Drafting clear and understandable legislation

The legislative drafting process should also be open to public participation. By tapping into the perspectives of affected people, public participation helps educate the drafters and ensure that the new legislation is practical.

Open participation can build a sense among stakeholders that the law is legitimate and fair, which will encourage compliance. Participation can also educate stakeholders, building capacity in the knowledge and use of the law and in the exercise of rights – a critical way to ensure empowerment of the poor. Participatory legislative drafting requires the genuine involvement of all categories of stakeholders at the central and local level, in urban and rural contexts (government and non-governmental institutions, central and local institutions, local communities and traditional wildlife users, private sector organizations, farmers, environmental NGOs and hunters' associations). It also requires a true commitment to understand the needs, objectives, insights and capacities of intended users of the law and to find ways to accommodate multiple interests at stake.62

As discussed in Chapter 1, for parties to the Aarhus Convention ensuring public participation in wildlife lawmaking is also a matter of fulfilling an international obligation. In addition, in accordance with the Convention on Biological Diversity, participatory legislative drafting provides an avenue for bringing on board the concerns of local and indigenous communities, particularly their traditional use of wildlife, as well as traditional knowledge and practices related to wildlife conservation. Accordingly, the Addis Ababa Principles and Guidelines invite decision-makers to consider local costumes and customary law when drafting new legislation.63

The general public, as well as wildlife management professionals need to have clear understanding of their rights and responsibilities under the law. Clarity of the law will also avoid or minimize doubts or conflicts in the interpretation of legislation by national courts.

One step towards clarity is to draft using plain language. The use of a few legal terms is unavoidable, but on the whole the drafter should aim to use language within the grasp of the regulated public, or at least of the government officials who will be implementing the law. If possible, the law should be user- friendly, avoiding complex syntax, terms with definitions that differ greatly from their commonly understood meanings, and confusing chains of cross-

62_{Wingard, J. Lindsay, J. and Manaljav, Z. 2005. Improving the Legal Framework for Participatory}

Forestry: Issues and Options for Mongolia with reference to International Trends, FAO Legal Paper Online No. 46.

references. Ideally, a layperson should be able to read through a proposed law once, from beginning to end, and grasp its major points.

Another indispensable means to allow people to fully comprehend the contents of the law is for the law to be expressed in the local language. Given the variety of languages that continue to exist in many regions of the world, translations from the official language into local ones are sometimes difficult and this may make legislation inaccessible for most rural people. This can be a serious hindrance to the implementation of the first pillar of legal empowerment of the poor – access to the rule of law.

Beyond clarity of language, ambiguity can creep into a law through what the law fails to say. One of the challenges to clarity identified in FAO's regional reviews of national legislation concerns not expressly repealing older principal and subsidiary legislation. This practice is fairly common. Examples include general laws on wildlife enacted after regulations adopted under previous laws, and general laws on wildlife enacted after previous specific laws. This happened for example in the Central African Republic where laws on hunting guides, hunting by foreigners and the introduction of weapons by non-resident hunters were not expressly repealed by the 1984 Wildlife Ordinance. In the Democratic Republic of Congo, the 1982 Hunting Law makes reference to an older decree and points to the need to fill gaps left by it, without clarifying whether such decree is completely replaced by the law. Usually the new law states that all legislation previously in force is repealed to the extent that it conflicts with it, or the repeal is implied (under the principles of statutory construction) even where such a statement is not expressly made. However, sometimes whether the previous legislation is superseded is debatable, and this per se may very well undermine legal certainty. Although the practice of not expressly specifying which texts are repealed is formally acceptable, it is preferable to avoid it. The drafter should expressly identify existing provisions to be repealed. If subsidiary legislation is repealed, the government should swiftly put new implementing regulations in place.

Repealing repeals is also an issue. That is, if one repeals a law that itself included a repeal, this sometimes raises a question of whether one intended to revive the legislation that was repealed under the first repeal. If there is any doubt about this, the new law should specifically address whether the legislation previously repealed is revived or not.

Another way to address the repeal issue is by amendment (for instance, "the Wildlife Act is amended by striking Title I and inserting as a substitute the following language"). It may also be possible to insert transition language discussing what happens to licenses and permits issued under the repealed law, what happens to institutions created under the old law, what happens to lands reserved under the old law, and so forth. Overall, the question of repeals is a very difficult one, which demands careful research to understand the old law and its ramifications. The research is almost always time well spent.

Having too many legal instruments dealing with wildlife management can also contribute to uncertainty. In the specific case of the Russian Federation, for instance, a myriad of legal instruments relate to wildlife, some dating from before the collapse of the Soviet Union.64_{The Law on Wildlife, which}

is quite recent and relatively comprehensive, does not fully regulate hunting at the federal level. The parliament has long had a draft federal law on hunting under consideration, but has not approved it.65_{In the meantime, the}

subjects of the Russian Federation66 _{have adopted their own legal}

instruments on hunting, which often contradict federal legislation covering issues pertaining exclusively to the competence of the Federation.67 _This

result is a complex legal framework that is fraught with contradictions and obsolete provisions, which ultimately renders it difficult for authorities and users alike to understand.

Piecemeal legislation – consisting of laws, decrees, ministerial resolutions and provincial legislation adopted at different times – may often hold contradictory requirements on hunting, on wildlife as forest produce and on wildlife conservation in protected areas (for more on this, see the next section of this chapter). In all events, a high level of expertise and insiders' knowledge of institutions becomes necessary to understand the overall wildlife management legal regime. This complexity can place legal wildlife management beyond the reach of disadvantaged communities.

64_{See Consultant+ at www.consultant.ru.}

65 _{The latest draft of the Federal Law "On hunting and hunting economy" dates 14 June} 2007, and is available in Russian on the official website of the State Duma of the Russian Federation (www.duma.gov.ru).

66_{The expression "subjects of the Russian Federation" includes different legal entities that are} part of the Federation, according to the federal structure outlined in the Constitution.

67_{See Consultant+ (www.consultant.ru). Several hunting laws of the subjects of the Russian} Federation are available on the FAO legislative database, FAOLEX (faolex.fao.org).

Better alternatives are to enact consolidated legislation or to produce a comprehensive guide to the law, possibly available online, ensuring clear elucidation of licensing requirements, fees and other issues. Although most legislation in Latin America, for instance, is available online, few countries have provided user-friendly versions to facilitate understanding of legal requirements. Ecuador, however, collates all legislation deriving from disparate sources and related directly or indirectly to wildlife in a consolidated text that is easily accessible online. It should also be considered that indigenous and local communities may not have internet access, and other methods to raise their awareness about the law should be explored (Aguilar and Morgera, 2009).

Box 2-2: Legal options for ensuring clarity

x Draft legislation bearing in mind the viewpoint of wildlife users and those interested or involved in wildlife management and conservation;

x always clarify who is the person or entity responsible for certain prescribed action, or who is entitled to certain rights or benefits;

x organize legal provisions in a logical order, from the more general to the more specific one;

x clearly identify when earlier provisions have been repealed or amended, and where implementing regulations or other secondary legal instruments are needed;

x make available legislation in local language(s), as well as explanatory documents or user-friendly compendia of applicable wildlife laws and regulations to facilitate users' understanding of the legal framework.