THE ROLE OF THE LEGISLATIVE DRAFTER - MOJ

THE ROLE OF THE LEGISLATIVE DRAFTER

A fine Parliamentary Counsel must be:

“An architect of social structures, an expert in the design of frameworks of collaboration for all kinds of purposes, a specialist in the high art of speaking to the future, knowing when and how to try and bind it and when not to try at all.

Thus those who seek to practice ‘the art of the Parliamentary Counsel’ should be persons genuinely interested in legislative drafting with every likelihood of making legislative drafting a career. ”Prof. VCRAC Crabbe:

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 -
  • observes constitutionality;
  • complies with fundamental legal principles;
  • complies with the Legislative Drafting Manual;
  • is workable and effective;
  • is clear and unambiguous;
  • 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.