NOVELTIES OF THE LAW ON PROMULGATION OF LEGAL NORMATIVE DOCUMENT 2015 Trần Văn Lợi Deputy Head of Legislative Division, GALD The Law on Promulgation of Legal Normative Documents was adopted by the 13 th National Assembly at its 9 th pleanary meeting on 22/6/2015 and will take effect as from 01/7/2016. The Law on Promulgation of Legal Normative Documents 2015 comprises 17 chapters, 173 articles and will replace the Law on Promulgation of Legal Normative Documents 2008 and the Law on Promulgation of Legal Normative Documents of People s Councils and People s Committees 2004. Below are the novelties of the Law on Promulgation of Legal Normative Documents 2015: 1. Consolidating the two current laws on promulgation of legal normative documents The Law on Promulgation of Legal Normative Documents 2008 and the Law on Promulgation of Legal Normative Documents of People s Councils and People s Committees 2004 have provided a legal basis for the establishment of order and discipline in the development and promulgation of legal normative documents work of both the central level and local level, contributing to the development and perfectioning of the legal system. However, despite the co-existence of the two laws that regulate together the activity of development and promulgation of legal normative documents, these two laws have revealed a number of inconsistent or even contradictory provisions. To address this issue, based on the heritage and further development of the two current laws, the Law on Promulgation of Legal Normative Documents 2015 is a consolidated law that will be applied thoroughly and consistently for the development and promulgation of legal normative documents of agencies, institutions and individuals vested of power to promulgate legal normative documents at both the central level and the local level. 2. In regard to legal normative documents and the definition of legal norms The definition of legal normative document was provided for the first time in the Law on Promulgation of Legal Normative Documents 1996, then remains in the 2008 Law and 2004 Law. The provision on definition of legal normative documents serves as base for the competent authorities to distinguish between legal normative documents, administrative documents and legal application documents, which would contribute to substantially limit the number of administrative documents containing legal norms. However, due to the fact that the provided definition in the two Laws are too much of an
academic nature and not precise on the other hand, a clear determination of which documents are legal normative documents has always been a difficult work. For the importance of the definition of legal normative documents and in order to deal with the shortcoming in distinguishing the definition of legal normative documents and ordinary administrative documents and other documents of State agencies that have been promulgated so far, the 2015 Law separates the definition of legal normative documents and the definition of legal norms. Details are as below: 1. Legal norms are general rules of conduct of generally binding validity which are applied for repeated times to all agencies, organizations or individuals in the entire country or in certain administrative areas, and which are promulgated by State agencies or competent individuals as prescribed in this Law and the implementation of which is ensured by the State (item 1 Article 3). 2. Legal normative documents are documents that legal norms and promulgated in accordance with the competence, forms, steps and procedures prescribed in this Law. Documents that contain legal norms but are not promulgated in accordance with the competence, forms, steps and procedures stipulated in this Law are not legal documents (Article 2). 3. In regard to the competence and types of legal normative documents Following the direction to continue the simplification of the system of legal normative documents, the new Law has managed to remove a number of types of legal normative documents, at the same time provide a clearer, more precise and rigid content on the promulgation of different types of legal normative documents. Details are as below: 3.1. On the types of legal normative documents Compared to the 2008 Law and 2004 Law, the new Law has reduced the five following types of legal normative documents: (1) Joint Resolution between the Standing Committee of the National Assembly or the Government and the central entity of politicalsocial organizations (except Joint Resolution between the Standing Committee of the National Assembly or the Government and the President Board of the Central Committee of Vietnam Fatherland Front, (2) Joint Circular between Ministers, Heads of Ministerial level agencies; ( 3) Directives of Provincial People s Committee; (4) Directives of District People s Committees; (5) Directives of Commune People s Committees. With respect to the Joint Resolutions, the only type retained is the Joint Resolution between the Standing Committee of the National Assembly or the Government and the President Board of the Central Committee of Vietnam Fatherland Front. However, in order to be conformed with 2013 Constitution, the 2015 Law has supplemented a new type of legal normative documents of Special administrative and economic unit authorities. In accordance with Article 3, the system of legal normative documents is composed of 26 types to be promulgated by 18 competent entities, including: 1. Consitution. 2
