94212 February 2015, Number 142 GUIDE TO LEGISLATIVE DRAFTING IN THE KURDISTAN REGIONAL GOVERNMENT (KRG) Emmanuel Cuvillier, Salam Almaroof, and Razi Diab.1 advisory services related to disputes between government agencies. Introduction: The development of a regulatory framework which meets international standards is a major concern in the Middle East and North Africa (MENA) region, as it is key not only to fostering economic development but also to ensuring the wellbeing of its citizens. To achieve this goal, it is important to: create a sound institutional structure; employ staff qualified in law drafting; set up efficient procedures for co-ordination and consultation; and ensure that the possible impact of new legal instruments is assessed before adopted. In the KRG, administrative law plays a very important role in good governance. Through its A Shura Council, similar to the Iraqi State Shura review mechanism, the KRG Shura Council can help Council2 in Baghdad, was established in 2008 3 in the ensure quality legislation, as well as regulations to KRG as part of the process of federalization of the support implementation. By issuing advisory Iraqi state. 4 It is an independent regional government opinions on disputes between government bodies, it body, but falls administratively under the jurisdiction helps ensure that mandates are more clearly defined of the KRG Ministry of Justice. The mandate of the and implemented. Administrative complaints allow KRG Shura Council covers three main topics: 1) private citizens to hold public institutions resolution of administrative disputes between accountable. Such complaints can cover a wide range citizens and the regional government, including of areas, including denial of social welfare benefits, complaints within the civil service; 2) review and usage rights of public lands, and violations of drafting of legislation and regulations; 3) resolution commercial contracts by government bodies. Such of complaints within the civil services; and 4) issues may affect diverse groups, including the poor, the private sector, civil servants and foreign 1 This project, funded by the Iraqi Technical Assistance and until 1979, that is, relatively recently as compared with the Capacity Building Fund, was supervised by Emmanuel French Conseil d’Etat (Council of State), established in Cuvillier, Senior Public Sector and Governance Specialist 1799, the Turkish Council of State, established in 1868, or the (Task Team Leader), Salam Almaroof, Public Sector Analyst, Egyptian Shura Council, established in 1946, with the and Razi Diab (Consultant). All work in the World Bank’s governing law No. 47 of 1972. 3 Law No. (14) Year 2008. “The Law of the Shura Council of Governance Global Practice (GGODR). This Quick Note was cleared by Hisham Waly, Practice Manager (GGODR). the Kurdistan Region - Irak" published in the Official Gazette 2 The Iraqi State Shura Council is regulated by Law No. 165 of the Government of Kurdistan Region issue No. 93 dated of the year 1979. Article 93 of the Iraqi Provisional December 1, 2008. 4 Refer to “Kurdistan Region of Iraq 2020: A Vision for the Constitution of 1964 has provided for the setting up of the Iraqi state council and its function, but it was not established Future.” KRG Ministry of Planning, September 2013. investors. Today, the KRG Shura Council has become regulations - particularly since the regional the main councilor of the KRG. government is slowly adopting new laws and regulations under the federal structure of Iraq. The The very complicated legal environment prevailing KRG Ministry of Planning and the Ministry of Justice in Iraq in general 5 and in the KRG in particular is a have always supported the efforts of the Bank. result of the history of Iraq, which gave the world the Code of Hammurabi. 6 Over time, it led to unnecessary The objectives of the World Bank’s technical proliferation of laws and regulations. Successive assistance to the KRG Shura Council are firstly to political systems with multiplicities of legislation improve the legislative drafting skills of Shura have exacerbated the problem7. Council members. This seems particularly relevant in the KRG due to the aforementioned factors also To enhance and support the role of the KRG Shura present elsewhere, the unnecessary proliferation of Council as advisor to the regional government in laws and regulations and the multiplicity of historical charge of reviewing draft laws and legislation, a layers of regulation. Both constitute burdens that guide to regulating the legislative function of the cannot be left to persist in a modern economy. Shura Council and the process of drafting laws must Legislation also needs to be made consistent with the be put in place as a priority. Accompanying the new federal nature of Iraq. Indeed, improved reformist regulatory approach of the Shura Council, legislative drafting, in its general meaning covering this guide would be a corner stone in attaining better regulation, can contribute a lot to alleviating and regulation. It would improve regulatory quality in progressively eradicating their negative influence. the KRG and help the Shura Council prepare legislation that could be used as a reference in The second objective of the Bank’s technical drafting legal texts. The manual of the National assistance is to assist Shura Council members in Palestinian Authority (NPA) 8 and the Tunisian preparing their own guide to legislative drafting Guide to Legislative Drafting 9 serve as examples. based on international best practices. Clearly, good laws are a key element of the rule of law. Not only Objectives: The World Bank has been working with does legislative drafting bring rules and regulations the KRG Shura Council on capacity building since into existence, but the very success of these depends 2010, covering issues of strategy development, on the