Wednesday, September 14, 2011

Law Making Process in Cambodia


The legislative process is really a set of connected stages in how Parliament considers, enacts and oversees laws that affect citizens, businesses and organizations every day. The stages begin with the development of law policy advice and developing and managing the legislative plan for each session; and continues into the Commissions’ procedures for the review and analysis of Bills and the amendment of Bills and the rules for promulgation, publication and public dissemination of passed Laws. The concluding phases are focused on Parliament’s oversight of the Executive’s regulations and its record of legislative implementation and Parliament’s separate responsibility for the systematic updating or consolidation of existing laws, known as the codification of laws.

1. Legislative Supremacy of Parliament

According to the Constitution (Article 51), “the legislative, executive and judicial powers shall be separate”. In Articles 90 and 99, the National Assembly and the Senate, respectively, are declared to hold the legislative powers recognized by the Constitution which is the ‘supreme law’ of the Kingdom of Cambodia (Article 131). The supremacy of law means that government follows and administers laws passed by Parliament and obeys legal rules within the framework of the Constitution and the legislative supremacy of Parliament. Only Parliament can enact laws which affect the entire population and also regulate the legal capacity of the Government to issue regulations under authority delegated by Parliament.

2. Core Legislative Drafting Principles

Legislators are entitled to require that draft laws put before them for review and adoption are drafted in clear language that leaves no doubt about the law’s meaning or the legal consequences of the law’s application. The law should be drafted in ‘plain language’ whenever possible, so that the average citizen can understand its meaning and impact.

Seven specific drafting principles should be followed by drafters of Bills. If any one of these rules is avoided, then the reasons should be given in each case.

1) Constitutionality assurance 2) No retroactive effect 3) Standard format of the Bill 4) Clarity of all sanctions, penalties and remedies 5) Clear delegation of measured, not unlimited, discretionary administrative authority 6) Legal integrity assurance of zero conflict, overlap or redundancy with existing laws. 7) Clear and comprehensive statement of purpose to inform every one of the reasons for the Bill, the
problems addressed by the Bill and its connections to existing laws.

3. Standards of Legislative Review by Parliamentarians

In most parliamentary systems, including Cambodia’s, the government drafts the great majority of Bills that are submitted to Parliament for review and adoption. The review of proposed legislation is Parliament’s most significant role in the law making process. The Commissions in the National Assembly and the Senate normally perform the primary review function.

While the depth and scope of each review will vary according to the complexity and expected public impact of a Bill and the time available for review, there are generic or core questions that should be addressed in every case:

1) Is there clear Constitutional authority for the proposed law?2) Why is there a need for this law? Why is legislation the best answer for solving the problems?3) What is the effect on existing laws?  Does the Bill specifically identify the effects so as to remove any uncertainty? 4) Is the Bill in line with international or regional precedents? If not, why not? 5) Does the format of the Bill follow standard practice?6) Is the government bound by the law? If not, why not?
7) Has the impact of the Bill on different groups been considered? Gender? Children? Families? The poor? Small and medium size businesses?
8) Who will administer the law? Has administrative authority been clearly defined?
9) What assurances have been given that sufficient officials will be trained to properly administer the new law?

10) What are the cost and revenue implications of the law?

11) If regulations will be required to put the law into effect, has the authority to determine the scope and terms of these regulations been clearly expressed? In cases of high impact, will draft regulations be published for comment before they go into effect? 12) What are the sponsoring Ministry’s plans to inform people about their rights and obligations under the new law? To annually report on the law’s implementation?

4. The Timely and Regular Publication of Legislation Plans

In every legislative system, there is limited time available for the actual review and examination of Bills. This is particularly the case when reviewing Commissions plan to consult with the public and affected sectors of the community for their comments on significant Bills. For these reasons, if Parliament is to adequately and efficiently fulfill its law making responsibilities, a Legislation Plan for the session should be developed and publicly released on or before the opening of the session. 

The preparation of a Plan requires the cooperation of the Government and any parliamentarians who are planning to submit Bills to Parliament. It is accepted that a Plan may be changed from time to time but it should be clear and comprehensive from the outset and the scheduling of parliamentary business should, whenever possible, follow the Plan so that citizens and legislators alike can anticipate and prepare for the consideration of Bills put to Parliament.

5. The Legal Integrity of Laws

The Rule of Law can be defined as a legal system in which the laws are known and accepted by the public, are clear in meaning and apply equally to every person. An essential element of public confidence is the belief that the new law fits appropriately and clearly into the larger legislation framework, is coherent with existing laws and is consistent with the integrity of the legislation inventory.