2. Codes and Laws (hereinafter referred to as laws ), Resolutions of the National Assembly; 3. Ordinances, Resolutions of the Standing Committee of the National Assembly Pháp; Joint Resolution between the Standing Committee of the National Assembly and the President Board of the Central Committee of Vietnam Fatherland Front; 4. Orders, Decisions of the State President; 5. Decrees of the Government; Joint Resolution between the Government and the President Board of the Central Committee of Vietnam Fatherland Front; 6. Decisions of the Prime Minister; 7. Resolutions of the Justice Council of the Supreme People s Court; 8. Circulars of the Chief Justice of the Supreme People s Court; Circulars of the Chief Procurator of the Supreme People s Procuracy; Circulars of the Ministers, Head of Ministerial level agencies; Joint Circulars between the Chief Justice of the Supreme People s Court and of the Chief Procurator of the Supreme People s Procuracy; between the Ministers, Head of Ministerial level agencies and the Chief Justice of the Supreme People s Court, the Chief Procurator of the Supreme People s Procuracy; Decisions of the General State Auditor; 9. Resolutions of People s Councils of provinces and central cities (hereinafter referred to as provincial level ); 10. Decisions of Provincial People s Committees; 11. Legal normative documents of the Special administrative and economic unit authorities; 12. Resolutions of People s Councils of districts, municipalities, provincial cities and administratively equivalent units (hereinafter referred to as District level ); 13. Decisions of District People s Committees; 14. Resolutions of People s Councils of communes, towns (hereinafter referred to as Commune level ); 15. Decisions of Commune People s Committees. 3.2. On the competence and contents of legal normative documents On the ground of the 2013 Consitution and Laws related to the organization of the State machine ((amended) Law on the organization of the National Assembly, (amended) Law on the organization of the Government, (amended) Law on the organization of the People s Courts, (amended) Law on the orga nization of the People s Procuracies, Law on the organization of local governments, (amended) Law on the State audit, (amended) Law on the Vietnam Fatherland Front ), the 2015 Law has re-determined the contents of the promulgation of legal normative documents of a number of agencies, organizations and individuals vested with this competence. Details are as below: 3
- Regarding Laws and Resolutions of the National Assembly: the new Law provides with clarity and precision for the contents on which the National Assembly shall adopt a law and those on which they shall issue a resolution (Article 5). As such, the National Assembly will pass a law to stimulate on the organization of the State machinary, on the national fundamental monetary policies, on the State budget, on the fundamental policies on culture, education, public health, technology, sciences, environment, on human rights, on citizens fundamental rights and obligations, on the international relations policies, on the national defense policies, on the national security, etc; the National Assembly will issue a resolution to provide for the pilot implementation of a number of new policies that fall into the decision competence of the National Assembly but that have no laws yet to regulate or that are different from what current laws are providing; to temporarily suspend or extend the application term of the entire of a part of a law or ordinance of the National Assembly to respond to urgent requirements on development of the economy and the society, ensure human rights, citizens rights; to stipulate on emergency situations and other special measures to ensure the national defense and security. - Regarding Ordinances and Resolutions of the Standing Committee of the National Assembly (Article 16): in comparison to the 2008 Law, the new Law does not provide a fixed position that after a certain time of implementation an ordinance has to be submitted to the National Assembly for consideration on the decision to adopt a law; on the other hand, the new Law supplements a number of contents on which the the Standing Committee of the National Assembly has to issue a resolution, including: (1) to temporarily suspend or extend the application term of the entire of a part of an ordinance or resolution of the Standing Committee of the National Assembly to respond to urgent requirements on development of the economy and the society; (2) to repeal an ordinance or resolution of the Standing Committee of the National Assembly. - Regarding Orders, Decisions of the State President (Article 17): in comparison to the 2008 Law, the competence to promulgate orders and decisions of the State President is provided for more clearly, as following: complete mobilization or partial mobilization, declaring or canceling the emergency status in accordance with a resolution of the Standing Committee of the National Assembly; declaring or canceling the emergency status in the whole country or in localities in cases where it is impossible to convene a meeting of the Standing Committee of the National Assembly; and other matters falling into the competence of the State President. - Regarding Decrees of the Government (Article 19): the new Law supplements a couple of contents on which the Government shall promulgate decrees: (1) concrete measures to organize the implementation of the Consitution, laws and resolutions of the National Assembly, ordinances and resolutions of the Standing Committee of the National Assembly, orders and decisions of the State President; (2) the matters in relation to th e duties and powers of more than two Ministries, two Ministerial level agencies. - Regarding legal normative documents of provincial People s Councils and provincial People s Committees: in view to address the unclear and scattered provisions on the promulgation of legal normative documents of provincial People s Councils and 4
provincial People s Committees of the 2004 Law, the new Law has made a clear line separating the power to promulgate legal normative documents of the provincial authorities, including: (1) to provide details to matters delegated for; (2) to organize and ensure the implementation of the Constitution and laws at their corresponding locality; (3) to decide on specific issues of their locality. The contents of resolutions to be promulgated by provincial People s Councils and of decisions to be promulgated by provincial People s Committees are provided with precision in the Articles 27 and 28. In addition, the new Law also restricts the contents on which the following entities can promulgate legal normative documents: - The Standing Committee of the National Assembly or the Government and the President Board of the Central Committee of Vietnam Fatherland Front shall promulgate Joint Resolutions to provide detailed provisions on the matters delegated by a law (Article 18); - The Chief Justice of the Supreme People s Court and the Chief Procurator of the Supreme People s Procuracy; the Ministers, Head of Ministerial level agencies and the Chief Justice of the Supreme People s Court, the Chief Procurator of the Supreme People s Procuracy shall promulgate Joint Circulars to stipulate on the coordination and cooperation between these agencies in the conduct of proceedings formalities and procedures (Article 25); - District People s Councils and Commune People s Councils shall promulgate Resolutions and District People s Committees and Commune People s Committees shall promulgate Decisions to stipulate on the matters delegated by a law (Article 30). 