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    How to Make Effective Legislative Proposals: The Jamaican Legislative Process
    How to Make Effective Legislative Proposals: The Jamaican Legislative Process
    How to Make Effective Legislative Proposals: The Jamaican Legislative Process
    Ebook154 pages2 hours

    How to Make Effective Legislative Proposals: The Jamaican Legislative Process

    By Bilika H. Simamba

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    This book outlines the way in which legislative proposals in Jamaica are conceived and processed. It also contains best practice suggestions on working with Parliamentary Counsel. Those suggestions are based on the authors well-received earlier publication The Legislative Process: A Handbook for Public Officials (2009). That book was featured significantly in The Parliamentarian: Journal of Commonwealth Parliaments, 2010, Issue 1 XCI. In a review contained in The Loophole: Journal of the Commonwealth Association of Legislative Counsel (August, 2010), the reviewer wrote, In these times of recession I commend this book to anyone in Government wishing to improve processes to enable the production of legislation with improved efficiency and cost effectiveness. And in the Statute Law Review (April, 2010), 31(2), with reference to its suggestions for improved efficiency, it was said that
    ... there is little that can be described as other than good advice here.
    LanguageEnglish
    PublisherAuthorHouse
    Release dateJul 15, 2013
    ISBN9781481770835
    How to Make Effective Legislative Proposals: The Jamaican Legislative Process
    Author

    Bilika H. Simamba

    Bilika H. Simamba was trained as a legislative drafter in Britain and Canada. Since then he has drafted legislation full-time for over two decades in four jurisdictions in the British Commonwealth and has also undertaken short-term consultancies. His articles on legislative drafting and in selected areas of substantive law have appeared in leading journals in the United Kingdom, Germany, South Africa, Zambia and elsewhere. He has worked as a long-term consultant for the Commonwealth Fund for Technical Cooperation, fielded to the Caribbean, and on two World Bank technical assistance projects in Africa. Mr. Simamba has also taught legal drafting at the International Development Law Institute in Rome, Italy.

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      How to Make Effective Legislative Proposals - Bilika H. Simamba

      2013 Bilika H. Simamba. All rights reserved.

      No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

      Published by AuthorHouse 7/15/2013

      ISBN: 978-1-4817-7085-9 (sc)

      ISBN: 978-1-4817-7084-2 (hc)

      ISBN: 978-1-4817-7083-5 (e)

      Library of Congress Control Number: 2013911561

      Any people depicted in stock imagery provided by Thinkstock are models,

      and such images are being used for illustrative purposes only.

      Certain stock imagery © Thinkstock.

      Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid.

      The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

      CONTENTS

      Cases Cited

      Legislation Cited

      Why Write The Book?

      Preface

      Acknowledgements

      Chapter 1   General Introduction

      1.1 The meaning of law and related terms

      1.2 The basics

      1.2.1 The staffing and functions of the office of the Parliamentary Counsel

      1.2.2 The fair success of efforts to train and retain drafters

      1.3 The purpose and structure of this book

      Chapter 2   Practices And Procedures

      2.1 Introduction

      2.2 How ministerial responsibilities are assigned

      2.3 The dynamics of proposing and drafting a law

      2.3.1 General

      2.3.2 External consultants

      2.3.3 Other aspects of the dynamics

      2.3.3.1 A plea for understanding

      2.3.3.2 Meetings and working groups

      2.3.3.3 Anticipating questions that may be raised in Parliament

      2.3.3.4 Quality assurance

      Chapter 3   The Legal Reform Department

      3.1 Introduction

      3.2 Specific functions of the Legal Reform Department

      Chapter 4   Entry Into Force And Application Of Laws

      4.1 Introduction

      4.2 Entry into force of laws

      4.2.1 Entry into force of Acts passed by Parliament

      4.2.2 Entry into force of regulations

      4.2.3 Exercise of powers before commencement of legislation

      4.2.4 Gazettal of laws

      4.3 Application of laws

      4.2.4 General

      4.2.4 Use of the Interpretation Act in applying laws

      4.4 Savings and transitional provisions

      4.5 Retrospective laws

      4.6 Repeal, annulment and non-revival of laws

      Chapter 5   Layout And Structure Of Laws

      5.1 Introductions

      5.2 External anatomy of laws

      5.2.1 Preamble

      5.2.2 Memorandum of Objects and Reasons

      5.2.3 Enacting clause

      5.2.4 Long title and short title

      5.2.5 Headings and other labels

      5.2.5.1 Main headings, subheadings and similar matters

      5.2.5.2 Schedules

      5.2.5.3 Marginal notes

      5.2.5.4 Forms

      5.2.5.5 Columns and rows

      5.3 Numbering and indexing of laws

      5.4 Numbering and layout of provisions in a law

      Appendices

      Appendix 1 Format for Cabinet Submissions

      Appendix 2 Points on Drafting Instructions

      Appendix 3 Extract from the Law Revision Act, 1969

      Appendix 4 Notice of Committee Stage Amendments

      Appendix 5 Glossary of Terms

      Further Reading

      DEDICATION

      FOR

      Chakwana M. Simamba

      CASES CITED

      Cases Cited: UK and other Commonwealth countries

      (other than Caribbean)

