The Speaker’s Conundrum (Part 2): The Existence of Non-existent Law

Melanie Phillips

 

Introduction

Earlier this year I introduced the Speaker’s Conundrum, a problem which goes as such:

Some time ago I was asked by the Speaker of a local government to give legal advice about its Standing Orders. After asking him for a copy of these Standing Orders, I was promptly informed that “oh, well, you see, we don’t have any storage at the offices here so the previous Speaker stored all the papers under his bed because this was the safest place at the time, but then, you see, the rats ate them”. My response was “so, when did you last see the Standing Orders and how do you function without them?” And this is the reply I got: “Hmm, maybe in the 90s? You know, we just make do without them”.

The Speaker’s Conundrum is, as previously mentioned, twofold. The first essay discussed the challenges of accessing justice in a physically demanding environment. This essay discusses the second part of the Speaker’s Conundrum – how do you apply a law that is legally in force but practically non-existent? – continuing to explore the theme of practical justice in a developing[1] context.

The Existence of the Law

In practical terms, making law is about the law-making body —normally Government (whether national or sub-national)— telling people what they are allowed to do and setting limits for these activities (for example, you are allowed to drive but if you drive, you must first pass a test and be licensed and if you do not follow driving rules, then you will face some sort of punishment such as a fine). When laws are made, they are commonly put into writing where they remain as a constant record of the law-maker’s decision, for the future reference of all; they remain this way until they are changed or removed by the maker of that law.

After a law is committed to writing, it is then published, normally by way of a notice in the Gazette, the official Government newspaper. It is this publication that usually ‘seals the deal’ in terms of the law – making the law a ‘law’ and, therefore, enforceable, fulfilling the crucial step of informing the public about what changes the Government is making.

The Gazette

The Government’s Gazette is the official record of public notices; it dates  back to the 1660s when during the reign of Charles II, the Court, at that time in exile in Oxford because of the Great Plague, published the Oxford Gazette. The Oxford Gazette soon reverted its name to the London Gazette, reflecting the Court’s return to the capital, and became the means of the Government to ensuring that a permanent record of public information (including the likenesses of robbers and wanted ‘highwaymen’)[2] would remain. The Gazette, and the gazetting of legal instruments, is until this day the prime means of publishing laws and accessing public information in common law countries, typically those former British colonies. The internet era has made this information available online with searchable databases, significantly easing the burden of accessing these documents, thus increasing overall access to the law.

The Gazette is premised in the fundamental principle that information affecting the public should be publicly available and, moreover, its publication must be consistent, reliable and, importantly, available. Practically speaking, anybody should be able to rely on the Government to publish laws, search and find a law reasonably easily, and rely on its publication in the Gazette as proof of its existence[3].

In a developing context, publishing is often compromised. Gazettes are published at will and ‘publication’ is considered to have occurred the minute that, for example, I manage to get a print out of the Gazette, usually after stalking the desk of the relevant person for several days. Likewise, it is not unheard of to wait more than a year for publication and in some cases, I know people who are still waiting. Without predictability or even certainty that a law will be published, the practice of relying on publication in the Gazette can seem redundant to many. Theoretically, publication should involve the wide dissemination of information and a centralised repository where this information can be accessed. As I have discussed in my previous essay, the internet era has meant that this information is available online in a searchable format, but this has limited relevance in a developing context where information is not widely disseminated and can get lost, having been eaten by rats or destroyed by other environmental and social factors.

Comparisons with Custom

Institutions such as the Gazette are typically inherited from a Colonial past. They survive by virtue of administrative institutions enshrined in law, which, functionally, can be fraught with difficulties in a developing context. Regular and wide distribution of publications is, as discussed both in this and a previous essay, a real problem. The lack of reliability on publication in the Gazette means that it can be a cause of dispute and a way to get around compliance. In addition, administratively, heavy practices such as the Gazette can be a burden on developing countries that simply do not have the infrastructure, processes or resources available to facilitate a quick and efficient publication in the Gazette. In contrast, customary law (kastom)[4] exists outside of the confines of paper and ink and the longevity of law is determined by memory and application: if the community or group keep applying a law, it is because they think it is still relevant; and if society changes, custom changes likewise. If a community stops applying or ‘forgets’ a law, it means that it no longer has relevance to that community at that time and place; practice and need are the prime factors determining whether a law applies, not whether it is written down and can be found.

