Drafting Transitional Justice Laws

Drafting Transitional Justice Laws

Introduction

Hello and welcome to the comprehensive training module dedicated to exploring the profound subject of Transitional Justice. My name is Nicole Calre and I am a Counsel for the Public International Law & Policy Group.

In this session we will look at the process of drafting transitional justice laws, including the role of drafters, rules of drafting, legislation structure, and substance of the law.

The Role of Drafters

Firstly, when you need to draft transitional justice laws, you need to think about your role as a drafter of Transitional Justice legislation.

What should you keep in mind as you embark on putting together the laws that can guide aspects of the transitional justice process in your country?

As a drafter of laws, your role is, in very simple terms, to: 

(1) Convert Policies and Decisions into Words

Essentially, the role of a drafter is to convert complex policies and decisions into words that are understandable and clear.

This is because, in countries around the world, parliaments and courts have recognized that legislation must be able to be understood and applied by the citizens of that country. Namely, citizens have a “right to understand”.  So - complex policies must be codified and captured in a way that is understandable. 

(2) Facilitate Future Interpretation

Secondly, the drafter of legislation must facilitate the future interpretation or enforcement of a policy, decision, or agreement by parties not involved in the initial negotiations. 

This means your legislation must “stand alone” as a document, meaning that someone coming new to the law and picking it up for the first time can understand it and apply it, and be clear in its meaning. 

If the legislation that you draft can do those two things: 

• Put complex policies and decisions into words

• Be interpreted and applied by people in the future

Then you’re already doing very well.  

So, the next question becomes – how can you do this? How can you turn complex policies into words that can be easily understood and applied?  

You can do this by following 6 simple rules for drafting legislation. 

Rule #1. Use Plain Language

It is not true that legislation needs to be technical or complicated, in order to be effective. 

Simple law can be just as effective, and sometimes more, than complicated and complex legislation. 

To illustrate this, listen to these two examples of legislation, which both address the election of members to a Commission on Reparations. If you need to, pause the video to review these two examples, and decide which one you think is more effective: 

Ex. 1: Whereby both candidates are the ultimate recipient of an equal and non-distinguishable number of votes, the choice of membership of the committee will then be decided by, and awarded to, the candidate whose official date of birth is earlier in time and precedes that of the other candidate.   

Ex. 2:In the case of equal number of votes, the older candidate shall be chosen.

This demonstrates that law can be simple, and effective. Use plain language to communicate your ideas.  

This is because every unnecessary word is just an opportunity:

• For ambiguity

• for inconsistency, and 

• for misinterpretation. 

The simpler you can be, the less likely that people will interpret your words differently. 

How do you do this, in practice? 

• Write in short sentences. Keep paragraphs and phrases short. 

• Avoid using terms of art or words that are overly technical, abstract, or subject to interpretation.

• Unless you need to use a word or phrase that has a particular legal or policy significance, always choose simple words that, when given their common, ordinary meaning, convey what you are trying to say.  

So, that is the first Rule of legislation draft – use plain language

Rule #2.  Write in Present Tense, Active Voice

Legislation is drafted in the present tense to convey to the reader that it applies now, not in the past or in the future, but that it governs their actions now in the present.  So: 

Use: “Judicial units are authorised to adjudicate cases”

Not: “Judicial units will be authorised to adjudicate cases”

“Judicial units have been authorised to adjudicate cases”

So – present tense. 

Also, legislation should be drafted in the active voice, rather than the passive voice. Using the active voice tells the reader who is doing the acting first, and then what the action is.

Use: “the Ministry will develop guidelines”

Not: “Guidelines will be developed by the Ministry”

Using the active voice ensures that there is no confusion about who is responsible or obligated by the particular provision.  It also helps to make the document clearer and more concise.

So, write in present tense, and write in the active voice! 

Rule #3.  Use Words and Phrases Consistently

Using words and phrases consistently reduces the risk of ambiguity and confusion

• Do not use different words to denote the same thing.

• Do not use the same word to denote different things.

