Appropriated fundamental rules concerning the compulsory juridical expert examination are fixed in Article 49 of the Law of the Republic of Belarus “On Legal Normative Acts of the Republic of Belarus”.
In accordance with unit 1, Article 49 of the Law of the Republic of Belarus “On Legal Normative Acts of the Republic of Belarus” any draft legal normative act (hereinafter also referred as - draft act) shall be subject to a compulsory juridical expert examination.
Depending on the kind of legal normative act the compulsory juridical expert examination shall be carried out:
- by the authorized department of the Administration of the President of the Republic of Belarus as regards the drafts legal normative acts to be submitted to the President of the Republic of Belarus;
- by the National Centre of Legislation and Legal Research of the Republic of Belarus as regards the draft laws to be submitted to the House of Representatives of National Assembly of the Republic of Belarus, of amendments and (or) additions to draft laws submitted within the House of Representatives of National Assembly of the Republic of Belarus;
- by the authorized department of the Secretariat of the House of Representatives of National Assembly of the Republic of Belarus as regards the draft laws received by the House of Representatives of National Assembly of the Republic of Belarus;
- by the Ministry of Justice of the Republic of Belarus, by the authorized department of the State apparatus to the Council of Ministers of the Republic of Belarus as regards the draft regulations of the Council of Ministers of the Republic of Belarus;
- by juridical services of ministries and other national bodies of public administration, of the National Bank of the Republic of Belarus, local executive and administrative organs, other State bodies as regards their draft legal normative acts; by juridical services of local executive and administrative organs as regards the draft legal normative acts of local councils of deputies.
The procedure of implementing the compulsory juridical expert examination of draft legal normative acts is determined in Chapter 13 of Rules for Preparation of Draft Legal Normative Acts.
Thereupon, the principal criteria in evaluating a draft act shall be as follows:
- conformity with the Constitution of the Republic of Belarus, legal acts of the President of the Republic of Belarus, laws of the Republic of Belarus and legal acts of a higher legal force against the given draft act;
- conformity with international treaties of the Republic of Belarus;
- conformity with requirements of legislation unification being implemented in the framework of integration processes of the Republic of Belarus and the Russian Federation;
- compatibility with the legislation of the Republic of Belarus;
- observance of requirements concerning the rule-making technique.
While implementing the procedure of the compulsory juridical expert examination there shall be evaluated:
- validity of form selection relating to the drat act;
- plenitude, necessity and priority of the legal regulating respective social relations.
As principal criteria for conformity of a draft act with the Constitution of the Republic of Belarus shall appear:
- mapping of constitutional principles;
- coherence of the draft act content with the rules of the Constitution of the Republic of Belarus;
- adoption (issue) of legal act by competent institutions (officials);
- positioning of a given draft act in the system of legal normative acts which constitute the legislation of the Republic of Belarus and observance of requirements to its form;
- observance of the procedure governing the preparing, adoption (issue) and entry of any normative act into legal force, the former being established by the Constitution of the Republic of Belarus;
- correct (true) application of terms contained in the Constitution of the Republic of Belarus.
The draft act shall comply with enactments of the President, laws of the Republic of Belarus, with legal acts of a higher legal force against the aforesaid draft act provided that its norms agree with provisions of the President of the Republic of Belarus, laws of the Republic of Belarus, with acts of a higher legal force against the draft act and meet them as regards the content.
The draft act shall comply with international treaties of the Republic of Belarus if its norms provide for a timely, complete and comprehensive implementation of engagements resulting from international treaties of the Republic of Belarus and being relevant to the regulation matter of the draft act and provided that these norms are not contrary to international treaties of the Republic of Belarus. The draft act shall comply with requirements of legislation unification being implemented in the framework of integration processes of the Republic of Belarus and the Russian Federation if the above draft act norms provide for uniformity, concordance and underlying principles and instruments of the legal regulating of analogous social relations both in the Republic of Belarus and the Russian Federation without prejudice to State sovereignty and safety of the Republic of Belarus.
The draft act shall be evaluated for the purpose of conformity with unification requirements within the legislation of the Republic of Belarus and the Russian Federation provided that the necessity of such an unification results from treaties and arrangements between the Republic of Belarus and the Russian Federation, legal acts on the Union State, legal acts of the Republic of Belarus, instructions of the President of the Republic of Belarus.