      Attorney General v Lamplough (1873) 3 Ex D 214, UK CA:5.2.5.2

      Black-Clawson International Ltd v Papierwerke Waldhof - Aschaffenburg

      AG [1975] AC 591, UK HL:5.2.4

      Fisher v Raven [1964] AC 210, UK HL:5.2.4; 5.2.5.1

      Fletcher v Birkenhead Corporation [1907] 1 KB 205:5.2.5.1

      Flower Freight Co Ltd v Hammond [1963] 1 QB 275; [1962]

      3 WLR 1331:5.2.5.2

      Knowles v Liverpool City Council [1993] 1 WLR 1428, UK HL:5.2.4

      Montila v Regina [2004] UK HL 50:5.2.2; 5.2.5.3

      Powell v Kempton Park Racecourse Co [1899] AC 143, UK HL:5.2.1

      Qualter, Hal & Co Ltd v Board of Trade [1962] Ch 273,

      UK CA:5.2.5.1

      Re a Solicitor’s Clerk (1957) 1 WLR 1219:4.5

      R v Levine (1926) 46 CCC 342, Manitoba CA:4.5

      R v The Inhabitants of St Mary, Whitechapel (1848) 12 QB 120:4.5

      West v Gwynne (1911) 2 Ch 1, UK CA:4.5

      Cases Cited: Caribbean

      Attorney General v S (A Juvenile) (1994-95) CILR 109,

      Grand Ct (Cay):2.6

      Attorney General v Wood (1988-89) CILR 128,

      Grand Ct (Cay): 5.2.5.3

      Bebo Investments Ltd v Financial Secretary, BVIHCV 2007/0151 (BVI):5.2.5.1, n 13

      Brandon v Proprietors, Strata Plan No 30 (1994-95) CILR 464,

      Grand Ct (Cay):5.2.2

      Collins v R (1980-83) CILR 27, CI CA (Cay):5.2.1

      Cupidon v Cruz-Martinez (1998) CILR 216, Grand Ct

      (Cay):5.2.2; 5.2.5.3

      Diaz (Anthony) v The State (1989) 42 WIR 425, CA (T and T):4.6

      Ex parte Barbados Telephone Co Ltd (1978) 33 WIR 45,

      HC (Bbdos):2.8, n 3

      Hilroy Humphreys v Attorney General of Antigua and Barbuda,

      ANUHCV 2005/0628, HC (Ant and Barb):4.5, n 2

      Hyman Joseph v Saint Lucia Air & Sea Ports Authority,

      SLUHCV 2006/0110 (St Lucia):5.2.1, n 2

      Pamela Tyrell v Director of ONDCP, HCVAP 2007/006, ECCA

      (Ant and Barb):4.6, n 10

      R v Whorms (2008) CILR 188, Grand Ct (Cay):5.2.4

      Regina v Boothe (1993) 30 JLR 452, CA (Jam):5.2.5.3

      Smith (B) v R (1988-89) CILR N-19, Grand Ct (Cay):5.2.5.3

      St Lucia Air and Sea Ports Authority v Leroy Mathurin et al,

      HCVAP 2008/035, ECCA (St Lucia):5.2.5.1, n 15

      Williams (Early) v The State (1994) 47 WIR 380,

      CA (T and T):4.6, n 12

      LEGISLATION CITED

      Access to Information Act, 2002 (Jam)

      s 25.2.1

      152.3.1

      192.3.1

      Casino Gaming Act, 2010 (Jam)

      2(1)4.2.1

      2(2)4.2.1

      Constitution of Jamaica (Jam)

      s 1(1)1.1

      342.9

      372.9

      492.9

      502.9

      562.9

      572.9

      602.9

      60(1)2.9

      63(1)2.11

      63(2)2.11

      64(1)2.11

      64(2)2.11

      64(3)2.11

      64(4)2.11

      64(5)2.11

      9(1)2.3

      Jamaica (Constitution) Order in Council, 1962

      s 132.7

      142.7

      152.7

      615.2.3

      682.2

      702.2

      772.2

      Interpretation Act, 1968 (Jam)

      s 31.1

      154.2.1

      164.2

      16(1)4.2.1

      234.6

      244.6

      25(1)4.4

      25(2)4.6

      274.4

      30(1)4.2.2

      30(2)4.2.2

      30(3)4.2.2

      30(4)4.2.2

      30(5)4.2.2

      31(1)4.2.2

      31(2)4.2.2

      334.2.3

      56(1)5.2.1

      56(2)5.2.5.1; 5.2.5.2; 5.2.5.3

      575.2.5.4

      634.3.1

      Law Revision Act, 1969 (Jam)

      s 102.4

      Protected Disclosures Act, 2011 (Jam)

      s 105.4

      Sexual Offences Act, 1986 (T and T)

      s 314.6

      Sexual Offences Act, 2009 (Jam)

      s 25.4

      55.4

      WHY WRITE THE BOOK?

