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The Legislative ProcessA Handbook for Public Officials
By Bilika H. Simamba
AuthorHouseCopyright © 2009 Bilika H. Simamba
All right reserved.
Chapter OneGeneral Introduction
1.1. The meaning of "law"
The word "law" has more than one connotation. In this book, unless otherwise stated, it is used in reference to Acts and subordinate legislation. These are laws made by a legislative authority. Generally speaking Acts are made by Parliament while subordinate legislation is made by ministers, or even the chief executive. For our purposes, outside of these two categories of law, there is so-called judge-made law, commonly called the common law. In legislative circles, this category is usually referred to as unwritten law, to distinguish it from written law - that is, Acts and subordinate legislation. Often the constitution and the Interpretation Act or other Act will contain definitions of law and related terms. For further explanations consult the Glossary of Terms at the end of the book.
In addition to what is explained in the glossary, a few examples of jurisdictions where "law" is defined can be given. The Jamaica (Constitution) Order in Council, 1962, stipulates that the term "includes any instrument having the force of law and any unwritten rule of law". The Constitution of Trinidad and Tobago says that law "includes any enactment, and any Act or statutory instrument of the UnitedKingdom that before the commencement of this Constitution has effect as part of the law of Trinidad and Tobago, having the force of law and any unwritten rule of law." The definition in the Constitution of the Cooperative Republic of Guyana and that in the Commonwealth of Dominica are identical to the Jamaican provision.
In this context, it must be mentioned that, in some jurisdictions, what are normally called Acts in most Commonwealth jurisdictions are called "Laws", with an upper-case "L". Thus you will have the Sports Law rather than the Sports Act. This practice is fraught with possible problems. A drafter drafting a substantive provision and who wishes to mention laws of one category or another always has to decide whether he should refer to written laws, unwritten laws or both. In a jurisdiction which calls its principal legislation "Acts" he will use that term to refer to laws made by the legislature. Then he will use "statutory instrument", "regulation" or other similar term to refer to subordinate legislation. In the rare cases where he wishes to refer to the common law, he will refer to it directly as such. And when he wishes to refer to all categories of laws - that is, both classes of written laws as well as unwritten laws - he will refer to "laws" with a lower-case "l".
In a jurisdiction that uses "Law" for "Act" he has to be more careful. There a provision such as "An officer shall not disclose any fact relating to the affairs of the Board unless he is entitled to do so under any Law" means that he is protected only if there is a Law, i.e., legislation passed by the legislature, that allows him to do so. He cannot disclose such information even if it could have been lawfully disclosed under a rule of the common law. A lower-case "law" would have given him wider protection. It is easy to see how a printing error can result in a change of meaning. For this reason and convenience of conversation, it is not recommended that principal legislation be referred to as "Laws". Of course, one can also misspell "Act" as "act" leading to possible ambiguity. However, in that case, the intention is likely to be easier to decipher and therefore the consequences less likely to be dire.
1.2 The problem
1.2.1 The dearth of drafters
There is a shortage of sufficiently experienced legislative drafters in the British Commonwealth. The problem is perennial and particularly acute in developing jurisdictions. These countries continue to seek a permanent solution to this seemingly intractable problem. Even when such jurisdictions can find drafters, some cannot afford to engage more than one or two. Indeed, many developing jurisdictions have only one drafter. Small jurisdictions such as the Caribbean islands of Montserrat, St Lucia and the Turks and Caicos Islands, among others, have been known to go for months without a legislative drafter in place because no one qualified and willing to take up the job could be found. Unfortunately legislation for a small population does not always translate into a smaller workload, for legislation that applies to 50 thousand people is not necessarily easier to draft or less bulky than that drafted for a jurisdiction of 50 million.
The reasons for the dearth of drafters are well known. Lawyers, who are often trained through public funding and therefore start their careers with the government, do not generally plan to stay in government in the long term. For a start, governments do not pay anywhere near what a lawyer would earn in the private sector; even the lawyers who do stay in government usually shun legislative drafting because it is poor training for private practice or any other job in the field of law. They will opt for civil or criminal litigation, conveyancing, intellectual property law or other areas which will stand them in good stead when they leave public service. While legislative drafting skills encompass legal drafting skills in general, which are also needed in the private sector, the private sector needs so many other skills in which the drafter does not generally engage.
