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Common quality standards for legislation in different legal
traditions as an inspiration for legal reform
9 April 2013
International standards for legal drafting are necessary?
It is important to build up international standards for legal drafting: a bill will become easier to understand for people and companies from different countries.
•It improves access to legislative information and knowledge;
•Allows citizens from different countries to better know and understand rights and duties;
•Helps companies to create bussinesses and jobs.
International standards for legal drafting are necessary?
Other issues are also critical to improve the access of people and companies to legislative information:
Ex1: The using of plain language to provide information (see the Portuguese experience under the SIMPLEGIS project);
Ex2: Powerful and free search engines in National Gazettes web sites.
International standards for legal drafting:
5 issues to address
International standards for legal drafting should include the following 5 issues:
First: To establish more precise rules on wording, adopting detailed plain language directives (see Clarity International Association: www.clarity-international.net).
Plain languages summarys of Portuguese Decree-laws and implementing decrees published in National Gazette web site (www.dre.pt) were provided in Portuguese and English under SIMPLEGIS programme.
International standards for legal drafting:
5 issues to address
Second: To identify an order for the articles of the legislative acts.
Which should be the first article? Where should be inserted an article with definitions? What about the article about the scope?
Third: To establish rules on the use of definitions.
Should definitions be listed in a separate article or should they be included in the article which rules on the subject?
It is common to use a definition to set forth a rule instead of defining something. It should be avoided.
Ex: “For the purpose of this act, “Day” is a working day, not including Saturdays, Sundays and holidays.
International standards for legal drafting:
5 issues to address
Fourth: To adopt rules on the using of points.
Prof. Zijlstra’s example of “linguistic clarity” demonstrates how the bad using of points (a), b), c)...) may prejudice the comprehension of legislative rules.
Fifth: To establish rules on the use of abbreviations.
Nobody would understand what is IAL, CALC or KLRI if those abbreviations are referred in an act if they are not decoded.
International standards for legal drafting:
3 recommendations
Creating international standards for legal drafting of different countries and international entities is a huge and hard task. The following 3 recommendations may help:
First: Begin with basic drafting rules widely accepted
Some countries have very detailed legal drafting rules. You may expect resistence to give up well established rules and guidelines.
Ex: In Portugal there are very detailed legal drafting rules set forth in law since 2004. There are also extensive published guidelines (“Legística”, Ministério da Justiça, Almedina, 2002).
There will be more drafters accepting the ideia of setting international standards if the standards are widely accepted and recognized.
If the idea of setting the first version of international standards is widely accepted and used it will be easier to go further and deeper in next versions.
International standards for legal drafting:
3 recommendations
Second: Present the project to international institutions and convince them to use the standards
Some international institutions approve acts/regulations/directives (e.g. European Union) which have to be transposed by countries or which are used as parameters for national legislation.
National legislation tends to follow closely the drafting of these acts/regulations/directives.
If those international institutions accept the international standards the countries will tend to accept them when producing national legislation.
International standards for legal drafting:
3 recommendations
Third: Present the project to countries with strong ties and convince them to use the standards
Some groups of countries tend to use similar drafting rules.
Ex: Portuguese speaking countries have legal drafting rules approved by law/regulations (e.g. Angola, Brasil, Cabo Verde, Timor Leste, Portugal, São Tomé e Príncipe).
If countries of these groups accept the international standards other countries with similar drafting rules will probably do the same.
International standards for legal drafting
Good luck for this project!
João Tiago V. A. da Silveira
Morais Leitão, Galvão Teles, Soares da Silva & Associados
Faculdade de Direito da Universidade de Lisboa
+351913460786
+351210050555
www.joaotiagosilveira.org
www.mlgts.pt
