PART 5
RECOMMENDATIONS
"Our time calls for clear thinking to diagnose the ills of our globe, to ascertain the foot cause of society's growing problems and to formulate what must be done - a set of guiding principles and a programme of action."[1]
A. STATUS
As stated in Part 1, the status of the office of Chief Parliamentary Counsel must be recognised and restored to the equal status of a Court of Appeal judge. The other positions in the Drafting Section must be upgraded and should also be on corresponding equal status as those in the Advice and Litigation Section.
B. TRAINING
There is a demand for simplicity, clarity and intelligibility of legislation which the citizens can understand. Training of Parliamentary Counsel in the specialised field of legislative drafting is essential and should be regarded as a priority. Indeed "Hope for the recognition and solution of drafting problems rests in future generations of law students."[2] Training can be achieved in two ways: on the job training and academic training.
On the job training can be achieved where a Parliamentary Counsel who is academically trained in legislative drafting works in collaboration with a Parliamentary Counsel who is not so trained, offering guidance on the principles of legislative drafting.
The principles of legislative drafting must be learned[3] and not "self-acquired by reference to the law underlying the clause being drafted."[4] Academic training is the best method of learning the principles of legislative drafting. An academic training programme is available at the University of the West Indies, Barbados and this Programme simulates on the job training. This Programme is itself evidence of an increased awareness of the importance of legislative drafting. There is a six months Programme leading to the Advanced Diploma in Legislative Drafting and a fourteen months Programme leading to the LL.M. degree. The objective of the Legislative Drafting Programme is to instruct in the technique of writing legislation and emphasis is placed on the composition of legislation. In addition to legislative drafting which includes the attendance at lectures and tutorials, examinations and the submission of one hundred and odd assignments, the fourteen months Programme also consists of examinations in Administrative Law and Constitutional Law, a Seminar Presentation and a Research Paper. It is submitted that this Programme benefits Attorneys-at-law in government service, in private practice or for judicial office.
Academic achievement[5] is also absolutely essential for individuals who fill senior positions so as to prevent "the green eyed monster" situation between those holding high office and those who wish to advance their knowledge and skill, and also the awkward situation of an individual with no proper academic training, instructing an individual with academic training, on outdated techniques of legislative drafting.
Training of local attorneys-at-law is preferred rather than employing foreigners or consultants to do legislative drafting or law revision.[6] Foreigners who are generally recruited on a short term basis need time to acquaint themselves with the local laws and conditions. In addition, these foreigners are usually remunerated adequately and this huge difference in remuneration can perpetuate frustration and animosity among local Parliamentary Counsel.
It is hoped that the Parliamentary Counsel who have not been exposed to academic training in legislative drafting will benefit from on the job training from the two-years recruitment of the foreigners in the Drafting Section and that their expertise will be fully utilised and lead to improvements.
C. ADEQUATE REMUNERATION
Properly qualified persons must be retained in government service. One way to do this is to pay adequate salaries[7]and to provide appropriate benefits. Extra financial rewards as well as promotion of job opportunities should be offered and given to those who have undertaken extra training and have acquired specialist qualifications. Otherwise, Parliamentary Counsel will pursue other opportunities for appointment to other posts.
D. INTERPRETATION ACT
The Interpretation and General Clauses Act is a "dictionary" for all other Acts of Parliament except the Constitution. An Interpretation Act does not apply to another Act of Parliament where there is a contrary intention in that other Act. It provides a standard set of definitions, a set of rules which regulates certain aspects of the operation of other Acts as well as substantive rules of law. The purpose of an Interpretation Act is "to simplify the law by avoiding repetition and promoting consistency in the use of language"[8] and to secure uniformity in the drafting of legislation.
This Act is an important tool for Parliamentary Counsel who must be thoroughly familiar with it. In drafting legislation, Parliamentary Counsel must take account of the provisions in the Interpretation and General Clauses Act such as "Powers and Functions, Appointments, Boards, Committees and Corporations" and definitions[9] and generally should not repeat these provisions where there is no contrary intention. It is unnecessary and time wasting although there may be cases where repetition is justifiable so as to communicate the law effectively. However, the Interpretation and General Clauses Act needs general law reform.
E. MANUAL
There is no consistency or standardisation in the drafting of legislation. The format used for the long title, enabling powers, offences and penalties and other provisions vary from Act to Act. So as to ensure uniformity in legislative drafting, a manual should be created for use by Parliamentary Counsel.
F. OTHER PREREQUISITES FOR LEGISLATIVE DRAFTING
To ensure maximum efficiency and planning of the work of Parliamentary Counsel, the Government should prepare at the beginning of the year a legislative programme which outlines the legislation required for the year and the order of priority.
Clear policies should also be formulated and proper drafting instructions as described in Part 2 should be sent to Parliamentary Counsel.
Parliamentary Counsel must be computer literate and this knowledge must be acquired especially in light of the fact that all the Laws of Guyana are being computerised. The knowledge will require access to computers. In this regard, while arrangements must be made for the long term use of computers, those available must be properly utilised. In addition, access to the internet is also essential.
Parliamentary Counsel should also have easy access to photocopying facilities which are important in their work.
Of course support staff play an important role and must be properly supervised so as to get maximum performance and efficiency.
The library which is conveniently located in the Attorney General's Chambers must be fully utilised by Parliamentary Counsel in their work. The senior Parliamentary Counsel must take steps to ensure that recent text books, journals, and other material on legislative drafting are acquired.[10] These must be readily available to Parliamentary Counsel for their use.