The problem of limited legislative drafting capacity has far-reaching ramifications for any nation. It seriously hampers the state's ability to implement its policies effectively and in good time. Even if funding is available to carry out government programmes, the absence of legislation to govern the implementation of those programmes will prevent the realization of goals a government may set for itself. The need to develop legislative drafting capacity, therefore, is vital for any government to achieve its goals.
1.2.2 The fair success of efforts to train and retain drafters
The need to train and retain drafters has been recognized at an international level for a long time. The Commonwealth Secretariat has been instrumental in this effort. It is not central to the thesis of this work to outline in great detail these commendable efforts. Accordingly, only a few general statements should suffice.
The secretariat has funded teaching staff and students on many courses conducted under its auspices. One of its latest efforts has been the Commonwealth of Learning - Commonwealth Secretariat Distance Learning Programme for Legislative Drafters, which was developed in response to a request from the Commonwealth Law Ministers in 1992. The first completion certificates of its Diploma in Legislative Drafting were issued to drafters from Cyprus, the Falkland Islands, India, Malaysia and Singapore. The course has been delivered to trainees in as many as twenty jurisdictions, including several in the Pacific and in Southeast Asia. It is offered by the University of the South Pacific, Athabasca University in Canada and the National Open University of Nigeria, and has been sold for use outside the Commonwealth.
One distinct advantage of the long-distance course is its cost-effectiveness, in that training expenses are low. Further, in the long term it is a better application of resources, in that it is likely to interest only those who are truly committed to drafting and are therefore more likely to stay in the profession. Courses that enable participants to spend time in comfortable places away from home can be attractive as extended holidays. In some cases they also provide a source of additional income for students who are on paid study leave and also receive additional allowances from their sponsors while being trained.
A number of other courses have been offered and continue to be offered in different centers in the Commonwealth. The Master of Laws in Legislative Drafting at the University of the West Indies at Cave Hill Campus in Barbados is one, and at the time of writing UWI also ran a long-distance course in conjunction with Boston University in Massachusetts. At different times residential courses were offered by the Commonwealth Secretariat in Nairobi, Kenya; Harare, Zimbabwe; and Lusaka, Zambia. These and other courses produced a large number of graduates.
In addition, the Commonwealth Secretariat has for a long time provided technical assistance to less developed jurisdictions. It finds and funds consultants from Commonwealth countries to undertake short-term or long-term work as consultants in various countries. Generally speaking, long-term consultants, who can serve two to three years or even longer, not only draft legislation but also train local staff.
At the national level, in addition to sponsoring trainee drafters to attend courses, governments have attempted to increase the remuneration of drafters. These efforts, however, are usually limited by the general insufficiency of funding. It is difficult to remunerate government employees in a measure that is disproportionate to the level of wealth generated in the economy as a whole. And in that context, attempts to raise the salaries of drafters are often met by the argument that review of their salaries has to be carried out as part of a general review of salaries in the civil service as a whole. Unfortunately, on that stage, the importance of the drafter is diminished.
Thus even where drafters are awarded salaries slightly higher than those of other lawyers in government, the differential tends to be insufficient to reverse the continuous exodus of drafters. Further, even among those drafters who remain, some aspire to higher positions in government but outside the legislative drafting department, which offers hardly any opportunity for long-term advancement. Retention of drafters in the government and in the department has therefore been difficult. One jurisdiction in Africa tried to deal with the problem, with some success, by making the rank of Chief Parliamentary Counsel equivalent to that of a Supreme Court Judge and increasing the terms and conditions of other drafters proportionately. At least one country in the Caribbean tried a similar arrangement. These, however, are rare examples of extra-positive measures.
