Responses to the Study Guide Questions for

Session A-3, Slide #14

Question 1

From your own country or elsewhere, give at least one example of drafters’ problematic behaviors.

James: In Ghana, drafters are unable to give evidence to legislators on the bills they present to the legislators  because they are not seized with the relevant facts and logic that can only be ascertained through research that unfortunately drafters do not do before they draft bills. They also use what entropic methods. These are :(1) they criminalize every deviant behavior. By this they define the behavior and prescribe a punishment for it. However, it has been found out that criminalizing deviant behavior does not play any major role in  development, good governance or reduction of poverty.  On the other hand when good behavior is induced with law it can contribute to development (2) They resort to the pluralistic method in which various interest groups are put together to argue their case about a social problem and an agreement or compromise reached. But this also does not get to the root cause/s of the social problem that has to be solved. For “ those with power and privilege always have channels of communications of political movers and shakers” as asserted on lines 1&2 of paragraph 3 of page 111 of the Manual. (3) They copy laws from other countries. This also does not work well for they do not have the reasons why the problem surfaced in that country or the reasons why such laws evoke the behaviors they see.  This is like uprooting some food crop from a temperate region and planting it in a tropical environment. It will not grow until the plant is extensively altered by natural conditions or other means to make it  grow in the new environment.

Christopher:In the United States, pluralism is standard operating procedure.  Bills are written to make them ‘saleable” to both major political parties, and bills often reflect the influence of special interest groups and powerful lobbies.  Electoral support and campaign contributions are used to buy influence. 

The drafter is called upon to craft legislation that operationalizes the effect of these influences.  The result is a bill that reflects the proprietary interests of those influencing the legislation.  An example would be laws regarding the patenting of prescription drugs, which are written to favor pharmaceutical manufacturers.  In the US, there are more pharmaceutical lobbyists than there are members of Congress.

Mavis: One example of drafters problematic behaviours which I have seen involves the unnecessary criminalization of behaviours without proper research as to whether there can be any other way of dealing with the social problem which may have arisen.

Marlyn:On the Caribbean island of St Lucia where drafting skills are scarce and generally have to be outsourced, legal drafters tend to use entropic methods. The drafters of the Attorney Generals’ Office often use a combination of these methods. e.g they will use a similar legislation from another jurisdiction to provide the frame of reference and then tailor the new legislation to suit the context. In doing so they may consult the relevant stakeholders through the line ministry, indirectly, to determine the views of these sometimes competing stakerholder interest groups. In order to provide the research information  to inform the design of the legislation it is the responsibility of the line ministry to set up task force to derive the necessary information to inform the work of the drafter.Once the information is provided the main drafters will then prepare the draft legislation for review by the particular line ministry following which amendments are incorporated before the submission to Cabinet for review.

Question 2

Describe the process by which bills get drafted in your country. In what ways, if any, does your country’s drafting process differ from the process which the Manual characterizes as typical for most countries?

James: In general the process by which bills are drafted in my country is not different from what has been described in the Manual as what goes on in transitional and developing countries for my country also used to be a colony of the United Kingdom of Great Britain and Northern Ireland. There is a Parliamentary Drafts person’s Office located in the Attorney – General’s Office. This Office takes care of all the drafting needs of the Ministries, Departments and Agencies of the Government. When a draft a bill is done it is given to the Minister responsible for the Ministry, Department or Agency. This is taken to Cabinet meeting to defend it and where necessary a Cabinet Committee on legislation is appointed to examine the bill and its implications and harmonize the impact that it will have on the other Ministries, Departments and Agencies  on whose behalf the draft bill has been prepared. In some cases the Cabinet Committee on Legislation may be directed to prioritize in terms of other bills. When the bill is approved it is sent to the Government printer for printing and gazetted . The gazetting of a bill is to be for a stated period after which it automatically becomes one of the papers Parliament should take charge. A time is set for it for Parliament to officially take charge of the bill. At this time the First Reading of the Bill is made on floor of Parliament by the Minister in charge of the matter and it is referred to the appropriate subject matter Legislative Committee. The Committee holds hearings and reports on the bill to the House and the report is openly debated. At the Report stage of the bill members are free to indicate their intention to move amendments to the bill and at the Second stage of the bill. After the Second stage there is the Third stage at which the bill is presented with the amendments so made incorporated in it and when members have agreed that the bill contains all the amendments made to it at the Second stage the bill is read for the Third time and it is sent to the President for his/her signature.