4. In regard to the responsibilities of the competent agencies, organizations and individials in the development and promulgation of legal mornative documents The 2015 Law has added one article on the responsibilities of the competent agencies, organizations and individials involved in the development and promulgation of legal mornative documents from the stage of preparing the proposal for development of legal normative documents, taking the lead, participating in the drafting process, conducting the appraisal, the verification, making revisions, submitting the project or the draft, to the last stage of promulgating the legal normative documents (Article 7): (1) With respect to the agencies, organizations and individials who have the competence to submit and prepare a project or a draft of legal normative documents: - The agencies, organizations and individials who have the competence to submit and prepare a project or a draft of legal normative documents shall be responsible for the progress rate of the submission and for the quality of the project or the draft submitted; - The agencies and organizations who take the lead in preparing the draft of legal normative documents shall be responsible to the agencies, organizations and individials who have the competence for submission or to the agencies, organizations and individials who have the competence for promulgation of those legal normative documents for the draftting progress and the quality of the project or the draft they are assigned to prepare. 5
(2) With respect to the appraisal, verification agencies; agencies and organizations contributing opinions and feedbacks: - The appraisal agencies shall be responsible to the agencies, organizations and individials who have the competence for submission or to the agencies, organizations and individials who have the competence for promulgation of legal normative documents for the appraisal results on the proposal for development of legal normative documents, the project or draft of legal normative documents. - The verification agencies shall be responsible to the agencies, organizations and individials who have the competence for promulgation of legal normative documents for the verification results on the project or draft of legal normative documents. - The competent agencies, organizations and individials who are requested to provide feedbacks and opinions on the proposal for development of legal normative documents, the draft of legal normative documents shall be responsible for the contents of opinions, feedback and timelines of providing opinions, feedback. (3) With respect to the agencies promulgating legal normative documents: - The National Assembly, the People s Councils and other entities and individuals who have the power to promulgate legal normative documents shall be responsible for the quality of the documents that they promulgate. - The competent agencies and individuals shall be responsible for the late promulgation of legal normative documents providing details for the implementation of laws and resolutions of the National Assembly, ordinances and resolutions of the Standing Committee of the National Assembly, orders and decisions of the State President. On the other hand, the 2015 Law also anticipates that in the case of the drafts of legal normative documents suffering from low quality, slow progress, irrespect of the constitutionality, legality, or consistency of legal normative documents, the head of the agency or organization taking the lead in drafting, the appraisal agency, the submission agency, the verification agency and the promulgation agency of the legal normative documents, within their own scope of duties and powers, shall be responsible for the non fulfilment of their duties, and it should be subject to the extent thereof that they will be handled in accordance with the laws and regulations on State officials and any other relevant provisions. 5. In regard to strictly prohibited acts in the development and promulgation of legal normative documents The 2015 Law has added one article that provides for strictly prohibited acts (Article 14), including the following acts: - Promulgating legal normative documents that are contrary to the Constitution, contrary to the legal normative documents of higher State agencies; - Promulgating legal normative documents that do not belong to the system of legal normative documents; 6
- Promulgating legal normative documents that do not fall into the right competence, that do not follow the types, steps and procedures provided in the Law on Promulgation of Legal Normative Documents; - Stipulating administrative procedures in the legal normative documents of the Chief Justice of the Supreme People s Court and the Chief Procurator of the Supreme People s Procuracy; of the Ministers and Head of Ministerial level agencies; of the General State Auditor; of the People s Councils and People s Committees of different levels and the Special administrative and ecocomic units, except in the cases specified in the law. 6. In regard to the agenda for development of laws and ordinances According to the 2008 Law, the agenda for development of laws and ordinances was comprised of the agenda for development of laws and ordinances in accordance with the term of the National Assembly and the annual agenda for development of laws and ordinances. However, the reality of implementation of these agendas showed that the agenda for development of laws and ordinances in accordance with the term of the National Assembly was too long, difficult for implementing and subject to regular adjustment in order to adapt to the economic and social conditions and development of the country. Therefore, in view to ensure a proactive and flexible mechanism in the legislative work, in conformity with the management practice, the 2015 Law no longer provides for the agenda for development of laws and ordinances in accordance with the term of the National Assembly and only keeps the provision on the annual agenda for development of laws and ordinances. The annual agenda for development of laws and ordinances is stipulated in a way to be integrated with the policy development process with a good number of breakthoughs. 