The procedures for the issuance of laws, ordinances and regulations are regulated by the Law on the promulgation of legal instruments which was adopted by the National Assembly on 12 November 1996 (the Law) and implementing Decree No.101 of the Government dated 23 September 1997 (Decree 101). Depending on their duties and authorities, state bodies are entitled to issue certain kinds of legal documents. Set out below is a brief description of the steps required to issue important legal documents such as laws of the National Assembly, ordinances of the Standing Committee of the National Assembly (Standing Committee) and decrees of the Government. The National Assembly has authority to issue the constitution, laws and resolutions and the Standing Committee is entitled to issue ordinances and resolutions. The procedures for issuing laws and ordinances are relatively similar and strictly stipulated by law. The National Assembly is responsible for issuing the program on the elaboration of laws and ordinances as a basis for competent state bodies to set up drafting committees in charge of the elaboration of legal documents. During the drafting process, the ministries, bodies at ministerial level and other bodies are responsible for providing written comments on the bills and draft ordinances where such bills and draft ordinances relate directly to their functions and duties. In particular, the Ministry of Justice is responsible for evaluating all bills and draft ordinances before they are submitted to the National Assembly or Standing Committee. Before being submitted to the National Assembly or Standing Committee, bills and draft ordinances must also be evaluated by the evaluating agencies including the Council on Nationalities and other Commissions of the National Assembly. Bills must also be reported to the Standing Committee. Bills and draft ordinances may be subject to public comments if the Standing Committee considers it necessary. Bills and draft ordinances are only passed on the basis of a simple majority, and must be promulgated by the President within 15 days from the date on which the laws and ordinances were passed. The Government is entitled to issue resolutions and decrees based on proposals of ministries and other bodies at ministerial level to implement laws and ordinances and is responsible for requiring relevant bodies to set up a drafting committee. It should be noted that before a decree is approved and signed by the Prime Minister it must be evaluated by the Ministry of Justice to ensure the constitutionality and legality of the document in the legal system. In respect of other subordinate legal documents such as circulars or decisions of ministries, their issuance must comply with provisions of the Law and Decree 101. The procedure involves the setting up a drafting committee, obtaining comments from the Ministry of Justice and obtaining approval and signature of such documents by the relevant body.
While the NPC and its Standing Committee are responsible for drafting basic laws (eg. Civil Law, Procedural Law, Criminal Law, etc.), the majority (80%) of the laws passed by the NPC are initiated and prepared by the State Council and its ministries. All these drafts will be reviewed by the Bureau of Legislation Affairs (BLA) before forwarding to the NPC or its Standing Committee for discussion or adoption. The BLA also reviews the drafts of Administrative Regulations and Regulatory Documents proposed by the State Council, and Ministerial Regulations and Rules proposed by various ministries. All rules and regulations passed by the local people's congresses or local governments should be reported to the BLA within 30 days upon promulgation.
The first stage in preparing a new law is usually the formation by the Government of a working group, normally up to five ministerial staff or others with relevant experience to consider suggestions for a bill and then to draft it. The working groups appear to have complete flexibility as to how they go about their task. As discussed below, there is no formal procedure for public participation in the law making process, and it seems that this is the only stage at which members of the public and interest groups can put their views and suggestions forward.
A draft law, once completed by the working group, must be approved by various key ministries, such as Justice and Finance, before being presented by the relevant minister to the Government. At this stage, other ministries have the opportunity to put forward their comments through their own minister. The Government then presents the draft to the Ikh Khural.
Once there, the draft is considered by one of six parliamentary standing committees. Each committee must advise the others of the time and place of its discussions and members of the Ikh Khural may present their views in person or in writing. A draft law is discussed on a clause-by-clause basis, and the discussions cover both the policy and procedural aspects of the proposed law. The standing committee may approve the draft, send it back for redrafting, or reject it outright. The potentially powerful role given to the standing committees in the legislative process has been seen as creating difficulties for foreign advisors preparing a draft law, as the effect of the draft may be diluted by the changes made at the standing committee stage. Once a draft has been accepted, the standing committee passes it to the chairman of the Ikh Khural with a report on its discussions, one week before the law is due for debate. Other standing committees may also make a report, as may individual members who made opposing submissions.
The first reading consists of extensive debate leading to possible further redrafting. This is done by the same standing committee. There are only two readings, although it seems that there can be further amendment, at least for "editorial" purposes, after the second. Some laws become effective on a date set by government resolution. Otherwise, it is ten days after publication in the daily government newspaper Ardyn Erkh.
The MLJ's Legal Affairs department (LAD) first analyses the draft on each point of law and whether it clashes with any existing legislation or not, incorporates the changes which are required, and finally decides whether the law when finalised will benefit the country. After the LAD is satisfied, it sends the new draft legislation to the Legislative Affairs Department (LEGD) of the MLJ which finalises it and sends it to the Parliament. A senior solicitor will also sometimes be asked to give comments on the draft but it will go through the same channels in the MLJ before it is finalised and send to the Parliament. The same procedure also applies for amending of any existing legislation, codes or regulations.
[80]Asian Development Bank, 1995 -