Christopher:The US has a bicameral congress, consisting of the House of Representatives and the Senate.  Each has its own office of legislative counsel to provide drafting services.  The most concise description of the process may be found on the House Legislative Counsel web site.  See:  http://legcoun.house.gov/about_public.htm

Here is a portion of the material presented on the web site: “The typical legislative proposal starts on its way because someone believes that there is a problem about which something can be done by legislation. The attorney who drafts the proposal must gain a clear understanding of the problem, including the factual and legal setting in which it arises, and the intended policy of the Member or committee. This process ordinarily involves consultation with Members and their assistants, and with committee, departmental, and other expert advisers. Work being performed for a committee on a bill often involves attendance at committee markups, at sessions of the House during floor consideration, and at meetings of the conference committee between the House and the Senate to resolve the differences between the two Houses.

In preparing a draft for a Member or committee, it is the goal of the Office that the draft accurately reflect the legislative policy of the Member or committee and that the draft be legally sufficient to carry out that policy. The Office tries to meet this goal in a form and style consistent with good legislative drafting and strives for clarity of expression while addressing all necessary aspects of what are often highly complex policy matters.

In rendering this drafting and other legal assistance, the attorney must at all times maintain an impartial attitude with respect to the policies which are to be incorporated in the legislative proposal. Thus, the attorney is concerned with the legislative policy only for the purpose of making sure that the bill, resolution, or amendment accurately reflects the policy of the Member or committee for whom it is being drafted.

All communications with the Office are confidential and subject to the attorney-client relationship. Unless otherwise indicated by the Member or staff, no information concerning a request for assistance (including the fact that the request was made) will be disclosed outside the Office.

The Office has a long history of successfully working with opposing sides of legislative policy issues while maintaining confidentiality with respect to communications with each Member. It is, for example, routine for an attorney in the Office who has drafted a bill for a committee to then draft floor amendments for individual Members on all sides of issues raised by the bill. “

The Senate also has an Office of Legislative Counsel: http://www.senate.gov/reference/resources/pdf/RS20856.pdf

An excerpt: “The statutory mandate of the office is to provide aid in drafting public bills and resolutions and amendments thereto. This requires the office to be impartial as to the

issues of legislative policy and to maintain the attorney-client relationship with respect

to any communications with Senators or staff. The work of the office typically includes

* Drafting bills and resolutions for introduction, and drafting of amendments for use by Senators during subcommittee, committee, and floor consideration of bills and resolutions.

* Drafting bills reported by Senate committees and conference reports for House and Senate conference committees.

* Providing advice (including advice on form and procedure) on drafts of bills, resolutions, and amendments.

* Providing advice on constitutional, legal, and technical problems in statutes, proposed legislation, and reports and explanatory statements accompanying proposed legislation.

Drafting assistance is provided only upon request as there is no requirement in the rules of the Senate that bills, resolutions, or amendments be drafted by the office.”

Once passed by both the Senate and the House, the bill is sent to the President for signature or veto.

Although not directly responsive to the question, the LD6 class may find this essay by a drafter to be of interest:  http://legcoun.house.gov/drafting_public.htm   Scroll down to “How Our Laws Are Made—A Ghost Writer’s View.”

Mavis:  In both Zimbabwe and in St. Kitts and Nevis, the process is exactly as described in the Manual (both countries having typical British Commonwealth legal systems).

Marlyn:In Guyana the drafting process for a Bill follows mainly that outlined below:-

Decision to prepare a Bill :

Whatever the way in which the problem to be addressed through legislation is aired or acknowledged or the reason for it to take centre stage, to the extent that it is now on the legislative agenda for action, the process usually goes through these steps:

The Steps

Question 3

Analyze the advantages and disadvantages of using any of the three entropic methodologies drafters commonly employ for drafting bills.

James: The three entropic methodologies are :

PLURALISM: This means that the drafters will fashion a bill to suit the interests and aspirations of the competing interest groups.

