No. 02-2002-QH11on the Amendments of and Addition to the Law on Promulgation of Legal Instruments Law dated 16 December 2002

As Provided by Phillips Fox Lawyers

The National Assembly recently passed the Amendments of and Additions to the Law on Issuance of Legal Instruments on 16 December 2002. The Law on Promulgation of Legal Instruments (as amended) introduces a number of important reforms in an attempt to improve the quality of legal instruments (at both draft and final stage), the consistency of the Vietnamese legislative framework, and the efficiency of the National Assembly's legislative functions, including:

(i) In the process of preparation of new legal instruments, the drafting body is now required to obtain opinions from all relevant bodies, organizations and individuals (including but not limited to the Vietnam Fatherland Front and its member organizations, social organizations, economic organizations, State bodies, and units of the armed forces) and, in particular, from subjects directly affected by the legal instrument. Opinions which are contributed must be investigated by the drafting body in order to determine any appropriate revision. (Article 3)

(ii) Any body promulgating a legal instrument is now expressly required to identify and list any of its own previously promulgated legal instruments (or articles, sub-articles or clauses thereof) which are inconsistent with the new legal instrument; and to amend such prior inconsistent legal instruments (or articles, sub-articles or clauses thereof). (Article 9)

(iii) The provisions governing the composition, operation and responsibilities of drafting committees have been revised. For the first time, drafting committees are responsible for the speed of the drafting process. (Articles 25, 60 and 61)

(iv) Draft legal instruments proposed by a body, organization or National Assembly delegate are now required to be submitted to the Government for its opinion at least 45 days (in the case of laws and ordinances of the National Assembly) or 40 days (in the case of ordinances or resolutions of the Standing Committee of the National Assembly) prior to the opening of a National Assembly session. (Article 28)

(v) An Evaluation Council must be established by the Minister of Justice for evaluation of law projects, ordinance projects and draft resolutions in cases where the Ministry of Justice has presided over the drafting thereof. The matters for evaluation are stipulated. Where necessary, the Evaluation Council may require the Ministry of Justice to report on issues pertaining to the contents of the law project, ordinance project or draft resolution; or may organize (itself or jointly with the Ministry of Justice) an actual survey of such issues. The Ministry of Justice must consider the opinions of the Evaluation Council and make appropriate revisions prior to submission to the Government. Any difference of opinion must be reported to the Government for its consideration and decision. (Articles 29a and 63)

(vi) A Legal Committee of the National Assembly is now provided for, to assist in the verification of the constitutionality, legality and consistency with the legal system of any law or ordinance prior to its submission to the National Assembly or the Standing Committee of the National Assembly. If the Legal Committee has an opinion different from that of the body presiding over verification, it must report its opinion to the National Assembly or to the Standing Committee of the National Assembly. (Article 34a)

(vii) A cap of two National Assembly sessions has been set for the consideration and passing of laws. (Article 45)

(viii) The specific steps for consideration and passing of laws and ordinances by the National Assembly have been revised. In particular, the National Assembly must now consider the basic contents of a law and the major issues on which there are differing opinions (rather than discussing each article or chapter, as previously) and must review the whole revised draft prior to approval. (Articles 45 and 47)

(ix) The Prime Minister is expressly permitted to assign the Office of Government to publish a draft Government resolution or decree or Prime Ministerial decision or directive on the mass media and on the internet for the purpose of obtaining opinions from relevant bodies, organizations and individuals. Individuals may contribute opinions via bodies or organizations, directly or by sending a letter to the Office of Government or to the drafting body, or via the mass media. The drafting body must research any opinions received. (Articles 62 and 65)

(x) Legal instruments of the Government, the Prime Minister, ministers, heads of ministerial equivalent bodies, the People’s Supreme Court, the People’ Supreme Procuracy and joint legal instruments will now be effective after fifteen days from the date on which they are published in the Official Gazette (previously, fifteen days from the date of signing), unless a later effective date is stipulated in the legal instrument. In the case of a legal instrument of the Government or of the Prime Minister which provides for implementing measures in an emergency situation, the legal instrument may provide for an earlier effective date. (Article 75)

(xi) The Ministry of Justice is now responsible to assist the Government in the work of checking the compliance of new legal instruments with the law and to assist the Prime Minister to check and deal with any legal instrument contrary to the law of a ministry, ministerial equivalent body, or provincial people’s council or people’s committee (Article 83). The role of the People's Inspectorate in checking the compliance of legal instruments with the law has been abrogated (Article 85).

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