Rambling on about retrospective legislation…

New legislation and subordinate legislation that is made enforceable retrospectively was, I thought, an oddity – something that was really only permissible, in the exception, to cure such noble things as an unfair and unintended consequence of legislation that really could not have been foreseen.

I thought this, until I started to focus my research on outcomes of retrospective South African legislation at the national, provincial and local government level, and its subordinate texts (yes, a big job!).

One of the first things that struck me, on initial analysis, was how retrospective legislation was being used to cure stupid drafting mistakes that made a pig’s ass of the legislation and befouled a lot of the administrative action based on an interpretation of its gibberish.

Lets put that more politely, with the wisdom and hindsight that years of research into this has provided me: Retrospective legislation was being used to cure mistakes caused by a growing incompetency to properly drafting legislation, that frequently made it impossible to carry out administrative duties and function in terms of legislation.

Not only that, but what also struck me, was that legislation with such stupid mistakes and gibberish text was being pushed out with increasing frequency, and retrospective legislation was being increasingly regarded as the go-to cure for this. And along with this, a common opinion that the law was just a guide in the interim between the mistake and the correction.

My modus operandi was and is, that when I come across such issues (to use a word which a very senior judge once told me should not be in the vocabulary of an Advocate of the High Court of South Africa, and which I therefore always use very judiciously), I call and chat to the legal resources for the relevant department and its legal resources people, so I can check on what went wrong.

It was about this time that, during such conversation, I started to hear senior management’s view that the law was just a guide, when I began noticing floods of stupid mistakes and gibberish text being churned out as legislation, and when I began to see evidence in Gazette notices that administrative action was with increasing frequency not based on requirements of legislation – that I was told again and again that old apartheid-schooled legislation drafter had turned to Consultancy work rather than the coal face of drafting.

Then, over the next couple of years I noticed, increasingly, that the drafters of retrospective legislation seemed to be attempting to provide legislation that would, ex post facto, provide a secure legal footing to administrative action taken in the wild, as it were, outside of the four corners of any legislation, or despite legislation, or on a thumb-suck of what their functions and duties were under legislation.

This pointed to another whole realm of troubles which could be laid at the feet of officials who did not do what was required by legislation for whatever reason, whether it was because they did not do what they knew had to be done, were blissfully unaware of what legislation demanded of them, or just could not care two hoots about it all, anyway.

Retrospective legislation as a cure to administrative incompetency and failure to act as required under legislation, is the perfect tool for politicians who do not want to get egg on their faces, and for officials trying to escape the long drop: By making what one has failed to do a retrospective fait accompli, or it allows the pretence that one has done it all along.  Or, by making what one has not done retrospectively unnecessary to do, retrospective legislation can make it OK that one has not done it. Or, further (and worse in fact), it allows for the pretence that what was done illegally, was in retrospect, legally.

In sum, the use of retrospective legislation has increasingly become a tool of choice to hid incompetent drafting of legislation, an incompetent administration, and facilitated a disregard for the law, and in fact, provided a tool to legitimise illegal activity.

However, that is not the end of the problems caused by retrospective legislation. There is a whole realm more.

This being a ramble, an eye opener, about the issues raised by retrospective legislation, rather than a flogging of South Africa and South Africans, lets turn to a couple of examples from the international sphere to avoid the blinkers which our insight into the human level of our South African history brings us, which in a way makes all these things explicable, almost excusable.

There’s a classic case on retrospective legislation brewing in the UK at the moment. It revolves around the policy and administrative practice of putting job seekers to work at no pay, which a court has now declared illegal.

The risk to the fiscus, following the judgement, of multi-million pound claims for payment by many unpaid workers has triggering the urgent drafting of legislation that is to have retrospective effect, which is being rushed through specifically to prevent such claims.  See here.

This scenario, where policy and or practice on the part of the legislature or administration results in an illegality, is often resolved by pushing legislation through that has retrospective effect, designed to negate the consequences of that illegality. That’s what’s happening occurring currently in the UK in respect of unpaid workers.

In South Africa, a good example of this is the common tactic municipalities use to cure non-publication of their by-laws: If a by-law is not published, it is, under the Constitution, unenforceable. So, municipalities (and there are many of them) rush out and belatedly publish by-laws they neglected to publish, but make sure they have retrospective commencement dates.

Another example is one that has just played itself out in Israel. There, Asher Grunis was prohibited from being appointed President of the Supreme Court of Israel because he had less that 3 years left before mandatory retirement. The cure was to pass a law that removed that bar to appointment.  In this case, what the authorities wanted to do was illegal. Therefore, they just changed the law. Now, that’s OK as long as its to the good of the people as a whole. Its not a tool to be used to push through the will of a bevy of politicians when they realise their favourite candidate does not qualify.  See here.

What is common in such instances of retrospective legislation, is that the power to make or amend the rules by which we live, or the power to implement those rules or not, is turned not to the best good, but to protecting the interests of those who have or want to behave illegally, to the detriment of those suffer the consequence of the illegality, and to the detriment of the general good.

Retrospective legislation is but one of a myriad of tools that allow the legislature, or the administration, to act in their own interests either to shrug off the consequences of their illegal actions. Promulgation of legislation is another tool of the trade, prospectively making what is now illegal, legal in future, so that self-interested politician or administrative fat cat can realise their well-laid plans.

The wielding of legislative power to make or amend rules, or administrative power to impement the rules or not, all in ones own interest, rather than in the interest of those who would be subject to those rules and the common good, goes absolutely against the grain of the rule of law, and is in fact antithetical to it.

Oddly, however, there’s very little analysis of how this is, in practice achieved. Using the medium of this blog, I will, where I can contextualise this rambling about retrospective legislation with concrete examples and discussion of the details.

So, until then, over and out.

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