Following the law: Combatting discrimination and human rights violations through post-legislative scrutiny
“Public expectations of parliaments’ legislative success have evolved substantially, from getting laws on the statute book to ensuring that laws are brought into effect and their implementation has an impact.”
These were the words of leading parliamentary expert Lord Norton, speaking at an expert seminar co-organized by WFD and the University of Hull in April 2019. Ensuring laws are brought into effect and that they have an impact is the key aim of post-legislative scrutiny and nowhere is this mechanism more important than when it comes to strengthening the protection and promotion of human rights.
Human rights implementation often suffers from poor understanding of the law, gaps in legislation or a reliance on local discriminatory patterns. To overcome such challenges and to ensure that citizens benefit from equal opportunities and equal protection under the law, there is need for a more comprehensive approach to post-legislative scrutiny (PLS) which considers discriminatory secondary legislation at sub-national level.
On a recent visit to Indonesia, I learned that some human rights violations emerge because the implementation of legislation gets stuck and discriminatory practices are entrenched at the level of sub-national, secondary legislation or delegated legislation made by the provincial governments in the country. I was invited to contribute to the debate on these questions during the fourth Annual International Conference “Human Rights in Southeast Asia: Theory meets Practice”, co-organized by the University of Jember (Indonesia), the University of Sydney (Australia) and the Westminster Foundation for Democracy, which took place at the University of Jember in October 2019.
At the conference, it was noted that the Association of Southeast Asian Nations (ASEAN) lacks the capacity to enforce mechanisms to protect human rights in the region because of its member countries’ shared position on preserving state sovereignty and that some Southeast Asian states challenge the universal application of human rights by referring to the preservation of national stability or social harmony and privileging them over respect for individual human rights. But even countries that have amended their national constitution to align with international human rights instruments struggle to effectively protect and promote human rights, since implementation of these commitments is influenced by gaps in legislation as well as by developments in the economic, social, cultural, religious, and political spheres.
For instance, the Government of Indonesia’s National Action Plan on Human Rights (2015-2019) proposes actions to tackle discriminatory local legislations against women and against Persons with Disabilities. Despite that, there are 421 local regulations that continue to discriminate against women and 53 local regulations which discriminate religious minorities. For example, local regulations exist which prohibit women from travelling alone without a spouse or a family member after 10 pm, or which require them to wear long dresses and head-scarfs. Such regulations were passed under the pretext of preserving public morality by preventing prostitution and rape and they are based on wrong and discriminatory assumptions that women on the street after 10 pm are prostitutes and that women who don short clothing without head-scarfs can trigger rapes. Further local regulations also prohibit Indonesians of Chinese descent from procuring land and ethnic minorities from different islands from participating in local politics.
In order that human rights are effectively protected and promoted, it is important that a thorough assessment of the implementation and impact of legislation is carried out, as well as a review of the synergy between new regulations, local laws, national laws, and constitutional provisions related to human rights. These practices constitute post-legislative scrutiny (PLS).
In September 2019, the national parliament of Indonesia (DPR) adopted amendments to the Law on the Legislation-making Process. The amendments require the national and sub-national governments and parliaments to conduct PLS on the laws and regulations which they pass and implement. Previously, PLS was only conducted by parliaments as a mandate of the Law on Parliaments. The adoption of PLS into the law-making process in Indonesia resulted from WFD’s advice to the DPR’s Legislation Committee (BALEG) on improving the legislative framework and adopting a legislative cycle approach.
In order to discriminatory local legislation in Indonesia, the Ministry of Home Affairs is adopting PLS as a national policy, requiring all sub-national parliaments to implement PLS and piloting PLS of discriminatory local legislations. During my recent visit to Indonesia, we worked with sub-national parliaments on monitoring, reviewing and overseeing the implementation of local regulations to reduce problematic and discriminatory local legislations, including through practical exercises on PLS using human rights criteria, and by developing a joint action plan with the subnational parliaments.
PLS pilot projects are about to begin in four sub-national parliaments in East Java and South Sulawesi. The Centre for Human Rights, Migration and Multiculturalism of the University of Jember is partnering with WFD to support the pilots, including by developing a training module on ‘PLS using human rights criteria’ and using it to train sub-national assemblies, and conducting further research on and analysis of the selected local legislations. Local civil society organisations will participate in the PLS pilots, thus strengthening the diversity of the sources of information and the outreach.
Experiences in other countries applying PLS are encouraging: For example, the UK House of Lords’ PLS of the Equality Act (2010) focused on the rights of persons with disability and secured the implementation of key provisions for equal access to transport for persons with disability. In Cape Verde, women MPs secured more resources and new secondary legislation to ensure implementation of the Law on Gender Equality (2011), alongside a new roadmap on the national gender policy. In Uganda, PLS of the Prohibition of Female Genital Mutilation Act (2010) highlighted the importance of conducting sensitization campaigns more broadly, and assessed the financial implications of legislation in more depth, while recognising the limits of legislation in changing deeply rooted traditions and customs.
What is more, experiences from across the world indicate that PLS is not a “luxury” that is beyond the reach of newer or less established parliaments. Parliaments at various stages of institutional development have undertaken PLS successfully because PLS is undertaken in a wide variety of ways, in accordance with the legal framework, parliamentary practice and available resources.
The conference in Indonesia provided an opportunity to put forward a new, human rights-mainstreaming and gender-mainstreaming approach to PLS. Such approach includes the application of a Human Rights Impact Assessment (HRIA) as a way to examinine policies, legislation, programmes, and projects to identify and measure their effects on human rights. HRIA could be ex-ante assessments (i.e., based on forecasts) but most HRIAs so far have been ex-post assessment (i.e., based on actual results). Like other forms of impact assessments, HRIAs are an evidence-based exercise, which aim to contribute to a more informed policy-making process. This will be the subject of WFD research and policy advice in the coming year.
Working with different stakeholders in Indonesia, the objective of improved human rights compliance of local legislations through greater PLS of secondary legislation thus becomes a joint effort involving the sub-national assemblies and governments, the Ministry of Home Affairs, the Upper House, Universities, civil society organisations and WFD.
We count that this will contribute to meeting the public’s expectations of parliaments’ legislative success, and indeed better governance.