The advantages are:

• it brings together the contending forces that have interest in the matter to exchange ideas and a compromise reached

• it avoids secrecy and surprise

The disadvantages are:

• the competing interest groups are not seized with any comprehensive facts or figures and whatever input they make are from their own parochial interest
•  as amply asserted on lines 1to 5 of page 111 of the Manual “those with power and privilege always have channels of communications to political movers and shakers --- powerless”

B. CRIMINALIZATION : it means that some deviant behavior is made an offence punishable by the state.

Advantages :

1. it prevents people from behaving in the manner

2. it acts as a sign post for any behavior on wants to put up

Disadvantages:

1. it adds financial strain on the already scarce resources of the state and at the disposal of the law enforcement agencies like the police and the Courts. It demands more staff and detention facilities.

2. In some situations it is misconstrued to mean repression

C. COPYING FOREIGN LAWS : means taking laws from other jurisdictions and dressing them up for use. But no two locations are the same so if laws are copied from other jurisdictions the chances are that they may not fit well into the new environment

Advantages :

1. foreign laws are at best red flags and no more

2. they give some data to work with

Disadvantages :

1. they do not fit well into the new environment

2. they may add more problems than they are meant to solve.

In addition to all the above once laws  are not home grown or based on facts and figures from the ground it seems groping in the dark to find a missing pin

Marshall Islands: 1. COPYING LAWS:
- we had a good discussion about the idea of copying another country's laws
- I've seen lawyers in the last country that I worked in who would simply go online and cut and paste a law from elsewhere, without putting any thought whatsoever into how to adapt it for the country in which they were working (needless to say, the result was disastrous...a set of laws that were completely inappropriate and ineffective)
- having said this, our group discussed the fact that in the Pacific islands, "copying" a law from elsewhere is often REQUIRED of us
- the Pacific Islands are in a unique situation -- a collection of very small nations with small populations which have many differences but also many similarities as small island nations
- there are many attempts to regionalize many things in the Pacific, and to standardize a lot of things across the Pacific, including standardizing many of the laws
- Pacific island leaders meet regularly and are increasingly attempting or agreeing to standardize laws across the region in areas such as maritime law (this often involves agreeing on or being given a "model law" and taking this model back to their home countries and asking drafters to draft a bill based on this model law)
- these attempts to regionalize and standardize result in many incidents of "copying" laws (be it a law from another nation or a model law that has been circulated amongst the various countries)
- so -- while we all seemed to agree that copying laws is not ideal, at the same time, we have to recognize the situation that the Pacific islands are currently in, and the attempt to standardize many things across the Pacific....this results often in being required to, effectively, copy laws from elsewhere
- often laws have to simply be copied from model laws in order to comply with externally-imposed expectations...requirements that are imposed externally by organizations such as the U.N. (as a result of signing on to international conventions, or as a condition of obtaining funding) and other countries (such as the U.S., with whom the Marshall Islands is in free association, as a condition of getting certain benefits)
- some of the advantages to copying laws are: 1. it's a lot easier, 2. it's a lot less time-consuming, 3. sometimes a nation must do it in order to get some benefit or as a result of signing on to some kind of international agreement or convention
- some of the disadvantages are: 1. in general...every country has its own unique set of circumstances and therefore a law that is right for one country might be completely inappropriate for another country, 2. it has been done without regard at all for the underlying behaviours and the causes of the behaviours that the law is trying to address and without the appropriate research that may or may not justify the changes that the bill attempts to effect and therefore it may be completely ineffective at inducing the desired change in behaviour, 3. may be targetting the wrong people, establishing the wrong organizations, 4. law in a democracy, in its purest form, is theoretically supposed to be the written/codified reflection of the values and morals of the people living in that society...if you copy a law from another country you are getting a law that theoretically is a reflection of the values and morals of the people in that other country, and not a reflection of your own people's values and morals...etc.. there are lots of disadvantages
2. PLURALISM
- advantages are that maybe the politicians win a few votes because they've tried to make everybody happy
- disadvantage may be that in trying to make everybody happy, you enact a solution that doesn't actually work and/or doesn't make anybody happy
- another disadvantage may be that one stakeholder's desires actually win out over others and it may not be an effective solution to the problem (e.g. in the U.S. Truth-in-Lending case)
3. CRIMINALIZING BEHAVIOUR
- advantages are that it may sometimes act as a good deterrent to unwanted behaviour
- disadvantages are that if you don't actually address the underlying root of the problem, people may simply find some way around the law, some other way of manifesting the problem, or doing what they want to do that is equally undesirable (or may not be able to avoid the behaviour and therefore will continue it anyway even if it is now a crime...then instead of dealing with the original problem you now have the original problem behaviour + a crime problem)
- an example that was given was the example of adoptions -- in the Marshall Islands they have criminalized certain things with respect to adoption in order to eliminate the "trafficking" of babies to foreign people wanting to adopt Marshallese babies (I'm not up on what exactly was criminalized so I'm sorry I can't elaborate more than this)...the result is that lots of pregnant Marshallese women and foreigners who want to adopt the baby now get around this law by having the woman fly to Honolulu to give birth, and the babies are simply adopted in Hawaii by the foreigners

