APRIL 25  — De facto Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar said that many people did not really understand the challenges in drafting a law that would be passable in the Parliament.

He is right.

More than half a century ago, a draftsman at the Ministry of Law and Secretary, Law Commission, India wrote as follow:

“Legislative drafting is a difficult art. It is the art of expressing in concise and clear language the ideas of other people. It is difficult enough to express one’s own ideas. It is much more difficult to express other people’s ideas. The difficulty is all the greater when there is a doubt about the person whose ideas one is required to express.” (SK Hiranandani, ‘Legislative Drafting: An Indian View’ [1964] 27 Modern Law Review, 1)

Whose ideas does a legislative enactment express?

Are they the ideas of the Minister-in-charge of a particular Bill?

De facto Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar said that many people did not really understand the challenges in drafting a law that would be passable in the Parliament. — Bernama pic
De facto Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar said that many people did not really understand the challenges in drafting a law that would be passable in the Parliament. — Bernama pic

Accordingly, the draftsman considered his task as one for a superman. Not that draftsmen are infallible persons who never make mistakes. They do often make mistakes for which no one but they can be blamed.

It is just that a draftsman performs a difficult task in difficult circumstances and his work should, therefore, be viewed with sympathy.

More so when the task is a thankless one. A draftsman rarely gets credit for a good draft, while is often blamed for a bad one.

The great Lord Denning once said that a legislation is never drafted with divine prescience and perfect clarity. It is not an instrument of mathematical precision.

This is where the draftsmen have often been unfairly criticised.

Having said all of the above, it is crucial that a draft Bill be examined and scrutinised. Especially so when drafting a Bill in itself is a continuous process of “self-scrutiny and self-criticism”. (See P. M. Bakshi, ‘The Discipline of Legislative Drafting’ [1992] 34 Journal of the Indian Law Institute, 1)

Accordingly, wherever possible, Bills should be referred to a parliamentary select committee (PSC) to consider a Bill. This would allow a Bill to be scrutinised, especially if the Bill is complex, controversial or has wide-ranging impact.

On that note, it is heartening that Wan Junaidi has referred to people like Gobind Singh Deo from Democratic Action Party (DAP), Datuk Sri Azalina Othman Said and Datuk Seri Mohamed Nazri Abdul Aziz from Umno, Datuk Seri Hamzah Zainudin from Parti Pribumi Bersatu Malaysia (Bersatu) and Datuk Seri Takiyuddin Hassan from Parti Islam Se-Malaysia (PAS) who are on the PSC to examine and scrutinise the Constitution (Amendment) (No. 3) Bill 2022.

He is understandably satisfied with their cooperation and that of the legal experts.

But what about the lay persons?

Sometimes a lay person can also make a good scrutiny of a Bill. According to Bakshi, the lay person can often infuse a breath of fresh air. It is said that the vision of the expert tends to become limited and may need a lay person’s approach.

After all, the Bill that is to be passed into law will have a practical effect on the lay persons.

So Minister, when will the PSC issue a press notice outlining its terms of reference, and inviting interested parties from among the public to submit written representations on the Bill?

The above typically follows the reference of a Bill to a PSC.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.