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The law is a morass

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Last week, when the judiciary launched its annual report, it sent out an important message – perhaps we are making too many laws.

In the past two decades or so, the country’s highest legislative body has enacted close to 200 acts, from tenancy and bankruptcy to tobacco control.

This spate of lawmaking has come with the best of intentions, and in the spirit of the rule of law.  Most of the laws were to give agencies and organisations a legal mandate to function and legitimise their actions.

But merely putting laws in place does not mean that there will be rule of law, or that all problems will be solved.  In fact, too many of them might even become bothersome, a burden, when many clauses are not uniform and thereby contradict each other.  Some laws, like the tenancy act, have had little impact in protecting the rights of tenants and landlords.

The example used to highlight this situation is the tobacco control act, which has contradictory clauses in place, and gives room for judges to make their own liberal interpretation.  This affects the legislative sovereignty of parliament and lawmakers.

The hint here then is there could be many laws that are inconsistent with conflicting provisions, because new laws are seen only in their own context, and not in the context of other existing laws.

Legal experts raised this issue of inconsistencies almost a decade ago.  Laws, such as the inheritance act and the land act passed before 1990, had uniformity in style and language. Drafted in Dzongkha by a legislative drafting committee, its methodology and reference was the Thrimzhung Chhenpo (the supreme law).

Then came the 1990s, when most laws were drafted in English by the different agencies and ministries. As has become the norm, foreign consultants were invited to help out, and they invariably left influences of their own legal systems, without any references to the Bhutanese context or existing laws.  Neither were there Bhutanese lawyers to crosscheck and balance the approach. Further, the translation from English to Dzongkha had a direct impact in interpretation in the court of law.

These inconsistencies have mainly arisen from a lack of expertise in the process of drafting laws, which is a technical and highly specialised time consuming process. Our present lawmakers perhaps lack the time to look at technicalities, such as overlapping provisions.

While anomalies in law are supposed to be part and parcel of legislative reforms, there is a need to iron out inconsistencies so that laws reflect the way of life of the society it is supposed to serve.

Experts have already suggested ways of resolving inconsistencies.  One is by revisiting the acts and amending them in parliament, and the other is by instituting an independent law reform commission that bring harmony to laws, based on extensive research, public consultation and sound principles.

Such an institution may be the need of the day as more and more laws wait to be enacted.

 

One Comment to “The law is a morass”
  1. Opinion | January 9th, 2013 at 14:16:07

    too many laws. so true.

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