The accommodation of Parliamentary Counsel in individual offices which are fairly comfortable is to be welcomed and should be continued.
Other unnecessary irritations which can detract from the work of Parliamentary Counsel should not be condoned and should be addressed.[11]
CONCLUSION
Reed Dickerson partially sums up the situation by saying that drafting
"is a highly technical discipline .... Few lawyers have the special combination of skills, aptitudes and temperament necessary for a competent draftsman. This is partly due to inadequate training. More fundamental is the widespread misunderstanding of what adequate draftsmanship involves."[12]
Despite the fact that there has not been an increase in the output of legislation produced in the last ten years in Guyana,[13] legislation is important for the development of Guyana and indeed "the work of Parliamentary Counsel is central to the whole process of government."[14] It has been said that "the welfare of a country depends largely upon the quality ... of its legislation."[15] The Government must therefore first recognise the status and role of Parliamentary Counsel and so enhance their public image. Emphasis must be placed on establishing an efficient and permanent Drafting Section, academic training in the technique of legislative drafting, self-sufficiency and the retention of Parliamentary Counsel by the payment of adequate remuneration and generally by making the conditions of work attractive. For "In the absence of special conditions of service for legislative drafters designed to encourage them to pursue legislative drafting as a career, it would be expecting too much of a legislative drafter to forego opportunities for appointment to other posts in the legal and judicial services."[16]
Parliamentary Counsel must change attitudes and outdated cherished habits where necessary. They must accept that the standard of legislative drafting and the quality of legislation need to be improved. What was acceptable years ago is no longer acceptable now as can be seen from all the recent international texts on legislative drafting. There can be no improvements in a system that fosters among professionals a school master attitude which focuses on dictating rather than one of respect. The system must be flexible and receptive to new ideas which must be allowed to develop. There must be changes.
More importantly, in drafting legislation Parliamentary Counsel must always take account of the Constitution, the principles of good administration, the principles of modern legislative drafting set out in Part 3 and relevant case law with a view towards improving the quality of legislation. Though "the perfect Bill has never been written," Parliamentary Counsel must strive to produce legislation that gives legal effect to the policy of the Government and is clear and unambiguous. The Interpretation Act must also be considered. Parliamentary Counsel must not be like Humpty Dumpty and say in rather scornful tone, "When I use a word, it means what I choose it to mean - neither more nor less".[17] For like Humpty Dumpty, Parliamentary Counsel could have a great fall.
"Ninety percent of the cases that come before the courts are on the interpretation of one statute or another."[18] Parliamentary Counsel must not draft legislation which will unnecessarily cause citizens to go to Court to ascertain their rights for "Litigation is an activity that does not markedly contribute to the happiness of mankind."[19]
The recommendations, and the principles described in Part 3 are intended to serve as "a set of guiding principles and a programme of action" as suggested in the epigraph by the late President of Guyana. Otherwise excuses for the delay in producing legislation which is of acceptable quality and the securing of qualified and permanent staff will continue and there will be no improvements of the role of Parliamentary Counsel and legislative drafting in Guyana and hence no development.
CHALLENGE
Legislative drafting is a career, a skill, a specialised field for attorneys-at-law to pursue. It is a skill that will always be in demand. There is no magic in drafting. Like all careers, it requires hard work. But it can be stimulating. The use of language and the correct choice of words for the solution of a particular problem can be a fascinating and fulfilling experience. The challenge is to dare individuals to enter this legislative labyrinth and let the light in, in this cave of verbal darkness, chaos and obscurities and to exit with the rewarding taste of legislative clarity and victory. Victory for society!
[1]Jagan, The Fight Against Poverty. New Global Human Order, p. i.
[2] Dick, op. cit., fn. 93, p. 4.
[3] See Patchett, Report on the Caribbean, Memoranda of the Scheme for the Training of Legislative Draftsmen. London : Commonwealth Secretariat, 1974, p. 78.
[4] Dhurjon, supra, p. 12.
[5] See pp. 8-9, supra.
[6] It is deplorable that the Attorney-General would use the recruitment foreigners and shortage of staff as reasons for denying training opportunities to individuals who wish to advance their knowledge and enhance their skills.
[7] See a comparison of salary scales for Guyana, Barbados and the Bahamas. Appendix A.
[8] Crabbe, Understanding Statutes. London : Cavendish Publishing Co., 1994, p. 68.
[9] See p. 65, supra.
[10] In recent years financial constraints have not been a major difficulty in acquiring books. Several law reports and other texts have been purchased.
[11] For example, the selection for attendance at conferences and short term training courses should be done in a fair manner.
[12] Legislative Drafting. Boston: Little Brown, Co., 1954, p. 3.
[13] See Appendix B.
[14] Patchett, supra, p. 78.
[15] King, Manual on Legislative Drafting. London: Commonwealth Secretariat, 1978, p. 3.
[16] Pollard & Rahim, supra, fn. 55, p. 19.
[17] Caroll, Through the Looking Glass. Gray ed. Ch. 6 in Alice in Wonderland. W.W. Norton Co., 1971, p. 6.
[18] Lord Denning, The Closing Chapter. London: Butterworths, 1983, p.94.
[19] Gallie v. Lee [1969] 2 Ch. 17, 41, per Russell L.J.