LEGISLATIVE DRAFTING

MODULE 1

DEFINITION OF LAW:

1. The system of rules which a particular country or community recognizes as regulating the
actions of its members and which it may enforce by the imposition of penalties.
2. The principles and regulations established in a community by some authority and
applicable to its people, whether in the form of legislation or of custom and policies
recognized and enforced by judicial decision.
3. any written or positive rule or collection of rules prescribed under the authority of the
state or nation, as by the people in its constitution.

SOURCES OF LAW:
CODIFIED AND UNCODIFIED LAW:

CODIFIED LAW: Code is a systematic collection of statutes, body of law, so

arranged as to avoid inconsistency and overlapping. In fact, codification is the systematic
process and reduction of the whole body of law into a code in the form of enacted law.
Thus, the law which previously was in the shape of customs, ancient texts, judicial
decision and fragmentary statutes is collected at one place and presented in systematic
arrangement which is known as code.

Codified laws refer to the rules and regulations that have been collected, restated, and
written down for the purpose of providing civil order to a society. This process of
collecting, restating, and writing down laws is known as codification.
 Codification simply means to write down the set of rules in a properly arranged manner
in a book . Generally Laws are common laws this means that it relies on previous cases,
or precedents, to determine procedures and to decide the outcome of cases.

Codification rearranges and displaces prior statutes and case decisions. Codification of an
area of law generally constitutes the whole source that is relied upon for a legal question
in that area. Thus, when a state codifies its criminal laws, the statutes contained within
the new code supersede the laws that had been in place prior to the codification.

UNCODIFIED LAWS:

An uncodified constitution is a type of constitution where the fundamental rules often

take the form of customs, usage, precedent and a variety of statutes and legal instruments.
An understanding of the constitution is obtained through reading commentary by the
judiciary, government committees or legal experts.

An Uncodified Constitution is a constitution that is made up of rules that are found in a

variety of sources, in the absence of a single legal document or written constitution

EXAMPLES: New Zealand, Saudi Arabia, UK.

DIFFERENCE:

Codified law is simply the body of statutes and ordinances — written laws passed by the
legislative and administrative bodies.

Therefore, “code” means a systematic collection of statutes so arranged as to avoid inconsistency

and overlapping. So codification means collection, compilation, systemisation and promulgation
of that body of laws in a coherent form by an authority, such as the government or the judiciary.
Uncodified laws are those that originated from sources such as court decisions, customs and
principles of jurisprudence (such as legal concepts enshrined in Roman law in the European
context).

For instance, Common Law as a legal system originated in England in 1066 and it contains both
codified law (the Acts of Parliament, rules, regulations, statutory instruments, etc) and
uncodified law (‘at common law,’ caselaw, customary law, etc).

The USA is also a Common Law jurisdiction (except the state of Louisiana) but operates
somewhat differently from the traditional Common Law model. A large part of its uncodified
laws (caselaw, etc) has been “statutorised” (codified) into various parts (“Titles”) of its Code of
the United States, which contains its Acts of Congress.

CODIFICATION OF LAWS:

THE HISTORY OF CODIFIED LAWS:

The process of codification has been around for a very, very long time. In fact, the earliest
codified laws date back to 2000 B.C. Perhaps the most famous example of ancient codified law
is THE CODE OF HAMMURABI, a set of laws written by the Babylonian King Hammurabi in
late 1700 B.C. The code of Hammurabi was extremely detailed for the time, with a punishment
assigned to each particular offence. The phrase ‘an eye for an eye’ originated with the CODE OF
HAMMURABI, punishing brutal crimes with equally brutal consequence.

Many ancient forms of Codified Laws were actually examples of the codification of religious
laws. The Torah, for example, was considered a codification of jewish law. The Islamic Sharia
Law is another example of codified religious law.
In the earliest stages of Indian Legal History the Laws were not uniform, even the British Courts
were being run by the confusing Muslim and Hindu Laws. The main drawback of such laws
were that they were not easily available to the common man. Besides this even the Judiciary was
uncomfortable while dealing with such laws. So, that is why Codification was needed.