As another approach to the problem, a number of exotic schemes have been worked out to deal with the matter of remuneration. One way has been for an international organization such as the World Bank, the United Nations Development Programme or a donor agency from an individual country to fund a project within the department responsible for drafting. Under such programmes, drafters are engaged as "national experts". They may be local drafters already working in that department, trained drafters working elsewhere or even local retired personnel. Experts may also be sourced from other countries. The projects enable such personnel to be paid salaries which, though not always as high as those of internationally recruited staff, are far higher than those of government employees. One of many such projects was the Financial and Legal Management Upgrading Project (FILMUP) in Zambia, funded by the World Bank and managed by the Ministry of Finance and the Ministry of Legal Affairs. It ran from September 1993 to December 2000. Whereas such projects almost invariably achieve much in terms of meeting their aims (usually to assist the government in enacting legislation that is necessary to meet loan conditions), they do not generally result in long-term capacity building, as even the people who are trained on them eventually have to revert to their former positions and face the reality of a government or other unattractive salary. At that point they become eligible for the exodus, perhaps for a second time.
Although these projects do benefit the country concerned in the way envisaged by the relevant agreements, they can be very expensive to the receiving country. Salaries and other funds provided for the project are often part of the loan. Also, there are targets to be met. In the circumstances, insufficient attention is paid to the long-term development of the system. Drafters, usually working with officials from the donor agency or consultants hired by it, are therefore under pressure to produce drafts, sometimes even without the full participation of instructing officials.
Regarding the workload of drafters, two matters deserve specific elaboration. First, the wave of democratization taking place in many previously unstable and dictatorial regimes has created a great need to move in many areas and quickly to craft a legal framework that is conducive to the forging of a free society. Second, regional economic cooperation worldwide has intensified, so national legislation is being increasingly harmonized to enable member states to meet their regional obligations. For example, in Africa and the Caribbean, to mention only two regions, there are regional economic groupings that are following the lead of the European Union in trying to heighten their levels of economic cooperation and integrate their economies. In Africa, these include the Economic Community of West African States (ECOWAS), the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC), among others. In the Caribbean, the Single Market Economy (SME) contemplated in the Caribbean Community (CARICOM) has been elaborately planned and strategized. It is estimated that about four hundred pieces of legislation in the Caribbean will need to be enacted or amended to give effect to the SME. To meet this need, the Legislative Drafting Facility based in the CARICOM Secretariat in Georgetown, Guyana, was established to spearhead the efforts of drafting new laws and amending existing ones. If these processes are to work efficiently, projected increased activity by professional drafters will have to be supplemented by a cadre of lay officials in all jurisdictions who fully understand their role in the legislative process and can meaningfully play it.
It is possible, of course, to argue that the officials who are expected to give instructions are themselves very busy. This may well be so, but in response the following may be said. First, whereas it is not strictly their job to prepare drafts, it is their duty to provide adequate instructions. Accordingly, they need to develop the ability to do so more effectively. Second, it is difficult to imagine a ministry or department in a developing jurisdiction that would be busier than a drafting department. In fact, there are likely to be many departments that have far less work overall or whose peak workloads fluctuate sufficiently to create windows of opportunity when time may be taken to prepare instructions professionally. What is more, most professions in government do not offer the same prospects for mobility to the private sector as the legal profession does. To give a pedestrian example, if ten lay officials are trained in how to give instructions of high quality and ten lawyers are trained as drafters, it is highly likely that after five years most of the lay officials will still be in government while most of the lawyers will have left. Thus in the overwhelming majority of scenarios, this is a direction from which much can be gained in building legislative drafting capacity.
The quality of laws - that is, their editorial condition - should also be mentioned. In developed nations drafters have the opportunity of working in pairs, so that one critiques the other's drafts. There are also proofreaders, style editors and even customized electronic checkers. As a result editorial problems are minimized. Drafters in developing jurisdictions do not generally enjoy these luxuries. It is no surprise, therefore, that many laws in developing jurisdictions contain simple editorial errors. Because of this problem, it is very important that, in addition to commenting on how and to what extent policy is reflected in a draft, instructing officials be guided as to what to look for, from an editorial aspect, in a written law.
Editing of laws has to do not only with grammatical correctness but also with presentation of laws in the right format. The format of laws often differs from jurisdiction to jurisdiction. That said, it must be observed that even in presentation there are many common denominators in the British Commonwealth.
Excerpted from The Legislative Process by Bilika H. Simamba Copyright © 2009 by Bilika H. Simamba. Excerpted by permission.
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