At a national level, certainty and awareness —certainty about what the law says and awareness about the existence of that law— are crucial to accessing justice. It is easy to see how something as simple as a Government newspaper accomplished these tasks, but, as we have explored in a previous essay, transporting information around a country that is geographically diverse and lacks reliable shipping routes is difficult.

It also does not answer the most fundamental question: does law still apply when, for all practical purposes, it no longer exists? In customary law, the answer is no; law is applied to the extent that it is relevant, irrespective of whether it exists in written form or not. Formal law, however, answers ‘yes’ because that law has been published in the Gazette. Logically, this seems to be an extraordinary proposition – that we remain governed by laws when we have no idea what they say and yet this is the institution we must follow. In addition, it is not just the law that is lost but often the Gazette notices as well. Although I can’t confirm the story, I have heard that the computer belonging to the lady that types the Gazette notices in Solomon Islands still operates on one of the earliest operating systems of Windows and that, when they tried to update her computer because they could not transfer files to other computers, they accidentally deleted all the information stored on the computer from before 1995.

Practical Justice and ‘Elective Law’

Because of the often ad hoc way that laws are developed and written in a developing context (in Solomon Islands, laws are often written by donor-funded advisers who work in discrete areas and end up making laws that are out of context, and often with little relevance to other laws and policies of the Government) there can sometimes be tension in terms of consistency between different laws (for example, old colonial laws that are still in effect, and modern reformative laws[5]). It might also be difficult to enforce them; as many of those working in development know, the cost of implementing ‘international best practice’ can be expensive, often requiring the establishment (and funding) of independent bodies and commissions and the creation of new and complex legal processes to deal with particularly sensitive criminal matters, rather than working on resolving issues and updating the current systems that struggle to function, or, at its most practical level, the on-going cost of running air-conditioning units in the brand new donor-funded office building. As such, many laws seem to fall by the wayside in an apparent replication of the customary practice that if you simply don’t apply a law, it will therefore cease to exist. This is one of the ways that laws have been adapted to fit the local context; those applying the laws simply choose which parts they want to follow, and which parts they don’t.

This fluid, selective approach to the law is not the end of the story because, on the other hand, there are those laws that are lost simply by virtue of the environment conspiring against them, as in the case of the Speaker. In such cases, the reverse happens: communities evolve their own customary practices, based not around societal needs and wants, but around the remnants of a lost law, recreating it as they can in their own style. This ‘kastomisation’ of the written law accords to very few rules and requirements other than an apparent genuine desire to try and reincarnate the ‘lost law’. I have often been called upon to give advice on the legality of such ventures and have had the sad task of advising that such practices are, strictly speaking, against the law when actually, in many cases what the communities are trying to do is to adapt, in good faith, difficult impractical laws to their own situation, often without any outside assistance.

In a case similar to the Speaker’s Conundrum, I actually found the old Standing Orders and discovered that they only allowed English to be spoken in the Assembly, a fact that one member tried to use at the expense of other members who were not fluent in English. In another example, I was once asked by a Provincial Government to re-draft their community by-laws so that people who did not participate in village cleaning activities on a Friday could be punished by the leading community group in that region. The reason for this was clear – the youth were often drunk on Friday and their lack of involvement in communal activities was a cause of friction within the community. It was left to me to tell the Provincial Government that they had no power to create or enforce community by-laws (even though they relied on their old community by-laws from decades back) because, little to their knowledge, the power to make these laws had been repealed a long time back along with all the by-laws. They decided to continue implementing the community by-laws anyway.

And so what is justice….really?