CODIFICATION IS THE PROCESS BY WHICH THE LAWS WERE BEEN CLASSIFIED

INTO SECTIONS.

IMPORTANCE OF CODIFICATION:

1. It provides certainity to the Laws.

2. It reduces the gap between the common man and the law.
3. It provides a better legal system in a country.
4. It provides a better interpretation of the laws for the Judiciary.

REASONS BEHIND THE GROWTH OF CODIFICATION IN INDIA IN

19TH CENTURY:

1. Uncertainity of Laws
2. Absence of Law
3. Variation of law in different Courts
4. Stagnant Development of the internal structure of law.

MERITS OF CODIFIACATION:

1. Control on Judiciary
2. Impartiality
3. Certainity
4. Uniformity
DEMERITS OF CODIFICATION:

1. Obstacle against the spontaneous development of Law.

2. It is too technical and complicated.
3. It increases the dependency of law on Codification
4. Too Formal

CODIFICATION OF INDIAN LAWS:

CRIMINAL LAWS: Lord Cornwallis for the first time introduced the codification system in
the Indian Laws. For the first time the punishment for the murder caused by injuring
someone and by drowning in the water were uniform.

In 1797, the Muslim system of Blood Money was abolished. Through the regulation
viii of 1798, the concept of justifiable murder was abolished.

In 1832, a Regulation ended the duty of the Judges to seek advice from the Kazi and
the Muftis ehile giving the Judgement.

In 1827, the Governor of Bombay, Elphilstol made a code of Regulation called as

Elphilstol’s Code which continued till the enforcement of Indian Penal Code in 1860.
CHARTER OF 1833:

This Charter was passed on 28th August 1833 and came into force on 23rd April 1834. According
to Rankin, this Charter forms a water shed in the legal history of India (Background to Indian
Laws).

This Act created a single Legislative Council for India at Calcutta with Governor General and
four member, one of who was a law member.

Section 53 of the Charter at 1833 was very important as this section authorized the Governor
General and Council to appoint a Law Commission of not more than 5 members at a time.

THE FIRST LAW COMMISSION:

The first Law Commission was appointed in 1835 as Lord Macaulay as its chairman.

It was a revolution in the Indian Legal system as for the first time a concrete effort was made for
the Codification of Indian Laws. For the first time an effort was made to create a uniform law for
both the Britishers and Indians. The most important thing which this Law Commission did was
the lex loci report which means that this commission proposed an Act that except Hindus and
Muslims, all other Mofussil should be put under English Laws.

THE MAIN PROVISIONS OF THIS:

1. Indian customs and usages were given more importance.

2. The English Laws of Property was tp apply to Mofussil.
3. British Laws before 1726 were held void in India.
4. The English Laws as suited to Indian condition and as far as it is not contrary to any
regulation be made lex loci.
5. Nothing in this Act was to apply to non-christians in matters of marriage, divorce and
adoptions.
THE SECOND LAW COMMISSION:

This Commission was appointed on 19th nov 1853. Under various types of members having the
knowledge on English and Indian Laws were appointed. This Commission submitted to report
first. Report relates to the Judicial Reforms and the second one relates to the Law Reforms. This
commission made the following recommandations:

1. There should be a substantive civil law for the whole India.

2. The English law should be the basis of such Laws.
3. The personal laws of Hindus and Muslims should not be codified

In the end, we can say that this law commission was proved to be the milestone of the
present Indian Legal System as due to the recommandations of this commission, The
Code of Civil Procedure 1859, Indian Penal code 1860, Code of Criminal Procedure 1861
and The Limitation Act 1859 was created.

