Monday, July 2, 2012

scmp: Law to be more user-friendly

Should also be used as guide to general writing~

Law to be more user-friendly

Law drafters are aiming to make Hong Kong legislation more accessible to the public by adopting a simpler and gender-sensitive writing style.
The effort to "modernise" the text, which will be applied to all legislation starting this year, is also meant to narrow the gap in quality between the city's body of laws and those of developed Western nations.

"I am a very strong believer in the fact that the rule of law really requires that laws be accessible," said Eamonn Moran, a law draftsman at the Department of Justice, who pushed for the changes.

The department published a guidebook on clear and gender-sensitive drafting earlier this year.

Under the new style, "he" will not be used in place of "she", and the archaic "shall" will be avoided or replaced by the word "must". Drafters are also advised to limit unbroken text to about 50 words.

They must avoid double or triple negatives, such as in the vague statement, "This court does not disagree".

The Justice Department hired legislative editor Elizabeth Grindey - a language expert, and not a lawyer - to look at the law from an average person's perspective.

Aside from new legislation, drafters can also use the new style when amending existing laws.

Moran pointed out that it would be difficult if people without easy access to legal texts were suddenly told they had violated a law they barely understood.

"We see accessibility having two aspects. One, that you can actually find the law. Two, when you find it, you can understand it, and you don't need to go and get a legal professional to tell you what the law is saying," he said.

"So when the rule of law is making clear that the law is fixed, that they are in place, then those laws will be enforced on an equal and non-discriminatory basis," he said.

Moran cited Australia and New Zealand as examples of countries that effectively used plain language in legislation, adding that Britain was rapidly catching up. "Hong Kong is [getting] there. We want to be seen as a plain-language jurisdiction," he said.

For many years, law drafters used the word "shall" in legal texts to mean an imposition of an obligation. Moran called this practice old-fashioned, adding that there was a call worldwide to use "must" instead.

Moran said the department was also working hard to get rid of the masculine reference "he", which under chapter one of the Interpretation and General Clauses Ordinance was intended to denote "she" and "it".

There were debates around 20 years ago in Korea and Australia on whether this masculine reference was discriminatory, as it treated women as a subset to men. This is one aspect where Hong Kong has lagged behind other jurisdictions, according to Moran.

One solution is using gender-neutral words such as "firefighter" instead of "fireman"; "police officer" but not "policeman" and "lay person" rather than "layman", he said.

Long-winded texts are also a problem, making it difficult for ordinary readers to grasp what the law means. One sub-clause under section 187 of the Securities and Futures Ordinance, for example, uses 179 words to explain the use of incriminating evidence in proceedings.

Moran said simplifying legal jargon was another area to work on. Some jurisdictions abroad now refer to "writ" as a "statement of claim", a "claimant" or "complainant" instead of "plaintiff", and a "freezing order" in place of "mareva order".

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