Legislative Drafting Istanbul, Turkey March 16-18, 2009 Dr. Mohamed Y. Mattar Executive Director and Research Professor

1. Legislative Drafting Istanbul, Turkey March 16-18, 2009 Dr. Mohamed Y. Mattar Executive Director and Research Professor

2. Session 1: Legislative Drafting – An introduction • Defining Legislative Drafting • Legislative Drafting between Common Law and Civil Law: An Exercise in Two Different Legislative Techniques in Parliamentary Acts, Court Decisions and Private Contracts. • The Nature of Legislation: Administrative, Civil and Commercial Acts • The Vagueness Doctrine in Criminal Matters • Drafting International Legislation

3. Drafting legislation I is like making sausages… It is not always pleasant to see how they are made.

4. “Voidable contract” = A contract that can be affirmed or rejected at the option of one of the parties… Common Law Lawyers Civil Law Lawyers Douglas v. Hello (2007) Marbury v. Madison (1803) “Arrest” = A seizure or forcible restraint Shop among case facts… Shop among legal definitions…

5. Drafting Techniques Between Common Law and Civil Law • Classification in Civil law • Civil law lawyers understand items in terms of broad categories. • To solve a problem, they must first answer the question, “To which category does this problem belong?” • They then ask, “To which sub category does this problem belong?” followed by sub-sub category and so on… If private, is it a civil contract or commercial contract? Is it an administrative contract or private contract?

6. Public Law: Administrative Law • A French concept –Legal rules which are devised to govern activities and relations between private persons should not be held to apply automatically to activities or relations in which the state or some public agency of the state is a party. • Examples of “public interest” contracts include – • Work contracts • Supply contracts • Transportation contracts • Public service concessions • Government procurements • These are administrative contracts subject to administrative law which is a branch of public law and not private law.

7. The Nature of Administrative Law • A number of special rules of public law follows: • The government, as a contracting party, enters into contract in its capacity as a sovereign entity. • (2) The government as such has privileges which a private party does not have. • (3) The government has the right to impose terms of the administrative contract to preserve public interest which prevails over private interest. • (4) The government in these standard contracts has the authority to modify the terms of the contract unilaterally without obtaining the consent of the other contracting party. • (5) The government has also the right to cancel the contract at any time unilaterally. So the rule of private contract law that a “contract is the law of the contracting parties which may not be modified or terminated except with mutual consent” does not apply to administrative contracts.

8. Civil Acts vs. Commercial Acts • Commercial acts are different from civil acts in many ways: • As far as the applicable law, commercial acts are subject to commercial law, while civil acts are governed by the civil law. • Rules of evidence are different. While there are strict statute of frauds requirements regarding civil acts, commercial acts may be proved in addition to writing by other means of proof. For example, oral testimony or commercial records which are kept regularly by a merchant. • The statute of limitations is usually longer in civil transactions than commercial agreements. • Rules of bankruptcy applies to commercial acts while the law of insolvency governs civil acts. • (5) Courts.

9. “How different is this treaty. It lays down general principles, it expresses its aims and purposes, all in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean. An English lawyer would look for an interpretation clause, but he would look in vain. There is none. All the way through the treaty there are gaps and lacunae. These have to be filled in by judges or by regulations or directives. It is the European way.” • Bolmer v. Bollinger, 2 All. E.R. 1226 (1974), Lord Denning U.K. Drafting a Law CIVIL LAW • A civil law statute is drafted in • “general principles”. • It avoids definitions: It uses • words and phrases without • defining what they mean. • It lacks specificity, specific rules are to • be supplied by regulations or directives. • The legal rule in a civil law family is not • considered as merely a rule appropriate to the • solution of a concrete case. The legal rule rises to a • higher level of abstraction. It is viewed as a rule of conduct, endowed with a certain generality and situated above the specific application which courts may make of it in any particular case.

10. A Code does not attempt to provide rules that are immediately applicable to every conceivable concrete case, but rather an organized system of general rules from which a solution may be easily deduced. ACivil Code simply states the law, • Without justification • Without explanations • Without comparisons; and • Without examples • A common law statute states the law by providing, • - Detailed definitions; • - That each specific rule sets out lengthy enumeration of specific applications or exceptions; • - They are based on the specific facts that they are intended to cover.

