LEGAL REASONING IN LEGISLATION LEGAL REASONING law #3#2016

LEGISLATIVE PROPOSALS The Legislature makes laws for ‘the peace, order and government of the Federation or any part thereof..’ Section 4(2) of the Constitution. The process of law making often starts with proposals called a white or green paper often generated by pressure groups. They are then presented to the legislative houses in for m of a bill. Examples of bill include the Gender Equality Bill, the Petroleum Industry Bill, etc,.

GROUP WORK Vividly describe the workings of the legislature and the legislative process from when a proposal for a new law is put forward, to when the bill is given presidential assent. What is the role of the draftsman in the legislative process? Do an outline on a bill for ‘Gender equality in Nigeria’, as an example of legislative drafting. Outline all the Canons of interpretation known to you, and gives reasons for their continued use or reform, if need be.

Legislative Drafting Legislative drafting seeks to capture the essence of the bill in such a way that it will scale through senate or the house of reps and get the necessary assent. Nigeria operates a bi-camera legislation consisting of the above two mentioned houses. Except for money bills, any other bill can originate in any of the houses and sent to the other house for review, before it gets presidential assent.

Legislative drafting Process Proposal and drafting First reading Second reading Committee stage Report Stage Third and last reading Presidential assent This reveals the balance of power btwn the legislature and executive arm or presidency.

Legislative Process Proposal and Drafting Stage: Bill will pass through various government agencies who might be involved with its final implementation for their output. First reading: The Bill is introduced to the House where it allows members know the details through the first reading Second Reading: A time is fixed for second reading for further clarifications

Legislative Process Committee Stage: The Bill is then sent to the relevant standing Committee for more detailed deliberation. The various committee is made up of experts in various areas such as health education, security, power, etc. Report Stage: From the various committees, the Bill is again returned the floor of the House for further considerations. Third Reading: The Bill is read for third and last time. It is passed into law by a simple majority or a two third majority of the House. It is then sent to sent to the second legislative House for further deliberations.

Legislative Process Presidential Assent: The President then gives his assent, and the bill is passed into law. If vetoed by the president, the bill is defeated, but may be re-passed by a two-third vote of the two legislative houses. The legislative process is thus balanced between the executive (presidency) legislature and finally the judiciary who have to interpret the Bills when passed.

Types of Legislation Subsidiary or delegated legislation: Bye laws passed by local authorities,commissioners, chief justices.. Public General Act: This applies to all. E.g MCA, Criminal code, penal code Local Act: Made for particular localities. Private Act: for clubs or social groups Consolidating Act: Amendment of existing law Code: Grouping of laws in one aspect into one document, e.g criminal code, CAMA 1990

The Qualities of a Good Draftsman. Not all draftsmen are lawyers. Most are experts in their relevant professional fields. The draftsman must use a catchy and precise title. He must………: Use good language: have a high mastery of language and semantics; Be very organised and familiar with the socio cultural setting ; Identify the mischief that needs to be cured in the bill or object of the legislation; Uses plain english: He must stick to common words and expressions so that the legislators can understand what he means to say;

The Qualities of a good draftsman avoids repetition of different synonyms. Repetition of the same expression is boring ; uses logical sequence : Use of consistent logical words will make it attractive to readers; Avoids ambiguity: make sure the legal sentences used convey the right message and avoid confusion; avoids archaic words: over- dependence on archaic and vague words such as hereto, thereto etc; can make a bill confusing Use interpretation clause: Recognise the fact that terms such as ‘is,’ ‘shall’, ‘will’’ ‘and’ ’’or’ are very sensitive and may have different meanings when used in court or legal documents..

Qualities of a good draftsman use good semantics. He separates words like consent, intention, voluntary, reasonable and gives them a consistent legal meaning aside from their general meaning., employ open ended or textured bills. This means that he uses open texture. He makes the bill flexible enough to cover all forms of areas of interest and possible future situations. This is not always possible as law is always changing. Use Interpretation sections: These are appendages at the end of statute included by draftsmen to interpret the key words they have used in the statutes.

Ambiguity, vagueness, open texture and semantics in drafting. Ambiguity: A statute is ambiguous when it has two or more mutually exclusive meaning and is capable of many interpretations. Vagueness: this is when a statute real meaning is confusing. Open texture: the bill must be precise, but also flexible enough to cover many situations. Semantics: this is use of clear expressions

Canons or Rules of Interpretation The Literal Rule The Golden Rule The Mischief Rule The Purposive Approach The Ejusdem Generis Rule

Canons of Interpretation Despite having access to interpretation section by judges, disputes still arise over actual intent of an act and exactly what it covers Judges over the years have resorted to the so called ‘rules or canons of interpretation’ Judges may decide to use one rule over the other, and then has to stay consistent.

The Literal Rule Under this rule, the courts will give words their plain meaning or ordinary literal meaning even if the result is not very sensible or is absurd. This idea was expressed by Lord Fisher in R.v. Judge of the City of London Court [1892 ] QB 273 However, Lord Bramwell expressed the idea in Hill v. East and West Dock Co. [1884] 9 App. Cas. 448 that what is absurd to one man may make sense to another.

Criticisms of the literal rule The draftsman is not perfect, so errors do occur Relying on plain meaning may not work as words have more than one meaning. Mechanical emphasis on meaning of words leaves out the human element and leads to injustice :see North Eastern Railway Co. v. Berriman.[1946], 1 All ER 255 Law should not be static but respond to dynamic needs of society.

The Golden Rule The Golden Rule is a modification of the Literal Rule. The Golden rule starts by looking at the literal interpretation But the court by applying the Golden Rule, will stop itself from coming to a decision that will lead too injustice or absurdity if only the literal meaning is used. The Golden Rule was first applied in the case of Mattisson v. Hart [1854] 14 CB 357. This was mostly applied to Acts of Parliament, where to use the Literal interpretation would lead to gross injustice.

Golden Rule Narrow view: As far as possible, the judges try to stick to the literal rule or plain words of statute. (Jones v. DPP) [1962] 575 Wider View: See Re: Sigsworth 1935, Ch. 89: Here the a son murdered the mother. It was held that the son could not inherit his mother to avoid him from benefitting from his crime. The Golden rule allows the court to modify the words of statute when it leads to absurdity.

Mischief Rule The Mischief Rule was outlined in Heydon’s case [1584] Co.Rep. 7a along four guides: 1 what was the common law before the making of the Act? What was the mischief or defect for which the common law did not provide? What is the remedy parliament has recommended? What is true reason for the remedy?

Mischief Rule As such the mischief rule is used to suppress the mischief and advance the remedy. See the case of smith v. Hughes. [1960] 2 All ER.In this case the court had to find out what loitering /soliciting in a public place or street meant. Does it also include the balcony or veranda of rooms? The mischief rule will look to an interpretation that will supress the mischief, which in this case is prostitution.

The Purposive Approach Lord Denning in this rule suggested that judges should fill in the gaps. In this way, the law can still arrive at the intention of the Legislature. See Rv. Register General exp Smith [1991] 2 All ER 88 The Ejusdem generis rule: The rule states that where a list of words is followed by general words, then the general words are limited to the same kind of words as the specific words e.g. goat sheep, cow ….would it be right to now add eagle or fish to the list? End of legal reasoning.