THE THIRD LAW COMMISSION:

This Commission was made on 2nd December 1861. This commission was setup basically for the
fulfillment of the recommendation which were being made by 2nd law commission. Many reports
were successively submitted by this commission relating to the draft of Indian Succession Act,
Law of Contract, Law of Negotiating Instruments, Law of Evidence, Law of Transfer of Property
and the revised goal. In the period of this commission, the Company’s Act in 1866, The General
Clauses Act1868, The Divorce Act 1869 were passed. Later on the Indian Contract Act 1872 and
the Indian Evidence Act 1872 were passed.
THE FOURTH LAW COMMISSION:

11th feb 1879, the commission was appointed and it stressed on the Codification of Indian Laws
which are suited to Indian Condition.

Following are the Laws which have been enacted by this Commission:

1. The Negotiable Instrument Act, 1881 & 1882

2. The Transfer of Property Act
3. The Easement Act
4. The revised court of Civil procedure and Criminal Procedure.
HISTORY OF LEGISLATIVE PROCESS:

The Process:
Introduction Of A Bill (A Draft of Proposed Legislation)

A bill is introduced by a sponsor(s) in one or both houses of Congress. This bill number usually
follows the proposed legislation through hearings, amendments, congressional committees, etc.,
until enactment or the end of the current legislative period. A companion bill may be introduced
in the other house of the legislature at any time.

Passed By Both Houses Of Congress

1. Committee hearings may be held and committee reports may be issued before being sent
to the full house for debate and vote with or without recommendations. Bill may die in
committee and never reach the full house for vote.
2. When the bill passes one house, it is sent to the other house for consideration. The other
house may approve and pass the bill to the president in identical form. More likely, the
other house will propose a variation of the bill and both houses must negotiate a
compromise.
a. Engrossed Bill. Passed by one chamber, with amendments.
b. Enrolled Bill. Final version passed by both chambers and sent to the President.

Signed By President Or President's Veto Is Overridden

When both houses pass the bill in identical form, it is sent to the president for a signature or veto.

Becomes A "Session Law" Or "Public Law"

1. If signed (or not vetoed within 10 days), the bill becomes a “session law” or “public
law.”
2. If the president vetoes the bill, the veto may be overridden by two-thirds majority in both
houses. (If the president takes no activity on the bill at the end of a legislative session the
bill is, in effect, vetoed. This is called a “pocket veto.”)
RELEVANCE OF LEGISLATIVE DRAFTING:

Legislative drafting is the method by which different state policies are translated into legislation
governing the relations among individuals and groups in society. Legislative drafting is a very
important and critical step in the life cycle of legislation, as the legislation derives its strength
from the accuracy and quality of drafting. The legislation has to be comprehensive and exclusive
to achieve its desired objectives and prevent tampering with it and emptying it of its content.

Legislative drafting is both an art and science. To be able to master drafting, one needs extensive
knowledge acquired through study and experience. The one who is assigned the task of
legislative drafting must have a great deal of knowledge in law, its origins and development.
S/he should be aware of the circumstances (in terms of time, place and environment) in which
the former legal rules have originated. This includes understanding the propositions for which
s/he is seeking solutions in the form of a rule of law, which should be general, abstract and
binding.

LEGISLATIVE INSTRUMENT ACT 2003:

Definition—a legislative instrument

(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

(a) that is of a legislative character; and

(b) that is or was made in the exercise of a power delegated by the Parliament.

(2) Without limiting the generality of subsection (1), an instrument is taken to be of a

legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the
law in a particular case; and
 (b) it has the direct or indirect effect of affecting a privilege or interest, imposing
an obligation, creating a right, or varying or removing an obligation or right.

(3) An instrument that is registered is taken, by virtue of that registration and despite
anything else in this Act, to be a legislative instrument.

(4) If some provisions of an instrument are of a legislative character and others are of an
administrative character, the instrument is taken to be a legislative instrument for the purposes of
this Act.