quality of the drafting and the use of the administrative reform, case management appropriate type of legal instrument. For this reason, improvement and human resource reform. An care must be given to ensure accuracy in drafting October 2011 World Bank scoping mission to assess rules by choosing the appropriate technical the institutional capacity and human-resource expressions and the clearest and most concise legal management practices of the Shura Council revealed instrument. A comprehensive guide to legislative that the KRG Shura Council was, among other things, drafting will assist the legislative drafters in their in need of capacity to implement its mandate work. It will subject the legislative drafting process covering the review of draft legislation and in the KRG to a clear and defined methodology to 5 The Iraqi Legal Database (ILD) is the first comprehensive the Hanafi Fiqh or jurisprudence. According to scholars, “the and electronic legal database created in the Arab region Majalat” was very advanced and constituted a rich sampl e under the supervision of the Iraqi Higher Judicial Council. for legal drafting and codification of the Hanafi Fiqh. At that The objective is to make the entire corpus of Iraqi law time, the rulings of “the Majalat” governed most of the Arab available to judges, lawyers, academics, lawmakers, and countries who were under the Ottoman Empire. However, interested individuals or institutions. The ILD was the strong link of Iraqi law to Islamic law “Sharia” and Fiqh published online in September 2008, and makes available through “the Majalat” later influenced the adoption of the 27,433 legal texts, including 7,136 laws, 4,265 ministerial new Iraqi civil law based on the Napoleonic Code, after the instructions, 3,268 regulations, 5,029 declarations, etc. It 1930 independence treaty with England. Accordingly, Iraqi includes every Iraqi legal text since 1917. civil law benefited from both the Islamic Fiqh and Western 6 The Code of Hammurabi is a Babylonian law code of laws in drafting and codification, unlike Egypt, whose ancient Mesopotamia, dating to about 1754 BC. It is one of independence from the Ottoman Empire prevented the world’s oldest deciphered writings of significant length. application of the “Majalat”. 7 As Iraq was part of the Ottoman Empire, the Ottoman 8 Palestine: a) Legislative Drafting Manual – Ministry of Judicial Decisions magazine of 1869, known in Arabic as Justice and Institute of Law – Bir Zeit University (2000); and “Majalat Al-Ahkam Al-Adlieh”, was applicable in Iraq and b) Secondary Legislation Drafting Manual – The Institute of was, in fact, its law. The Ottoman Empire adopted “Al- Law, Bir Zeit University (2004). Majalat”, which was based on Islamic law “Sharia” and 9 Tunisia: Guide de Légistique (2011). February 2015 · Number 142· 2 produce simple and concise laws and legislation drafting techniques and recommendations to meet promoting the rule of law and good governance. In current challenges legislative drafters may be facing. its absence, poorly drafted law reduces legal certainty The guide will also contribute to consolidating legal and citizens’ trust in government. provisions, avoiding differences and contradictions in interpreting legal texts as well as devising Preparation of the KRG guide: To acquaint KRG provisions to simplify the task of those dealing with Shura Council members with international best these. Further, “The guide will also offer a vehicle for practices in legislative drafting and taking into continuous improvement of legislative drafting account its extensive experience in regulatory reform, techniques by consolidating in a single text all future in 2012-13 the Bank developed a training program improvements to the initial version now published”. with five workshops for the KRG Shura Council. These covered all aspects of legislative drafting and Using the KRG guide: The guide to legislative review. Three workshops were held in Erbil, Iraq, and drafting is addressed to all legal drafters in the KRG, one in Granada, Spain, for knowledge-sharing with as well as parliamentarians, government advisors Spanish officials at the governorate level. Another and legal departments in ministries and departments was held at the OECD in Paris, France. Twelve judges in the KRG. The guide is addressed in particular to from the KRG Shura Council participated. Topics Councilors of the KRG Shura Council who are in included: alternatives to legislation; new mechanisms charge of legislative drafting. It is intended to assist to guarantee the quality of legislation; consultation; them in reviewing draft laws prepared by the Council regulatory impact assessment; style and design of of Ministers, as well as to ministerial and other legislation; and common law and civil law entities, as they are not only responsible for the form approaches to drafting legislation. In 2014 two more of the draft law but also for its content as stated in international seminars for capacity building of Shura Article 7 of the Shura Council Law No. 14 of 2008: Council members were held. “The Council shall review draft laws prepared by the Council of Ministers, ministries, non-ministerial 1) The first was in Ankara in May 2014, dealing with entities, in terms of both form and content”. legislative review and deregulation. The goal was to address legislative inflation and teach techniques to The Arabic first version of the draft runs to 100 pages manage the stock of legislation. Included was a study and is composed of five chapters as follows: visit to the Turkish Council of State. Chapter 1: Fundamental rules of legislation, dealing 2) The second was in Paris in August–September 2014 with the meaning of the legislative function and the to review the first draft of the Guide to Legislative legislative policy. Drafting prepared by the KRG Shura Council with a visit to