      A government is run within a legal framework. For that reason, it is crucial that legislation is conceived, processed and passed at the required pace. For this to be achieved, all entities involved in the legislative process must play their role effectively. One of these is the Office of the Parliamentary Counsel. The office drafts legislation in accordance with policy instructions received from client institutions. Therefore, it is important that those client institutions interface with the Office of the Parliamentary Counsel in a manner that is conducive to the efficient production of legislation that is legally and administratively effective.

      In over thirty years of drafting legislation in the Caribbean and elsewhere in the developing Commonwealth, I have come to the firm conclusion that what is often presented as a problem of drafter shortage is in large measure a shortage of public officials who are trained in how to work with legislative drafters in an optimal way. It is for that reason that, after speaking at international conferences and writing articles on the issue, I thought that I might continue those efforts by developing a series of jurisdiction-specific books which I hope will assist public officials in gaining the knowledge they need to facilitate the work of legislative drafters. The first of these books, which is referred to in the Preface, was on the Cayman Islands, where I work. Outside of the Cayman Islands, I thought Jamaica, being the largest English-speaking jurisdiction, would be the next among several that I hope will follow in future.

      BHS

      PREFACE

      The giving of instructions to legislative drafters is a skill. It requires the instructing official to be familiar with key aspects of the legislative process. The official needs to be conversant with the legislative practices and procedures within the executive arm of government and, to some degree, Parliament. He must be familiar with issues that arise frequently while giving instructions in areas such as the entry into force and application of legislation. Further, he needs to be well acquainted with certain words and concepts that he will often encounter in his dealings with the drafter and how they are relevant to his proposals and their processing.

      With that in mind, the officials whom I hope will benefit from this book include:

      (a)   public officials in the Government of Jamaica – such as Permanent Secretaries, Deputy Permanent Secretaries, heads of department and other senior officials – who try to flesh out policies adopted by the government, some of which the officials themselves may have initiated;

      (b)   senior officials in quasi-government organizations, especially statutory corporations, who may request amendments to, or review of, their governing statutes or legislation that they enforce;

      (c)   lawyers in government who advise on the application of legislation and may participate in making legislative proposals;

      (d)   Cabinet Ministers and legislators, who scrutinize legislation;

      (e)   officials outside government, such as those in non-governmental organizations (NGOs), who make legislative proposals;

      (f)   journalists who have to report to the general public, clearly and concisely, on matters directly or indirectly related to proposed legislation;

      (g)   officials in international organizations who work with the government to help it enact legislation arising out of international obligations;

      (h)   lawyers outside government who often have opportunities to undertake consultancies drafting legislation but lack the necessary knowledge of government legislative processes;

      (i)   lawyers learning how to draft legislation on the job;

      (j)   law students who wish to have nutshell exposure to how the legislative process works;

      (k)   students pursuing studies relating to the public service; and

      (l)   Jamaicans and other persons resident in Jamaica who wish to understand how laws affecting them are made.

      This is the second book in a country-specific series that began with How to Make Effective Legislative Proposals: Cayman Islands Legislative Process (Bloomington, Indiana: AuthorHouse, 2012). More extensive discussion of many of the topics covered, as well as practices in other Commonwealth jurisdictions, can be found in my original work, The Legislative Process: A Handbook for Public Officials (Bloomington, Indiana: AuthorHouse, 2009), from which much of the content of this book is derived.

      This book has two intertwined components. First, it describes the legislative process in Jamaica from the time legislative proposals are conceived to the time when the legislation that is eventually enacted is brought into force. Second, it contains information that an instructing officer in any Commonwealth jurisdiction needs in order to effectively play his role. Occasionally, in order to give greater perspective to some of what is said, I have referred to practices in other jurisdictions, but I have kept this to a minimum.

      In dealing with the two Houses of Parliament, which are the House of Representatives and the Senate, I have sometimes referred only to provisions applicable to the House of Representatives. However, it must be remembered that there are often equivalent provisions for the Senate. Where provisions governing the Senate are not stated in the body of the text, I have referred to them in footnotes. On the whole it must be remembered that the provisions of the Standing Orders of the House of Representatives and those of the Senate are identical in most respects discussed in the book.

      BHS

      ACKNOWLEDGEMENTS

      I would like to thank the Hon Minister of Justice Mr. Mark Golding for welcoming the idea of writing a book on this aspect of the Jamaican legislative process, while recommending that I work with a Jamaican jurist. In following that advice, I was happy to liaise with Chief Parliamentary Counsel Albert Edwards who, together with his team, assisted me with certain information necessary for the

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