Chapter 2.3: National Legislation 1

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1 Chapter 2.3: National Legislation 1 Module 2: Policy and Legislation Chapter 2.3: National Legislation Legislation is an important element of the institutional framework for watershed management. This chapter firstly introduces general aspects of legislation, such as its functions and hierarchy, and provides an overview of national legislation that currently exists with relevance for watershed management. It further elaborates on general and specific national aspects of developing legislative frameworks, and briefly introduces the issue of local rules and regulations. A. The Functions of Legislation The role of legislation is to implement and enforce policy, and to provide effective administrative and regulatory mechanisms. Legislation for watershed management can create a framework for the required integrated management, determines the way how economic factors relate to water and related resources, and provides the context for private, public, community and individual resource related activities. Legislation can for example clarify the role and responsibilities of the state and other stakeholders, formalise the process of resource allocations and transfer, and provide legal status for various users of water and land resources [2]. In general, the security of rights is a main structural feature of legislation. Legislation relevant for watershed management should address, among other things, the ownership as well as the effective and beneficial use of water and related resources. It should also concern itself with the transferability of rights, and the need to acknowledge and respect existing uses and customary entitlements. Furthermore it should seek to prevent the transfer of negative externalities, restrict monopolies and to reduce transaction costs 1. In addition, relevant laws set out the duties and functions of environmental management agencies and service providers [2]. B. The Hierarchy of Legislation The countries in the Lower Mekong Basin share a similar legislative structure (see table 1). They all have a hierarchy of legal documents that includes a constitution as the supreme law of the land, laws passed by a national assembly or parliament (legislative branch of government) and rules and regulations enacted by the Government (executive branch that includes a prime minister and various line ministries). Each of these levels of legislation, except for the constitution, derives its validity and authority from a rule which has been placed above it in the hierarchical structure of legislation [6]. 1 Transaction costs are the costs involved in establishing and maintaining a transaction between buyers and sellers. In the case of Payments for Environmental Services for example, these costs will generally include the costs for negotiating agreements, monitoring of consequences, enforcing contracts and the necessary institutional mechanisms [13].

2 Chapter 2.3: National Legislation 2 Table 1: Hierarchy of Legislation ([1], [3], [5], [6], [11]) Cambodia Lao PDR Thailand Viet Nam Constitution Constitution Constitution Constitution Law Law Act 2 Law Royal Decree Royal Government Order Sub-decree Prakas Circulars Deika Prime Minister s Decree Prime Minister s Instruction / Order Ministerial Regulation / Instruction Royal Decree Cabinet Resolution Ministerial Regulation / Notification Ordinance Prime Minister s Decision Government Decree Ministerial Decision Usually, one can assume that the higher the level of the legislation that is being enacted, the longer it will take for the actual enactment due to the reviews that are required at different levels. For example, a law that is being drafted at the level of the Royal Government of Cambodia has to go through a review process that includes the Council of Ministers, the National Assembly and finally the Senate; where as a Prakas (ministerial or inter-ministerial regulation) is simply reviewed within the Ministry that is promulgating it [5]. The scope of the legal document should also be considered. Laws have a broad scope and apply to all government entities and geographic locations within a country, unless they are specifically limited within their text. Sub-laws (like Prakas in Cambodia) are often only binding within the Ministry in which they are promulgated, and orders (like Deika, orders by provincial governors, in Cambodia) may only apply to the geographical area of the province or commune that enacts them [5]. The following table summarises existing national legislation in the countries of the Lower Mekong Basin (LMB). Table 2: Overview of Relevant National Legislation ([1], [3], [4], [6], [8]) Country Cambodia Laws / Acts Law on Environmental Protection and Natural Resource Management Law on Land Management, Urban Planning and Construction Commune Administration Law Land Law Forestry Law Environment Law (Draft) Water Resources Law (Draft) Selected Sub-laws (Decrees, Resolutions, Decisions and Regulations) Royal Decree on Watershed Management Royal Decree on the Protected Area Management Ministry of Environment Sub-decree on Water Pollution Control Ministry of Industry, Mines and Energy Ministry of Water Resources and Meteorology Ministry of Land Management, Urbanisation and Construction Sub-decree on Environmental Impact Assessment Ministry of Agriculture, Forestry and Fisheries Sub-decree on State Land Management Sub-decree on Community Forestry 2 Laws in Thailand are called Act s.