Rob: There are three common problematic drafting behaviors:

1. Copying legislation from a foreign jurisdictions without full appreciation of  local or foreign conditions.

2. Drafting bills that rely solely on criminal sanctions to induce changes in behavior.

3. Drafting bills that simply compromise between competing claims and demands of interest groups.

Copying legislation from a foreign jurisdiction is seldom successful. Although much can be learned from careful consideration of the experiences of other countries with similar laws, merely copying legislation ignores unique country circumstances which influence how people behave in the face of a law. The “host country” may have a body of law that already  impacts certain aspects of the social problem the legislation seeks to address that does not exist in the drafter’s country;  the host country may  be at a different stage in development; it may have  different constitutional considerations; different cultural considerations and so on. Only a careful study of the relevant conditions in both countries will reveal whether a law can be copied with a reasonable chance of success.

A drafter may be instructed to draft a bill that compromises between competing interests. In such a case the drafter must focus on the claims of the various interest groups to devise a legislative compromise. But in reality this “pluralist” approach to legislative drafting often favors those who can offer the law-makers the most: electoral support, bribes, or other forms of corruption.

Where the drafter’s instructions permit the drafter should draft for the “public interest”. Drafting for the public interest means that the bill is supported with research that is independent of the claims of individual interest groups: research that is based on “reason informed by experience”. Research based on reason informed by experience is research that uses facts and logic to determine the best legislative solution with consideration of all who may be affected by the social problem or impacted by the legislative solution including the poor and the vulnerable.

Many drafters assume that behaviors will conform to changes in the law if unwanted behaviors are criminalized. Although the criminal law has a role to play in transformatory legislation, punishing behavior with criminal sanctions is only effective when research reveals that the cause of the problematic behavior is rational self interest. If the cause of the unwanted behavior is something other than self interest, criminalizing behavior is not only ineffective but dangerous since wide grants of criminal power are easily abused.

Christopher: Pluralism—“Compromise legislation”:

Advantages:

A.  Considers input from multiple vantage points.

B.  Involves varied constituencies and stakeholders.

C.  May result in legislation that is acceptable to both political parties, or other competing interests.

Disadvantages:

A.  Prone to undue influence by special interest groups and lobbyists.

B.  May result in a bill that, in an effort to please everyone, is vague and ambiguous, and therefore ineffective.

C.  The resulting legislation is likely to vest the administration with discretion that either weakens the bill, or subjects it to the caprice of the administrating agency.

Mavis: Copying as the Manual states is most commonly used by drafters.

One advantage, which I have seen in the Caribbean region as well as in the European Union in that it ensures uniformity of laws in a situation where countries are trying to harmonise their legal system for purposes of forming regional trading arrangements.

The main disadvantage is that sometimes lazy drafters just take a law from another country and draft it as is, for their own country without any research as to how it has worked in it’s country of origin. Without such a background, the law is not adapted into a country’s unique circumstances and thus ends up being ineffective. 

A good example which I saw in Guyana where I have previously worked involved the drafting of laws to provide for national commissions to deal with matters of human rights, ethnic relations, women’s, children’s and native Indians’ rights. The idea was borrowed from South Africa which has drafted such legislation to deal with these matters. Unfortunately, no-one considered that South Africa with more than 42 million people differs from Guyana with only 700 000 people in that it has the human and financial resources to support so many commissions. Since the law was enacted in Guyana only the Ethnic Relations Commission has been set up. The country has found that it does not have the human or financial capacity to set up the other commissions and further that the one commission could effectively deal with the other issues of human, women’s children’s and native people’s rights. The law may thus have to amended to deal with this reality on the ground.

