Legal and regulatory frameworks
Legislation or regulation?
Civil registration systems must be structured on a legal basis that provides clear guidelines on how the system will function. The civil registration law should include provisions for the general organisation of the system and methods of its operation, but not be so detailed that it becomes inflexible and unable to be easily changed to improve the operation of the system.
Laws are a system of rules that a country or community recognises as regulating the actions of its members. Laws may be enforced by the imposition of penalties. These rules are designed to be compulsory, but not all are of equal rank. Countries have different legal traditions but generally each country designates what rules control by establishing a hierarchy of laws. The hierarchical nature of the law is shown in the figure below.
Hierarchical structure of the sources of formal law
The Constitution – the highest-ranking law is generally the country’s founding charter or political constitution. The constitution is the fundamental law that defines the governing principles of the government and establishes the need to ensure the basic rights of every individual. Constitutions are usually concerned with establishing government powers and organisation, protecting individual rights, and defining nationality and citizenship.
Legislation – national legislation (called Statutes or Acts in some countries) refers to specific laws that regulate the behaviour of the people, government institutions or other organisations. Legislation usually includes only laws that have been passed by a national assembly or parliament, signed by the head of state. Legislation is never permitted to conflict with the constitution. Countries have different legal traditions, with some having very detailed legislation, while others have more general legislation requiring detailed regulations and directives. In general, it is best to leave sufficient flexibility in rule-making to permit the system to respond to changing processes and needs; regulations and standard operation procedures described below allow adaption to changing circumstances.
International conventions – an international convention or treaty is any formal agreement made and ratified between two or more countries. There are several major international declarations and conventions on human rights pertaining to CRVS that countries have endorsed or signed. These international conventions need to be taken into consideration when enacting CRVS laws. In some countries, international law may be higher or on the same level as statues or may even be at the same level as the constitution. Certain treaties may be automatically enacted upon ratification, while others may require implementing legislation.
Regulations – regulations (sometimes known as decrees, directives or orders) provide additional details to the legislation. Regulations are usually explicitly authorised by a piece of legislation, and must not conflict with it. They can be enacted by a process that is similar to the legislative process or, if permitted, they can be enacted by an executive body of the government (for example, an administration or a ministry) without additional approval by parliament. Once implemented, regulations have the same compulsory effect as other laws.
Standard operating procedures (SOPs) – These provide detailed guidelines on implementing and policing the laws and regulations. These SOPs should be written and approved.