the French Conseil d’Etat (Council of State). Chapter 2: Legislative impact assessment, dealing with the need for a legislative impact assessment, Following these seminars and before the Paris legislative review, legislative stock management seminar in August–September 2014, members of the policies, and fundamental principles for legislative Shura Council were able to use their experience and policy in the KRG. knowledge to produce their first draft of the guide to legislative drafting. According to the President of the Chapter 3: Draft legislation action plan, dealing with KRG Shura Council: “The search for excellence in the preliminary phase and commencement of the legislative drafting coincides with the legislative preparation and drafting process. revolution taking place in the KRG which aims to review and update laws in various sectors to meet the Chapter 4: Legislative structure units, dealing with new needs and requirements of society and the introductory units, units of legislative body, the economy, and bring it into line with international conclusion unit and justifying reasons unit. standards”. The guide offers a clear methodology to Style and language of legislation, dealing with the prepare and draft legislative acts submitted to the structure and language of legislation, legislative KRG Shura Council, in order to improve their quality drafting flaws, and methods to avoid legislative and make sure that they are consistent with the drafting flaws. current legislative order and the relevant public policies. The guide is to be a compendium of sound February 2015 · Number 142· 3 Whereas the Palestinian National Authority (PNA) G. Legislative review: Responsibility for the policy has two manuals dealing with legislative drafting 10 should stay with the policy-maker and not be the first revised version of the KRG guide to transferred to the drafter, no matter how much legislative drafting adopts a unitary approach and research is done. Challenging policy is not the same was published in November 2014. Both the PNA and as taking ownership of the policy. The policy-maker the KRG manuals have examples of good and bad has to defend or change in response to challenges. drafting, adding to their practical value. A unique feature of the KRG guide is that it was prepared by H. It is advisable to include references to Shura Council members. The body with the mandate internationally recognized instruments, such as to review and prepare draft laws in the KRG is in OECD’s Reference Checklist for Regulatory Decision- charge of developing its own guide, one that is rich in Making. Decision-Making. 11 legal analysis from Iraqi and KRG laws. The way forward: The prime objective of the World Key recommendations: In preparing the second draft Bank in supporting the KRG Shura Council remains the following points should be considered: an improved guide consistent with international standards that can be used by all relevant parties in A. The guide needs to focus on practical issues facing charge of drafting all types of legislation in the KRG. the drafter. It can address wider issues, such as In keeping with better regulation principles, the regulatory reform and impact assessment, but only as authority and impact of the guide are to be achieved background and context useful for the drafter. more by the relevance of its contents and the quality of its practical advice than by the strength of the legal B. The guide need not be issued as a regulation, but instrument that seeks to enforce it. This will help to should be seen as a compendium of good practice maximize the benefits of the guide in the KRG. In this drawing its authority from quality advice. The context, the official use of the Guide to Legislative guide’s practical purpose should be clear, including Drafting should become mandatory. This could be its goal to raise the quality of draft legislation and achieved either through making the guide an integral facilitate review of existing legislation. part of a new law on legislative drafting to be passed by the parliament in the KRG under penalty of nullity C. Examples of draft are helpful, but good and bad of any draft law that violates this rule. Alternatively, drafts should be differentiated. In the EU guide, good and to avoid cumbersome parliamentary procedure, examples are in blue, the rest in black. the cabinet could issue a circular ordering all state lawyers and state agencies to take the KRG Guide to D. The final version of the guide should give basic Legislative Drafting into consideration when information about the status of its guidance, the body preparing new legislation. that issues it, and a contact address for comments, suggestions and questions about content. E. It would be useful to explain that the guide is useful for drawing up texts of a normative or prescriptive nature, including "secondary legislation", regulations and formal individual administrative decisions. F. Rule of law principle: The guide should refer to the commitment to the rule of law in the Preamble to the Constitution and to relevant articles of the Iraqi Constitution, such as Article 5 and Article 13. 10 The first was published in 2000 and is concerned with the Papers, No 15, OECD Publishing; OECD “Simple, Effective, drafting of primary legislation. The second, published in 2004, Transparent Regulation: Best practices in OECD Countries” by deals with policy development and the drafting of secondary Cesar Cordova Novion (Regulatory Reform Programme); and legislation. “Regulatory Impact Assessment: Developing its Potential for Use 11 Also refer to: OECD (1997) “Checklist on Law Drafting and in Developing Countries” (2003) by Colin Kirkpatrick (University Regulatory Management in Central and Eastern Europe” SIGMA of Manchester, United Kingdom [UK]) and David Parker (Aston University, Birmingham, UK). February 2015 · Number 142· 4