MORE than half a century ago, a draughtsman at the Law and Secretary Ministry, Law Commission, India, wrote as follows: 

“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.” (S.K. Hiranandani, Legislative Drafting: An Indian View [1964] 27 Modern Law Review, 1) 

Whose ideas does a legislation express? 

Are they the ideas of the minister-in-charge of a particular bill? 

Accordingly, the draughtsman considered his task as one for a superman. Not that draughtsmen 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 draughtsman 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 draughtsman 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 draughtsmen have often been unfairly criticised. 

Having said all of the above, it is crucial that a draft legislation, or a bill as it is called, 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) for consideration. 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 de facto law minister Wan Junaidi Tuanku Jaafar said he is optimistic that the PSC to consider the Constitution (Amendment)(No. 3) Bill 2022 on the anti-party-hopping law would be able to complete its report within a month. 

Wan Junaidi, who chairs the PSC, said that personalities on the PSC boast respectable credentials, including having strong backgrounds in law and longtime legal practices. 

But what about the laypeople? 

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

After all, the bill that is to be passed into law will have a practical effect on the laypeople. 

So, minister, when will the PSC issue a press notice outlining its terms of reference, and invite 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. The work of a PSC can be viewed here.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.