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European Journal of Law Reform

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Issue 2-3, 2012 Expand all abstracts
Editorial

Sir William Dale Memorial Issue

Authors Dr. Helen Xanthaki
Author's information

Dr. Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).
Article

Consultation: A Contribution to Efficiency of Drafting Process in Malaysia

Keywords consultation, stakeholders, efficiency of drafting process, elements of efficiency, policy development
Authors Noor Azlina Hashim
AbstractAuthor's information

    Consultation in legislative drafting process is important and widely acknowledged. So far, many countries in the world have taken steps to foster consultation during the early stage of the drafting process. In Malaysia, the importance of opinion from the public or stakeholders in the output of the drafting process was recently evident when several bills presented before the Parliament were criticized because of the failure to take into consideration views and opinions from the public. In some cases, bills were postponed for policy review and refinement. This article examines and discusses consultation practices during the drafting process and analyses and considers the influence of consultation on the efficiency of the drafting process in Malaysia. The influence of consultation practice in relation to the drafting process were shown from a survey conducted on the drafters in the Drafting Division of the Attorney General’s Chambers of Malaysia.


Noor Azlina Hashim
The Attorney General’s Chambers of Malaysia.
Article

Rule of Ordinance in the Islamic Republic of Pakistan

A Question of Arbitrary Legislative Endowment

Keywords legislative authority of government in Pakistan, ordinance in English law, ordinance in British India, ordinance in Pakistan, emergency legislation by ordinance in Pakistan
Authors Mazhar Ilahi
AbstractAuthor's information

    The Constitution of the Islamic Republic of Pakistan empowers the federal and provincial Governments via the President and the Governors of the respective provinces to enact the primary legislation independent of the representative legislatures in the form of Ordinances. However, the resulting enactment remains in force for a few months, and notionally, must be promulgated only under the circumstances of urgent necessity and when the national legislature is not in session. Yet, owing to the vagueness of the text of the relevant Constitutional provisions, the scope of this legislative authority has much potential for abuse, and it has so been alleged too, in numerous Constitutional petitions filed from time to time in the superior courts of Pakistan seeking the judicial review of the promulgating action on the ground of malafide etc. But the judicature in Pakistan has largely abstained from exercising its authority to keep itself from being stigmatized from the usual aftermath of the judicial pronouncement on questions of political fiat. Resultantly, the natural democratic right of the illiterate and ignorant people of Pakistan to be governed by laws made by the designated representative legislature is persistently being jeopardized. In this view of the matter, on the basis of an empirical study of the Ordinance and the emergency legislation in the United Kingdom, and the ensuing principles of good governance and democratic norms, this article argues that the Constitutional authority of the Governments in Pakistan to enact primary legislation by way of promulgating Ordinances is an arbitrary legislative endowment, and entails a review by a truly representative, legitimate and competent Constituent Assembly.


Mazhar Ilahi
The author (mazharilahi@hotmail.com) is currently a PhD candidate at the Institute of Advanced Legal Studies, School of Advanced Study, University of London, UK. Previously he has served in the judicial service of Pakistan as civil judge-cum-judicial magistrate and has also practiced as Advocate of High Courts in Pakistan.
Article

Challenges Faced by Legislative Drafters in Samoa and Other USP Member Countries

Keywords legislative drafting challenges in Pacific Islands
Authors Mary Victoria Petelō Fa’asau
AbstractAuthor's information

    Legislative drafting is a skill slowly developing in the Pacific today. This abstract identifies and records an update on the challenges to legislative drafting in Pacific island countries. Due to lack of information on legislative drafting in the Pacific, research was undertaken with the assistance of Parliamentary Counsel and other Pacific drafters. I also attended the second biennial meeting of the Pacific Drafters’ Technical Forum in October 2009 where more current challenges were discussed. My own experiences as a legislative drafter are also reflected in this abstract.
    The outcomes of the abstract will show that whereas legislative drafting as a specialised skill is recognised by Pacific governments and interests have grown in pursuing legislative drafting as a career, the challenges faced by Pacific legislative drafters are commonly more diverse and complex. In addition to analysing some of these challenges, this paper offers some recommendations to combating them.


Mary Victoria Petelō Fa’asau
Senior Legislative Drafter, Legislative Drafting Division, Office of the Attorney-General, Samoa; 2011/2012 Greg Urwin Award recipient, Pacific Islands Forum Secretariat; Pacific Legislative Drafters’ Technical Forum; Full member of the Commonwealth Association of Legislative Counsel.
Article

Instructions to Draft Legislation

A Study on Legislative Drafting Process in Rwanda

Keywords drafting instructions, Rwanda, quality of legislation
Authors Ruth Ikiriza
Abstract

    Drafting instructions are always difficult to discuss and evaluate because very often they depend on local traditions. Nevertheless, despite local traditions in drafting instructions their complete absence must be seen as a problem. This article tackles the issue of drafting instructions and their importance in the development of good drafts. And by good drafts the author means good quality drafts which will lead to good quality legislation. The article uses Rwanda as a case study and employs Thornton’s five stages of the drafting process as its basic methodology.