Specifically, it is unacceptable practice to simply declare that any provisions of existing legislation that are in conflict with or contrary to any provisions of the new law are rendered null and void. This practice only exacerbates public uncertainty about the reach of the new law and its effect on existing laws. The Bill should specify the affected provisions and provide consequential amendments to restore legal integrity.

6. Standardizing the Format and Organization of Laws

There is no universal format or accepted arrangement for the organization of a Bill that is submitted to Parliament. However, there is merit in encouraging the development of a regular format for Bills. A standard approach allows legislators and other readers of Bills to more efficiently comprehend the import of the Bill and understand its purpose, impact and relationship to existing laws.

While there may be no fixed rules on the order of legislation, there is recognition of the need for a logical order in the organization of a law. This factor has an increased importance for Bills that are long and technically complex. A suggested order of arrangement for a ‘standard’ Bill follows:

Short title
Standard enacting language
Statement of Purpose
Definitions that apply to the entire Bill
Creation or identification of agency or office (if part of the law)
Body of the law--arranging substantive provisions in order of importance or in a logical sequence. Usually mandatory provisions precede temporary provisions
Prohibitions and penalties
Administrative and procedural provisions, including general rulemaking or regulation authority
Provisions that repeal other laws
Amendments to other laws to preserve integrity and conformity
Transitional provisions, if any
Effective date (and expiration date, if any).

7. Statements of Purpose for Bills
In many legislative systems, the body of a Bill is preceded by a statement that explains the purpose and scope of the proposed legislation. In Cambodia, it is called a Statement of Purpose; in other countries, it might be called an Explanatory Note. 
The common purpose of the note is to inform readers of the reasons for the new law, the problems addressed by the Bill and its connection to existing laws. Statements of Purpose must do more than recite the title of the Bill and the language of a few key Articles.
A proper Statement should contain:
A clear summary of the primary purpose of the Bill
Reasons why new legislation is necessary
Overview of the scope of the Bill
Relationship to existing laws
The connection, if any, to regional or international obligations
Assurance that resources are available or will be committed to the proper implementation of the law

8. Developing a Pre-Drafting Legislation Policy Process

As a general rule, legislative drafters should only begin drafting after the proposed law’s necessity, purpose, scope, net costs and revenue implications, social and economic impacts and enforcement capacities have been satisfactorily addressed and accepted by its sponsors. If these fundamental issues have not been answered and resolved at the outset, the drafters will be left to make their own assumptions and policy choices. The chances for developing an effective and manageable law will be severely compromised. 
Governments and parliaments both recognize the imperative of doing significant policy research on a proposed law before deciding whether the law should be drafted. This requirement is defined as a Request for Legislation (‘RFL’).

In the RFL system that is in place in many parliamentary democracies, a Ministry that wants to sponsor a Bill must first address these very questions in an RFL submission to the Executive Council or Council of Ministers (or it's Legislation Committee). In the RFL, the sponsor must set out the rationale for the Bill and provide the answers in a standard reporting form to all the RFL questions. If the Council accepts the submission, then and only then will drafting instructions be prepared.

Parliamentarians may also draft their own Bills. They should likewise be appreciative of the need for careful policy analysis before they or others on their behalf draft their own Bills. The adoption of an RFL process by both the Executive and Parliament would contribute significantly towards the development of better legislation.

9. Promulgation, Publication and Dissemination of Laws

Article 93 of the Constitution stipulates that “any law approved by the Assembly and finally reviewed by the Senate and signed by the King for its promulgation shall go into effect in Phnom Penh ten days after its signing and throughout the country twenty days after its signing”. However, “laws that are stipulated as urgent shall take effect immediately throughout the country after promulgation”.

There is continuing evidence that the urgent stipulation is overused. This results in an inordinate number of new laws having immediate effect and application prior to their publication and public dissemination, contrary to generally recognized Rule of Law norms. The situation is not materially alleviated by the requirement in Article 93 that promulgated laws must be “published in the official journal and announced to the public throughout the country”. This is because only some laws are published and for those laws that are published, there is no requirement for timely publication.

Absent changes to the present urgency stipulation practice and publication rules, Parliament’s responsibility for the public ‘announcement’ or dissemination of its new laws needs to be recognized. The public acceptance of law first requires an understanding of the law and the reasons for its enactment. Parliaments and parliamentarians around the world have developed different communication and educational strategies to connect with the general public, their constituents, and the media and affected interest groups, to fulfill their common duty to “announce laws to the public throughout the country”.

10. Parliamentary Oversight of Government Regulations

The Constitution of Cambodia reserves all “legislative power” to the National Assembly and the Senate, in line with the principle of parliamentary sovereignty. For its part, the Royal Government or Council of Ministers is charged with the duty of ensuring “the application of the laws” passed by Parliament. In all modern legal systems, governments discharge their legal responsibilities for public administration by issuing “regulations” under the laws. In many jurisdictions, the ‘head’ laws customarily delegate the authority to the government to prepare and issue these regulations. Otherwise, the government would be exercising a legislative function reserved to the lawmakers. 

