A little story from the legislative training course
Which Framework is used by the Dutch Government to review and to evaluate its regulations?
Netherlands – Some time ago, 20 officials and staff of the Ministry of Finance were following the training on the preparation of laws and regulations in the “Windmill Country”, the Netherlands, between 2 to 24 November 2013. The three weeks time period under the temperature of 1 to 5 degrees was best utilized by the participants of the Tailor Made Training (TMT) Course Legislative Review, to learn the knowledge and skills in analyzing/reviewing regulation drafts and in evaluating the implementation of regulations.
The TMT Course titled “Legal Review: Analysis and Evaluation of Draft and Existing Laws and Regulations within the Framework of Legal (Legislative) Drafting”, was attended by 20 participants who represented the Secretary General of the Ministry of Finance and other echelon units under the Ministry of Finance, i.e. Directorate-General of State Assets, Directorate-General of Treasury, Directorate-General of Taxes, Directorate-General of Budget, Directorate-General of Fiscal Balance, and Inspectorate-General. These training activities are carried out on the initiative of the Legal Affairs Bureau of the Secretary General in collaboration with the Dutch Center for International Legal Cooperation (CILC), and financed by StuNed Dutch Nuffic-Nesso.
CILC is a non-profit organization established by the Dutch government in order to support the quality and the development of the legal system in developing countries and countries in transition, through cooperation and capacity building projects in the field of law. A number of institutions in Indonesia with which CILC has cooperated, are, among others, the State Secretary and the Ministry of Law and Human Rights. In line with that objective, the training given to the staff of the Ministry of Finance aims to provide knowledge and skills in reviewing regulation drafts and in evaluating the implementation of regulations, related to the duties and functions of the Ministry of Finance.
The participants, who gained the opportunity to receive a scholarship for attending this training, were selected through a process of pre-screening test by filing the application form and motivation statement, and through a selection interview conducted by CILC. From all submitted applications, 20 legal drafters (legislative lawyers) are finally selected. They consist of 12 representatives of the Legal Affairs Bureau of the Secretary General, 1 of the Center for Development of Accounting and Appraisal Services (PPAJP) of the Secretary General, 2 of the Directorate-General of Treasury, and each 1 of the following units: the Inspectorate-General, the Directorate-General of Taxes, the Directorate-General of Fiscal Balance, the Directorate-General of Budget, and the Directorate-General of State Assets (Directorate of Legal Affairs and Public Relations). Most of the participants have a legal educational background and each of them is assigned day-to-day as legal drafter at her/his working unit.
In this training, a number of speakers with academic and practice background who are directly involved in the review and evaluation process of regulations in the Netherlands was presented. Some of them are academic lecturers from prestigious universities, like Leiden University, Maastricht University, and VU University Amsterdam. They presented the basic theory and knowledge regarding the importance of review and evaluation. Meanwhile, the practitioners demonstrated the best practices on this matter in the Netherlands. No less important is the materials presented by the officials of the Legal Affairs Department of the Secretary General of the Dutch Ministry of Finance, the legislative lawyers at the Dutch Parliament, and the policy maker at the Directorate General of Taxes. Various materials are selected from different perspectives and views in order to provide a complete picture in terms of theory, implementation, and the benefits obtained.
The legislative process in the Netherlands is conducted through a number of stages that more or less are similar to the legislative process in Indonesia, as regulated in Act No. 12/2011 on Legislation. One interesting fact is that the Netherlands do not have an act on legislation. The preparation procedure and the quality criteria are stipulated in the Directives on legislation which are set by the Prime Minister. These Directives are only binding for legislative lawyers at the Central Government/Ministries, and not for the members of the Dutch Parliament and the local government. It is important to notice that 99% of the acts made in the Netherlands, are initiated by government.
The drafting process is started with the internal preparation within the government institution, i.e. in the initiating Ministry. After that, the bill is harmonized at the Ministry of Justice, before submitted to the Council of Minister that consists of the representatives of a number of ministries. Prior to the submission to the parliament, the bill is first delivered to the Council of State, an independent body that is directly chaired by the King of the Netherlands, in order to get opinion related to the political, legal, and technical aspects. In the next stage, the draft will be discussed by the government and the parliament, before finally established.
To review the quality of regulation draft, a number of tools are used, including “Integrated Assessment Framework”, “Regulatory Impact Assessment”, “Regulatory Pressure/Burden Assessment”, “Regulatory Compliance Risk Management”, and “Table of Eleven”. All of these tools contain questions that must be answered before the enactment. The answers to these questions will be the basis for the test whether a rule needs to be established, or not, and whether the rule is practically feasible and enforceable.
Next to it, in the preparation process, the Dutch government uses quality criteria as well, which are generally similar to the principles of the formation of good legislation in Indonesia according to Art. 5 Act No. 12/2011. The six points of these quality criteria are (i) lawfulness and principles of justice, (ii) effectiveness and efficiency, (iii) subsidiary and proportionality, (iv) feasibility and enforceability, (v) coordination, (vi) simplicity, clarity, accessibility. And the seven principles of the formation of good legislation in Indonesia consist of (i) clarity of the objective, (ii) proper establishing institution and official, (iii) conformity of type, hierarchy, and content, (iv) implementable, (v) efficiency and effectiveness, (vi) clarity of formulation, and (vii) openness.
The knowledge that has been gained from these activities is expected to provide the initiating ministry officials at the Ministry of Finance, as well as the officials of the Legal Affairs Bureau who should review and evaluate the drafts, with an inspiring picture to make assessment framework that can be used to review and evaluate regulations. The expected outcome of this training is the enhancement in the quality of regulations established/initiated by the Ministry of Finance, in particular at the level of ministerial regulations. The participants of this training are, of course, expected to share their knowledge and views obtained to their colleagues in their respective working unit.
As a follow-up to this activity, CILC will visit Indonesia over the next few months to see the development of the making of Assessment and Evaluation Framework for reviewing/assessing regulations under the coordination of the Legal Affairs Bureau of the Ministry of Finance.
These training activities were not only filled with lectures, but also some visits to the institutions related to the legislative process, i.e. the Council of State, the Second Chamber of Parliament, the ACTAL (Dutch Advisory Board of Regulatory Burden), and, of course, the Dutch Ministry of Finance. The participants were also asked to do group assignments and presentations, and to participate in a debating workshop, in order to test the ability to argue in the drafting process. At the end of the training period, the Head of the Legal Affairs Bureau was also present to see and to be directly involved in the training, as well as in the closing ceremony. (Rachmatunnisya – Directorate Legal Affairs and Public Relations).