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Priit Pikamäe: Legislative drafting ruled by chaos

Priit Pikamäe.
Priit Pikamäe.

The quality of legislative drafting in Estonia has dropped to a level where we can no longer speak of isolated mistakes but rather a general trend that seems to suggest professional competency required for preparing legal acts has disappeared from ministries, Priit Pikamäe writes.

Public attention was recently captivated by amendments to the Emergency Act. While President Kersti Kaljulaid promulgated the law in the end, she deemed it necessary to comment that the bill serves as an example of poor legislative drafting.

Kaljulaid's comment is entirely warranted, while the problem is not with a single act but rather the overall quality of modern legislative drafting in Estonia.

We mustn't settle for low-quality legislative drafting

Representatives of the legal profession have long since become used to the fact that the modern legal order is dynamic. Legal acts are amended on a daily basis and even the single texts of vital codes become outdated frightfully quickly.

Reasons for amending legislation are often tied to rapid developments in outside environment, the obligation to adopt international acts (European Union, international organizations) and other objective factors, which is why the need to correct legal acts is often inescapable.

However, this does not mean the state couldn't adopt a more coordinated approach to legislative drafting, for example, by avoiding amending the same act over and over and instead bringing changes together in a single bill to be processed once a year. This would allow changes to be discussed in a wider circle of experts and avoid the need of making further amendments to newly passed ones.

Overall poor quality of legal drafting is a far more serious problem. We cannot and must not stand for it.

Legislative drafting – the process of preparing new bills or amendments to existing ones – has its own specifics, as does every aspect of legal work, ignorance or willful disregard for which harms legal order as a whole.

An unprofessional bill, if passed, works to damage legal certainty and clarity, adding to the workload of the judicial system in the form of unnecessary disputes that could have been avoided had the legislator done its job properly.

While the classics tell us that only he who does nothing never makes a mistake, the quality of legislative drafting has dropped to a level where we can no longer talk of isolated mistakes but rather a general trend that seems to suggest professional competency required for preparing legal acts has disappeared from ministries.

We can say, without exaggerating, that the vast majority of bills processed in parliament are amendments to existing acts. This gives parties applying the law grounds to expect amendments to follow existing structure and concepts and avoid unnecessary changes (changes for the sake of changes, so to speak) in situations where problems can be solved based on the existing legal text.

Unfortunately, I'm sure every practicing lawyer can give a series of examples from their field where even the most basic of the aforementioned principles have simply been ignored. The practice of introducing an unnecessary new term for describing the same phenomenon when amending a piece of existing legislation, instead of simply sticking to recent language, has become so commonplace it no longer raises an eyebrow.

While I'm sure generous use of synonyms is a boon to any other kind of text, terms play a very precise role in jurisprudence, meaning that every addition makes the party applying the law ask which legal purpose its introduction was aiming for.

Far more serious problems occur in cases where authors of bills seem to have forgotten basic knowledge of legislative practice, such as the need to structure a longer legal text in the way of using subsections and clauses and what the latter mean.

While every legal provision should have meaning, it is equally important to legally express that meaning in a way that would be clear to those applying the law.

The legal quality of the 2016 Administrative Reform Act was so poor that the Supreme Court's Constitutional Review Chamber had no choice but to draw attention to its shortcomings. The number of complaints from local government councils the Supreme Court had to process would have likely been much lower had the parliament's will been expressed in accordance with good legislative practice.

Serious legislative defects

The current legislative drafting practice seems to consist primarily of adding new norms in between existing ones.

This is the dominant practice for marrying valid legislation to EU law. Complementing an act with a new provision is unavoidable if it concerns a matter that did not require regulation before.

Unfortunately, creating new provisions, at least when it comes to adopting EU law, has become a largely mechanical activity in which process the question of whether the existing act is already in line with EU law is often overlooked, meaning there is no need to amend the law at all, while it is even more common to pay no attention to how a new provision appears next to existing ones.

One unfortunate example of how amending legislation inconsiderately and without heed to existing systematics could seriously complicate its application is the Code of Criminal Procedure dozens of amendments to which have rendered it a true labyrinth of so-called superscripts – norms added to existing ones.

Just how problematic it is to apply the code in practice is reflected in several examples where the Criminal Chamber of the Supreme Court has had to explain at length when to consider the accused as having been prosecuted, even though it is something that should be provided in the law in a clear manner beyond confusion.

Because criminal proceedings are the most invasive in terms of fundamental rights, such a situation, created following an amendment, cannot in any way be regarded as normal.

The only word fit to describe a situation where amendments seem to have no appreciation for the legal branch which they concern is scandalous. That is precisely what happened regarding a 2015 amendment to the penal code that continues to this day to allow a convicted offender and their family to be expelled.

Leaving aside the strong suspicion that the legislator wished to return to the days of Stalinist criminal policy with the amendment, one is left with the conclusion of seriously defective legislative drafting as whatever kind of punishment can only be applied to the offender and no one else.

It is also commonplace for ministry officials to refer people seeking to understand a law to its explanatory memo. The latter have become increasingly baroque hand-in-hand with the decline of legislative drafting quality. An explanatory memorandum cannot replace the text of a law passed in the parliament.

In summary

We can say in summary that declining legislative drafting competency jeopardizes any government's political goals.

The president's criticism concerning the Emergency Act is not an isolated example but part of a bigger problem.

Because the course for academic legal education plotted by universities after Estonia regained its independence usually does not prescribe specialization, preparation of legislative drafting specialists needs to be the coordinated responsibility of the government, but especially the justice ministry and the Riigikogu.

A good place to start would be to really adopt good legislative practice as per guidelines approved by the government already back in 2011.


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Editor: Marcus Turovski

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