7. Addition of the policy development project The 2008 Law and the 2004 Law provided for the process for development of legal normative documents, from the proposal of initiatives, drafting, reviewing to the promulgation and declaration of legal normative documents, however there was no separation between the policy development phase and the document drafting phase. As a result, the new Law has added the planning and policy development process before drafting legal normative document in a way to separate the former from the latter. The policy development process will be applied for the development of laws and ordinances, a few types of decrees of the Government and resolutions of provincial People s Councils. 7.1. Policy development process for the development of laws and ordinances The policy development process for the development of laws and ordinances is integrated in the process for preparing the draft annual agenda for development of laws and ordinances, which comprises the following main steps: Step 1: Preparing the proposal for development of laws, ordinances First, the agency, organization or a Deputy of the National Assembly shall conduct or request competent agencies to conduct the followings: (1) Summary of the situation of law implementation related to the proposal; to conduct surveys and assessment of the actual state 7
of the social relations related to main contents of the draft law or ordinance; (2) Scientific study on the related issues to support the preparation of the proposal, study information, documents and international treaties to which the Socialist Republic of Vietnam is a member, which are related to the proposal for development of laws, ordinances; (3) Prepare contents of the policies to be included in the law or ordinance projects; solutions to implement the policies; impact assessment of those policies, solutions and reasons for the choice of such policies; (4) Estimated resources and conditions to ensure the implementation of the law or ordinance. Second, preparing the dossier on the proposal for development of laws or ordinances in accordance with Article 29, which should include: (1) a statement on the proposal for development of laws and ordinances; (2) Impact assessment report on the policies intended in the proposal for development of laws and ordinances; (3) Summary report on the situation of law implementation or assessment of the factual state of the social relations related to the policies intended in the proposal for development of laws and ordinances; (4) Consolidation together with explanations and taking into account of comments and opinions provided by the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Foreign Affairs, the Ministry of Justice and other organizations and institutions; a copy of the collected comments; (5) Outline of the draft law or ordinance. The markable point of the policy development process is the responsibility for conducting policy impact assessments. The new Law devotes on article (Article 35) to stipulate on the responsibilities and contents of the impact assessment of the policies intended in the proposal for development of laws, ordinances. According to this provision, the responsibility to conduct policy impact assessments belong to the agency, organization and individual submitting the proposal, the competent entity requested by a Deputy of the National Assembly and the agency proposing a new policy during the process of drafting, appraisal, verification, reviewing and giving opinions on the law or ordinance projects. The contents of the impact assessment of each of the policies intended in the proposal for development of laws and ordinances should clearly specify: the issues to be addressed; the objectives of the policy; the solutions to implement the policy; positive and negative effects of the policy; costs and benefits of the solutions; comparison between costs and benefits of each solution; choice on the solution(s) of the agency, organization and reasons for this choice; impact assessment of administrative procedures and gender impact assessment (if any). To ensure the quality of the impact assessment report, the new Law provides for a mandatory procedure for collecting comments and constructive critism on the draft report. Third, organizing the collection of comments from relevant agencies and organizations on the proposal for development of laws, ordinances; publish the summary report on the situation of law implementation, the impact assessment report of the policies intended in the proposals on the official website of the National Assembly for the proposals made by the Standing Committee of the National Assembly, the Ethnic Council, the Committees of the National Assembly or the National Assembly Deputies, or on the official website of the Government for proposals for development of laws and ordinances to be submitted by the Government, and on the official website of the agencies and 8