11. Drafting Styles in International Conventions Hamburg Rules = Civilian Style Hague Rules = Common Law Style E.g. The United Nations Convention on the Carriage of Goods by Sea adopted at Hamburg, March 31, 1978 and in force November 1, 1992 commonly known as the “Hamburg Rules”. • Rule of responsibility in one sweeping article. • Article 5(1) of the Hamburg Rules reads “the carrier is liable for loss” resulting from loss or damage to the goods, as well as from delay in delivery. If the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in Article 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.” E.g.The International Convention for the Unification of certain Rules Relating to Bills of Lading, adopted at Brussels, August 25, 1924, commonly known as the “Hague Rules” • with responsibility in three very long and detailed articles: Article 3(1) on seaworthiness Article 3(2) on care of cargo Article 4(2)(a) to (j) on seventeen exculpatory exceptions.

12. Drafting a court decision is also different between the Civil law and the Common law. 1. Civil law judgments are written in a more formalistic style than common law judgments. 2. Civilian judgments tend to be shorter and are separated into two parts: (i) The motifs (reasons); and (ii) The dispositif (order) • 3. The judge must supply a justification for his/her decision • - These reasons are usually written in terms of “whereas es”, i.e., “attendus” Drafting a Court Decision: Civil Law

13. The judge, in civil law systems, contributes to the law but does not create it, he/she merely engages in “statutory interpretation.” • As to the substance or content/reasoning: • (a) A civil law decision first identifies • the legal principles that might be relevant; • (b) Then verifies if the facts support their application; before • (c) Applying the principle(s) to the facts; and • (d) Reaching a conclusion. • As to the facts mentioned : • (a) Only the facts relevant to the advanced principle need be stated. • (b) In fact, even these facts are not stated in full and sometimes ignored. • As to facts of other cases: • (a) These need not be mentioned at all, since a civil law judge is not bound by other cases and will not follow precedents he does not rely on them.

14. Statutory Interpretation The Plain Meaning Rule Reasoning by Analogy Equivalent to old doctrine “Where the meaning is plain, clear and unambiguous, on its face, so that taken by itself, it is fairly susceptible of only one construction, that construction must be given to it and any inquiry into the purposes, background, or legislative history of the statute is foreclosed.” • Common law principles of interpretation “statutory interpretation” include the legislative intent or the intention of the legislator. An historical interpretation clarifying present texts in light of previous circumstances may be the logical approach. • Analogy extends the application of the statutes not only to those cases which it covers by its plain words but to cases which it plainly does not cover, and that is why, analogy in the traditional Civil law doctrine has been regarded as something fundamentally different from interpretation. • Analogy is one special technique of interpretation: Interpretation means implementing the law; Analogy means supplementing it.

15. Can you do without a text in a Civil law jurisdiction? Swiss Civil Code, Article 1 Venezuelan Civil Code, article 4 Swiss Civil Code, Article 1 • So in Switzerland, the judge may apply the statutory provision or a customary rule or even a rule created by the judge and in Venezuela, the judge may apply the statutory provisions applicable to similar or analog cases or the general principles of the law in that order. “The Code and Statutes govern all the matters to which the letter or the spirit of one of their provisions refer failing an applicable legal provision, the judge will decide according to customary law, and in the absence of a custom, according to the rules he would establish if he had to act as legislator. He draws inspiration from solutions sanctioned by the doctrine and the holdings of the Court.” “One must give to the Code and Statutes the sense which seems evident from the literal meaning of the words, in accordance with the links that exist between the words themselves and between the words and the intent of the legislator. When no Code or statutory provision controls, one must consider other provisions of law that regulate similar or analogous cases, and if the interpreter still has doubts, he shall apply the general principles of the law.”

