
- Submit a report based on the previous two steps to the executive, to a parliamentary drafting group or to any other relevant body; and
- Submit a report based on the previous two steps to the executive, to a parliamentary drafting group or to any other relevant body.
Advising governments on the degree to which legislative proposals meet national and international human rights standards is an important function for NHRIs. There are difficulties involved in this, however, especially if the Institution does not have significant resources to expend on the effort.
CASE STUDY: Stakeholder consultations assist in assessing legislative provisions in Uganda
The Parliament of Uganda had undertaken wide consultations before drafting a proposed Domestic Relations Bill that was meant, among other things, to help protect family members against domestic violence. The Uganda Human Rights Commission, however, wanted to ensure that the draft law was subjected directly to a human rights analysis. To assist them in this assessment, they convened a stakeholders meeting where the draft law was reviewed carefully against national and international human rights standards. Stakeholders made a series of very specific recommendations on the draft legislation, on how the contents could be improved and on how gaps might be filled. The assistance of stakeholders in this work not only reduced the workload on the Commission, but also contributed to the development of a highly credible set of recommendations that was supported by a cross section of civil society in Uganda. As one measure to ensure that the recommendations were distributed widely, the Commission presented them in their Annual Report.
Government should be made aware of the advantages of cooperating with NHRIs and of carefully considering and acting on an institution's recommendations. Moreover, there are countries where the government routinely provides early drafts of legislation to institutional stakeholders and other social groups as part of ensuring a participatory approach to legislative development, as is the case in Denmark.15
15 Thanks to Ulrik Spliid of the Danish Institute for Human Rights for providing this example.