Monday, July 30, 2012

Methods of Checking and Commenting a Draft Law

If political participation of the citizen is taken serious the members of civil society (NGOs, Bar Association, Trade Unions etc.) will be given the chance to give their comments on draft laws. This means they must have the chance: 

to express their concerns regarding the different articles of the draft law  

and 

to make proposals for amendments of these draft law articles. 

To do this properly in a systematic and efficient way they should check the draft law thoroughly. Then they should collect and summarize their concerns shortly and precisely in relation to each article. And finally they should propose amendments in a way that clearly shows which part of the draft text shall be erased and which text shall be added instead or additionally. 

B) Checking the Draft Law Articles:


I) Rough checklist (FILTER 1):
In a first step the draft law can be checked roughly by taking each single article of the draft law and asking the three questions related to three main problems that lawmakers face: 

1) Unclear Terms:
The question to be asked reads: 

"Are there any unclear terms in the text of the article?"
(Note: Before this question is answered with "yes" the following articles of the draft law must be checked whether they already give a definition of this term). 
The question about unclear terms is important regarding the principle of separation of power. If a term is unclear the lawmakers do not express the will of the people clearly enough. This opens the door for interpretations of the law by the executive or the judicial power who are not entitled to define the will of the people.


The related questions read:
" Does the article affect a human right?
- If so does it regulate a restriction on this right?
-If so is this purpose of restriction allowed by the constitution?
- If so is the restriction proportionate ?  " 

These questions are important because the lawmakers have to balance the individual human rights and find a fair solution to protect one right but not to restrict the other right too strong.

 
3) Delegation of Rule Making Power: 

Here the questions read: 

"Does the article delegate any rule-making power from the legislative to the executive? If so, does the law delegate too much power to the executive?" 

Any time the law text mentions the words “Anukret” or “Prakas” or mentions any other authorization for the executive power to set up further conditions this indicates that the article includes a delegation of rulemaking power

The question of delegation of such power is important regarding the principle of separation of power (Article 51 III 2 and IV CC). This does not mean that any delegation violates the principle. But it must be clear that only the regulation of minor administrative details can be left to the executive whereas the main problems have to be solved by the law. Such problems are all those that are explicitly mentioned in the text of the Cambodian Constitution (for example: Article 41 II CC: "The regime of the media shall be determined by a law" or Article 42 I 2 CC: "The right (of free association) shall be determined by a law"). 

Additionally all those problems of society must be determined by a law that affect human rights and freedoms (by restricting or encroaching these rights. For example a road fee affects the freedom of property, profession and free travel). Furthermore all decisions that imply significant expenditures of the national budget can not simply be left to the executive but need a democratic decision making process. 


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