4.1.4 Phase 3: Adoption/decision
The appropriate government official or body, such as the president, congress, minister, state legislators, agency officials or court, makes a decision about the final policy. Deliberations of such parties and bodies may, at times, result in the policy being altered or modified and, in exceptional cases, rejected in its entirety. However, the previously recommended consultation phase should help to mitigate this.
The process of policy approval and adoption depends on the country context. In many countries – where the final policy is regarded as a major plank in the government’s platform – a final draft is compiled for the parliament’s endorsement and approval. In other cases, the policy becomes a document of the MoE, requiring endorsement by the Minister of Education. Any policy that is endorsed may require governmental actions, including budgetary appropriation, changes in existing rules and new regulations. Laws-making differs in each country. In South Africa, for example, all major education policies are issued initially in draft form as white papers (and in some cases as green papers), after which they follow the parliamentary process of Bills, Readings and finally Act. Box 4.3 explains the general process of making a law in South Africa, which also applies to the adoption of a teacher policy.
BOX 4.3: THE PROCESS OF MAKING A LAW IN SOUTH AFRICA
Parliament is the national legislature (law-making body) of South Africa. As such, one of its major functions is to pass new laws, to amend existing laws, and to repeal or abolish (cancel) old laws. This function is guided by the Constitution of South Africa, which governs and applies to all law and conduct within South Africa.
Who Makes the Laws?
Both Houses of Parliament, the National Assembly (NA) and the National Council of Provinces (NCOP), play a role in the process of making laws. A Bill or draft law can only be introduced in Parliament by a Minister, a Deputy Minister, a Parliamentary Committee, or an individual Member of Parliament (MP). About 90% of Bills are initiated by the Executive.
What Is a Law?
Law is a system of rules, usually enforced through a set of institutions to regulate human conduct. It shapes politics, economics and society in many ways. There are different types of laws, namely contract law, property law, trust law, criminal law, constitutional law and administrative law. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Law also raises important issues concerning equality, fairness and justice.
The Process of Making a Law
The process of making a law may start with a discussion document called a Green Paper that is drafted in the Ministry or department dealing with a particular issue. This discussion document gives an idea of the general thinking that informs a particular policy. It is then published for comment, suggestions or ideas. This leads to the development of a more refined discussion document, a White Paper, which is a broad statement of government policy. It is drafted by the relevant department or task team and the relevant parliamentary committees may propose amendments or other proposals. After this, it is sent back to the Ministry for further discussion, input and final decisions.
What is a Bill?
It is a draft version of a law. Most Bills are drawn up by a government department under direction of the relevant minister or deputy minister. This kind of Bill must be approved by the Cabinet before being submitted to Parliament. Bills introduced by individual Members are called Private Members’ Legislative Proposals. A Bill becomes an Act when the State President of South Africa gives assent – that is, signs the Bill. In the case of Provincial Bills they become acts when the Provincial Premier gives assent.
Before a new Act comes into force, it has to be ‘enacted’. This process involves the State President declaring its commencement date in the Government Gazette. For an Act to be fully enacted, the responsible Ministry/department has to indicate that it is ready and has the requisite capacity to implement the new law.
The process of making law is subject to contestation and conflict, and often involves legal challenges. In federal states, for example, provinces, regions or states may challenge central government if they are held responsible for financing the implementation of the law. Box 4.4 describes the contestation over the Right to Free Education Act in India.
BOX 4.4: COUNTRY EXAMPLE – INDIA’S ADOPTION OF THE RIGHT TO FREE EDUCATION ACT 2009
The Indian government initiated legislative action in 2002 to ensure that its education policy was in keeping with global shifts in national education policies, seeking to make free and compulsory education a fundamental right for all children in India between ages 6–14.To this end, building on existing legislation in the Indian constitution, the 86th Amendment Act (2002) Article 21A (Part III) was initiated in December 2002.
By October 2003, a first draft of the legislation, the Free and Compulsory Education for Children Bill, 2003, was formulated and made available for public consultation. The public was invited to comment and suggest possible areas of change or improvement.
In 2004, after taking into account public feedback, a revised draft of the bill was issued,entitled Free and Compulsory Education Bill, 2004.This was reviewed further in 2005 by the Ministry of Human Resources and Development and the Prime Minister. However,in 2006 the Finance Committee and Planning Commission rejected the bill, on the basis of insufficient funding. As a result, a model bill was sent to the states to make the required arrangements for its funding and implementation.
After much debate and many legal appeals, the Right of Children to Free and Compulsory Education Bill, 2008, was passed in both houses of Parliament in 2009. The law received the President’s approval in August 2009. Article21-A and the Right to Education Act came into effect on April 1, 2010.
Despite its approval, the Act was subject to legal appeals, especially because the states were asked to fund implementation of the policy. In 2012, the Supreme Court upheld Parliament’s approval, making implementation the legal responsibility of each state..
Drafting policy options and choices – paying attention to costing and implementation