Marilyn:Very little research goes into the process and it typically follows that the drafter uses the entopic methods because it is easier given resource  constraints. Copying if the law is the usual method. Often the drafter gets a copy of the laws of other jurisdiction and ‘tailors’ it to suit his country’s context.  This seems to be an accepted method in the Caribbean as it also seem to save time. In many instances a ‘model’ legislation is prepared for a particular region e.g. the Organization of Eastern Caribbean States (OECS) or the Caribbean in general (e.g. the Model Planning Legislation developed for the Caribbean by the UNDP, and  the Model Caribbean Building code) and individual countries are asked to ‘tailor’ it to suit their context.  Unfortunately very little real ‘tailoring’ is done; rather there is a tendency to treat the Caribbean as comprising a homogeneous population grouping since the various countries have a common history, culture and economic relations of production based on a common heritage.

In the case of Guyana and to some extent Dominica, these countries have an indigenous population that changes the so-called homogeneity in terms of a common heritage.

In Guyana in particular there are six races, each with its own socio-cultural specificities. Particularly, the Afro-Guyanese and Indo-Guyanese and the indigenous Amerindian population are predominant racial groupings, which require that the planning and development action and even the legislative process pay particular attention to their cultural orientations.

Using a model legislation makes the process easier especially where there is a lack of technical and financial resources and perhaps an absence of an adequate institutional framework to engage the process of research and design of implementable legislation. In Guyana many new bills are determine by the conditionalities of donor development funding.

In context where there are competing interest groups, strong racial and cultural diversities and where political division is based on ethnicity as in the case of Guyana, simply copying the laws from another jurisdiction or even tailoring a model legislation is inappropriate and will lead to unenforceability of legislative provisions and inability to determine the desired social impact intended by the legislation. Simply copying a legislation cannot address these concerns.

However, one cannot discount the advantages of copying legislation in context of resource scarcity. But only if,  copying legislation means using the legislation framework of another jurisdiction and tailoring it where necessary may be useful for ensuring saving in the use and allocation of scarce technical and financial resources.  However, one should be careful to use legislation coming from similar social and cultural contexts to make the process simple.  An example of such activities can be seen in most of the smaller countries of the Caribbean where Physical Planning Legislations have been modeled from and OECS Model Physical Planning legislation.

The majority of these countries share a common social and cultural heritage and similiar economic relations of production. Their population is relatively homogenous and so in a context of scarcity in terms of technical and financial resources to prepare and implement Physical Planning legislation, drafters usually Use the Model as a base frame and ‘tailor’ it to suit the specific context in terms of place name and institutional  specificities of the specific country.

Question 4

Why should a methodology that facilitates the use of reason informed by experience prove essential to the drafter’s role in upholding the Rule of Law?

James:

The rule of law is intricately tied to good governance. Good governance also requires many bench marks such as;

• accountability
• decision making is an on the table process except for very special reasons like the security of the state
• authority is given and based on prescribed parameters
• exercise of power is based on prescribed authority.

But these cannot  be done in a haphazard manner but in an ordered manner so it requires a clear, concise and consistent law to exact appropriate performance. As it is stated on line 4 of paragraph 3 of page 255 of the Manual “the rule of law holds that it dissipates if its official addressees – fail to obey the law” It is only by the use of a methodology that is based on reason informed by experience that one can unravel what exactly the problem is and how effectively it can be solved. This can be done only by doing a research to accumulate the facts and figures.

Rob: The Rule of Law requires that government authority be exercised in accordance with written laws adopted through established procedure. This principle is intended as a safeguard against arbitrary decision-making. By using a methodology that facilitates the use of reason informed by experience the drafter is in a good position to identify the real causes of problematic behaviors and, in turn, to offer rationally based solutions that are likely to alter the problematic behaviors. A law that is written in response to the fundamental causes of a problem will be practicable and relevant to both the law’s primary addressees and the officials charged with implementing the law. In this way arbitrary decision making, antithetical to the Rule of Law, can be eliminated or at least reduced.   

