Implications of amending Public Enquiries Act
LAST week, the government passed before the Lower House of Parliament the proposed amendment to the Public Enquiries Act, 1994. However, in a resistance that is likely to be overcome, the Senate, rejected certain provisions of the Bill, leading to a division in the august House.
Rule of law, also known as nomoc-racy, is the legal principle that can mean different things in different contexts.
I will confine myself for purposes of this article to the definition of rule of law where it means that no branch of government is above the law and that no public official may act arbitrarily or unilaterally outside the law.
In yet another context, the principle means that it is the rule according to a higher law. It means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality and justice that transcend human legal system.
Though this case is not binding in Lesotho, it is prudent to cite it because of the underlying principle it espouses in relation to this column. In the United States vs Nixon, the Supreme Court compelled then President Richard Nixon to handover the tapes that were anticipated to link him to the infamous Watergate conspiracy and cover-up.
He had sought to place the executive power of the federal branch of government beyond the reach of legal process by refusing to comply with a subpoena ordering him to produce the tapes.
The Supreme Court disagreed, compelling the President to handover the tapes because the United States Constitution, it ruled, forbids any branch of government from unilaterally thwarting the legitimate acts of a criminal investigation.
In deference to the reverence of the august house, lest I be vilified for being disrespectful, let me hasten to observe that though this amendment is merely at a bill stage, I am fortified in my view that because it has passed the Committee and Lower House stage, I am therefore entitled to opine publicly on its correctness.
The Bill was rejected by the Senate for being retrospective among other reasons. Herein too, lies my discomfort with the Bill.
According to the branch of the law regarding interpretation of statutes, which is universally accepted, except for autocratic countries or in very few unique exceptions, there is a presumption that statutes are not intended to have retroactive effect unless they merely change legal procedure.
There is also the presumption that statutes do not derogate from constitutional rights or international law.
Therefore, as a rule, without clear words to the contrary, statutes do not apply to the past. They apply to a future state or circumstance.
Although we do not have any con- stitutional bar against retrospective legislation and even legislation against it, retrospective legislation is clearly against public policy.
These are laws that seek to change the law relating to the past, for instance, a retrospective law makes people criminally responsible for doing something that was not actually against the law when they did it.
They can also work in the reverse, which too, is unacceptable. In this regard, they can legalize an action even though at the time it was committed it was unlawful.
Owing to lack of another appropriate term, reverting to the autocratic nature of retrospective legislation, because they are so rare nowadays, reference can be made to the notorious dictator, Adolf Hitler, at the height of his severely oppressive regime.
He wiped out undesirable elements from within his NAZI party that he considered a threat.
Hitler retrospectively enacted a law that legitimised murders and turned them into lawful executions.
Because they were against public policy and very rare in all democratic dispensations, retrospective laws only found favour with dictators such as Hitler at the height of his dictatorial regime.
Readers should note that my use of Hitler’s example is only to emphasize my point. No slight intended.
Any new law that passes through Parliament in Lesotho, like in all democratic countries, is enacted on the basis that they will govern conduct only after the laws take effect.
Furthermore, Lesotho is also a party to the International Covenant on Civil and Political Rights which prohibits retrospective laws. Therefore the Bill before the Lesotho Parliament in its present form is an affront to both domestic and international conventions.
The underlying consideration behind these conventions and public policy against retrospective laws is that laws are supposed to be predictable and knowable.
To revert to the Nixon case, above, the virtual blanket prohibition against retrospective laws is to forbid any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation, and justice system.
With the proposed amendment to the Public Enquiries Act, there is the inevitable perception that government, the executive, wants to use the vehicle of retrospective legislation to, one, legalize an action even though at the time it was committed it was unlawful and, two, to shield perpetrators of alleged criminal conduct from investigation and prosecution by invoking the manifestly generally unacceptable conduct of retrospective legislation.
As earlier pointed out, retrospective laws are a rarity owing to their being generally an affront to public policy, however, there are instances where their enactment may be justified.
These are for instance, but no limited to, validating activities which have no statutory basis or to correct practices which have been found to be illegal.
That is, the changes are clarifying a legal position or putting right an error. Sometimes, governments realise in hindsight that professionals who have been acting lawfully within the spirit of the law, have been inadvertently breaking the law because of a flaw in the wording of the legislation.
In some circumstances, the consequences are so insignificant as to be ignored. However, in some cases where actions carried out by professionals in good faith and within the spirit of the law have left them vulnerable to prosecution by others — where people have been sectioned by mental health professionals for instance — the laws were altered to give the professionals the reassurance they needed that their unintentional offences were not going to haunt them at a later date.
The above illustrations give the scope of a limited nature of instances where retrospective legislation as an intervention has been justified, but like I pointed out, they are a rarity.
With the proposed amendment to the Public Inquiries Act to have a retrospective effect there must be as in the other instances cited above, be a compelling reason for such a drastic measure.
I reckon there are no compelling reasons for government to introduce retrospective legislation in this regard. I have a plethora of arguments to substantiate my contention.
It has been the public position of government to deceive us into believing that it supported the SADC Commission of Inquiry into the circumstances surrounding the killing of former Lesotho Defence Force (LDF) commander, Maaparankoe Mahao, by his col- leagues for allegedly resisting arrest for spearheading an alleged mutiny.
However, at every opportunity and international fora, government has steadfastly refused to cooperate with the Commission by refusing to hand-over physical evidence needed for the investigation and refusing to accept, publish and implement the recommendations of the Commission.
It took the use of strong-arm tactics by SADC to force the government to accept the report. Even then, the Prime Minister, in Parliament, tabled a highly compromised report in terms of expunction of virtually all the names of the LDF personal mentioned in the report.
Further, on being pressurized by SADC to furnish a progress report on the implementation of the recommendations of the report, the premier did not only delay in submitting the required report but also punched huge holes in what one can safely call a very good academic critique of the procedures, findings and recommendations of a report that he ostensibly so much supported and solicited.
All we hear are the same excuses and machinations by the government instead of operationalizing the recommendations of the report.
The government should be aware of the pivotal, exemplary and vanguard rote that it has to play in upholding the constitution, its aspirations and deepening the rule of law in this country.
The government cannot conduct itself in a manner that can dangerously be interpreted to promote a culture of impunity. Instead it should vigorously pursue the ends of justice.
It cannot use democratic means such as retrospective legislation to, in the eyes of its critics, erode and undermine the course and administration of justice.
The old adage that: “justice must run its course”, must apply indiscriminately and without favour to all persons alike, well-connected or not.
Government cannot shift the goalposts in terms of equality before the law.
Government cannot use retrospective legislation to be falsely interpreted to defeat the course and ends of justice, no matter how democratic such interventions may on the face of it, appear.
No matter how democratic some interventions might appear to be, their usage should not be allowed to cast unfortunate aspersions on our nascent democracy and the rule of law.
Any scintilla of doubt will surely be pernicious to our democracy and its aspirations.