The legal situation in Cambodia on this point is not as clear , at least in practice, as it is , for example, in Quebec or Australia and many other jurisdictions where the power to issue regulations must arise from express parliamentary delegation. In France, regalements autonomies are means whereby ministers may introduce particular regulations, in the form of decrees or arrêtés, which are legally binding on their own. However the Counsel d’Etat may invalidate either instrument if it contravenes the Constitution, a treaty or a parliamentary statute. Other regulations, known as regalements d’application, usually taking the form of secrets, can only be produced under clear delegated authority in a particular statute. These instruments are usually drafted in the relevant ministry and adopted in the Council of Ministers after prior consultation with the Counsel d’Etat, acting in its advisory capacity only.

Regulations set out the administrative framework and specific rules for the government to “apply” the laws. It is commonplace that these regulations greatly exceed the volume and detail of the laws in question and have greater practical impact on the people, groups and businesses affected by the laws themselves.

Executive or government regulations in Cambodia come in different forms and names, including Decrees, signed by the King and issued by the Government; Sub decrees signed by the Prime Minister and issued by the Government; Parkas from Ministries; and Decisions and Notifications which may be issued by the Prime Minister or a Ministry. The first three regulations are to be published in the Gazette but the last three are not customarily published regardless of their legal significance.

The prevalence and legal impact of regulations like these in use in Cambodia have led both legislatures and governments in many countries to establish various “checks and balances” on executive lawmaking. This is necessary because in some cases, regulations are badly drafted. Others give officials excessive discretionary authority to administer the law, while others conflict with existing laws or other regulations. Too often draft regulations are not published with the draft Law in question, leaving citizens in the dark on how the Law is going to be implemented. Usually there is nil or limited time for consultation on the intended impact of the regulations and the costs of compliance.

In response to these and other concerns, many jurisdictions have enacted Regulations Laws to govern the drafting, form, consultation, costing and publication of regulations by government. In some countries, general or specialist courts can invalidate regulations that conflict with other laws or overreach the limits of   delegated authority or are unnecessarily vague or disruptive of basic human rights.
In several other parliamentary democracies, Joint Commissions of the Assembly and the Senate review important government regulations with the authority to recommend that defective regulations be withdrawn.

Given Parliament’s constitutional responsibility for overseeing the exercise of regulation making delegated by parliament to the government, the time seems appropriate for an assessment of the issue and the oversight options available to lawmakers in bringing Cambodian regulation making and review practices more into line with prevailing Rule of Law norms.

11. Parliamentary Oversight of Laws

Parliaments enact laws. Governments administer laws and issue regulations to implement and administer general laws passed by Parliament. Parliaments have always retained the authority to hold governments accountable for their administration of these laws.

As noted in Principle 10, parliamentary oversight includes the right of Parliament to review the legality of regulations. Similarly, parliamentary oversight includes the right of Parliament to review the government’s implementation and administration of laws passed by Parliament. This review authority may be exercised publicly on a selective and annual basis by the appropriate Commissions of Parliament.

12. Parliamentary Supervision of the Codification of Legislation

As the number of laws and regulations, including amendments and other changes, mounts in Cambodia, parliamentarians inevitably will have to decide how and when they will consolidate and revise the total legislative record into a new set of harmonized laws and regulations that replaces the pre-existing laws and subsequent amendments. This process of consolidation, integration and harmonization is called codification. Its purpose is simply to restructure the legislative mass into a coherent and updated whole which is available to the general public.

Many parliaments have passed special Codification Laws, sometimes known as Revision and Consolidation Laws. Their common feature is to authorize senior drafting experts to revise and consolidate existing laws and regulations. Their proposed set of codified legislation is referred to a Commission of the Parliament for non­partisan review and ratification. In most cases, ratification is given after minimal debate and under the terms of the Codification Law, the ‘new’ body of laws is deemed to replace the ‘old’ laws without formal reference to the legislature. The ‘new’ set of laws, in our example, would be called the Revised Laws of 2007.
Modern codification laws are found in many different legal systems, including Singapore, China, France and Canada. These laws provide authorization for the codification of existing laws at regular intervals, often every five years and, in some cases involving heavily used and frequently amended laws, every year. The advantage of computerized legislation records makes regular codification a much simpler undertaking for any legal system. 

The below source can be linked: 

Processes of Constitutional Decision Making: Cases And Materials   The Law-Making Process (Law in Context)     Hart & Sacks' The Legal Process: Basic Problems in the Making and Application of Law (University Casebook Series®)

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