Christopher:Reason informed by experience helps to ensure the effectiveness of a bill in addressing a social problem by focusing on specific problematic behaviors, and crafting strategies for changing those behaviors.  Legislation must address the specific circumstances of that country, and the cultural issues which will be operative in shaping behavior.

Mavis: Because then the drafter is not just merely putting down on paper what he has been instructed but is an active participant in the process to ensure that at the end of the day, the law that he drafts does uphold the Rule of Law.

Question - What is the Rule of Law? I have seen in Zimbabwe some laws are drafted which are patently unjust/unfair in their effect but they are laws on the statute books of the country nonetheless. They are not unconstitutional and some may even be constitutional amendments. In such a situation, can the rule of law be said to be in existence and are the drafters drafting such laws upholding the rule of law?

Marilyn: Methodology – “use of reason informed by experience” :

This is the problem solving approach. It is only by grounding the Bill in logic and fact from the drafter’s own country’s specific contextual situation is one able to predict the consequences of the Bill’s implementation or desired outcomes and also whether the implementing agencies will implement the provisions of the  bill in the desired manner to ensure the desired results.  By grounding the Bill in fact and logic, the drafter plays a role in upholding the Rule of Law.

Question 5

What arguments can you make for or against any one of the ethical implications of the drafters’ responsibilities for upholding the Rule of Law?

Marshall Islands: - we talked a lot about some of the ethical questions that drafters face
- one thing we discussed at length is the issue of saying NO to a request to draft a law that is clearly illegal or immoral
- it was mentioned by several group members here that once again the culture that exists in the Pacific islands sometimes clashes with western ideas of law and ethics, and this is a very good example of a time when the two really clash (the question of what to do when you receive a request to draft something that is unpalatable for one reason or another)
- the culture here dictates that if somebody who is high up in the traditional hierarchy (such as a Chief) asks the drafter to draft something then it may be unacceptable to say no
- sometimes if you say no there will be negative consequences for the drafter in terms of his/her employment status
- another comment that was raised is that if there is a democratic and proper legislative process in place in which the bill is properly put to the test in the legislature (through 1st reading, 2nd reading, 3rd reading, committee study of the bill, public hearings, etc.) then the immorality or illegality of the bill should be picked up on and caught in this process ----- that's what the process is for, isn't it?
- is it really the drafter's job to stop a bill in its tracks without giving it the chance to be put to the test through this process?
- which is more unethical -- saying no to a request to draft something of questionable legality? or preventing a requester from having the chance to put his/her bill to the test of the legislative process?
- I think many of us agreed that this issue is not so cut-and-dry, not so black-and-white
- personally I think that it is our obligation to advise the person requesting the bill of the legality of this person's proposal
- if the requester still insists on having an "illegal" bill drafted after receiving this advice, what to do? I don't think it is always easy to say no...it's a difficult question
- what do other people think about this?
- I gave an example of a situation that I witnessed in my former job...a co-worker was asked to draft a bill that clearly violated another law -- I won't get into it here because it's a long story (she did draft it, and it ended up backfiring on her because the requester ended up being angry with her for doing it and for failing to advise him at the outset that it was illegal....at the end of it all he was angry with her for making him look bad)

James: There are about five major responsibilities imposed on a drafter to discharge in order to ensue the existence, protection and enhancement of the Rule of Law. These are (1) the extent of the duties of a drafter; (2) loyalty to the final user of the drafters work (3) competence or skill and experience (4) confidentiality and (5) declining or refusing to comply with instructions and these are explicitly explained at pages 42to 46 of the Manual . For some reasons not difficult to ascertain drafters have accepted the fact that they are of value only for the form of the bills they draft and the language they use and nothing more. But this a mistaken view because like the worker at a manufacturing plant the consumers of the product that comes out of the plant are as important to him/her as the employer that employed him/her so the quality of the product becomes his or her concern. Therefore, the drafter must be concerned with how the bill she/he has drafted will solve the problem the bill is meant to solve and so must be equipped with facts and figures where necessary and these can be ascertained through research. 

