Legislative Drafting and Statutory Interpretation: Comparative Perspectives from Malta, Canada and Nigeria

Kevin Aquilina, Mike Donaldson and Tonye Clinton Jaja, Legislative Drafting and Statutory Interpretation: Comparative Perspectives from Malta, Canada and Nigeria, Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta, May 2018, 142 pp.

This book consists in a collection of three chapters all discussing one theme: legislative drafting and statutory interpretation. This discussion comprises three jurisdictions: Malta, Canada and Nigeria.

Its necessity came about because the Faculty of Laws of the University of Malta has begun to teach a component in the Professional Practice study-unit Law 5012 in the Master of Advocacy degree course on the very same topic of this book: legislative drafting and statutory interpretation.

In order to develop the learning aids for this study-unit, it was thought best to publish a book on the subject which does not only discuss the Maltese legal system but which also absorbs pertinent knowledge from the rich experience of two other jurisdictions: Canada and Nigeria.

For this purpose leading experts on the subject have contributed a chapter in this book shedding light on their respective jurisdiction of competence they have thought best suitable to explain to the law student at the Faculty of Laws the main topical issues surrounding legislative drafting and statutory interpretation.

As to the chapters under consideration, the first deals with the Maltese legal system. As a mixed legal system, Maltese law poses a number of tricky challenges to the draftsperson, legislator and judge in relation to legislative drafting and statutory interpretation. In order not to succumb miserably to these unpropitious difficulties, the persons involved in the drafting, enacting and interpreting Maltese Law have to be exceptionally conversant with the sources of the Maltese legal system. These myriad sources are far from being uniform in legal content and therefore it is up to the said persons to ensure that these dissimilar sources are grafted in such a way as not to create conflicts and tensions within one and the same legal system.

The legal sources of the Maltese legal system comprise both legislative and non-legislative sources.

The former are complex and intricate in so far as Maltese Law draws upon the ius civile, canon law, common law, European Union law, public international law, foreign law and autochthonous law. This multiform complication is further compounded by recourse to non-legislative sources of the Maltese legal system such as customary law with its inherent variegated sources, case law emanating from a multiplicity of sources hailing from diverse legal systems, the writings of jurists setting out the characteristic features of plural legal systems and other supplementary sources of law.

Due to the Maltese legal system’s essential intricacy, the interminable pitfalls faced by the persons involved in drafting, enacting and interpreting law make them more prone to commit mistakes should they wrongly identify the precise source of the law. The solution to this quandary appears to be a comprehensive insight and knowledge of all the sources which compose the Maltese legal system, a gargantuan task in its own right not without its severe toils and serpentine perils.

The second chapter delves into Canadian law. What should we do about American judges’ inability to agree on a single method for interpreting statutes? Judge Brett Kavanaugh of the D.C. Circuit and Chief Judge Robert Katzmann of the Second Circuit have been having a conversation about this issue in the pages of the Harvard Law Review.

It started with Katzmann’s book, Judging Statutes, in which Katzmann argues for greater use of

legislative history. In a 2016 Book Review in the Harvard Law Review, Kavanaugh responded by arguing that instead of following Katzmann’s lead, judges should develop some clear “rules of the road” for statutory interpretation. Katzmann then responded in the Harvard Law Review Forum, calling Kavanaugh’s piece a “substantial conversation-starter” and calling on others to join the discussion. That is what this chapter does.

Is Kavanaugh right that his proposed rules of the road would help judges to “say what the law is, not what the law should be” in statutory interpretation cases? The Supreme Court of Canada has long experience with an interpretive approach very similar to what Kavanaugh proposes. This paper examines whether the use of this approach has produced in Canada the outcomes that Judge Kavanaugh believes it will in the United States. The Canadian case law shows that the use of Kavanaugh’s proposed method can conceal the “judge-as-legislator” problem, but does not eliminate it. Does this doom his proposal? The author of this chapter suggests that what the Canadian experience tells us is that while clear and agreed-on rules for statutory interpretation are a necessary condition for a system in which judges act more like umpires and less like legislators, they are not sufficient. The final part of the chapter recom- mends three ways in which Kavanaugh’s proposal could be complemented.

The chapter on Nigeria is very much influenced by the following citation: “The days have long passed when the Courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The Courts must adopt a purposive approach which seeks to give effect to the true purpose of legislation.”

This quotation demonstrates the essence of chapter three which examines the impact of legislative drafting on the application of the purposive approach to interpretation of statutes within Nigeria. It begins with an examination of the similarities and differences between the purposive approach to interpretation of statutes on the one hand and the three predominant traditional approaches to interpretation of statutes, on the other. Unlike the purposive approach to interpretation of statutes, which originated as a prominent feature of the Civil Law tradition, these three are the hallmark of the Common Law legal tradition which is applicable in Nigeria since the year 1960. The three traditional approaches to legislative drafting are as follows: (1) Literal Rule; (2) Mischief Rule and (3) Golden Rule.