Campus Tilburg University hoogleraren

Promotie L.E. Mitee

Datum: Tijd: 10:00 Locatie: Auditorium

The Human Right of Free Access to Public Legal Information: Proposals for its Universal Recognition and for Adequate Public Access

  • Locatie: Cobbenhagen building, Aula (ingang via Koopmans building)
  • Promotores: prof. dr. E.M.H. Hirsch Ballin, prof. mr. dr. S.H. Ranchordas

Samenvatting (in het Engels)

All human beings live, unfortunately, in a world of many injustices and deprivations. One of such serious injustices, which the persistent global problem of inadequate publication of laws causes, manifests in the unjust application of the best-known but the most-hated legal principle of “ignorance of the law is no excuse” for any violation of the law. People are unjustly punished for violating laws whose existence they cannot know, because the full texts of those laws have not been published at all or have not been adequately published, or people cannot understand the language in which they are published. Requiring any person to do an impossible thing is unimaginable injustice that the law forbids. Yet all human beings are potential victims of such injustice, and many people are suffering it worldwide, because governments at the national, regional, and local levels do not publish their laws in a way that every person can easily find, use, know, and understand them, to be able to obey them.

There are many ancient and modern examples of the problem and its injustice. For instance, an English court held in 1800 that Richard Bailey, a sailor who had no way of knowing about a new law that was made while he was on the high seas, was guilty of violating that law. In 1970 a United States’ court held Ronald L. Casson guilty of violating a new federal law that was made just about six hours before he committed the act, even though that law had not yet been published, and Casson did not know about it. In 2004 an Australian court held Jeffrey Ryder Palmer guilty of fishing in a restricted area and ordered him to pay the mandatory penalty of $27,600.00 plus other costs, even when it was impossible for him to know the law that imposed the restriction and the fisheries department had only given him an incomplete part of that law. The wrong judgments of the England and Wales Court of Appeal between 2001 and 2008, because the Court and the lawyers did not know the law due to its inadequate publication, led to the bankruptcy, loss of family homes and businesses, and imprisonment of many among the 4,000 defendants that were prosecuted under the wrong law. The Supreme Court of Ghana ordered the postponement of the nationwide District Assembly elections in 2015 due to the Court’s ignorance of the applicable electoral law because of its poor publication, and the postponement was estimated to cost the government about $14.69 million. The research of Vallery Bayly, a Canadian intern, was frustrated in 2015 because the relevant laws of Mali were not available on the Internet. Many lawyers in the developing countries, not to mention members of the public, cannot even afford the cost of buying the laws they are expected to know and use, as those laws are not freely available on the Internet. Communities in modern cities (e.g. immigrant members of the Kurdish community in London, the United Kingdom capital), towns, and villages worldwide apply rules of customary law that are unknown to many of those who are bound to obey them, because those rules are oral or unwritten.

The reason for this 628-page PhD thesis is to provide effective global solutions to aspects of the problem highlighted above and thereby help to remedy the serious injustice and loss they cause people, organisations, and even governments worldwide. To understand the problem properly, the thesis examined the principles of law on the duty of all governments to publish their laws so that those who are bound to obey those laws can find them, use, know, and understand them. It studied how the problem exists in 60 English-speaking countries who officially publish their laws in English language: 54 developing countries and the following 6 developed countries: United States, United Kingdom, Canada, Ireland, Australia, and New Zealand.

The major conclusions from the findings of the thesis include the following: (1) Governments at all levels worldwide are responsible for the problem because they alone, who make laws, have the moral and legal duty to publish their laws adequately for the benefit of all categories of people who are expected to know and obey them, including persons with disabilities. (2) The right to know the law is a human right because the law is interwoven with human existence, it affects all human beings universally, its violation causes serious injustice, and it is indispensable for the enjoyment of other human rights, e.g. the right of access to justice in the courts that includes fair trial and proper defence. (3) The existing laws are inadequate and cannot protect the right of people worldwide to know the law by imposing an enforceable duty on governments to provide adequate access to their laws. (4) The existing methods of publishing indigenous customary law are deficient and they violate the rights of the communities. (5) It is difficult to recognise official government websites worldwide that contain reliable versions of laws. (6) Official websites that contain laws are not properly organised, thereby making it difficult for people to find them.

The thesis makes 16 major recommendations to solve the global problem and the injustice it causes people worldwide. They include the following: (1) The United Nations should formally recognise the right of people to know the law as a human right under its proper international human rights legal framework proposed in the thesis. (2) The new model of publishing customary law developed in the thesis, termed huricompatisation, should be adopted worldwide because it solves the problems of the existing methods. (3) Official government websites for laws should use the <.officiallaws> mechanism developed in the thesis, which the Internet Corporation for Assigned Names and Numbers (ICANN) should create, for their website addresses for easy identification. (4) Each tier of government should have a single one-stop website for all categories of its laws so that people can find those laws easily. (5) The criminal justice system worldwide should adopt the counterbalancing principle of “ignorance of inaccessible law is an excuse” developed in the thesis. The discussions of the solutions mentioned in recommendations (1), (2), and (3) above are uniquely pioneering, and those of recommendations (4) and (5) are their first in-depth discussions.

This thesis is relevant to all persons worldwide because they are all potential victims of the problem it examines. The United Nations, regional human rights intergovernmental organisations, human rights defenders and advocates, policymakers, website designers and developers, legal informaticists, indigenous communities, legislators, the judiciary, and governments worldwide will benefit from this justice-based research and its unique law-reform and policy-relevant recommendations.