For example, if you are talking about a “Truth and Reconciliation Commission”, use that term consistently, and don’t later call it a “Truth Mechanism” or the “ TRC,” because this can lead to confusion and misinterpretation of your law. 

You will have seen, for example, that some legislation starts with a list of “defined terms”.  This is often a good idea to help you comply with this rule about consistency. 

Rule #4. Use Norms

Drafting legislation is different from other types of drafting in that it should contain only two things: 

• Norms (meaning rules) and 

• any definitions necessary for the implementation of these norms

Legislation should not contain 

• descriptions 

• explanations, 

• reasons, 

• declarations 

• calls and appeals, or 

• motives behind your law.

If you need to include any of these things to explain the norms, then you will need to revise and re-write the norms themselves to capture what you need to say. 

Rule #5.  Be Precise 

When you are drafting legislation, the words you use matter, particularly those which impose an obligation or give rise to a right. 

For example, be very precise with your use of the following words: 

“Shall” imposes a duty

“Shall not” means there is no duty

“Will” predicts future action

“Must” imposes a positive obligation to act

“Must not” indicates a prohibition

“May” confers authority and discretion to act

“May Not” is a prohibition and a denial of authority

Do not use any of these trigger words without making sure they convey the obligations and rights that mean to codify in your legislation.  In short – be precise 

Rule #6.  Revise, Revise, Revise  

As with all legal drafting, it is important to give yourself enough time to be able to properly review and revise your document before circulation. 

After a day or two away from your draft, you may see things you didn’t see before – phrases or articles which don’t make sense, or are contradicted somewhere else in the document.  You should always edit and proofread your draft, meaning

• check names, dates, figures and other data for accuracy

• eliminate repetition

• remove and replacing unnecessarily complex words and phrases

• eliminate explanations of the obvious

• use the active voice rather than the passive voice, wherever possible

• simplify lengthy, complex sentences and adopting short sentences

• check the use of punctuation to avoid ambiguity and facilitate comprehension

• scrutinize the length and content of sentences and phrases. 

It is also important to remember how useful headings can be! 

You likely know what it feels like to open a legal document and just see a wall of writing. It is often much easier to follow and understand legislation when the writer uses headlines to break up the text.  What do we mean by that? 

   - Give each separate idea its own heading or sub-heading.

Headings and sub-headings guide the reader through the text, and assist with clarity and later interpretation.  The reader can more easily find their way around the legislation, and can understand that these articles or regulations address a particular topic. 

So, to recap, 6 rules for effective legislation drafting: 

• 1. Use plain language

• 2. Write in the present tense and using active voice

• 3. Use words and phrases consistently 

• 4. Use norms

• 5. Be precise

• 6. Revise, revise, revise. 

Next we will talk about the structure and substance of these laws and best practices for putting this legislation together. 

Structure

In terms of how to structure your legislation - where should you start? 

1.Purpose and Preamble

First, is to decide on what norms your law will attempt to codify – what is the essence of your law? 

Are you trying to: 

• establish a regime for reparations?

• establish and set out the structure for a truth commission?

Be clear in your mind what you are trying to establish, and then try to enumerate that idea very succinctly in what we call the “Purpose Articles” or “Preamble”. 

Purpose paragraphs and preambles vary in length, they can be one or two lines, or even several paragraphs. But what is important is that they capture the essence of your law, and preview its substance

2. Commencement provisions 

Legislation will normally include a provision about when a law commences, meaning, when it comes into force.  There are a number of ways that a law can commence: 

• On the day it is officially notified in the Register of Legislation 

• On a stated day in the legislation 

• By commencement notice: “on a day fixed by the Minister by written notice”

• Retrospective commencement (which would need to be explicit in the law)

Depending on the circumstances of your legislation, this is something you should consider when putting together your draft. 

3. Legal Definitions 

Next, legal definitions. Does your law require any terms to be defined up front?  Defining terms can help clarify the meaning of certain terms used, and can help ensure consistency of interpretation throughout your law.  

While legal definitions are valuable tools because they make the legislation shorter, and consistent, you must remember to avoid 

• self-evident definitions – meaning those that are obvious; or

• “surprise” definitions – meaning where there is no clear link between the term used and its meaning. 