The Speaker’s Conundrum represents the contradictory problem of law and justice in a developing context: we are held to account by laws that we do not know exist and are unlikely to understand even if we did have copies (because of the oft-convoluted language and lack of cultural context[6]). Moreover, they usually consist of administrative processes that come from a different place and time, a time when ‘the Empire’ ruled and when laws and their concomitant processes were dictated rather than developed. The same contradiction occurs when you consider the effects of communities taking the law into their own hands: on one hand this practice should be congratulated because the law can at least be made practical and relevant, and adapt to the demands of that society; but, at the same time, the issue of accessing law in a reliable, predictable, and efficient way remains.

The ease with which kastom can be adapted to the local context is one of its great strengths; within a community context this does work. The difficultly comes from the overlap between the colonial institutions and customary practices. Once we acknowledge that our colonial institutions are not going anywhere, and that therefore, we must accept the fact that occasionally a law will pop out of the woodwork at an inopportune moment (for instance, just before you head into Court) and likewise, once we accept that there needs to be, at the least in the case of provincial or national level laws, more certainty to the law than just the needs and desires of communities or the whims of community leaders, where does this leave us?

In answer to the question, how do you apply a law that exists legally but is practically nowhere to be found? The answer, in my view, is: you don’t. The strict legal position cannot overrule the practical reality. At best you can try and work with these laws but always within the sphere of what is practically possible. This practice is followed in Solomon Islands, where laws are made and published in the Gazette…only to sit there for several years until political will and availability of resources ignites their eventual enforcement. However, some laws just sit there and do nothing. Justice cannot, arguably, be achieved by putting in place laws that are too complicated and expensive to work in the local geographical, social, and financial context, and nor can justice be achieved by striving to recreate laws that succumbed to the rats long ago.

What we seek, instead, is a balance. For all the administrative procedures we create and try to work with, the law ends up being an organic blend of two composite legal systems: the common law and the customary. We write our laws, enact and enforce them in the common law tradition, but we determine their need and application in a truly pragmatic customary manner. The uncertainty can be difficult for some lawyers to grasp but ultimately, it appears to be the most practical means of achieving justice. In a developing context, this means we need to open our eyes to the effect that our strict obedience to our own formal legal traditions has on the country where we work. Rule of Law and other justice programmes must be context-driven, not-result driven: justice is not, after all, a strictly quantitative exercise. Yes, you can measure some things (such as the number of cases dealt with by the Courts) but justice is wider than this and depends on a more holistic approach that incorporates the needs, desires, but, above all, the reality of the country in which we operate. Access to justice is not improved by building more Courts or creating more systems and processes; access to justice is improved by increasing understanding of the ways in which justice is sought and gained at the country —or even community— level context.



[1] In this context, ‘developing’ means not so much practically developing laws but instead how laws work within a developing country.  The Speaker’s Conundrum is a discussion of my experiences in Solomon Islands, a country defined as a ‘Least Developed Country’ by the UN (http://www.un.org/en/development/desa/policy/cdp/ldc/profile/country_174.shtml), meaning that it suffers from “severe structural impediments to sustainable development” (http://www.un.org/en/development/desa/policy/cdp/ldc_info.shtml).
[3] Traditionally, a photocopy or print out from the Gazette register is admissible in Court as proof of that law’s existence.
[4] Customary laws are local level laws made by communities and usually administered by the Chiefs or elders of that community.
[5] The Constitution of Solomon Islands allows for, in general, three different types of laws: the continuation of Acts of Parliament from the United Kingdom (including common law rules), Acts of the Solomon Islands Parliament post- independence, and customary law which only applies where it does not conflict with any written law (Schedule 3, Solomon Islands Independence Order 1978).
[6] Many laws in a country as culturally-diverse as the Solomon Islands have national laws which are often based on the culture of the ruling party at that time, or they continue to implement laws from the Colonial period which were not even drafted in the country, and finally, as mentioned above, are written by well-meaning international consultants who tend to use language more complex than necessary and who may have some but not specialist understanding of the local culture.

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