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LEGISLATIVE DRAFTING LEGISLATIVE Konrad-Adenauer-Stiftung House No © Copyright 2016 by Permanent Secretariat of the Committee for Legal and Judicial Reform Ministry of Justice & Konrad-Adenauer-Stiftung, Cambodia Published by Permanent Secretariat of the Committee for Legal and Judicial Reform Ministry of Justice & LEGISLATIVE DRAFTING LEGISLATIVE Konrad-Adenauer-Stiftung House No. 4, Street 462, Introduction to Khan Chamkar Mon, P.O. Box 944 Phnom Penh, Kingdom of Cambodia Tel: (855-23) 996 861/ 726 221 LEGISLATIVE DRAFTING Fax: (855-23) 213 364 www.kas.de/kambodscha References & Techniques Graphic Design & Layout by Introduction to Christine Schmutzler Edited by The cover picture of the book was taken from the frescos of the Silver Pagoda inside ISBN: 978-99950-982-6-1 Kai Hauerstein the Royal Palace in Phnom Penh. It shows a scene from the “Reamker”, the Khmer adaption of the Indian “Ramayana” epic. Photo by Christine Schmutzler Printed in Cambodia www.kas.de/kambodscha ISBN: 978-99950-982-6-1 INTRODUCTION TO LEGISLATIVE DRAFTING References and Techniques Published by Permanent Secretariat of the Committee for Legal and Judicial Reform (Ministry of Justice) & Konrad-Adenauer-Stiftung Edited by Kai Hauerstein THE PERMANENT SECRETARIAT OF THE COMMITTEE FOR LEGAL AND JUDICIAL REFORM Legal and Judicial Reform is essential to operationalize the 1993 Constitution and is an integral part of achieving Good Governance within the Rectangular Strategy (Phase III). The Committee for Legal and Judicial Reform (CmLJR) under the Ministry of Justice (MoJ) is responsible for reforming the legal and judicial frameworks in Cambodia. The Permanent Secretariat of the Committee for Legal and Judicial Reform (PS-CmLJR) is the operational arm of the Committee and coordinates the implementation of the Plan of Action (2005) underlying the Legal and Judicial Reform Strategy. The majority of reform activities are implemented by the MoJ, but also by other line ministries. The PS-CmLJR coordinates the implementation of these activities within the MoJ and different line ministries. The PS-CmLJR, in addition, serves as the Secretariat for the Technical Working Group for Legal and Judicial Reform, which coordinates the reform activities between the Royal Government of Cambodia and development partners. THE KONRAD-ADENAUER-STIFTUNG Freedom, justice and solidarity are the basic principles underlying the work of the Konrad-Adenauer-Stiftung (KAS). KAS is a political founda- tion, closely associated with the Christian Democratic Union of Germany (CDU). As co-founder of the CDU and the first Chancellor of the Federal Republic of Germany, Konrad Adenauer (1876-1967) united Christian- social, conservative and liberal traditions. His name is synonymous with the democratic reconstruction of Germany, the firm alignment of foreign policy with the trans-atlantic community of values, the vision of a unified Europe and an orientation towards the social market economy. In our European and international cooperation with more than 70 offices abroad and projects in over 120 countries, we make a unique contribution to the promotion of democracy, the rule of law and a social market economy. The office in Cambodia has been established in 1994. KAS in Cambodia is mainly operating in the following fields: Administrative Reform and Decentralization, Strengthening Political Parties and Parliaments, Legal Reform, Media Development, Political Education and Social Market Economy, as well as Foreign Policy Consultancy. ii | CONTENTS Background and Acknowledgements .............................................................................. vi Foreword .......................................................................................................................... vii Foreword ........................................................................................................................... ix ABOUT THIS BOOK .......................................................................................................... 1 CHAPTER I—The Function and Development of Legislation ...................................... 9 1. The Function and Development of Legislation ........................................................ 9 2. The Separation of the Legislative Power from the other Powers of the State ......12 3. The Legal System in Cambodia ..................................................................................15 3.1 Distinctive Features of the Legal System ...........................................................15 3.2 Legislative Instruments: Laws and Regulations .................................................15 3.2.1 Types of Legislative Instruments ...............................................................16 3.2.2 Hierarchy of Legislative Instruments ........................................................ 20 3.2.3 Notes for Legislative Drafters .....................................................................22 3.3 Legal Reform in Cambodia ..................................................................................24 CHAPTER II—The Legislative Cycle: Who does What in the Legislative Cycle? ........29 1. Legal Framework: Constitution, Laws and Regulations ..........................................29 2. Actors and their Competences ...................................................................................29 2.1 Society ...................................................................................................................29 2.2 The Royal Government ....................................................................................... 30 2.3 The Legislative (National Assembly and Senate) ................................................33 2.3.1 National Assembly ......................................................................................33 2.3.2 Senate ......................................................................................................... 34 2.4 Other Institutions Involved in the Legislative/Law Making Process ............... 36 2.5 The Legislative Process in Detail ........................................................................ 38 3. Drafting and Reviewing Legislative Instruments in the Executive ........................43 3.1 Process for Preparing a Draft Law ..................................................................... 44 3.2 Need for Legislation ............................................................................................ 48 3.3 Legislative Agenda ............................................................................................. 48 3.4 Institutionalization/Delegation ........................................................................... 48 3.5 Preparation of Introduction/Statement of Causes Prior to Drafting a Law ...... 48 3.6 Preparing the Draft Law and Using the Formats ................................................51 3.7 Review of Legal Drafts in the Council of Ministers ...........................................52 3.8 Notes for Legislative Drafters in the National Assembly/Senate ........................53 | iii CHAPTER III—Legislative Techniques ..........................................................................57 1. Regulatory Impact Assessment (RIA) ....................................................................... 58 1.1 Generic RIA Process ............................................................................................62 1.1.1 Consult Stakeholders ..................................................................................63 1.1.2 Identify Need for Intervention and Analyze Problem ..............................67 1.1.3 Define Objective of the Intervention .........................................................71 1.1.4 Develop Options to Achieve the Objective .............................................74 1.1.5 Identify and Assess Impact of Each Option .............................................76 1.1.6 Evaluate Options and Select One ............................................................. 86 1.1.7 Prepare Statement and Advocate results .................................................. 87 1.2 RIA Case Study: Introducing an Administrative Procedure Code .................... 88 1.3 RIA Application in the Legislative Cycle ............................................................ 89 2. The Who-What-When Approach ...............................................................................93 2.1 The Approach Applied .........................................................................................95 2.2 Matrix with Regulatory Issues .............................................................................97 2.3 Structure ............................................................................................................... 98 2.4 Additional Entry Point for RIA in the Actual Drafting Process......................... 99 3. Plain Language Movement .....................................................................................100 4. Wrap Up .....................................................................................................................101 Annex 1 Circular (2013)—English Summary ...............................................................103 Annex 2 Circular (2013)—Khmer .................................................................................... i FIGURES 1 Overall Objective: Prepare Good Laws ................................................................... 2 2 Legislative Cycle ........................................................................................................ 4 3 The Scope
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