organizations preparing the proposals. (t he publication s time shall be at least 30 days); consolidate, study and take into account comments and provide explanations; publish the report on explanation and taking into account of comments on the official websites and portals of the agencies, institutions preparing the proposal. Additionally, in view to ensure the appropriateness on financial resources, human resources, the conformity with relevant international treaties to which the Socialist Republic of Vietnam is a member, the constitutionality, the legality and the consistency of the proposal for development of laws, ordinances with the legal system, the Article 36 of the Law stipulates on the mandatory inquiry for opinions of the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Foreign Affairs, the Ministry of Justice. Step 2: Appraisal of the proposal for development of laws, ordinances (Article 39) Different from the 2008 Law, the new Law provides for a mandaroty appraisal on the proposal for development of laws, ordinances and assigns the Ministry of Justice the leading role in coordination with the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Foreign Affairs and other relevent agencies and organizations in the appraisal process before submission to the Government. The timeline, dossier and contents for appraisal are stipulated in this article. Step 3: Submission of the proposal for development of laws, ordinances to the Government (Article 40) The agencies preparing the proposal for development of laws and ordinances shall be responsible to submit the proposal to the Government at the latest of twenty days before the date of the Government s meeting. The submission dossier is composed of the documents indicated in Article 37 of the Law: the appraisal report on the proposal for development of laws and ordinances; the report on explanation and taking into account comments on the appraisal results and any other documents (if any). Step 4: Consideration and approval of the proposal for development of laws and ordinances by the Government (Article 41, Article 42 and Article 43) The Government shall hold meetings to consider the proposals for development of laws and ordinances and shall issue a resolution on the proposal for development of laws and ordinances together with the approved policies. On the basis of the Government s resolution, the Ministries and Ministerial level agencies who propose the development of laws and ordinances will finalize the dossier on the proposal for development of laws, ordinances and send to the Ministry of Justice for the preparation of the Government s proposal on the agenda for development of laws and ordinances. For the proposals for development of laws and ordinances that are not made and submitted by the Government, the agency, organization or Deputy of the National Assembly who propose the development of these laws and ordinances shall send the dossier on the proposal for development of laws, ordinances and relevant requesting document to the Government for comments before submitting to the Standing Committee of the National Assembly. 9
Step 5: Submission of the dossier on the proposal for development of laws and ordinances to the Standing Committee of the National Assembly (Article 46) The new Law keeps the entire provision of the 2008 Law on the deadline for submission of the dossier on the proposal for development of laws, ordinances for the consideration of the Standing Committee of the National Assembly. As such, by the latest of 01 March of the previous year, the proposals for development of laws and ordinances must be sent to the Standing Committee of the National Assembly in order to prepare the draft annual agenda for development of laws and ordinances of the National Assembly as well as to the Law Committee for verification and review. 47) Step 6: Verification of the proposal for development of laws and ordinances (Article The Law Committee shall collect and play the leading role in the verification of the proposals for development of laws and ordinances from agencies, organizations and the Deputies of the National Assembly. The contents of the verification shall focus on the need to promulgate the proposed laws and ordinances, their governing scopes and applicable entities, their basic policies, the consistence, feasibility and priority, time of submission as well as conditions for ensuring the development and implementation. Step 7: The Standing Committee of the National Assembly shall consider the proposals for development of laws and ordinances in view of preparing the draft agenda for development of laws and ordinances (Article 48) Based on the proposals for development of laws and ordinances of the agencies, organizations and the Deputies of the National Assembly, legislative initiatives of the Deputies of the National Assembly as well as on the verification findings of the Law Committee, the Standing Committee of the National Assembly shall prepare a draft agenda for development of laws and ordinances to be submitted to the National Assembly for consideration and decision (Article 48). Step 8: The National Assembly shall consider and pass the agenda for development of laws and ordinances (Article 49) The National Assembly shall consider and vote on the resolution of the National Assembly on the agenda for development of laws and ordinances, in which are clearly indicated the names of the law and ordinance projects and the expected time of submission to the National Assembly or the Standing Committee of the National Assembly for consideration and adoption. 7.2. The policy development process in the development of Decrees of the Government The policy development process in the development of decrees of the Government is applied for the development and promulgation of decrees provided in items 2 and 3 of Article 19 and is composed of the following steps: Step 1: Prepraring the proposal for development of decrees 10
