Advanced Legislative Drafting II

Tutorial 1

(a) What are the principal differences between “legal drafting” and “legislative
drafting”?
Answer
Similarities: The two are similar in that both must recognize an adequate
principle of drafting that is maintaining the unity of form and substance; to
meet this requirement they must rely on similar tools of thought and language.
Thus, both are required to meet the requirement of drafting the document either
private or public nature in clear, easily found and understandable to the client
concerned that may not resulted in militating these conditions and affecting the
interest of the client in violating the clarity, precision, simplicity and
accessibility precondition.
They are also similar in that the knowledge of one cannot be fully gained
without the others particularly a good legislative drafter could become a legal
document drafters but the vice versa holds true.
Rule of one, particularly of legislative drafting also applied to the other.
Differences:
While legal drafting is a definitive legal document containing or producing
legal rights, privileges, functions, duties or status thus having a binding effect
only on the parties directly concerned with the document, whereas in case of
legislation, it is an elaborate process through which legislation, its end product,
will be produced before it comes in to force, thus affecting the lives of so many
people.
Legal drafting can cover a wide area of preparing legal documents, including
drafting of legislation, legislative drafting however, is specialized area of
drafting any legal document mainly public such as constitution, statutes
administrative rule and regulations etc.
 It will be uncommon to speak of standard form in the case of legislation
essentially that of public document where as it is possible to take standard form
in the case of legal drafting mainly that of private such as plane or bus ticket.

(b) What kind of qualities should an ideal legislative drafter possess?

Competence: must possess sufficient legal knowledge and practical drafting
background. i.e he/she must possess a comprehensive(broad and real)
knowledge of national and public international law, the socio economic
background of his/her country and other similar jurisdiction legislation.
Must possess a knowledge of drafting in a clear, precise and unambiguous
language that militate the readability and accessibility of legislation or he /she
must understand drafting as a means of effective communication between the
dafter and the drafting instruction officer, the legislator, public and the court
who ultimately use the proposed legislation. In a simple English.
Must possess the capacity to absorb the instruction given and ask for clarity in
case the drafting instruction notoriously insufficient and able to pick the brain
of the ministries giving it, also must have the capacity to fill in the gaps that are
intentionally or negligently missed by the policy or instructing officers.
Must have the knowledge of analyzing the existing laws and its probable
impact on other legislation or agencies power…..
Must have the capacity to cooperate with instructing officers and the ability to
cooperatively work with bill team…
Loyalty: must be able to loyal to the people and the constitution provided that
the constitution is an agreed up on norms or rules (that peoples of a country
must agree up on it) who may terminate or decline or refuse from accepting
drafting instructions which finally resulted in producing un necessary
legislation that may negatively impacted up on the basic rights of the people ,
rule of, good governance etc.
He/she is such a person who is labeled as a professional legislative drafters
who are able to ask a very and important questions that serve himself/herself as
tool to make sure that the legislation is able to solve the social problems
intended by the sponsoring department or who able to draft legislation that is
actually effective in solving the problems in society. i.e must have an inward
and outward looking
He/she must be clear in the presentation of the drafting legislation i. structure
of the legislation must be interesting and attractive i.e should not be
complicated as is the case in the traditional form of legal drafting favored by
the lawyers
He/she must also be clear in the substantive content of the legislation i.e he/she
must include some important provision within the statutes o that the society at
 large will improve or act up on it or voluntarily follow it which ultimately the
quality and effectiveness of the proposed legislation will achieved.
(c) Why is it important to bear in mind the socio-political history of the country for
which you may be asked to act as a legislative drafter?

Because every problems be it social or political or economic has its own

history and that history needs specific solutions that is peculiar /oriented to a
country that needs legislative solution. Thus in order for the legislative drafter
to produce an effective legislation which addresses either of the said problems
he/she must well informed the experience of that country(reason informed by
experience is the best methodology that must be applied to produce a
legislation that best achieve the desired goal i.e to change the repetitive social
behavior….
To prevent the uses and abuses of legislative precedents provided that they are
useful in maintaining uniformity of the substance of law or serve as
maintaining of forms….otherwise(if slavishly copied or blindly followed or
adhered to) resulted in failing to address the interest of the client or socio
economic and political problems of that country.
In order to protect or save the country not to completely borrow or copy other
countries legal system or legislation thereby advance that countries socio
economic and political as well as legal development otherwise it will remain to
be undeveloped .
(d) Explain what you understand by the socio-economic aspects of a legislation?

By Social, it whether the proposed legislation is capable of achieving the

desired repetitive social behavior (for example in case of criminal law the
ability of the criminal law to change the behavior of the criminal through the
institutions such as parliament in enacting effective criminal law prison
administration in educating the criminals and able to bring the desired
behavioral change. Efficacy whether the legislation achieves its intended
regulatory aim when the people will voluntarily follow the bills….provided
that the society at large is educated enough and their behavior is changed
dramatically
By economic, it is clear that any proposed legislation must be analyzed against
the cost effectiveness test. That means, whether how cost it incur for the
legislation to be made and how effective or what economic gain it accrues to
the specific country may get from the enactment of that legislation and when it
implemented. Therefore both pre- and post- socio and economic impact
assessment of the proposed legislation is a mandatory requirement for an
effective and efficient legislation which ensures the cost benefit analysis that
are based on the research to be undertaken.
(e) What is parliamentary sovereignty? In a regime of parliamentary sovereignty
how would you protect the basic rights of the peoples in a country?
 In its traditional sense, it is the parliament that is highest and ultimate
authoritative thus their act cannot be reviewed or reversed by the court thus in
this scenario it is impossible to protect the basic rights of the people in a
country, But in parliamentary democracy, their the principle of accountability,
even the parliament itself is held responsible for the act they made in case it
purports to against the basic rights of the citizens by making their act to be
justified or reviewed by the court of law which ultimately is said to be the best
protector of the basic rights of the people by holding their act ultra vires or
abuse of power etc.
In such kind of government system, citizen of a country will be prevented from
access to the court and claim that the act is ultra vires through the
instrumentality of judicial review. Ultimately popular
sovereignty/parliamentary democracy is said to be replaced instead of
parliamentary sovereignty.
(f) Which of the following institutions may best protect the citizens’ rights and
freedoms in a country?

- Parliament;
- Police officers; and
- the Courts
The court, provided that the reign or rule of law is best implemented in that
specific country when a court is not prevented to review the decision and action
of administrative bodies or even the act of the parliament that have the capacity
of violating citizen’s rights and freedoms