3 Chapter 2.3: National Legislation 3 Country Lao PDR Thailand Viet Nam Laws / Acts Forestry Law Water Resources Law Land Law Environmental Protection Law National Forest Reserve Act National Park Act Agricultural & Land Consolidation Act Agricultural Land Reform Act Land Development Act Royal Irrigation Act Enhancement & Conservation of National Environmental Quality Act Law on Environmental Protection Law on Water Resources Law on Land Law on Forest Protection and Development Law on Minerals Selected Sub-laws (Decrees, Resolutions, Decisions and Regulations) Sub-decree on Social Land Concession Sub-decree on Watershed Management (Draft) PM Decree 102: Implementation of Environmental Law PM Decree 204: Implementation of Water Resources Law PM Decree 67: National Land Management Agency PM Instruction 01: Policy of Building-up the Provinces as Strategic Units, Districts as Planning & Budgeting Units, Villages as Implementing Units Ministry of Agriculture and Forestry Regulation 535: Management of Village Forests Cabinet Resolution on Watershed Classification Cabinet Resolution on Highland Community and Environmental Development and Narcotic Abuse Control Cabinet Resolution on Settlement and Farming in Protected Areas Cabinet Resolution on Land Use and Land Use Conflict Resolution Office of the Prime Minister Regulations on Water Resources Management Ordinance # 26 on Dykes Ordinance # 32 on Exploitation and Protection of Irrigation Works Ordinance on Prevention and Control of Floods and Storms PM Decision 556: National Programme Creating and Protecting Watershed Protection and Special Use Forests PM Decision 661: Establishing 5 Million Ha of New Forests PM Decision 187: Reorganisation of State Forest Enterprises PM Decision 67: Establishment of the National Water Resource Council PM Decision 08: Management of Protection, Special Use and Production Forest PM Decision 99: Organisation and Operation of the National Water Resource Council Government Decree 73: Roles, Duties and Functions of the Ministry of Agriculture and Rural Development (MARD) Government Decree 23: Implementation of Law on Forest Protection and Development

4 Chapter 2.3: National Legislation 4 Country Laws / Acts Selected Sub-laws (Decrees, Resolutions, Decisions and Regulations) Government Decree 179: Implementation of Law on Water Resources Government Decree 163: Allocation and Lease of Forest Land Government Decree 67: Waste Water Discharge Government Decree 109: Conservation and Sustainable Development of Wetlands Government Decree 181: Implementation of the Land Law MARD Decision 37, 38 & 39: Establishing River Basin Planning Commissions (Mekong, Dong Nai, Red-Thai Binh) MARD Decision 93: Functions, Responsibilities and Organisation of Department of Irrigation MARD Decision 92: Functions, Responsibilities and Organisation of Department of Forest Protection Note: Additional national sub-laws are listed for Cambodia in [8] and for Viet Nam in [4]. Selected legislations from Cambodia, the Lai PDR and Viet Nam are briefly described in a separate technical annex 3. C. General Aspects of Legislation Development The creation and refinement of legislation that supports watershed management should follow and enforce relevant policies. Legislation may be reformed or amended to include and / or put stronger emphasis on core elements and principles of watershed management, such as its balancing role, the value of water and land resources, the role of women in resource management, the sustainability of the resource use, the meaning of public participation and multi-sectoral cooperation. Other issues to be integrated into an appropriate legal framework may include [2]: The enabling institutional framework, including the legal roles and responsibilities of institutions and their inter-relationship Mechanisms for stakeholders to participate in natural resources management Conflict resolution mechanisms Timely and appropriate access to information, participation and involvement Clear transfer mechanisms for resource user rights to minimise conflicts Regulatory functions D. National Aspects of Legislation Development The countries of the LMB have signed and ratified all or the majority of international conventions and treaties 4 that guide and influence laws affecting water and land resources, and the related developments at a national level need to reflect such international commitments. 3 See: TA: National Legislation Relevant for Watershed Management [2.3] 4 See: Chapter 2.1: International and Regional Policy Framework

