Legislative Strengthening Program (LSP): Harmonizing Law with National and International Legal Standards

Harmonization refers to the inter-relationship between different laws, ensuring they meet all requirements for legality, do not contradict each other, and are sufficiently complementary. Legality means a law complies with substantive legal requirements and has been enacted according to the rules of procedure. The absence of contradiction means the law does not violate constitutional rights or international law, and does not prohibit or authorize behavior which is elsewhere permitted or not authorized. There are two fundamental conditions for establishing and maintaining a harmonized and coherent legal system and legal framework. First, new laws must be harmonized with those which already exist. Second, existing laws must be harmonized with subsequent enactments having superior force. The first condition is more common, as most countries produce a large volume of new laws and legal acts every year. However, the second condition should not be overlooked, as it arises every time an international treaty is ratified or the constitution is amended. Broadly speaking, there are two categories of standards that apply to both new and existing laws: national legal instruments and obligations, and international legal instruments and obligations. National legal instruments include the constitution, codes, laws, regulations, administrative orders, decrees, by-laws, and court rulings which change law. International legal instruments include treaties, conventions, multilateral agreements, rules of trans-national organizations, and applicable decisions of international tribunals and commissions. Harmonization on the national level starts with the principle of supremacy, which is usually set forth in the constitution. Additional requirements and details concerning the categories of laws are often found in special legal acts. The basic principle of supremacy is that each and every different kind of law must be in conformity with other laws which are equal to or above it in the hierarchy. If a contradiction between laws arises, it must be resolved by rescinding or amending the law of inferior status in the hierarchy. There are three requirements for harmonization in the national context. First, new laws must comply with pre-existing laws of superior status. Second, new laws should not contradict pre-existing laws of equal status. Third, new laws should rescind or amend any non-compliant pre-existing laws of inferior status. The first requirement ensures that new laws respect the principle of supremacy with respect to existing laws. The second requirement ensures that laws of equal status respect each other. The third requirement ensures that existing laws respect the principle of supremacy with respect to new laws of superior status. In a practical sense, harmonization between laws includes negative and positive aspects. The former refers to the absence of contradictions, which is the most important requirement. The latter refers to the existence of actual harmony between laws, including commonality of purpose based upon compatible policy objectives and practical goals. Laws which meet only the first aspect of harmonization will not be legally incompatible, but may still fail to effectively serve socio-economic interests.