The FMF’s Good Law Project has two primary raisons d’être. First, apartheid bequeathed a legacy of legislation characterised by disrespect for the principles of good law. Second, it is essential to ensure that future laws comply fully with the spirit and letter of the country’s Constitution, and related principles of good law.
Over and above these two main considerations, one of the most significant developments in modern jurisprudence has been the introduction and refinement, initially in mature democracies, and increasingly in younger democracies, of institutionalised procedures and criteria for improving the quality of law and access to justice.
The principal findings are:
1 There is an emerging consensus that independent and dedicated mechanisms and institutions are necessary to improve the quality of laws.
2 A precondition for widespread respect for the Constitution and the principles of good law in South Africa is the unambiguous commitment to those principles by government from the highest level down. The Head of State should ideally lead the way because laws, policies and procedures in all departments and at all levels of government in all its forms, and, to some extent, the private sector and civil society, are implicated.
3 A holistic approach is needed whereby good law is addressed as a collection of jurisprudential and institutional checks and balances in six contexts:
3.1 Constitutionality: All law must conform to the letter of the Constitution, and should reflect and promote the values which inform it. Since the Constitution is the supreme law of the land, and all laws, policies and actions must be constitutional, constitutionality should be of pre-eminent and pervasive concern for all law-makers and regulators.
3.2 Consistency and clarity: Apart from the need for law to be constitutional it should comply with sound jurisprudential principles which may go beyond the Constitution. These include the need for consistency between laws, the delineation of functions between departments and the avoidance of duplication, unambiguous language, and provisions that merely restate extant (statutory or common) law.
3.3 Feasibility, impact and cost-benefit assessments: No law should be adopted or, if adopted, implemented, in the absence of the following conditions: Clarity regarding whatever problem the law is intended to eliminate or ameliorate; likely costs of implementation, enforcement and policing; institutional and staffing implications; compliance costs and implications; the feasibility of the law (whether there are realistic prospects of widespread compliance and enforcement); expected benefits; related and unexpected regulatory impacts and secondary effects; and adequate provision for monitoring efficacy.
3.4 Good governance: Laws should be adopted only in the context of adequate capacity for good governance, such as pre-existing facilities, budgets, dependable qualified staff, and administrative requisites such as forms, equipment, and databases.
3.5 Legal drafting: Good laws are drafted according to established criteria such as the need for good grammar and syntax, coherent structure, recognition of pre-existing and related law, and clear unambiguous language.
3.6 Access to laws: Laws should be readily and easily accessible to interested members of the public. This applies in the main to legislation, particularly when it is newly made.
3.7 Access to justice: For law to be good law there must be a realistic prospect of access to justice (expeditious and affordable enforcement), including, for instance, guarantees of due process, adjudication in or rights of appeal to independent courts, and transparency, in accordance with such time-honoured axioms as “justice delayed is justice denied” and “for justice to be done it must be seen to be done”.
Source: Extract from the FMF’s submission to the National Planning Commission on the National Development Plan (NDP)
FMF Policy Bulletin / 16 October 2012