5 Chapter 2.3: National Legislation 5 All of the countries have taken steps to incorporate concepts of watershed management into their legislative framework (see table 2). The necessary government entities have largely been put into place and their roles and functions have been outlined. Additionally the basic mechanisms for creating protection forests for the purpose of watershed management have been established. Nonetheless, it appears that all countries lack meaningful provisions that relate to watershed management in the agricultural sector [6]. In Cambodia, laws are the primary source of legislation. They are passed by the National Assembly (lower house) and the Senate (upper house). The process of promulgating a law that is proposed by the Royal Government of Cambodia (RGC) is expansive, and generally progresses according to the procedure that is described in box 1. Any decisions to amend the law will have to take into account the outlined procedures and time constraints [5]. Cambodia is still developing parts of its legislative framework, as for instance it still has to enact a law on water resources management. In addition, there are still no mechanisms in place for nationwide land use planning, which could tie into the concept of watershed management. Subsidiary legislation under the Forestry Law relating to watershed protection forests, or even the process for designating, delineating and demarcating forest areas has yet to be developed [6]. Box 1: The Process of Promulgating Laws in Cambodia [5] Preparation of a draft law by a technical line ministry, such as the Ministry of Interior. Discussion of the draft law in inter-ministerial meetings, or, if need be, within the concerned Ministry itself. Interested stakeholders such as donors, civil society, private sector, etc are consulted as well. Study of the draft law by the Council of Jurists under the Council of Ministers to check conformity with the Constitution, coherence with existing legislation, etc. Discussion of the draft law at the inter-ministerial level under the Council of Ministers. Examination and adoption of the draft law by the Council of Ministers. Submission of the draft law of the RGC to the National Assembly. Draft laws are submitted in a written format accompanied by a Statement of Purpose to the Permanent Committee of the National Assembly for distribution to all deputies. The Permanent Committee forwards the draft law to a specialised Commission for review. After this review, the Chairman of the Commission presents the opinions of the Commission to the National Assembly. Examination and debate of the draft law at the plenary session, including modifications by the National Assembly. Vote on the draft law by the National Assembly (simple majority). Submission of the adopted law to the Senate, which has to review and provide a recommendation within a time period of one month. In the case of urgent matters, the period is reduced to seven days. If the Senate does not provide the recommendation within the time limit that has been stipulated, the law is promulgated. If the Senate calls for changes, the National Assembly immediately has to take them into account for a second time. In the second review of the adopted law, the National Assembly must adopt it by an absolute majority. Promulgation of the law by the King or the Head of State. A new Organic Law is currently being prepared, which will regulate and decentralise the functions and mandates of institutions at different hierarchical levels. It will amongst others

6 Chapter 2.3: National Legislation 6 address and redefine the roles and responsibilities of the territorial authorities (communes, districts and provinces) with regard to planning, largely following the subsidiarity 5 principle. This will therefore also have implications for the institutional arrangements regarding natural resources and watershed management [10]. The Lao PDR has a well developed basic legislative framework that embraces concepts of watershed management, including important provisions relating to river basin and water resource management plans. It also possesses strong provisions related to land categorisations and classifications for the purposes of developing nationwide land use plans that can tie into programmes for watershed management. There appears to be strong emphasis on issues surrounding the development of hydropower projects, which is understandable considering the country s topography and abundant availability of water resources. What still appears to be lacking to some extent is the subsidiary legislation that will provide the operational detail necessary for proper implementation [6]. In Thailand, there is a long standing legal background for watershed management and it can be traced back to 1975 when the land use planning law for people s resettlement was approved by parliament. The Land Development Act, a land use planning law for agricultural production, was promulgated in 1983 to improve and rehabilitate areas of the country suitable for agriculture. With respect to the environment, the National Park Act of 1961 and the National Forest Land Act of 1964 were beneficial for both ecological and environmental conservation. Thailand s first framework of environmental legislation (The Enhancement and Conservation of National Environmental Quality Act) was promulgated in The Act compels projects of all sizes that have been proposed in watershed class 1B, to undergo a mandatory environmental impact assessment. Furthermore, numerous cabinet resolutions have influenced watershed management activities in Thailand [1]. In Viet Nam, the legislative framework is well developed, especially in the forestry sector where programmes related to the creation and management of watershed protection forests are already being implemented. Provisions in the legislative framework relating to river basin zoning are not yet well defined, but three River Basin Planning Commissions have been established by the Ministry of Agriculture and Rural Development, which is an important step towards enabling effective implementation. In addition, Viet Nam s new Land Law clearly spells out land use categories that can be utilised for watershed management planning purposes, although the subsidiary legislation for implementation of this Law has yet to be enacted [6]. E. Local Rules and Regulations Local rules and regulations represent the lowest level of legislation. In the case of village regulations, they reflect the decisions taken by the community on the future management of their local resources. The rules and regulations will vary between countries depending on the conditions of existing country specific legislative framework, and will vary further from village to village depending on the local conditions 6. Informal rules and regulations usually already exist at local level; which then often become formalised through participatory land use planning processes. Village regulations are a very useful tool to make rules and regulations related to traditional use (usually unwritten) transparent and well known, and also to get them officially recognised. In cases where these traditional regulations exist, they are usually the starting point in the drafting process of formalised 5 The subsidiarity principle equals the authority at the lowest appropriate level [12]. 6 For examples see: TA: Example of Local Regulations: By-Laws of a Village Forestry Association in a Village in the Lao PDR [2.3] TA: Example of Local Regulations: Community Forestry Statutes in a Commune in Cambodia [2.3] TA: Example of Local Regulations: Village Regulations on Community Natural Resources Management in a Village in Cambodia [2.3]

