Bad Laws Do Not Encourage Compliance with Their Provisions

Bad Laws Do Not Encourage Compliance with Their Provisions

Bad Laws Do Not Encourage Compliance with Their Provisions
Mahmoud Sabra
Consultant for Legislative Drafting at the United Nations and the World Bank

Many people complain that the law, in its current form and with the traditions passed down over the ages, is difficult to understand. How, then, can it be a friend to people and encourage them to comply with its provisions voluntarily? For this to happen, its texts must not only be clear and precise for those who use them, but also user-friendly, easy to understand, and not burdensome. The law becomes burdensome for its users if it refers to other provisions in the same law or to other related legislations that are not clearly and precisely defined. When it is difficult for the user of the law to understand it, the expected outcome is that it will only be implemented by chance!

Take, for example, Article 1 of Egyptian Law No. 29 of 2023 “Issuing a Law on the Regulation of Possessing Dangerous Animals and Dogs,” which states the following: “Without prejudice to the international agreements in which the Arab Republic of Egypt is a party, and with consideration to the provisions of the Agriculture Law… of 1966, the Environmental Law… of 1994, and the Public Shops Law… of 2019, the provisions of this law and its accompanying law regarding the regulation of possessing dangerous animals and dogs shall apply. These provisions do not apply to the Ministries of Defense and Interior and their affiliated entities.”

It is noticeable that this article mixes three unrelated issues. The first is the order to implement the law (which is an enactment provision), the second is the international agreements and other laws that the draftsman should have reviewed before drafting its articles (these should be in the preamble/introduction of the law, not in an article), and the third is the scope of applicability (which belongs in the substantive law, not the enactment law).

There is a question regarding the title of the law: Is the law aimed at “regulating the possession of dangerous animals,” or “prohibiting their possession, breeding, and trade,” with exceptions for certain categories? A second question: Does the order to apply the law refer to the enactment law? Or the substantive law? Or both together according to the phrasing used? Clearly, it refers to the substantive law only, not both!

The most important question is: How many sources does the law ask the user to refer to without specifying the articles meant to be referred to? The law refers the user to all international agreements the state is a party to, and all the provisions of three other laws. Is it easy for the user to review all of these? Even the devil himself would fail to do so. What is surprising and perplexing is that this mistake is not limited to this law alone, but occurs in most Arab laws!

Undoubtedly, imprecise references to other texts, whether inside the law or outside of it, lead to user fatigue, make it difficult to understand, and, consequently, reduce the chances of implementing its provisions. Take, for example, Article (110) of the Egyptian Labor Law No. 12/2003, which states: “Without prejudice to the provisions of Article 198 of this law and with consideration to the provisions of the following articles…” What is meant by “the following articles”? Does it mean the articles following Article (198), or the articles following Article (110)? In either case, what is the scope of these provisions? In other words, no one knows for sure where these referred provisions begin, or even where they end!

Another example of a burdensome reference is what was stated in Article (8-1) of the UAE Federal Decree-Law No. 40/2023 on Mediation and Reconciliation, which says: “Mediation may be conducted in all civil and commercial disputes that can be settled, provided it does not contradict the applicable legislation or public order and public morals in the state, with consideration to the provisions of Article (28) of this Decree-Law, and without prejudice to the provisions of local laws that regulate the provisions of mediation.” This text simply asks the user to review all the applicable legislation in the state, as well as all the rules regulating public order and public morals. Is this reasonable?

In many cases, the issue is not about the legislation referred to, but rather about clarifying the meaning of the referral. Take, for example, Article 3 of the Saudi Government Procurement System of 1427 Hijri (which was replaced by the Procurement System of 1440 Hijri), which states: “Without prejudice to the provisions of the Foreign Investment System, all individuals… wishing to deal with the government… shall be given equal opportunities…” It is assumed that the Foreign Investment System may grant better advantages than the procurement system, so the more accurate phrasing would have been: “With consideration to the advantages stipulated in Article ×× of the Foreign Investment System of [year]…”

In principle, the legislative text should include all its requirements so that it is easy to understand and absorb its meaning without the need to refer to external sources. Therefore, the draftsman should make the draft law independent in its content, self-contained, and should not refer its user to previous legislations and ask them to review rules that may no longer be valid or have become outdated with each passing year since they were issued, as this hinders understanding of the text and delays full comprehension of its meaning until the referred text or source is reviewed.

In our opinion, when referring to a provision within the law itself, the exact location of the referred provision should be specified clearly. When referring to an external provision, consideration should first be given to repeating the text instead of referring to it. If this is not possible, the location should be clearly specified with its text included in a footnote or an appendix to the law.

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