Thursday, May 19, 2011

Pre-legislative Scrutiny: Comparative Lessons

The debate on how we make laws has intensified in light of the disagreements on the Jan Lokpal Bill. Shamnad made an important point earlier on this blog that there is a democratic deficit in the law-making process at the moment, which needs to be corrected.

It is in this context that 'A Comparative Survey of Procedures for Public Participation in the Lawmaking Process: Report for the National Campaign for People's Right to Information' is significant. The Report was commissioned by the NCPRI, written by Oxford students from India, South Africa and Switzerland and published by the Oxford Pro Bono Publico.

The report surveys pre-legislative and legislative processes in South Africa, Canada, the United Kingdom, Switzerland, the United States of America and the European Union in order to set out certain suggestions that may facilitate a fair, transparent and effective manner of enabling public participation in similar processes in India. In addition to information on international law provisions recognising the right of public participation, the report discusses participatory mechanisms in domestic jurisdictions under the following categories: (a) source of obligations to ensure public participation (b) types of instruments for which public participation is encouraged (c) manner of facilitating public participation (d) groups/entities involved in consultation and (e) practical problems hindering effective participation and the drawbacks of participatory procedures. Most of us are aware of the dangers of comparative law, but we should also be alive to its uses. Just because South Africa or the United Kingdom adopts one approach, it is not reason enough for India to follow suit. But when we are trying to confront similar problems, it is worth looking at how others have tried to solve them, if only to learn from their mistakes. The robust South African approach to pre-legislative public participation is particularly noteworthy.
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