The agency proposing the development of a decree shall be responsible to conduct a summary of the situation of law implementation, an assessment of current legal normative documents related to the proposal for development of decrees; to conduct survey and assessment on the actual state of the related social relations; to organize the study on information, documents and international treaties to which the Socialist Republic of Vietnam is a member, which relate to the development of the decree; to develop the contents of the policies intended in the proposal; to conduct impact assessment on these policies; to anticipate the ressources and conditions to ensure the implementation of the decree after the promulgation by the Government; to organize the collection of comments and opinions on the proposal for development of the decree (for a period of at least 30 days) and prepare the dossier on the proposal for development of decrees in accordance with Article 87 of the Law. Step 2: Appraisal of the proposal for development of decrees (Article 88) The Ministry of Justice shall take the lead and coordinate with the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Foreign Affairs and other relevant agencies and institutions to perform the appraisal of the proposal for development of decree. The contents of appraisal shall focus on the following aspects: (1) the n ecessity of promulgation of the decrees; their governing scope and applicable entities; (2) the conformity of the policies with guidelines, directions of the Party and and policies of the State; (3) the constitutionality, legality, consistency with the legal system, the feasibility of the policies intended in the proposal and the solutions for implementation of those policies; (4) the conformity of the policies with international treaties to which Vietnam is a member; (5) the necessity, rationality, and compliance costs of the administrative procedures; the mainstreaming of gender equality issues in the proposal; and (6) the compliance with the steps and procedures for development of the decrees. Step 3: Consideration and approval of the proposal for development of decrees by the Government (Article 89) On the basis of the proposals for development of decrees submitted by the Ministries and Ministerial level agencies, the Government will consider and eventually approve each policy intended in the decree in its meeting in accordance with the provisions of Article 89. 7.3 The policy development process in the development of resolutions of provincial People s Councils The policy development process in the development of resolutions of provincial People s Councils is applied for the development and promulgation of resolutions provided in items 2, 3 and 4 of Article 27 and is composed of the following steps: Step 1: Prepraring the proposal for development of resolutions The agency proposing the development of resolutions shall be responsible to conduct the summary of the situation of law implementation and the assessment of current legal normative documents related to the proposal for development of resolutions; to conduct survey and assessment of the actual state of the related social 11
relations; to conduct studies of information, documents and international treaties to which the Socialist Republic of Vietnam is a member that are related to the proposal for development of resolutions; to anticipate the ressources and conditions to ensure the implementation of the resolutions after promulgation by the People s Councils; to organize the collection of comments and opinions on the proposal for development of the resolutions; to publish full the text of the proposal on development of resolutions on the official website of provinces and cities under central management (for a period of at least 30 days) to collect comments and opinions of relevant agencies, organizations and directly effected subjects of the intended policies. Bước 2: Appraisal of the proposal for development of resolutions (Article 115) The Department of Justice shall take the lead and coordinate with the Department of Finance, the Department of Home Affairs and related agencies institions to perform the appraisal of the proposal for development of resolutions. The timeframe for performing the appraisal is 15 days as from the date the dossier is received. The appraisal report should indicate clearly the opinions of the Department of Justice on the contents of the appraisal and on the proposal for development of resolutions whether it is satisfactory or unsatisfactory to be submitted to the People s Councils for consideration and decision. The contents of appraisal of the proposal for development of resolutions are referred to in accordance with the contents of appraisal of the proposal for development of laws and ordinances. Step 3: Approval of the policies in the proposal for development of resolutions (Article 116) - For the proposals for development of resolutions to be submitted by the provincial People s Committees, the provincial People s Committees shall be responsible to consider and discuss collectively and vote according to the majority principle for the approval of policies in each proposal for development of resolutions. - For the proposals for development of resolutions to be submitted by other agencies and organizations, such agencies or organizations shall be responsible to approve the policies in the proposal for development of resolutions. Step 4: Considerations on the proposal for development of resolutions and assignment of drafting leading job to an agency, organization (Article 117, Article 118) The agencies, organizations who propose the development of resolutions shall submit to the Standing Board of the People s Council the dossier on the proposal for development of resolutions. The Standing Board of the People s Council shall consider the proposal; if the proposal is approved, the Standing Board shall assign an agency to submit the draft resolution and decide on the deadline for submission to the People s Council the draft resolution; the submitting agency shall be responsible to assign a drafting lead agency and drafting coordination agencies. 8. Renovation of the processes for development and promulgation of legal normative documents by few other competent agencies and individuals 12
