How legislative process works in the period of e-democracy

Opinion and Editorial, The Jakarta Post - April 05, 2006

Mohamad Mova Al 'Afghani, Jakarta
A prominent legal thinker once said that representation is not the offspring of democracy, but rather
of the feudal system. Some go even further, suggesting that representative democracy is not
democracy at all, but instead a form of oligarchy.
Representation stands on the assumption that each member sitting in the legislature is capable of
representing the hopes and aspirations of the perhaps hundreds of thousands of people who voted
for him. This assumption may well be incorrect as it is difficult for any legislator to accurately take
in, verify and quantify the aspirations of his constituents, often due to lack of accurate information
or conflicting political interests.
Other problems include the lack of teleological research, legal-drafting skills and communication
with the public. Given these deficiencies, legislators tend to attempt to resolve societal problems by
framing new laws and establishing new institutions. If ignored, this situation has the potential to
lead to hyperregulation where excessive amounts of legislation are enacted, overlapping with each
other and generally speaking leading to popular alienation.
Fortunately, the emergence of Web 2.0 has made it possible for people to exchange information and
knowledge in a decentralized manner. Web 2.0 is the term popularly used to describe the worldwide
web's second phase of architecture and application development, which comprises, among other
things, weblogs (personal homepages that can be created within minutes), wikis (applications that
allow collaborative content management), and tags (a user's own taxonomy of web content).
To ensure the accuracy of content, Internet citizens rely on the assumed "Wisdom of the Crowd"
(Surowiecki, 2004). According to this assumption, with so many eyes watching, defects in content
can be reduced or eliminated. It implies that the decisions produced by the "crowd" will be better
than those arrived at by individuals. Wikipedia, the free Internet encyclopedia, is an example of
how this theory works in practice.
It is interesting to note that Web 2.0 has its own style of governance, "citizenship" (membership),
and punishment, although only in the virtual domain. The decision-making process is often
consensus-based and is predicated on the principle of one man one vote. The role of "government"
is only to facilitate, while knowledge and innovation are created from the bottom.
In this new web, everyone is a creator, editor and publisher, all at the same time. Sites such as
Wikipedia, Blogger and Technocrati do not really provide content. Instead, they facilitate
individuals in creating their own content.
What they do is to simply aggregate and systematize this content. If the "government" does
something unfair, the citizens of the blogosphere can apply social sanctions or resort to boycotts.
These unique characteristics of the new web have major implications for the legislative process in
the future.
The "web-modernized" legislative process should involve a number of steps: (1) discussion of the
key issues to be regulated, (2) legal drafting; and (3) resolution. Points 1 and 2 are conducted
publicly via the Internet. However, with the limited capacity of existing technology, resolution is
still undertaken in the time-honored way by legislators.
Discussion of key issues can be conducted in an online forum using ordinary, easy-to-understand
language and avoiding difficult terminology. This is so as to encourage as many people as possible
to air their views.
This step should also involve analysis of the issues being discussed, using the prevailing laws and
regulations, including international treaties and overseas practice, as references. This will avoid
overlapping between the draft instrument and the existing legislative regime at both the national and
international levels.
The results of the process (plus the results of House members' "offline" deliberations) should then
be formulated into a preliminary draft to bring us up to the "legal drafting" stage. At this point, the
language used should have graduated to standard legal-technical language.
The purpose of this stage is to create a high quality legal instrument, with support being provided
by experts in the relevant fields, such as, for example, water engineers for legislation concerning
water and pharmacologists for legislation concerning drugs.
The proper medium for achieving this is a wiki, in which modification and update should be
restricted to legislators and qualified users who are enlisted via a normal "sign-up" mechanism.
However, the web page should be open to the public and linked to weblog commentaries.
Using the wiki, the legislative drafters and legislators can add, remove and edit the draft law under
the public's eyes. They can use weblog commentaries linked to the page to examine the language of
the draft law, or to provide supplementary analyses. Any changes and suggestions can be traced and
time-stamped.
As this process occurs online and is accessible to the public, every update can be syndicated. This
enables Internet users to ascertain the latest status, updates and versions of the draft law.
This kind of legislative process is cost-effective as the software is available free. It also provides
positive benefits in terms of speed, transparency, legitimacy and accuracy. With everyone watching
the process, everybody will know a legislator's position from beginning to the end. Last minute
"betrayal" would be difficult and detrimental to his or her political career.
The second advantage is legitimacy. Offline discussions in parliaments are limited by time and
space. With online discussion, every citizen, wherever they may be, can participate. The third
advantage is accuracy. With online legal drafting, there will be so many eyes watching and
contributing their thoughts that legislative drafting errors will be minimized.
With everything recorded, everyone can easily access the history of how a law was made, which
could be beneficial as a tool of legal interpretation. Another advantage is that this system will
minimize information asymmetry and significantly reduce the work burden on the representative
institution.
Of course, this will work best in countries with high levels of Internet literacy or, at least, high
levels of Internet penetration. However, even in states with low internet penetration, the new system
will help to bring legislators closer to their constituents.
In the long run, this kind of legislative process could become the precursor of an entirely new
political system -- e-democracy -- where representation is no longer needed as everyone has a real
vote and access to law-making.