The 2011 Sir William Dale issue of the EJLR brings together articles which touch on different aspects of legislative drafting and law reform. This issue I think will be remembered for the originality of the arguments put forward by the contributors. Some of the articles introduce new concepts and criteria in our understanding of law reform and the study of legislative drafting in particular and I think they will become main reference points for similar studies.
The first article on gender neutral legislative drafting comes from one of New Zealand’s most distinguished legal scholars and parliamentarians – indeed a former Attorney-General and later a speaker of the Parliament – Professor Margaret Wilson who gave this presentation on the occasion of the 10th Sir William Dale Memorial Lecture at the Institute of Advanced Legal Studies (University of London). In the last 40 years gender neutral drafting has been an important aspect of the campaign for plain English in legislation and as Professor Wilson notes: “The importance of language in securing the equality of women cannot be under-estimated. Through language we acknowledge or ignore women.” Of course, the efforts of legislative drafters depend on the policy makers and their willingness to embrace gender neutral drafting but in some countries, such as New Zealand, there is visible progress.
William Robinson, a former drafter for the Commission of the EU, uses the European Arrest Warrant as a case study in order to discuss drafting ‘good laws’ in the EU context. He concludes by noting that the 23 official languages (and therefore 23 authentic texts) and, more importantly, the negotiating process, constitute serious obstacles to drafting good legislation and asks: “Can that process lead to a text that is sufficiently precise and clear to serve as a legal act?” William Robinson’s contribution is quite important because he seems to have identified a new criterion in assessing the negotiating process behind European legislation. Normally the EU negotiating process is assessed using political science micro-theories. The implications emanating from textual compromises which lead to ‘bad drafts’ are rarely examined in the context of EU studies, and certainly not in the context of legislative drafting studies.
Rozmizan Muhamad, a drafter at the Malaysian Attorney-General’s office, tackles a favourite complaint amongst professional drafters: drafting instructions. Articles on drafting instructions tend to be a litany of ‘woes’ based on the personal experience of the author. What is different about this article is that it examines the impact of drafting instructions in the Malaysian context using concrete quantitative and qualitative data collected from different drafters in that jurisdiction (Malaysia). The originality of this work cannot be emphasized enough and it will certainly become a reference point for future studies on drafting instructions.
Rayneck Matemba’s article takes a very interesting ‘back to the future’ approach on judicial activism. The 1960s darling of the liberals, judicial activism, has been the subject of constant criticism since the mid-1980s by advocates of judicial restraint (or legal minimalism). The logic of this criticism has been quite straightforward and roughly stated it centres on the ability of unelected officials (i.e. judges) to change or nullify policies made by democratically elected governments. Rayneck’s hypothesis, that “judicial activism is a necessary tool for attaining justice and achieving social transformation” is refreshing exactly because it revives the old arguments using two African countries (Nigeria and South Africa) as case studies.
In a similar vein (and frame of mind) to Rayneck Matemba’s hypothesis, Kadija Kabba examines the concept of judicial review in the context of a single jurisdiction (Sierra Leone). Her view is that “judicial review is an essential tool for curbing the excesses and abuse of executive powers in administrative action in Sierra Leone” noting that there is one necessary condition: an independent and fearless judiciary. Kadija Kabba concludes that judicial review alone will not safeguard citizens’ rights against abuses emanating from executive power in administrative action unless specific measures are put into place.
On the whole this issue has something for everyone. Theoretical arguments and empirical observations mix well together and we have avoided the infamous dry legislative drafting narratives which special issues editors dread.