Ethics and Legislative

Drafting
BY Sarah N Vranckx
Faculty of Law, Unam
September 2023
Objects of the lesson
To broaden the students’ understanding of the ethical
and moral standards expected from a reasonable
person.
What is ethics?
What do you understand about ethics and morality?
What is ethics?
Ethics means considering what is good and right for
the self and for others as expressed by the golden rule:
“to treat others as you would like to be treated
yourself.”
In the context of the organisations, ethics refers to
ethical values applied to decision-making, conduct,
and the relationship between the organisation,
stakeholders and the broader society.
What is ethics?
Criteria for making moral decisions.”
 (R. M. Bittick) …or
“…a systematic attempt through the use of reason to
make sense of our individual and social moral
experience in such a way as to determine the rules
which ought to govern human conduct…” …or
A process by which we clarify right and wrong and act
on what we take to be right.
 (Robert Denhardt)
Why code of ethics?
The Code aims at promoting an open, fair, equitable
and transparent process and to improve the overall
functioning of the society.
It serves as a guide when in doubt about the possible
implications of an action or decision.
Ethical Principles
Accountability
Competence
Confidentiality
Empathy and caring
Honest, integrity and dignity
Impartiality
Professionalism
Respect
Fairness
Ethical dimensions of legislative drafting
The ethical dimension of legislative drafting is the
most sensitive to both drafters and governments.
Traditionally, drafters are considered to have
professional responsibilities.
There are 4 different dimensions to the drafter’s
responsibilities
What are those dimensions?
Dimensions
There are four different dimensions to the drafter’s
responsibilities are:
The drafter’s duties
Duty of Loyalty
Competence
Confidentiality or non-disclosure
Scope of the drafter’s duties
Legislative drafters have a duty to their clients but we
must make a distinction between the civil servant
drafter and the drafter in a law firm.
The difference is that the former (especially those in
permanent posts) can claim to have a public duty
while the latter have a duty primarily to their client,
whoever that may be.
As public servants they are objective, neutral and
nonpartisan advisors within a large bureaucracy.
Scope of the drafter’s duties
In Third world and emerging democracies, the drafter
may find themselves in a difficult position as the
custodian of the rule of law.
In some countries, the drafters have the additional
responsibility of transforming the institutions or the
system itself. The temptation to insert personal beliefs
is great and must be resisted.
Do their obligations as public servants, employees of
Parliament or legislative assemblies, override their
professional obligations as lawyers?
Duty of Loyalty

To whom do drafters owe loyalty? To their

political/government masters or the public? Perhaps
more importantly what does this “duty” entail?
Does a drafter have the right to refuse to draft a law
he/she finds personally immoral?
Faced with competing ministries, whose bill does the
drafter complete first?
Should bills be drafted in a way that by-passes certain
officials (presumably those likely to oppose it) if so
requested?
Duty of loyalty
Personal conflict of interest is used to describe the
intermingling of private interest and public duty. For
example, the offer of a gift as a reward for completing a
job.
Professional conflict of interest is defined by those
rules of professional conduct, which govern the
behaviour of lawyers in their relationship with clients.
For example representing two clients whose interests
are adverse in nature.
Duty of loyalty
Institutional conflict of interest exists because of
the environment in which the individual works. For
example, in some jurisdictions this type of conflict
arises because of the dual nature of the Minister’s role
as Minister of Justice and Attorney General
Competence
Competence refers to possessing the skills and
attributes, and exhibiting the conducts that are used to
define and measure suitability for a certain role or
function.
Drafters must translate policies in a way that solves
effectively the perceived problem and do so in
unambiguous language and in a way that ensures that
these laws can be integrated into the existing corpus of
laws.
To ensure the above, a drafter must understand existing
legislation as well as the needs of society.
Confidentiality
The duty of confidentiality is treated as an ethical rule
because it is based on the premise that there should be
full and complete communication between the
lawyer and client.
Confidentiality applies whether the communication is
oral or written, it does not depend on the source of the
information and it does not matter if others are aware
of, and share, the information.
Legislative Drafting and Good governance
 Governance is a concept that has been around for years and is
commonly used by many people. There is no consensus on the official
definition of governance because its use often depends on the intended
purpose, the people involved, and the socio-political environment of the
term.
 According to the United Nations (UN), governance refers to the
activities of all political and administrative authorities to govern their
country.
 According to International Monetary Fund (IMF), governance is a
concept in which a country is managed, including economic, policy, and
legal aspects.
 Thus, in general, governance has the meaning: the decision-making
process and the process of determining which policies will be
implemented and not implemented.
Legislative Drafting and Good Governance
It assures that corruption is minimized.
The views of minorities are taken into account.
That the voices of the most vulnerable in society are
heard in decision-making.
It is also responsive to the present and future needs of
society.
8 Major Characteristics of Good
Governance
It is participatory;
Consensus oriented;
Accountable;
Transparent;
Responsive;
Effective and efficient;
Equitable and inclusive; and
Respect the rule of law.
Thank you