“Drafting Errors”

An Article Review towards Jack Stark’s Article

According to Jack Stark in his article, “Drafting Errors”, (2005,3-6) drafting errors such as “technical mistakes, a failure to follow drafting conventions … constitutional rules of drafting”, could be a potential problem in the drafting process. Legislative drafters are annoyed by these errors, especially when they find them after the endorsement of the bill, because, after the law is enacted, people cannot correct them easily. Drafters think that a better awareness of this problem and some mechanical means will reduce the occurrence of mistakes.

Stark (2005,3) explains that there are two schools of thought on this problem. Firstly, the Plain Language School proposes that people of democratic countries are supposed to be able to understand the rule by reading the law, which should be easy to do, and the drafter has the main role of drafting understandable law. This school says that the main drafting error is because the writer disobeys one of the rules of clarity. This could happen when drafters use long sentences and unusual words in making law. However, Stark argues that their propositions look reasonable if we take a quick look but they are improbable at a second glance because following their rules does not eliminate drafting errors. In fact, this analysis leads to skepticism about the Plain Language principles. Another opinion, the Reader Expectation School, alleges that the purpose of drafter as a writer is “to fulfill reader’s expectations”, to make communication easy. (Stark 2005, 3) This school of thought says that a drafting error is placing material in a wrong way that results in failure to communicate with a reader. Again, Stark thinks there is deviation because just like the Plain Language School, this school’s opinion on drafting errors does not make a statute malfunction either.

Stark (2005,3) offers the word “malfunction” to examine drafting errors. Since drafting errors do not carry out “the desired function” of a statute and the accuracy is the most important virtue in law drafting, drafters need the drafting tactics to perform one or more statute functions accurately.
The first tactic is understanding that the five functions (“forbid, authorize, require, state the conditions of three behavioral directives, state of the consequences of obeying or breaking the behavioral directives” (Stark 2005,3)) are the statutes main substance. Related to this tactic, drafters should make sure that the functions work accurately by writing proper sentences and putting the most important part in the right place.
A second way is writing in long sentences which will help to connect the five functions, for instance, to link the conditions and behavioral directives. (Stark, 2005:3)

The third one is using definitions. Writing definitions is not only to make a more specific meaning of the terms but can be “loophole closers” that assist readers to avoid misreading. Furthermore, using definitions frequently will make it less possible to have inaccuracy because of false interpretation. (Stark 2005,6)
To conclude, the author states that there are other drafting tactics to eliminate the drafting mistakes. Drafters can find them first and then they can learn how to make up drafting errors and avoid them.

I agree with Stark’s opinion (2005,3) that drafting errors can disturb statutory drafters. Based on my experience as a legislative drafter, every one in a supporting team of the bill will be disappointed when they realize that there are some technical errors in the bill that we found after the enactment. Not only because people criticize it and show us how it should be, but sometimes technical errors have a greater influence than we think. For example, when we decide to use a particular word for “obligation term”, such as when we prefer to use “shall” or “must” (harus) rather than “oblige” (wajib). Although we have discussed among team members before making a decision to put “shall” or “must”, in fact, we put the wrong one. There are different meanings and consequences of each word. The rule, using “shall” or “must” usually results in administrative punishment if people break it. On the other hand, they could get even harder punishment if they break the rule using “oblige”.

Stark (2005,3) suggests many ways to eliminate these mistakes. A drafter can choose the appropriate tactic, because his tactics are not always suitable for every case. Deep analysis and comprehensive understanding of the errors are two solutions to abolish them. I think recognizing them is not only by following the rule of drafting but also by knowing the reason behind every sentence that we make. Sometimes the difficulty itself comes from different interpretations. The same words can create different meanings; it depends on the context in the sentence. That is why using definition will be very helpful.

Even though a drafter has fulfilled the rules or conventions of drafting in making a bill, technical errors could happen in the deliberation stage, when the parliament and government discuss it. Some changes could be made especially for some crucial and sensitive laws that are full of political interest. If parliament does not agree with the sentences or words that we choose, they have a right to change and choose the preferred ones, no matter what the reason is. Sometime they ignore the rule of drafting.

To sum up, I agree with the author (Stark 2005,6) that a drafter could prevent the occurrence of technical errors in the draft by examining some rules and tactics and doing careful analysis before the bill comes to the deliberation stage.

Reference:
Stark, Jack 2005, “Drafting Errors”, The Legislative Lawyer, vol. XVIII, no. 2, viewed 24 February 2006, .