Modern Approaches in Legislative Drafting: Enhancing Clarity and Precision
Legislative drafting plays a crucial role in translating policy into effective legislation, promoting democracy, and upholding the rule of law. The scarcity of professional drafters in Nigeria due to years of military rule highlights the need for best practices to ensure laws are clear, precise, and serve their intended purpose.
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
Best Practices and Modern Approaches in Legislative Drafting NILS-CAP INTENSIVE TRAINING WORKSHOP ON LEGISLATIVE DRAFTING 1 AND 11 BY Dr. Tonye Clinton Jaja National Institute for Legislative Studies (NILS) National Assembly Abuja E-mail: tonyeclintonjaja@yahoo.com 1
OUTLINE Introduction: What is Legislative Drafting and why are legislative drafters and legislative drafting important? Statement of the problem: what is wrong with the current legislative drafting practice in Nigeria? Why do we need best practice ? And why apply best practices & modern approaches in legislative drafting? Examples of Best Practices and Modern approaches to legislative drafting Exercises and Assignments 2
What is Legislative Drafting (LD) and Why is it important? Legislative Drafting (LD) is the translation of policy into effective written legislation. Why is Legislative Drafting important? Legislation is a potential tool capable of promoting development , good drafting removes ambiguity and therefore, limits the scope for abuses of power- C.Stefanou, The Policy Process and Legislative Drafting , in Manual in Legislative Drafting (London, DFID,2005)pp.2-5, p.3 Legislative Drafting promotes democracy and rule of law values -A.J.Rynearson, Legislative Drafting: Step-by-Step (North Carolina,U.S.A. Carolina Academic Press, 2013) xxi 3
Why are legislative drafters important? Lawyers who draft legislation engage in a highly technical aspect of law that requires competence. A failure to properly translate the substantive policy into the appropriate law adversely affects the policy, the lawyers are like midwives in the birth of laws and so it behooves them to strive hard to help bring forth laws that are effective, clear, precise, intelligible and capable of only one interpretation, which is the true purpose and intent of the policy as envisaged by the policy initiators -Clerk to the National Assembly, Alhaji Salisu Maikasuwa, quoted in The Nation newspaper, September 2,2014: http://http://thenationonlineng.net/new/lawmaker-faults- exclusion-from-san-rank/ 4
Statement of the problem: Long years of military rule resulted in shortage of professional legislative drafters in Nigeria: Interview with Dr.Ibrahim Salim, former Clerk of the National Assembly from 1994-2005, published in The National Assembly Legislative Digest, (2011) Vol.1, No.3, pp.81-90 at p.84. see generally E.Azinge, Law-Making under the Military: Nigerian Experience, (Benin City, Oliz Publishers, 1994) Empirical Evidence as at 19th November 2014: six Geo-political zones: South-West: Lagos SHA-11 lawyers, 9 with LD training; Oyo SHA 1 lawyer on secondment from MoJ; North East: Yobe SHA-5 lawyers, 3 with LD training, 2 without LD training; Adamawa SHA-5 lawyers, 2 trained in LD; North West: Kebbi-2 lawyers, 1 with LD training, LLM in leg.drafting; North-Central: Plateau SHA-1 lawyer since 1999, with LLM in leg.drafting; North-West: Kaduna SHA-5 lawyers, 4 trained in LD; South-East: Imo SHA-2 lawyers, 5 consultants; Abia SHA-2 lawyers, 1 with LD training; South-South: Bayelsa SHA-2 lawyers 5
Why do we need best practices in legislative drafting? What is a bestpractice ? A method or a set of guidelines and techniques that has consistently shown results superior to those achieved with other methods and that is used as a benchmark. Usually established by an Authority or a professional body. Legislative Drafting is now a recognised professional discipline within the legal profession- see generally H.Xanthaki, Legislative drafting: a new sub-discipline of law is born (2013) University of London IALS Law Review, Vol.1, Issue 1,pp.47-60 Nigeria must honour its obligations as a member of international and regional organisations such as the AU-African Union which now has a Drafting Manual and IMF Legislative Drafting Manual for Prevention of Financing of Terrorism. Globalisation and internationalisation of legislation makes it necessary for best practices in LD. Recent trend is for international legislation. See Editorial, International Journal for Legislative Drafting and Law Reform, Vol.1, Issue 1, June 2012. For example, the 1989 UN Rights of the Child Law is now an international legislation. 6
