Home 
Topics Governance Publications Document
Developing Mongolia's Legal Framework: A Needs Analysis : The Legislative Process
Legislative DraftingLegislative drafting is theoretically the preserve of the Ministry of Justice and its team of law drafters, currently eight. In practice, however, most ministries use their own legal advisors to do their drafting, or it is done by the members of working groups. Some comment must be made on the drafting style and problems with the process. Although having had access only to translations, which thus makes it difficult to comment authoritatively, it appears that the modern Mongolian drafting style is derivative of its socialist predecessor. While they can usually be commended for their brevity, Mongolian laws tend to be general, descriptive and vague. Normally few, if any, definitions are given. The laws often create rights but not duties, leave the implementing agencies undefined, and fail to set out procedures. To give some examples from the laws that have been mentioned in the first chapter: Vagueness: Laws in Mongolia tend to create rights and not duties. This means that the laws do not specify who has the obligation to provide for the right that by law ought now to be fulfilled. For example, the Consumer Protection Law gives the consumer the right to receive true and complete information about products. It does not say whether the provider of this information is to be the manufacturer, the distributor, the wholesaler, the retailer, or some other party. Definitions: Most Mongolian laws contain few, if any, definitions. For example, the Bankruptcy Law does not define the entities to which it applies. English translations generally show it as applicable only to companies. However, it has been said to apply also to sole proprietorships and partnerships because it became effective at the same time as the Business Entities Law and therefore can be assumed to cover the same range of entities. This is a dangerous method of interpretation. It would have been much clearer if terms were defined properly, even if this was accomplished by reference to another law. As it is, the Business Entities Law and the Bankruptcy Law seem to have been written with little conceptual regard for one another. Occasionally, definitions are given, but they are sometimes spoiled by vagueness. For example, the Business Entity and Organisation Income Tax Law defines the types of income subject to tax at some length and then concludes with "other income." It would have been clearer to have said that the law applies to all income with some defined exceptions. Institutions: No ministry is ever designated in a law as being responsible for that law's implementation. Many laws refer to institutions without setting them up. For example, the Consumer Protection Law refers to consumer protection agencies as being, among other things, "the relevant state control organisations," without specifying which organisations these are or what is "relevant". Lack of procedure or supporting regulation: Many of the laws talk of doing things such as registering, but few set out the procedure, even in general terms. For example, the Business Entities Law required the publication of registration, but did not say who was to organise the publication, where the information was to be published, or how often. These types of uncertainty could be addressed by supporting resolutions dealing with procedural issues including forms and fees. This may also assist in helping create transparency in administrative decision making. No Mongolian law ever states that it is repealing an earlier one. Some resolutions expressly repeal redundant legislation. However, as the Ikh Khural is the supreme legislative body, it is arguable from a constitutional point of view that these resolutions are invalid. It would be preferable, for reasons of both law and clarity, if the new laws themselves repealed old legislation, whether in whole or in part. It should also be noted that there is no law on statutory interpretation to provide rules on matters such as whether the singular includes the plural, whether a later statute repeals an earlier one, or if the specific derogates from the general in the case of conflicting provisions.14 If these problems are not addressed, the possibility will remain for considerable administrative interpretation or uneven application of the laws which will create general uncertainty, and may in time undermine public and business confidence in the legal system. Obviously Mongolia's law drafters have been working under some constraints. Many were practising earlier in their careers as prosecutors or advocates defending criminal cases. There was only a very small pool of legislative drafters before 1990. Using the Ministry of Justice as an example, none of the law drafters there has had any experience as a commercial lawyer, and, as most of the drafting effort is now directed towards civil and commercial laws, previous experience in criminal law is not an asset. There are no useful texts in Mongolian on drafting. If a foreign law has been chosen as a model, the choice has often been dictated by the familiarity of the drafter with the particular legislation, the influence of a foreign advisor, or simply its availability in a language with which the drafter is familiar. There appears to be little or no contact between the different ministries' legal advisors on drafting, even though many are grappling with similar problems. Nor does there appear to be any system for checking the consistency of legislation. Mongolia may wish to consider the practice of many countries and establish a separate legislative drafting office. All drafts and redrafts could be done by this office, including those required after the deliberations of the standing committees and the first and second readings in the Ikh Khural. This would require the ministries to set out the policy and administrative objectives of the law and allow the drafters to turn these into legislation. Tis office could also be responsible for checking the consistency of legislation. Whether or not such an office is set up, drafting training is essential. It should ideally be in Mongolian, although the language problem may not be fundamental as long as the basic principles, particularly of analysis, are taught. ____________________ 14 The Mongolian language is free of gender problems.
|
© 2009 Asian Development Bank Privacy | Terms of Use |
 Top of page |
Back