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3.4. Agencies involved in the legislative process

A first step was to attempt to identify the key agencies and steps involved in the legislative process, so as to determine who are the primary audience for the Project DIAL facilities, and the points in the legislative process where comparative legislative materials may be used.


In Indonesia the drafting of laws usually begins at agency level, with inter-agency committees sometimes being formed if legislation affects more than one department, or is controversial. Draft legislation is submitted by a department or committee to the State Secretariat (equivalent to the US Office of the President), and may be returned to the department or committee for revision. Once accepted by the State Secretariat, it is put on the Parliament's legislative agenda. The Parliament may in some cases send legislation back for revisions, but has not had the practice of originating legislation. A second legislative route is where the National Law Development Agency (within the Department of Justice) develops agendas of desirable new laws, assembles a committee of government and private sector personnel to work on drafts, and submits drafts to the State Secretariat. Few BNPH drafts have yet eventuated as legislation.


Our Vietnam survey assistant describes the legislative process as follows:
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.


China has a multi-tiered system of legislation. At the top level are the PRC laws promulgated by the annual meeting of the National People's Congress (NPC), or its Standing Committee. The State Council is entitled to promulgate its Administrative Regulations and Regulatory Documents in the form of `Decisions' or `Orders', regarded as the second level of legislation because they have to be consistent with the Constitution or the PRC laws. The third level of legislation is composed by the ministries and commissions under the State Council in the form of `Orders' or `Directives'. The local people's congresses and local governments, including provinces, countries, municipal districts, townships, etc., can also pass regulations and rules according to their local situations, the fourth level. Judicial interpretation by the Supreme People's Court serves as precedents for judges, and in effect forms a fifth level of China's legislation.

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 concerned ministry sends its requirements for a new law or amendments to existing law to the Ministry of Law and Justice. The Ministry drafts the law after research to avoid conflicts with any other existing laws. Foreign laws may be considered during the drafting process for similar enactments in other countries. During the drafting process the concerned Ministries can give feedback before the final draft is sent to Parliament. The final bill is then sent to parliament for debate in both houses (Parliament and Senate), which can result in modifications to some areas of the bill before final voting. At times the government, rather than a ministry, asks the Ministry of Law and Justice directly to prepare a draft for a new law or amendment. The President also issues ordinances, which are immediately in force and valid for 90 days, during which time the Ordinance must be validated by Parliament or it lapses automatically.


The legislative process in Mongolia is described in Chapter II `The Legislative Process'[80] ]http://www.asiandevbank.org/law/mongolia/legis2.html] of the report Developing Mongolia's Legal Framework - A Needs Analysis, Asian Development Bank, 1995, although the report cautions that it is `difficult to describe the legislative process with complete accuracy':
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 Ministry of Law and Justice (MLJ) is the key GOI Ministry responsible for finalising all new legislation, codes, and regulations. Proposals for any legislation, codes, or regulations originate in the respective GOI Ministries (eg Ministry of Power (MOP)). A proposal from any Ministry for any new law must be approved by the MLJ (an administrative decision). Approved proposals are then developed further by the line ministry, MOP and MLJ working in conjunction, after which the Legislative Department of the MOP develops a draft bill which is checked by senior officials of the MOP. After MOP is satisfied with their own draft of the proposed legislation they send the draft to the MLJ.

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.


Our Philippines survey assistant stresses the role played by individual legislators in the legislative process. Legislators supervise legislative staffers involved in the drafting of Bills. Legislators file bills on issue areas of their concern although bills on international agreements and treaties are traditionally initiated by the Senate while bills on appropriation, revenues and those authorizing an increase in public debts originate from the House of Representatives. After being introduced, Bills are referred by the presiding officer to the appropriate committee. The committee conducts meetings and public hearings, reports the consolidated bills on the same subject, or gives notice to the author(s) if action is unfavorable. The Bill then goes through second and third reading stages.


Across the countries surveyed, there seem to be few standard patterns in which entities play key roles in the legislative process, particularly in the initial drafting stage. However, there is very often one agency which has some level of responsibility for checking and approving all proposed legislation, though the stage at which it intervenes varies a lot. These `key legislation agencies' include the State Secretariat in Indonesia, the Ministry of Justice in Vietnam, the Ministry of Law and Justice in Pakistan, the Ministry of Law and Justice in India, and the Bureau of Legislation Affairs in China. This conclusion leads to recommendations made at the end of this Chapter.

[80]Asian Development Bank, 1995 -

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