Ruth Ikiriza
Article

The Impact of Europeanization of Contract Law on English Contract Law

Keywords Rome I and II Regulations, Europeanization, contract law, Common European Sales Law, faulty goods
Authors Omar Abdelaziz
Abstract

    The ongoing process of Europeanization for promoting cross-border transactions and conferring better protection for consumers and small businesses has had its impact all over Europe. It represents a new step towards a harmonized set of legal rules to govern cross-border transactions in the field of contract law. So what is its exact scope? Who will benefit from it? What are its risks? What is its methodology? Does it represent a codification of common law rules? What will be its impact especially on common law countries such as the United Kingdom? The effectiveness of Europeanization depends almost entirely on the correct implementation into national law of the various directives; every member state is obliged to fully implement a harmonized measure into its domestic laws. This is accomplished by ensuring that (1) the relevant legal framework meets the requirements of the harmonized measure and (2) the application of the domestic rules giving effect to a harmonizing measure does not undermine the effectiveness of the European measure. English contract law is largely an uncodified law. Accordingly, the approach taken and the methods used by this jurisdiction to implement European directives into its national laws with the aim of harmonization are different. How did the English courts interpret legislations that implement EU legislations? Will Europeanization affect the deep-rooted principles and doctrines of English contract law (issues of commercial agency), good faith in pre-contractual obligations, unfair contract terms and specific performance? Finally, what could be the clash between European contract law, Rome I Regulations and the United Nations Convention on Contracts for the International Sale of Goods? Could this optional instrument be an exclusive law to either national or international mandatory rules for consumers in member states? What will be the qualification for a genuine consent of consumers in cross-border contracts? Will it lead to the development of the internal market as envisaged by the Commission?


Omar Abdelaziz
Article

The Challenges of Rwandan Drafters in the Drafting Process for Good Quality Legislation

Keywords quality of legislation, Rwanda, drafting process, drafting instructions, language and drafting, precision, clarity
Authors Alain Songa Gashabizi
Abstract

    Rwanda is a country in search a stable legal system, which includes the drafting of quality legislation. Following the events of the 1994 genocide the lack of experienced drafters and the civil law method of decentralized drafting the Rwandan legislation tends to be of bad quality mainly because of the bad quality drafts provided by the various, often unidentifiable sources of drafting. This article spells out the specific problems that the Rwandan drafter faces and offers solutions by means of a case study. The article concludes by making some specific recommendations.


Alain Songa Gashabizi
Article

Why the Inflation in Legislation on Women’s Bodies?

Keywords legislation and control of women’s bodies, legislative drafting and the female autonomy, social and political theories and control of women’s bodies
Authors Venessa McLean
AbstractAuthor's information

    This article seeks to explore how historical patriarchal theories have crept into the world’s legal systems to date and has led to inflation in legislation upon women’s bodies. The article highlights how legislation has been used as a tool to deny women autonomy over their bodies by placing unnecessary controls upon women’s bodies by legislative, social and political systems and concludes by an examination of the discipline legislative drafting and how an active approach through drafting activism on the part of legislative drafters and policy makers may combat the inflation in legislation upon women’s bodies.


Venessa McLean
The author currently works at The Office of the Chief Parliamentary Counsel in Jamaica as a Legislative Officer. She is also Visiting Lecturer on the Special Narcotic Investigation Course Carribbean Regional Drug Law Enforcement Centre, Jamaica and Visiting Lecturer University of London External Degree Programme.
Article

Legal Meaning in the Interpretation of Multilingual Legislations

Comparative Analysis of Rwanda, Canada and Ireland

Keywords intention of the Parliament, multilingual ambiguous provisions, interpretation of laws, multilingual legislations interpretation approach, comparative analysis
Authors Froduard Munyangabe
Abstract

    When construing multilingual Laws, the use of rules and methods generally used in the monolingual statutory interpretation becomes more complicated due to a multiplicity of texts equally authentic. Also, the pre-eminence of one language version to the other version(s) does not facilitate the interpreter because if the other language version can shade light to elucidate the first, it can also increase uncertainty about the first. This dilemma leads to the question of knowing whether there could not be another appropriate approach to moderate these two options.
    The answer is derived from a comparison of the prevalence of one language version approach both adopted in Rwanda and Ireland and the equal authenticity rule adopted in Canada. The comparison is made by analysing the sequential steps of approaches used differently in the three respective multilingual jurisdictions in order to point out gaps of the two approaches.


Froduard Munyangabe
Article

Scrutiny of Legislation in Uganda: A Case for Reform

Keywords legislative scrutiny, emerging trends
Authors Isabel Omal
AbstractAuthor's information

    This article seeks to explain the significance of carrying out extensive legislative scrutiny in any jurisdiction, with emphasis being placed on the Ugandan experience as far as legislative scrutiny is done. As Parliaments all over the world continue to make laws that govern their citizens, it is only right that before any law is enacted, there must be adequate mechanism to ensure quality in the law in terms of substance and effect of the legislative proposal which ultimately impacts on good governance. Best practices and emerging trends in legislative scrutiny is drawn from the United Kingdom and Australia, which have put in place elaborate procedures and mechanism to ensure that all their legislative proposals are thoroughly scrutinized before they passed into law: and that even after the law has been enacted, it can be evaluated to see the effect of the law. Pre-legislative scrutiny and post-legislative scrutiny are thus important tools to ensure quality in legislation.


Isabel Omal
The author is a Legislative Lawyer working at the Law Commission in Uganda; she is also a fellow of the Ford Foundation-IFP scholarship and a member of Commonwealth Association of Legislative Counsel (CALC).