Im­pli­ca­tions of amend­ing Pub­lic En­quiries Act

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

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.

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