16. A common law judicial opinion is written differently. The emphasis is on the facts. • It involves a detailed discussion of the facts not only the facts of the particular case, but also facts of other cases presenting similar but not identical facts. • It is a process analogous to the process of statutory interpretation. • This technique requires that the judgment – • Step 1 - Expose the facts; • Step 2 - Compare the facts; • Step 3 - Distinguish the facts from the facts of previous case; • Step 4 - Decide, if not create, the specific legal rule to the present facts. Drafting a Court Decision: Common Law

17. The Common law judge decides the case and in the process creates the law. • Another judge comes and may broaden or narrow the rule of law and thus extends or add new extensions to existing rules. • So the common law is a law defined in terms of past judicial decisions. • Common law lawyers fashion their arguments from a close study of prior cases. Their success as lawyers depends on persuading the judge in each case of the accuracy of the analogies between their client’s situation and that of the precedents they cite, or that their client’s situation is different from situations that arose in the precedents they hope to distinguish. • Facts thus are central to the very meaning and concept of law. • It implies dependency on argument and therefore common law judges’ skill lies in reasoning by analogy and distinction between a particular confluence of factual circumstances and legal issues. That is why the Common Law legal systems, unlike their Civil law counterparts, have developed a highly sophisticated methodology for “interpreting case law” or technique of distinguishing cases,

18. Rules embodied in a Civil Code are of two kinds: A. The compulsory rules – imperative, prohibitive B. The supplementary rules – interpretive, declaratory • Therefore, in drafting a contract – • The terms and conditions must comply with the compulsory rules of a code, while a contract clause may provide for a contrary rule to a supplementary rule. • So an agreement which runs counter to a compulsory rule would be void. • E.g. If you agree to a certain interest rate which violates the rule regarding interest, your agreement or at least the interest provision, shall be invalid. • E.g. If you agree to a term which specifies a rule contrary to the Code rule that price shall be paid at time of delivery, that is okay. • E.g. If you do not agree to the time of payment, the rule of “price upon delivery” which is merely supplementary in nature, shall apply. Drafting a Contract

19. Question: Are both types of rules binding on the contracting parties? The answer is yes, however, there is a condition of applicability which must exist before the application of the supplementary rule, that is “Absence of an agreement to the contrary.” Question: How would you know what type of rule do we have? A material method – the rule itself would provide “unless agreed otherwise. . .” or whether the rule relates to public order.

20. Which system is best? The perceived difference between Common law and Civil law approaches is that one is bound by case precedent and the other wedded to an unyielding code… • Predictability: • It is said that the law in a civil law tradition is predictable and certain. • Because it is build on logical broad principles and general rules. • However, this is not entirely true because the less specialized the legal rule is, the greater will be the work of judicial interpretation and judicial discretion.

21. Accessibility: • It is argued that the Civil law rules are easier to find. • The very concept of “legal rule” means that there are far fewer actual rules of law. By contrast, in common law, you have to research complex cases to find what the common law rule is. It follows that it is easier to acquire knowledge of civil law and thus a civilian lawyer would have less trouble than his English counterpart in telling his client what legal rule(s) will be applicable to his problem. • That is why the Restatement of the law was favorably looked upon by jurists of countries with codified systems. Because for them it was seen as a tool providing systematic exposition of American law in a form not dissimilar to their own aides. • But a Restatement is no more than a private compilation with no official authority although it is often cited in court decisions. Thus, it is not a code though you may call it a digest.

22. Adaptability • It is argued that the Common law strength is its adaptability and that every case has a solution and that every decision adds to its richness. It is an “open system” every court decision adds a rule or extends the application of an existing rule while the civil law system is a “closed system”. • A civilian judge is not allowed to do more than apply the rule to the fact and cannot create a new rule. • Cost: • Judicial precedents build the system, one case at a time each different from the other. Most common law lawyers are therefore specialists only in certain area(s) or specific area(s) of the law. If they need an answer in a field outside their expertise, they usually have to consult a colleague specializing in that field. All of this makes the common law system very expensive and the cost of administering justice under a common law system becomes a grave injustice in itself.

23. A quick answer is that – The Civil Law is based on Roman Law whereas the Common Law is relatively immune from Roman influence, but there are similarities between Roman Law and the English Law. • Both systems were built up through the discussion and decision of cases and law was perceived as essentially law discovered through debates among experts over particular sets of facts rather than as general rules laid down by a legislature. • In both systems, the major part of the law actually emerged out of recorded discussions of cases. • A second and related feature is that legal development centered around particular forms of action. Legal discussion was concerned with remedies rather than rules. In both systems, a plaintiff could only bring an action by obtaining a document from a magistrate identifying the precise type of claim that he was asserting. What is the most obvious difference between the Common Law and the Civil Law?

