Modernization relies on law as the means of transformation. In these great processes of transformation, day after day, many more demands for new legislation have been proposed as a reaction to different social, political, economic and environmental situations which seemingly develop independently or deliberately. Governments need effective laws to govern these transformation processes by which they achieve their political objectives and public policies. Such needs may originate from different sources such as different ministries, a commission of inquiry, politicians, pressure groups, or sometimes from donors.
At any moment in time, the government may face various such drafting proposals on which it has preferences, but cannot attend all of them for lack of enough resources for drafting, enacting and implementing them all. For this reason, the need to make the order in which to draft, i.e. Prioritize with explicit criteria, becomes more and more imperative. Even though the subject of prioritization of drafting proposals is among the subjects that have received little attention in legislative drafting, Seidman, Seidman and Abeyesekere have come up with the importance of prioritization and prioritization criteria. Seidman et al. have identified four criteria for prioritization of drafting proposals: (1) the gravity of the social problem being addressed; (2) the legislation's anticipated social impact; (3) its do-ability; and (4) the available drafting resources and claim that without these explicit criteria or procedures, the resulting prioritization decisions frequently appear haphazard.
In this essay, however, as a center of my hypothesis I will argue that prioritizing drafting proposals is dependent on the full discretion of the highest executive organ and hence, the Seidman et al prioritization criteria do not fit for international application. In order to prove my hypothesis I am going to look at the four criteria of prioritization of drafting proposals put forward by Seidman et al and make a comparative analysis between Ethiopia and Northern Ireland. By exploring the institution for prioritization of drafting proposals, I will particularly examine whether the Seidman et al criteria of prioritization are applicable or not in both jurisdictions. In doing so, the essay is divided into three sections. Section I explores the prioritization of drafting proposals and argues prioritization of drafting proposals is dependent on the final decision of the highest executive. Section II first analyzes the two countries institutions for prioritization. It then continues in describing the four criteria of Seidman et al into two folds followed by a comparison and analysis of the criteria in both jurisdictions. Section III concludes.
I. Prioritizing draft proposals
In principle, in a democratic polity, electoral candidate promise to defend the national interest, to bring economic prosperity and better lives for the majority. To win the consent of the citizens, they usually debate and unveil the plan they taught for bringing those promised outcomes. Once they won the election, they acquire political power that lets them carry out massive policy changes in the areas they promised to improve the purported change for the majority. Most policy changes need to be transformed into obligatory and binding legal rules either by amending/repealing existing legislation or enacting new laws. Good governance requires the exercise of political power through legislation –rules narrowly drawn, and prescribing transparent, accountable and participatory decision-making procedures. “To legislate” means formulating, passing, and making implementation mandatory. However, as formulation and application of laws will incur costs, the government cannot bring all the promised changes to actual results and to the expectation of the people at a time. Moreover, apart from the government programme, multiple demands for new laws may originate from different sources such as from international obligations, opposition politicians, pressure groups, or sometimes from donors. These great demands and the need to change and regulate the way of life need strong legislative institutions and legislative resources. Legislative resources may include qualified human resources, finance, materials including research or consultations, technology, information and so on which should or might be used in legislative activities. As a result, the government draws up its plans and programme of legislation together with other various demands which considers legislative solution is necessary. As a way of exercising state power, the government decides the order in which to draft. In many jurisdictions, the government is assisted for its decision of prioritization by an institution which estimates the balance between demand and supply of legislative resources. The institution that assists the government in determining draft proposal prioritization varies from jurisdiction to jurisdiction. In some jurisdictions Cabinet committee on legislation or Central drafting office may take this task. In other jurisdictions central government body with the function of vetting all legislative proposals may take similar task. Where there is neither institution, prioritization is done by the drafting establishment. In all cases, the institution by comparing; with or without formal criteria, the demand and supply of drafting resource prioritizes draft proposals. However, the ultimate approval for prioritization is still remains with the highest governmental body. Usually the formal criteria for determining prioritization decision are either unknown or confidential in most jurisdictions. Although it is rare to find formal criteria of prioritization, Seidman et al have provided four prioritization criteria and claim that without such criteria the resulting prioritization decision becomes haphazard. However, even though formal criteria for prioritization is a useful means for transparent decision-making, prioritization is largely political and mostly dependent on the full discretion of the government. The government has to decide the order in which to draft its promised programs as prioritization sets the tone and direction of the government, in particular its legislative power. The four prioritization criteria of draft proposals that Seidman el at have provided are as follows:
(1) the gravity of the social problem being addressed;
(2) the legislation's anticipated social impact;
(3) its do-ability; and
(4) the available drafting resources
I will explain and apply the four criteria both to Ethiopia and Northern Ireland. First I will briefly discuss the institution for prioritizing draft proposals in both jurisdictions and explore whether the institutions (if they exist) apply prioritization criteria or not, and if they apply are they applying Seidman et al criteria.