8.1. The process for development and promulgation of decisions of the Prime Minister, circulars of the Ministers and Head of Ministerial level agencies In Chapter V, the 2015 Law reserves the whole Section 3 (from Article 97 to Article 100) to stipulate on the process for development and promulgation of decisions of the Prime Minister and Section 4 (from Article 101 to Article 104) to stipulate on the process for development of circulars of the Ministers and Heads of Ministerial level agencies with many renovations and stricter provisions: a) With respect to the process for development and promulgation of decisions of the Prime Minister, Article 97 of the new Law provides clearly the duties of the drafting lead agency, the contents of and the dossier on the appraisal of draft decisions of the Prime Minister. b) With respect to the process for development and promulgation of circulars of the Ministers and Heads of Ministerial level agencies: in order to address the situation of inflation of circulars promulgated, at the same time eradicate the current close practice of promulgating circulars, which should contribute to the improvement of quality of circulars that will be promulgated, the new Law has added a number of new mechanisms to better control the quality of circulars. Details are as below: - During the course of drafting, the Ministries and Ministerial level agencies shall collect comments and opinions of the directly affected subjects of the intended legal normative documents, specify the issues on which comments are requested and which should be suitable to each group of consultation, also indicate precisely the addresses where comments and opinions should be communicated to; consolidate and study the comments, take into account and provide explanations to the comments and opinions; conduct the impact assessment of the intended legal normative documents, conduct the impact of administrative procedures that may be generated by the documents in case the documents shall provide for administrative procedures. - With respect to the circulars of which the provisions will have a direct impact on the rights, obligations and interests of the people and enterprises or that relate to many sectors and areas, the Ministers, the Head of Ministerial level agencies shall set up an Appraisal Advisory Council with the participation of related agencies organizations, experts and scientists for the appraisal of the draft circulars. The contents of and the dossier on the appraisal are provided with details in Article 102. 8.2. The process for development and promulgation of orders and decisions of the State President The 2015 Law basically inherits from the provisions of the 2008 Law, however adds a new clause: the State President can request the agency proposing the development of orders or decisions to discuss on the important issues of the draft orders or draft decisions of the State President (item 3 Article 81). 8.3. The process for development and promulgation of joint resolutions 13
A new clause has been added that before the promulgation, the draft joint resolutions between the Standing Committee of the National Assembly and the President Board of the Central Committee of Vietnam Fatherland Front must be verified by the Ethnic Council and different Committees of the National Assembly; the draft joint resolution between the Government and the President Board of the Central Committee of Vietnam Fatherland Front must be appraised by the Ministry of Justice (item 3 Article 109). 8.4. The process for development and promulgation of resolutions of District People s Councils A new clause has been addd that the Bureau of Justice shall be responsible to conduct the appraisal on the draft resolutions of the District People s Council before submitting to the District People s Committee (item 1 Article 134). 9. Amendments and supplementation to a number of provisions on the processes for drafting, appraisal, verification, consideration and adoption of legal normative documents - Supplementing the responsibilities of the members of the drafting committee for laws and ordinance projects, resolution projects. As such, it is the duty of the members of the drafting committee to participate fully in all meetings of the drafting committee and they should be responsible for the quality, the constitutionality, the legality and the feasibility of the contents assigned to them in the draft documents and in accordance with the expected progress in preparing the draft documents; in the case of not being able to be present in the meetings due to objective reasons, contributions of ideas and inputs are required in written (item 4 Article 54); - Amending the contents for appraisal and verification in the direction to supplement the necessary contents as focus of the appraisal and verification (required conditions on financial and human ressources to ensure the effectiveness of implementation of the legal normative document; mainstreaming gender issues in the draft documents, etc.); removing a number of inappropriate and unnecessary contents such as apprasing the feasibility of the draft document, the necessity for promulgation, subjects and scope of regulation of the draft document (item 3 Article 58 and Article 65); - Affirming clearly the legal value of the appraisal and verification reports: not only should the appraisal and verification reports indicate clearly the opinions on the contents for appraisal and verification, they should also present precisely the position on whether the project of the draft has responded or has not responded to the conditions for submission. In the case where the Ministry of Justice concludes that the project or the draft has not yet sufficiently responded to the conditions for submission to the Government, the dossier should be returned to the drafting lead agency to continue the revisions and finalization of the project or the draft (item 4 Article 58); in the case where the verification lead agency states that the project or the draft has not yet sufficiently responded to the conditions for submission to the Standing Committee of the National Assembly or the National Assembly, they should report this to the Standing Committee of the National 14