24. Equity • In both systems, there were perceived to be two distinct bodies of law. • (1) On the one hand, the traditional which became rigid and difficult to change. • (2) On the other, a more flexible set of rules based on the idea of fairness and justice. Both bodies of law were administered by the praetor but were recognized as belonging to separate jurisdiction: the ordinary and the extraordinary. • Both bodies of law were administered by separate courts applying common law and equity respectively. • In many respects, modern Civil Law system seem much more alien to the Common Law lawyer than does ancient Roman Law…

25. Drafting Private Contracts: Model Franchising Agreement

33. The Vagueness Doctrine in Criminal Matters • Unconstitutionality of Criminal Law for Vagueness • The 5th Amendment and 14th Amendment • Restrictions on Law Enforcement and Judicial Discretion. • Problems in Defining Vagrancy: Does it include loafing and strolling? • Problems in Defining Loitering • What constitutes credible and reliable identification? • Does a commercial sex act include pornography?

34. U.S. Constitution Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

35. Amendment 14 - Citizenship Rights. Ratified 7/9/1868 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

37. Compromise in International Legislation UN C.I.S.G. 1980 Article 16 (1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. (2) However, an offer cannot be revoked: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. Iraq Ratification: Accession - 5 March 1990; Entry into force - 1 April 1991

39. The United Nations Protocol on Trafficking: Weak International Standards for the Sake of Creating International Consensus

41. Article 6. Assistance to and protection of victims of trafficking in persons 1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential. 2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence. 3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. 4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. 5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. 6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.

43. Article 7. Status of victims of trafficking in persons in receiving State In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors.

44. Article 9. Prevention of trafficking in persons 1. States Parties shall establish comprehensive policies, programmes and other measures: (a) To prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons, especially women and children, from revictimization. 2. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. 3. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. 4. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. 5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.

46. Session 2: The Development of Legislation in the Arab World • The influence of the Majelle • The influence of the Egyptian Civil Code • The work of Al-Sanhuri • The Personal Status Law

47. The Separation of Figh (Islamic Law) and Qanun (Positive Law) 1804 French Civil Code 1830 Ottoman Empire: Adopts French Commercial Code 1992 Yemen: Adopts Civil Code based on Shari’a 1926 Al-Sanhuri publishes Le Califat 1934 Lebanon: Code of Obligations and Contracts 1938 Al-Sanhuri publishes the “Need to Revise the Egyptian Civil Code” 1948 Egypt: Al-Sanhuri drafts Civil Code 1949 Iraq: Iraq Civil Code 1949 Egypt: Egyptian Civil Code 1949 Syria: Syrian Civil Code 1925 1950

48. Iraqi Civil Code The Iraqi Code was “the first modern code to join together Islamic jurisprudence and modern Western law on an equal basis” and it was “the most important experience in modern civil codification”. Al-Sanhuri (1962) p.24 • Followed the Egyptian Model in terms of divisions used to organise material. • Takes the Majallaas its main source, supplemented with several recently enacted Iraqi laws (i.e. Land Law/Property Laws)

49. Shari’a as a Source of Law Shari’a Law shall apply in the absence of express legislation, provision or custom. Qatar, Article 4, Civil Code and Commercial Code Applicable sources of law: Mandatory Legislative Provision Special Agreements concluded by the Contracting Parties Commercial Customs The Laws concerning civil matters Adjudication and deduction from judgments based on the principles of Islamic Law Bahrain, Article 2, Law of Commerce 1987

50. Provisions That Confirm Islamic Law as a Source of Civil Law In the absence of any applicable legislation the judge shall decide according to the custom and failing the custom according to the principles of Islamic law. Egypt, Article 1, Civil Code The Code governs all questions of Law which come within the letter or spirit of any of the provisions. If the Code does not furnish an applicable provision, the court shall decide in accordance with Islamic Law, if not, with customary rules; if not, with the principles of natural law and equity. Algeria, Article 1, Civil Code 1975