II. Prioritizing drafting proposals in Ethiopia and Northern Ireland
Institutions for prioritizing drafting proposals
A. Ethiopia
In Ethiopia the institution with the task of prioritization draft proposals is located within the Prime Minister’s Office of Legislative Drafting Department (PMOLDD). The system of drafting legislation in Ethiopia is decentralized with the first draft proposals being produced by each government ministry with its own sphere of activities. These ministries have a smaller unit of legislative drafting with staffs who are experts in the technical field of concerned but may not be experts in legislative drafting. Each ministry is accountable to the Prime Minister and Council of Ministers. First each ministry prioritizes its own drafting proposals and sends its priority for the budget year for final approval to PMOLDD. The PM office LDD who basically is responsible for implementation of government policies will compare the various demands from different ministries and prioritize drafting proposals accordingly. PMOLDD is under the direction of the Prime Minister, a chairman and leader of the Council of Ministers vested with the country's highest executive power. Hence, the institution that is responsible for final and ultimate decision for prioritization of draft proposals in Ethiopia is at the heart of the executive organ.
B. Northern Ireland
In Northern Ireland, unlike Ethiopia there is a centralized drafting office for all primary legislation. It is called the Office of the Legislative Counsel. It drafts all primary government legislation. Office of the Legislative Counsel is part of the Office of the First Minister and Deputy First Minister. The First Minister and deputy First Minister are the joint "Prime Ministers" of Northern Ireland. Like that of Ethiopia, prioritization decision is made by the executive as the Office of the Legislative Counsel is part of the Prime Minister’s own Office and at the heart of the executive. Instructions for each Bill come from each department. However, they are coordinated within the executive and any decisions on priority would mainly be for the executive rather than for the drafting office. Office of the Legislative Counsel would have some input into that decision, for example explaining how long each Bill would take to draft, or complaining that a department was slow in preparing instructions, or slow in responding to a first draft of a Bill. Thus, the ultimate decision of prioritization rests on the Prime Minister Office.
Let us now consider whether Seidman et al criteria are used by both institutions. For comparison purposes, I will organize the Seidman et al four criteria into:
1. The gravity of the social problem addressed and the legislative anticipated social impact and;
2. The do-ability and the available drafting resources
1. The gravity of the social problem addressed and the legislative anticipated social impact
These two criteria are referring to proposals that will facilitate the removal of obstacles from the development process and proposals that will facilitate the establishment of market’s socio economic institutional infrastructure. For Seidman et al the gravity of social problems or the importance of the problems that the proposal wanted to address and the potential impact/social consequence –benefits and lose of proposed bills on economic, social, political and international should be given an appropriate concern and be used as criteria for prioritization.
a. Ethiopia
In Ethiopia, there are no such formal criteria of prioritization for draft proposals used by the PM office of Legislative Department. Even if the PM office Legislative Drafting Department might use these criteria informally, these criteria seem practically inapplicable for two reasons. As pointed above, every ministry notifies its legislative programme to the Prime Minister’s Office of Legislative department with inadequate background information. Ministries usually send list of the titles of draft proposals in the areas they wanted to legislative and regulate. In rare cases and usually in big projects there is some background information. However, in most cases background information such as the gravity of the social problem to be addressed, the solution of the problem, the proposed alternative solution, the anticipated social impact of the proposals and other detail studies are conducted after the proposal gets approval and priority from Prime Minister’s Office of Legislative Drafting Department. This practice makes it apparent that the staffs in PM office are not in a position to analyze the gravity of the social problem and compare it with other proposals as Seidman et al outlines.
On the other hand, currently, there are only three staffs –one head of the office and two other experts in the PM office of Legislative Drafting. The experts are working in both capacity as a policy advisor and legislative drafter. Although they are well aware of the government policies or in other words the political consequence of draft proposals, they have a limited knowledge in the areas of social, economic, finance, industry and agriculture as the background information with each proposals is almost inexistence. Hence, decision of prioritization is not based with the above criteria. Usually what happens is the most powerful Ministers force their proposal to the top of the agenda and final decision of prioritization rests with the Prime Minister’s office.
b. Northern Ireland
Like that of Ethiopia, there are no such criteria of prioritization used by Office of the Legislative Counsel in Northern Ireland. I inquired a draft person from the Office of the Legislative Counsel whether the central drafting office prioritize draft proposals with any criteria and if so whether the gravity of the social problem and its anticipated social consequence are taken into account for prioritization of draft proposals. The response I got is quite similar with the system of Ethiopia –that any prioritization that happens is political - i.e. who is the most powerful politician from the most powerful party, and can they force their Bill to the top of the agenda. Within the office, the drafters draft laws what they were given to the best of their ability. I have been told that if drafters in the central office were told that a new bill is coming with top priority, they might drop the other bills and work on that one.