7 Chapter 2.3: National Legislation 7 regulations [7]. Exemplary guidelines for the formulation of village regulations are provided in a technical annex 7. For example the spiritual or sacred forests of minority people are among the best protected forests in Cambodia, similar as in other neighboring countries. The interdictions with regard to the specific forest area are well known to all villagers and possibly to the neighboring communities. On the other hand, government officials and other outsiders will not be aware of the existing taboos. By including them into the village regulations, these rules become more transparent and publicised and chances will increase to have them respected even by outsiders [7]. It is important to point out that in many cases national laws or decrees actually contradict local traditional rules and user rights, and vice versa, especially if the issue is the management of natural resources. Often local or traditional rights govern the use and management of natural resources, while according to national law the resource users do not yet have any legal ownership over the resources. It is for this reason that local communities are often in conflict with government plans [9]. References and Sources for Further Reading [1] Min, B., Inthiravongsy, S., Viranan, V., Thuy Co, P.T. 2004: Country Status Report on Watershed Management in Cambodia, Lao PDR and Viet Nam. Working Paper No. 08. MRC / GTZ Watershed Management Project (WSMP). [2] Global Water Partnership (GWP), 2005: Global Water Partnership Toolbox. Creating an Organisational Framework Forms and Functions. Eng.pdf [3] GTZ, 2002: Watershed Management in the Lower Mekong Basin A Component of the Agriculture, Irrigation and Forestry Programme of the Mekong River Commission. Appraisal Mission Report. Volume 2 Country Reports. [4] Ngai, N.B. et al, 2006: Review and Analysis of Policies related to Watershed Management in Viet Nam. Consultancy Report. MRC / GTZ Watershed Management Project [unpublished] [5] Oberndorf, R. B. 2004: Analysis of Existing / Draft Rules and Regulations related to Watershed Management in Cambodia within the Ministry of Agriculture, Forestry and Fisheries, Ministry of Environment, and Ministry of Water Resources and Meteorology. Working Paper No. 06. MRC / GTZ Watershed Management Project (WSMP). [6] Oberndorf, R. B. 2004: Comparative Analysis of Policy and Legislation related to Watershed Management in Cambodia, Lao PDR and Viet Nam. Working Paper No. 07. MRC / GTZ Watershed Management Project (WSMP). [7] Rock, F. ed. 2001: Participatory Land Use Planning in Rural Cambodia. Manual for Government Staff and Development Workers. Ministry of Land Management, Urban Planning and Construction (MLMUPC), Sustainable Management of Resources in the Lower Mekong Basin Project (MRC / GTZ). 4aaf9/ba7aa16ecf97b bc90030dff1?OpenDocument 7 See also: TA: Guidelines and Guiding Questions for the Elaboration of Village Regulations An Example from Cambodia [2.3]

8 Chapter 2.3: National Legislation 8 [8] Sokhom, T. et al 2006: Review and Analysis of Existing Policies and Legislation Related to Watershed Management in Cambodia. Consultancy Report. MRC / GTZ Watershed Management Project. [unpublished] [9] Viriyasakultorn, V. 2006: Personal communication. [10] Feldkoetter, C. 2006: Land Management and Planning. Appraisal Report of Green Belt Siem Reap Project. [unpublished] [11] Tan, A. 1998: Preliminary Assessment of Thailand s Environmental Law. [12] Badenoch, N. 2002: Trans-boundary Environmental Governance Principles and Practice in Mainland Southeast Asia. World Resource Institute. [13] Rowcroft, P. 2005: Payments for Environmental Services: A Review of Global Experiences and Recommendations for Their Application in the Lower Mekong Basin. Working Paper No. 17. MRC / GTZ Watershed Management Project (WSMP).