Instruments declared to be legislative instruments:

Without limiting the generality of subsection 5(1), each of the following instruments
is, subject to sections 7 and 9, a legislative instrument:

(a) an instrument:

(i) made in the exercise of a power delegated by the Parliament before, on or

after the commencing day; and

(ii) described as a regulation by the enabling legislation;

(b) an instrument, other than a regulation:

(i) made in the exercise of a power delegated by the Parliament before the
commencing day; and

(ii) required to be printed and sold as a statutory rule under subsection 5(1) of
the Statutory Rules Publication Act 1903 as in force at any time before the commencing day;

(c) an instrument:

(i) made in the exercise of a power delegated by the Parliament before, on or

after the commencing day in an Act providing for the government of a non-self-governing
Territory; and
 (ii) described in that Act as an Ordinance or as a rule, regulation or by-law
made under such an Ordinance;

(d) an instrument made in the exercise of a power delegated by the Parliament

before the commencing day and, in accordance with a provision of the enabling legislation:

(i) declared to be a disallowable instrument for the purposes of section 46A of

the Acts Interpretation Act 1901 as in force at any time before the commencing day; or

(ii) otherwise able to be disallowed under Part XII of the Acts Interpretation
Act 1901 as in force at any time before the commencing day;

(e) a Proclamation made before, on or after the commencing day under enabling
legislation.

What is a legislative drafter?

 Legislative drafter provide a specialist form of legal service to ministries, offices and
agencies.
 The relationship between a drafter and an instructing ministry, office or agency is similar
to that between a legal practitioner and a client.
 The legislative drafter provides legislative advice and drafting services in a professional
and impartial manner.
 It is not the role of the legislative drafter to blindly accept whatever an instructing
ministry or office wants at all costs.
 On occasions, legislative drafters have to speak the unpalatable truth or expose the
weakness in a legislative scheme. This does not always make them popular with
Ministers or policy-makers, but it is a necessary part of their job.
  Legislative drafting is a demanding profession and is not just a technical exercise, as it
requires hard work, devotion, focussed attention, the ability to communicate policy in an
understandable and user friendly form.
 A legislative drafter plays a major role as to both the form and content of legislation.

The role of a legislative drafter is to translate policy into law, and is thus the
adviser to the Government in its legislative capacity, thus a legislative drafter
must -

 have good writing and compositional skills;

 have an understanding of the legislative process as well as the impact and effectiveness of
the instructions received, should the instructions be translated into law;
 be able to draft in simple and clear language, bearing in mind the end-user;
 be able to work in close collaboration with the instructing ministry or office and ensure
that, so far as possible, legislation is based on sound legal principles, gives effect to the
intended policy and is as clear and understandable as practicable;
 ensure that the drafted legislation -
o observes constitutionality;
o complies with fundamental legal principles;
o complies with the Legislative Drafting Manual;
o is workable and effective;
o is clear and unambiguous;
o withstands challenges or adverse criticism in Parliament and in court;
 have a good basic knowledge of the law, especially the practice of law;
 be a person who shows interest in legislative drafting;
 pay meticulous attention to details and have a clear systematic approach to problems;
 have an analytical mind;
 keep up to date with events in Namibia and events in the world generally;
 be in a position to appreciate the political, economic and social policies that will
undoubtedly be the background to any specific legislation;
 be a team player both within the Legislative Drafting Directorate and with other public
officers;
  be concerned with the practical and effective implementation of the laws which involves
a clear understanding of the role of the drafter in the enactment process, the policy
 objectives and the administrative and other requirements necessary to draft the legislation
to reflect the policy;
 be prepared to accept criticism with tolerance and good humor and by doing so, will
quickly gain a reputation for reasonableness; and
 undertake extensive legal and factual research beyond the drafting instructions, including
checking ancillary legislation and internet browsing of legislation from other
jurisdictions.

The scope of the legal problems that will come the way of the drafter is almost unlimited and the
drafter will experience the fascination in the use of words as well as the correct choice of words
for the solution of any particular problem.

The work of a drafter must be related to the practical goal of preparing laws which can be readily
understood and which will carry out the policies of the Government in a form acceptable to
Parliament..