However, unlike Ethiopia, though it is not meant for prioritization, there is a strong and detailed policy development process that identifies the gravity of the social problem and the anticipated impact of the legislation. As an integral part of the policy development process, all Northern Ireland government departments and agencies with statutory exercise powers are required by ministers to produce and comply with the Regulatory Impact Assessment (RIA). While RIA is more concerned with the impact of policy proposals, it address the issues of assess option (whether the proposal needs regulatory or non regulatory measures) and benefits and costs of the proposed changes. This might help any draft proposals with detailed background information. However, this may not be the answer for Seidman et al criteria as various proposals with detailed RIA studies may appear at the same time in the Office of the Legislative Counsel. Unlike Ethiopia, the central drafting office in Northern Ireland has better and detailed background information that might help prioritization decisions. However, the ultimate prioritization decision still rests on the Prime Minister’s office.
2. The do-ability and the available drafting resources
These two Seidman et al criteria suggest that institutions with prioritization task should compare drafting proposals by considering the country’s ability to draft in terms of finances and resources (do-ability) and in terms of its ability to draft (drafting resources such as trained drafters, expertise and size of the drafting office). The criteria are more concerned with the use of scarce drafting resources and prioritizing institutions need to be aware of the available Human and Drafting resources of the country and any decision of prioritization should be based towards utilizing scarce resources effectively. In other words, what Seidman et al suggest is that drafting proposals that will not be implemented due to financial shortages or proposals that require particular skills that the country lacks should not be allowed to consume the scarce resources and should not be given priority.
a. Ethiopia
In Ethiopia, there are no such formal criteria that the PM office of legislative department utilize for prioritization of draft proposals. As pointed out above, let alone the financial, human and drafting resource implication of draft proposals, there is inadequate background information about the social problem that the proposal wants to address. As the system of legislative drafting is decentralized in Ethiopia, resources for drafting are neither allocated to a single organ nor administered by one responsible institution. Furthermore, drafting is accomplished both by different lawyers (not drafters) found in different ministries (only few legislative reforms that do not require huge amount of resources) and by special ad hoc committee or work force established for big projects. This makes it very difficult for the department to compare competing draft proposals and prioritize in terms of the country’s ability to draft and the do-ability of proposed legislation criteria. Whatever the financial, human and drafting resources implication of a draft proposal may be, the ultimate decision of prioritization of draft proposals remains within the discretion of the highest executive. If the government directs for the preparation of certain drafting proposals, it would get a highest priority despite its financial and human resource implication. This trend makes it apparent that the final prioritization decision rests on the Prime Minister’s office.
b. Northern Ireland
Like that of Ethiopia, there are no such formal prioritization criteria used by the office of Legislative Council in Northern Ireland. However, unlike Ethiopia, the system of drafting is centralized and resources for drafting are allocated and administered within the central office. The office of the Legislative Council is organized with small office consisting of nine trained drafters but with a wide range of responsibilities and with its own budget.Unlike Ethiopia, this has a potential advantage for the central office to compare and prioritize different proposals based on Seidman et al criteria of the ability of the jurisdiction to draft. The size of drafting office and the experience and expertise of drafters is well known and can be found in one place. As pointed out earlier, there is also a strong policy analysis of proposals that would give the drafting office the insight of the do-ability of proposed legislation. The financial requirement including the costs and the benefits of policy choices are also well addressed in regulatory impact assessment. With all this advantages, however, the prioritization decision remains with the Prime Minister’s Office like that of Ethiopia.
Here is the summary of our discussion so far:
|
No. |
Country |
Institution |
Seidman et al Criteria of Prioritization |
Basis of prioritization of draft proposals |
|||
|
1 |
2 |
3 |
4 |
||||
|
1 |
Ethiopia |
PMOLDD, within PM Office |
NA |
NA |
NA |
NA |
PM’s Office decision |
|
2 |
Northern Ireland |
OLC, with in PM office |
NA |
NA |
NA |
NA |
PM’s Office decision |
· NA – Not Applicable
III. Conclusion
In summary, even though prioritization of drafting proposals is among the subjects that have received little attention in legislative drafting, Seidman, Seidman, and Abeyesekere have come up with the importance of prioritization and four different prioritization criteria. Based on the four criteria, I compare the institutions with prioritization tasks under Ethiopia and Northern Ireland. So far, in this essay, I pointed out that the government has the political power to draw up and decide the order in which to draft its legislative programs. As a way of exercising its legislative power, even though formal criteria for prioritization is a useful means for transparent decision-making, prioritization is largely political and mostly dependent on the full discretion of the government.
In Ethiopia and Northern Ireland, the institutions with prioritization tasks are under the heart of the executive organ –PM’s Office. In both institutions, the prioritization of draft proposals are highly influenced by political decision and the Seidman et al four criteria of prioritization are inapplicable. While in Northern Ireland, the legislative drafting is organized through a central drafting office with well-trained drafters and strong policy background where there is room for prioritization with Seidman et al criteria, the Ethiopian system of legislative drafting is organized through decentralized with lack of trained drafters and inadequate background information and practically impossible to implement Seidman et al prioritization criteria. However, in both jurisdictions, there are no formal criteria of prioritization and any prioritization that happens is simply political and rests on the Prime Minister’s Office.