Rob: A drafter’s professional responsibility has five ethical implications or dimensions. They are:   1. A broad scope of duty which includes the duty to provide ministry officials with “legal” as well as non-legal advice to ensure that officials have taken full account of the bill’s likely consequences for issues of good governance. 2. The duty of loyalty to the legislature-client. 3. The duty of competence. 4. The duty of confidentiality. 5. The duty to terminate or decline instructions in certain situations.

Each of these ethical duties has implications for upholding the Rule of Law. For example, the “scope of duty” and the “duty of competence” impose an obligation to ensure that the drafter’s bill is likely to prove effectively implemented in ways that foster good governance, including non-arbitrary decision making. The duty of confidentiality has a practical aspect for the drafter’s working relationship with instructing officials so that the drafter is able to gather all relevant information to properly assess the social problem the bill is designed to resolve. The duty to decline or terminate instructions arises when instructions are inconsistent with Rule of Law precepts.

Christopher: Drafters are faced with the same professional responsibility issues as any attorney.  In the US, most states have adopted rules of professional conduct which closely follow the Model Rules of the American Bar Association.

The first step in ethical analysis is identifying the client.  Is the client the legislator seeking the services of the drafter, the government, or the people of that country?  This will determine to whom the drafter owes duties of loyalty and confidentiality.

The web site of the U.S. House of Representatives describes the drafter’s duty of confidentiality, which is clearly to the Member of Congress requesting drafting services:  “All communications with the Office are confidential and subject to the attorney-client relationship. Unless otherwise indicated by the Member or staff, no information concerning a request for assistance (including the fact that the request was made) will be disclosed outside the Office. The Office has a long history of successfully working with opposing sides of legislative policy issues while maintaining confidentiality with respect to communications with each Member.”

Furthermore, the drafter has a duty of competency, which is essential to “translating policies into effectively implementable legislation” consistent with the Rule of Law.  See http://legcoun.house.gov/about_public.htm “In preparing a draft for a Member or committee, it is the goal of the Office that the draft accurately reflect the legislative policy of the Member or committee and that the draft be legally sufficient to carry out that policy. The Office tries to meet this goal in a form and style consistent with good legislative drafting and strives for clarity of expression while addressing all necessary aspects of what are often highly complex policy matters.”

Mavis:All of the drafters responsibilities for upholding the Rule of Law have merits. However,I personally feel that all of the ethical implications for drafters are not easy in practice primarily because their client is the government ie the politicians of the day.  Therefore, in a functioning democracy where the government is concerned with human, economic and social development, the ethics may be easier to stick to. However in a State where development is not the primary focus of the government, this is not easy. The drafter may soon find himself out of a job if he tries to stick with such ethics in a situation where drafting instructions are coming down to draft laws which are repressive, prejudicial and patently unfair as I have see happen for example in Zimbabwe.

Marilyn:I agree that a drafter should terminate or decline instructions of the developing of the Bill where it will violate his moral convictions or contravene the rule of law.

The requirement for  trust  and confidence imposes on the drafter an ethical responsibility which has five dimensions Viz: - the scope of the duty, duties of loyalty, competence and confidentially.

 The drafter has the power to terminate or decline a drafting instruction.  The drafter owes a duty to the clients who are government officials and legislators who themselves are responsible for  the public welfare.  On the basis , the drafter becomes a main custodian of the rule of law.  He must have special technical skills to draft a legislation designed to facilitate the transformation of institutional behaviours, He therefore has an ethnical responsibility to advise on the likely consequences of this proposed measures.

In this way the drafter is concerned with the issues of both form and substance in the drafting of a legislation and must ensure that his client i.e. the legislators and government officials take account of legal and non-legal considerations that will influence the Bills implementability and ultimately the desired behavioral changes anticipated.  The drafter may disagree with the client’s decision to go ahead and prepare the Bill despite the drafter’s best-informed advice. In such instances the final decision is that of the client and the drafter may or may not agree to follow the drafting instruction based on his own moral convictions.

Despite the drafter’s duties of loyalty and confidentiality, he cannot be forced to perform the drafting exercise if he feels the exercise and outcome is against his moral convictions  or contravenes the rule of law. His  “use of reason informed by experience” will provide him with the justification for the Bill and the predictability of its likely consequences for the addressees especially regarding  impacts which could undermine  moral and ethical values.