A TACIT SUGGESTION ON LEGISLATIVE DRAFTING
LEGAL REASONING IN LEGISLATION
In this article, I will give you a clue on legislative drafting.
The legislation, as contained in statute books, are finished products of what started as proposals at one time or the other but has passed through certain formal processes in its evolution into law. Legislative proposals mature (if ever) into bills from where the bureaucratic and intricate legislative procedures take over. Bills are required to be articulate, ordered an exhaustive statement of what is expected to be passed by the parliament and signed into law by the President. The drafting of billing requires a serious technical input or expertise by the legal draftsman. A legal draftsman is a person who is usually s specialist in the field, maybe the government employed or be in private practice. What is eventually passed into law, more often than not, is not radically different from but rather a modified version of the bill. If a bill is inelegant either in form, content, structure, coverage or language, it stands a risk of being thrown out at the very first reading if it is ever considered worthy of being put before the legislature in the first instance. This is because the legislature does not always have time to waste on fruitless or inconsequential exercise. It is therefore incumbent on the sponsor(s) of the bill or the draftsman to do his homework properly and put a carefully, technically processed legislative draft or bill before the legislature.
Legislations are expressed or couched in a somehow unique structure. It is universally recognized that the language must pass some tests and avoid some common burdens imposed by the imperfection inherent in languages. Equally, legislation must have an ordered structural arrangement and format for it to be worth its appellation as legislation. The overall implication of this becomes apparent when the court’s labour to interpret statutory provisions in the determinations of civil rights and duties as well as criminal culpability of parties in judicial proceedings.
Legislative drafting is an art and a draftsman must have a natural flair for his career. As he is not free to draft without restraints, he must be of high intellectual competence, he must be highly imaginative, analytical and of a diagnostic mind. He must have a quick and retentive memory and the foresight of a sage. Really we can hardly exhaust what ought to be the qualities of a good draftsman, but the qualities mentioned above are salient enough and this will become more evident in the course of the article.
As a preliminary step, the draftsman will be required to get detailed instruction from his client and ‘he must produce a bill which substantially complies with his instructions.’ The instruction must contain the object of the legislation; the background information; what mischief or need the law is required to cure or meet; the implementation bodies (if need be); the procedure and instruments and possible exemptions, all these must be stated. Since clarity of thought results in clarity of expression, the instruction must be clear and further questions and consolations should be taken where the instruction was not properly understood by the draftsman. In addition, he should request for relevant official reports and policy statements, if any, that can aid the drafting of a detailed and appropriate legislative bill.
As the topic said, this is just a hint on legislative drafting. In other words, I will go in details to analyze legislative drafting to its fullness.