The art of lawmaking

Every legislative act has four related but distinct dimensions

Despite the visible risk of boring you, I beg you to allow me to revert on the subject of my last article. What is prompting me to do this is the shallowness of the debate on the subject that has dominated the television channels this past week. Unintelligent questions (such as “How do you assess the president’s failure to form a government of national unity?”) were followed by unintelligent responses (such as “We will support those legislative proposals that serve the well-defined interests of Cyprus”). This is a response which affords you the opportunity to draw whatever conclusion you consider appropriate. It really bothers me when I hear politicians answering questions that are empty of content by following the instructions of the so-called “communication experts”, i.e. by stating the obvious.

The truth of the matter is that every legislative act has four related but distinct dimensions:

1. It certainly has a political dimension, which reflects its overall political orientation. For example, legislation that regulates education matters, whether the stipulated services will be provided either by the state for free or by private concerns for fees, or whether the substantive content of the services covered will promote certain “official” state religions or will cultivate a culture of religious tolerance, are certainly matters that fall within the ambit of politicians and are prescribed by the general political orientation of the legislative act.

2. Another, possibly more important and certainly more difficult to shape dimension of a legislative act is the methodology prescribed for attaining the goals the legislation is intended to serve. This is, indeed, the case because responding adequately to this task entails an in-depth understanding of the subject-matter of the legislation, which – in practice – few possess, particularly if one excludes those who are seeking to serve personal or other alien interests or represent conservative forces, which are resistant to change.

If, for example, in formulating a piece of legislation on value added tax (VAT), the burden falls entirely on the shoulders of the members of parliament (most of whom have an inadequate understanding of the tax’s basic principles), it is certain that the outcome will leave a lot to be desired. This was precisely the case when VAT was first introduced in Greece many years ago, when the Greek lawmakers (most of them lawyers by profession) succeeded in excluding the provision of legal services from the tax. The consequence was to handicap lawyers who offered their professional services to organisations that were within the scope of VAT. A few years back, a similar level of a lack of an in-depth understanding on the part of the lawyers acting for the office of the attorney-general in a hearing concerning VAT appeared before the Supreme Court of Cyprus.

Another good example of the problems generated by the lack of an in-depth understanding is the case of “pothen esches” or asset statements of politically exposed persons. The MPs, who were involved in shaping (amending) the legislation in force and, more specifically, the members of the House ethics committee, not only did not exhibit the required in-depth understanding of the subject but it is doubtful whether they were in a position to compile their own personal statement of wealth and to bridge it with the previous statement filed in the past. Admittedly, though, this task was and still is objectively impossible on the basis of the legislation in force. A similar level of a lack of understanding has been noted of those involved in the process of patching the ailing legislation on “pothen esches”, who serve in the attorney-general’s office and at the justice ministry.

In these cases, the initial formulation of the law and the subsequent attempts to eliminate its problematic provisions were futile because experts, who should have had a protagonistic role, were not involved. The selection of experts must always be made with particular care and attention to ensure that they are dedicated to serving the national interest and not aimed at creating opportunities to benefit themselves or those related to them.

3. A third dimension of a legislative act is the technical processing of the text itself to set out the specific provisions in an orderly, clear and consistent manner to minimise the possibility of misinterpretations. In this area significant progress has been made in recent years with the House of Representatives recruiting competent individuals for tackling this difficult task, which is often hampered by the MPs themselves, with their various inconsistent and sometimes incoherent last-minute amendments.

4. The fourth dimension is the public exposure of proposed legislation. All politicians pay lip service to the added value generated by the public exposure of a bill but, in practice, the process is non-existent, beyond the closed circuit of the political establishment. For example, there is great difficulty in securing promptly the text of legislation “under construction” and an absolute lack of any facility for expressing views and suggestions that would have a fair chance of being objectively assessed.

In general, an element of arrogance prevails amongst all those involved in the legislative process based on the understanding that “we are the elected lawmakers and, therefore, we will do whatever we deem appropriate”. This position is unquestionably correct in the sense that MPs have the popular mandate to legislate and, therefore, have the last say in the legislative process. However, they also have a parallel duty to discharge the function assigned to them with a sense of responsibility and with an understanding of the limits of their knowledge and experience of the subject being addressed.

All those involved in the legislative process have a clear duty to approach this very important task without arrogance, with respect to their citizens, with humility and an unconditional acceptance of Plato’s saying he attributed to Socrates: “All I know is the extent of my ignorance”.

Christos Panayiotides is a regular columnist for the Sunday Mail and Alithia