Examples of Best Practices and Modern approaches to legislative drafting 1. Ideally, a legislative drafter requires an understanding of Philosophy and Theory of legislative drafting not just an understanding of legislative drafting techniques. Legislative Drafting is both a science and an art . Analogy of automobile engineer as opposed to motor mechanic. See I. McLeod, Principles of Legislative and Regulatory Drafting (Oxford, Hart Publishing Ltd., 2009) pp.62-63, Ann Seidman and Robert B. Seidman ,Drafting Legislation for Development: Lessons from a Chinese Project, The American Journal of Comparative Law , Vol. 44, No. 1 (Winter, 1996), pp. 1-44 2. In the past, 10 years on-the-job pupilage for new legislative drafters was the only way. Modern view is that on-the-job alone training is not sufficient. Formal training in legislative drafting should be a complement. Two wings of a bird. 7
Examples of best practices in LD-contd 3.Ideally, each jurisdiction must establish its own legislative drafting system. The dominant drafting systems are common law, civil law, European Union and Patchett s framework for transitional democracies. Molodova has a law for legislation. 4. Ideally, at the beginning of each legislative session, there ought to be an Annual Legislative Programme providing the list of Bills and legislation that Parliaments and legislative drafters should produce. 8
Examples of best practices in LD-contd 5. Benchmark for good quality legislation: effectiveness of legislation: effectiveness of legislation means that the legislation manages to introduce adequate mechanisms capable of producing the desired regulatory results -see H. Xanthaki, Drafting Legislation-A Modern Approach (Aldershot, U.K. Ashgate Publishing, 2008) pp.1-18 at p.6 clarity, effectiveness... Closely related tools are gender-neutral drafting and plain language (avoid legalese). clarity, or clearness, is the quality of being clear and easily perceived or understood. Precision is defined as exactness of expression or detail. Unambiguity is certain or exact meaning -see H.Xanthaki Drafting Manuals and Quality Legisprudence, Vol.4 No.2, pp.111-128 at 111,116 precision and unambiguity are the tools of in Legislation (2010) 9
Examples of best practices in LD-contd 6. Transplant of legislation regardless of differences between legal systems is a modern approach in legislative drafting. Based on comparative law methods. The reception of foreign legal institutions is not a matter of functionality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn t grow in his back garden -K.Jhering, Geist des romischen Rechtss (1955, vol.1) pp.8-9, K. Zweigert AND k.Sier, Jhering s influence on the development of comparative legal methods 19 (1971) American Journal of Comparative Law pp.215-231; See generally Nicola Lupo and Lucia Scaffardi, (eds) Comparative Law in Legislative Drafting, (The Hague: Eleven International Publishing, 2014) 10
Examples of best practices in LD-contd 7. Legislative Drafting is a team effort, use of multi- disciplinary drafting team is a modern approach. Achievement of development through legislation is not the sole task of the legislative drafter. It involves interrelation of actors in the policy process and legislative drafting process. It is a multi-level effort of policymakers, drafters, legislators, interpreters (judges), and enforcers of legislation-U.Karpen, The norm enforcement process in Karpen and Delnoy (1996) pp.51-61 at 51 11
Examples of best practices in LD-contd 8.Modern legislative drafting is evidence-based. Ideally, empirical evidence contained in Explanatory Memoranda should accompany legislation and Bills submitted to Parliaments. The U.K. Parliamentary Practice since 1998/1999. Nigeria s PIB 2009 version. Sources of empirical evidence: Legal Research, Legislative Impact Assessment (LIA) and RIA; formal consultations-12 weeks-UK practice. 12
Examples of best practices in LD-contd 9. Ideally, modern legislative drafters advice their clients to explore and exhaust alternatives to Legislation before they embark on drafting of legislation. Alternatives to Legislation is derived from the Government s Tool Kit 13
Examples of best practices in LD-contd 10. Ideally, the use of checklists and legislative drafting manuals is a modern best practice in legislative drafting. See generally Special Issue on Drafting Manuals, Legisprudence, International Journal for the Study of Legislation (2010) Volume 4, No.2, pp.107-218 The use of checklist is advised for Nigerian drafters: to ensure that nothing is forgotten, the draftsman should have a checklist on matters which he would require information to carry out his instructions. The checklist will also help the draftsman to be orderly -Sylvester O. Imhanobe, Practitioners Guide on Legislative Drafting in K.Nwosu (ed.) Law and Practice of the Legislature in Nigeria (Lagos, Nayee Publishing Co.Ltd, 2003) p.280 14
EXERCISES AND ASSIGNMENTS Out of the list of modern best practices in legislative drafting, which ones are you: (a) already applying; (b) more likely to begin applying (c ) how would you enforce application, using you current office reporting relationship or administrative procedures-circulars , MEMOS, etc. 15