It is important to note that once a term has been defined, that definition will apply unless there is an intention that the definition does not apply in a particular context. This will usually need to be explicit. 

4. Scope of the Law

Next, it is important to think about the scope of your law

By scope, we mean where your law will fit within the existing legal order in place. Legislation does not exist in a vacuum.  It must fit within, and be consistent with the other laws already in operation.  This is particularly important if your law is going to overlap in scope with other laws already promulgated. 

Where does your law fit in?  

• For instance, if Your Law overlaps with the constitution, you might be in a position that you have created a “constitution transgression,” and could prevent the actual realization of the enjoyment of substantive legal rights foreseen under the constitution

• If Your Law overlaps with another law, or overlaps with Secondary Legislation, the risk is that you will have contradictory rules in place, or unnecessary norms. 

• Similarly, if there are gaps between Your Law and other similar laws, then you may have areas that remain unregulated, which can also lead to legal uncertainty

So, it is important to be very aware of the legislative landscape in which you are working, and make sure you have read and understood any relevant laws that could impact on your drafting, and you need to make sure your law is well drafted to fit in terms of its 

• substance

• geographic scope

• temporal scope

In doing this exercise, you can also see whether, rather than drafting a new piece of legislation, an existing law can be amended to incorporate the new norms and rules.  

So, that is the scope of your law.  

5. Substantive Provisions 

Once you have taken all those steps, and thought about 

• the purpose and preamble

• the commencement 

• the scope 

You can then move to the heart of the legislation, the substantive provisions

Using the tips for drafting legislation that we discussed earlier in this video, you can start to draft the laws themselves – the norms that will govern the operation of the law. 

Substantive provisions should be drafted in 

• a logical order

• a chronological order, or 

• a factual order. 

Always being internally consistent, the substantive provisions need to guide the reader through the various rights and obligations that govern the subject matter, and make sure that the law is consistent with its purpose (that you have set out in the Purpose Articles or Preamble), and stays within its scope (that you have carefully defined having looked at all other laws that are already in operation). 

That brings us to the end of our discussion on the Structure of your legislation, and we will now move on to discuss the Substance of the law, meaning we will discuss how you can approach what you include in the substance of your legislation, and how you frame the norms and rules that make up the operative provisions of your Law. 

Substance of the Law  

1. Effective Research 

The first step is to research, and to research effectively. Whichever aspect of transitional justice your legislation will be codifying, you will not be the first group to have written legislation on this topic. 

• Collect examples of laws, even those which exist in draft, which cover your subject matter

• Research articles, textbooks and commentary on your topic

• Read other transitional justice legislation, even on different topics, that you think is well written, comprehensive, and easy to understand.  

2. Consider Cross-References 

The second thing you can do in drafting your legislation is to consider whether your law needs to cross-reference to any other law. 

What do we mean by a “cross-reference”?  We mean that Your Law imports a rule from another law into Your Law, by including a norm to that effect.

So, consider this example from the Law establishing the Truth and Reconciliation Commission in South Africa, where a witness protection program was established with reference to the Public Service Act, which was already in force: 

Article 35: Limited witness protection programme

 (1) The Minister shall, in consultation with the Commission, promote the establishment of a witness protection programme in order to provide for the protection and safety of witnesses in any manner when necessary. […]

 (3) The regulations providing for a witness protection programme shall- (a) provide for, among others, the appointment of a private person or the secondment of an official or employee of any department of State in terms of the Public Service Act, 1994, to act as the witness protector.

So consider whether your legislation can benefit from cross-referencing to other laws that may already govern the steps you want to take. 

3. Consistency with international law, and international standards

Lastly, it is always important to consider that your legislation may cover aspects that are the subject of international law, or accepted international standards. 

This can be anything from 

• international human rights law

• international refugee law

• detention standards

• rights of accused

Your legislation should be consistent with and allow all persons affected to exercise their rights under international law and standards.  So have this in mind as you put together your drafts. 

This brings us to the end of this video on Drafting Transitional Justice Legislation.  I hope it has been helpful to you as you embark on this process yourselves in the future.