Assembly to consider returning the dossier to the submitting agency to continue the revisions and finalization of the project or the draft (Article 67); - Supplementing the process for consideration and adoption of the law project in three meeting sessions of the National Assembly for the projects of huge scale, containing a great number of complex provisions and items (Article 76). The sequential steps for consideration and discussion in the first plenary meeting and the third plenary meeting should be undertaken in accordance with the respective provisions on the sequential steps for consideration and adoption of law projects and draft resolutions in two plenary meetings. During the period between the first plenary meeting and the second plenary meeting, the agencies, organizations and Deputies of the National Assembly submitting the law project shall be responsible to take lead in studying and taking into account the comments, providing explanations and making revisions to the draft Law, and organizing the collection of opinions of the people on the law project in accordance with a decision of the Standing Committee of the National Assembly (if any); - Increasing the Government s role in the process for for consideration and adoption of the law and ordinance projects, draft resolutions in the meeting sessions of the National Assembly and meetings of the Standing Committees of the National Assembly: in the case where the agencies, organizations and Deputies of the National Assembly submitting the projects, the drafts hold a different opinion or where the Government holds a different opinion as regard to the projects or the drafts not submitted by the Government, the Government, the agencies, organizations and Deputies of the National Assembly shall report this to the National Assembly or the Standing Committee of the National Assembly for considerationa and decision (item 7 Article 74, item 3 Article 75, item 3 Article 77). - The dossier for submission of the project or draft legal normative documents: in view of ensuring the thrift practice and avoiding wastefulness in printing the documents of the dossier for submission, the new Law stipulates that the printed copy will only be required for the statement on the proposal, the draft document, appraisal and verification reports, the others documents can be sent in electronic copy. 10. Larger open to democracy, enhancement of transparency, publicity in the development of legal normative documents The 2015 Law has added a good number of more precise and suitable provisions on the collection of opinions and comments in order to create favorable conditions for the pople to participate in the process for development of legal normative documents in a non artificial and more efficient way. This novelty is realised in some of the main points as below: First, with respect to laws, ordinances, decrees of the Government provided in the items 2 and 3 of Article 19, resolutions of the provincial People s Councils provided in the items 2, 3 and 4 of Article 27, the collection of opinions and comments is deemed as a mandatory procedure in both the process for proposal for development of policies and the drafting process. The publication period is at least 30 days for the proposals for development of policies and at least 60 days for projects and draft documents. With respect to detailing decrees, decisions of the Prime Minister, circulars of the Ministers and Heads 15
of Ministerial level agencies, etc. the collection of opinions and comments shall be undertaken once the draft documents are ready (the publication period is at least 60 days). Second, it is now clearly provided that the agencies, organizations who organize the collection of comments and opinions must indicate precisely the addresses on which the comments and opinions are received and published. According to provisions of item 1 Article 36, the summary of the situation of law implementation and the impact assessment report of the policies intended in the proposal for development of laws and ordinances shall be published on the official portal/ website of the National Assembly for the proposals made by the Standing Committee of the National Assembly, the Ethnic Council, the Committees of the National Assembly or the Deputies of the National Assembly; or on the official portal/ website of the Government for the proposals for development of laws and ordinances to be submitted by the Government, and on the official portal/ website of the agencies and organizations preparing the proposals. Third, apart from collecting comments and opinions of the directly affected subjects of the intended documents, related agencies, organizations and individuals, the 2015 Law provides for the responsibility to mandatory seeking for opinions of the Ministry of Finance, the Ministry of Home Affairs, the Ministry of Foreign Affairs, and the Ministry of Justice as regard to the proposals for development of laws and ordinances and proposals for development of decrees. These Ministries shall be responsible to make comments and provide opinions in written evaluating the financial and human ressources, the conformity with international treaties to which the Socialist Republic of Vietnam is a member, the constitutionality, the legality and the consistency of the proposals and communicate to the agencies, organizations and individuals preparing the proposals (item 2 Article 36). Fourth, the contents on which opinions and comments are seeked should be appropriate to each subject of whom opinions and comments are seeked and should focus on the main and important policies that would have a direct impact on the people and enterprises. During the time draft laws, draft ordiances and draft resolutions are being placed publicly for comments and opinions, if the drafting lead agency makes any revisions or amendments to the draft documents that make them different from the ones having published previously, the drafting lead agency shall published the updated and revised version of the draft documents (item 1 Article 57) (khoản 1 Điều 57). Fifth, various diversified forms of collection of comments and opinions are provided, such as: publication on websites, direct collection of comments and opinions, sending the drafts requesting comments, organizing workshops, seminars or via social media. Especially, with respect to the proposals for development of resolutions of provincial People s Councils, the agency proposing the development of the resolution can hold a direct dialogue on the intended policies with the directly effected subjects of the resolution, if deemed necessary (item 2 Article 113). Sixth, reinforcing the responsibility to provide feedback and explanations to comments and opinions by adding the provision that the concerned agencies, organizations and Deputies of the National Assembly shall be responsible to consolidate, study and take into account the comments and opinions and provide explanations to these comments and 16