The loophole august 2013 (Issue No. 2 of 2013)

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Commonwealth Association of Legislative Counsel


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August 2013 (Issue No. 2 of 2013)THE LOOPHOLE—Journal of the Commonwealth Association of Legislative Counsel
Issue No. 2 of 2013

Editor in Chief John Mark Keyes

Editorial Board Beng Ki Owi, Therese Perera, Bilika Simamba
CALC Council

President Peter Quiggin (First Parliamentary Counsel, Commonwealth of Australia)

Vice President Elizabeth Bakibinga (Legal Officer, Office of the Special Representative of the Secretary General, United Nations Interim Administration Mission in Kosovo)

Secretary Fiona Leonard (Parliamentary Counsel, Wellington, New Zealand)

Treasurer John Mark Keyes (Adjunct Professor, University of Ottawa, Canada)

Council Members:

Estelle Appiah (Legislative Drafting Consultant, Ghana)

Don Colagiuri (Parliamentary Counsel, New South Wales, Australia)

Philippe Hallée (Chief Legislative Counsel, Canada)

Katy Le Roy (Nauru)

Beng Ki Owi (Chief Legislative Counsel, Singapore)

Paul Peralta (Head Draftsman, Government of


Therese R. Perera PC (Specialist in Legislation and Legislative Drafting/ Retired Legal Draftsman, Sri Lanka)

Bilika Simamba (Legislative Drafting Officer, George Town, Cayman Islands)

Edward Stell (Parliamentary Counsel, United Kingdom)

Empie Van Schoor (Chief Director, National Treasury, South Africa)

Editorial Policies

The Loophole is a journal for the publication of articles on drafting, legal, procedural and management issues relating to the preparation and enactment of legislation. It features articles presented at its bi-annual conferences. CALC members and others interested in legislative topics are also encouraged to submit articles for publication.

Submissions should be no more than 8,000 words (including footnotes) and be accompanied by an abstract of no more than 200 words. They should be formatted in MSWord or similar compatible word processing software.

Submissions and other correspondence about The Loophole should be addressed to —

John Mark Keyes, Editor in Chief, The Loophole,


All rights are reserved. No part of this publication may be reproduced or transmitted without the permission of the CALC Council. This restriction does not apply to transmission to CALC members or to reproduction for that purpose.

The views expressed in the articles contained in this issue are those of the contributors alone and do not necessarily reflect those of the CALC Council.


Editor’s Notes 6

Legislative Supremacy – A viable option in the South African context?” 8

Legislative Sovereignty and the Globalisation of the Law – A New Zealand View 18

Book Review 58


Editor’s Notes

This issue contains articles based on presentations made on the second day of the 2013 CALC Conference in Cape Town, South Africa in April of 2013 as part of a session dealing on legislative sovereignty and the globalisation of law. This topic raises many challenging issues for legislative counsel. International law and agreements have enormous influence over the drafting of domestic legislation, reflecting how developments in such areas as communications, travel, commerce and security, to name just a few, have transformed the world into an increasingly connected place. The articles in this issue provide a good taste of the impact this globalisation is having from a legal perspective and the challenges it presents for drafting legislation.

We begin with Jacques Wolmarans’ article on legislative supremacy in South Africa, the host country for the 2013 Conference. Its struggle to achieve a democratic system of government that ensures respect for human rights is inspirational. It provides a compelling account of how international norms can influence the transformation of government institutions. Conference delegates were exposed to this remarkable and still unfolding story through Jacques’ address as well as through the many other South African delegates who attended the conference. However, it should also be noted that his paper presents a vision of a “legislative-centred” approach that transcends the South African experience and resonates with jurisdictions around the world in their quest for democracy.

Next, Julie Melville’s article takes us to New Zealand for a detailed and compelling look at how it implements in legislation its increasing volume of international obligations. But rather than presenting only the challenges, she also suggests that these obligations also present opportunities for enhancing the transparency of legislative action for the citizens of New Zealand, and not just for its international partners.

Estelle Appiah then takes us more deeply into the implementation of international obligations by focusing on those relating the national security in world subject to an ever-changing array of threats. She reviews selected experiences from Ghana and takes into account recent statutory developments focusing on the legislative framework for implementing anti-terrorism treaties.

Dayantha Mendis rounds out the treatment of this subject by providing a truly global perspective on this topic with his masterful account of treaty-implementation processes and the interplay between international obligations and legislative sovereignty at the national level. He argues for a proper balance between global interests and national interests in the negotiation of global norms and standards.

This issue concludes with a review of a long-awaited 5th edition of Garth Thornton’s classic text Legislative Drafting. Bilika Simamba provides a glimpse of this new edition prepared by Professor Helen Xanthaki.

Finally, I would like to acknowledge the creation of an editorial board for the Loophole consisting of three CALC Council members: Beng Ki Owi, Therese Perera and Bilika Simamba. I am deeply grateful for their assistance with the editorial tasks needed to publish this journal.

John Mark Keyes

Ottawa, August 2013

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