The compatibility of the draft act with the legislation of the Republic of Belarus shall be determined by ascertainment how far the norms of the draft act correspond to legal act norms of the same or of a higher force thereto which regulate social relations both in the given branch and the relevant branches of the legislation of the Republic of Belarus and how far they provide for the absence of conflicts and doubling in the legal regulation.
As regards the compliance with objectives of the rule-making technique it is to note that according to the paragraph eighteen of the Article 1 of the Law of the Republic of Belarus “On Legal Normative Acts of the Republic of Belarus” the rule-making shall imply a system of rules for preparation of draft legal normative acts. Thus the compliance with the rule-making technique shall be evaluated on the basis of requirements made to the preparation of draft legal normative acts stipulated in the Section II of the Law of the Republic of Belarus “On Legal Normative Acts of the Republic of Belarus” and in Chapters 4-11 of Rules for Preparation of Draft Legal Normative Acts.
After summarizing the results of the compulsory juridical expert examination of the draft act there shall be drawn up un expert opinion which should contain conclusions based on the criteria of evaluation of the draft law.
In order to ensure the quality by implementing the compulsory juridical expert examination and a comprehensive and complete study of materials there has been drawn up a list of documents which are to be without fail annexed to the draft act liable to the compulsory juridical expert examination. These documents should contain:
- a covering letter proving the necessity of adoption (issue) of the legal normative act including its financial and economic substantiation;
- information on the concordance and signature of the draft act including observations and proposals which have not been taken in consideration during its concordance and/or signature.
When needed for the purpose of implementing the compulsory juridical expert examination any State authority (organization) may interpellate other materials relating to the draft act.
Peculiarities of implementation of the compulsory juridical expert examination by the National Centre of Legislation and Legal Research of the Republic of Belarus
The implementation of the compulsory juridical expert examination is one of the dominant direction of activity carried out by the Centre.
According to the Regulations on the National Centre of Legislation and Legal Research of the Republic of Belarus approved by the Edict of the President of the Republic of Belarus from 13 December 2007 No 630 “On certain measures for improving the law-making activity and scientific researches in the field of law” the Centre shall implements the compulsory juridical expert examination of draft laws submitted to the House of Representatives of National Assembly of the Republic of Belarus, amendments and/or additions introduced into the draft law within the House of Representatives of National Assembly of the Republic of Belarus.
The procedure of implementing the compulsory juridical expert examination shall also be regulated:
- by the Law of the Republic of Belarus from 10 January 2000 No 361-Ç “On Legal Normative Acts of the Republic of Belarus”;
- by the Regulation on the Interaction between the Council of Minister of the Republic of Belarus and the National Centre of Legislation and Legal Research of the Republic of Belarus in the process of preparing of draft legal acts adopted by the Edict of the President of the Republic of Belarus of 13 July 1999 No 389 (as amended from 4 November 2008)
- by the Edict of the President of the Republic of Belarus from 11 August 2003 No 359 “On Measures for Improving the Law-making Activity”
In accordance with the legislation the Centre shall carry out the compulsory juridical expert examination
- of the draft laws submitted to the House of Representatives of National Assembly of the Republic of Belarus;
- of the amendments and/or additions introduced into draft act within the House of Representatives of National Assembly of the Republic of Belarus.
Compulsory juridical expert examination of draft laws submitted to the House of Representatives of National Assembly of the Republic of Belarus
The compulsory juridical expert examination of draft laws submitted to the House of Representatives of National Assembly of the Republic of Belarus provide for a complete coverage of the totality of draft laws. As a favorable factor in this connection appears the fact that under Article 50 of the Law of the Republic of Belarus “On Legal Normative Acts of the Republic of Belarus” the Centre expert opinion to draft law shall be considered as one of compulsory documents enclosed to any draft law submitted to the House of Representatives of National Assembly of the Republic of Belarus.
In conformity with paragraph 127 of Rules for Preparation of Draft Legal Normative Acts there have been established terms of submission of the draft laws included in the regular annual plan of preparation of draft laws which are subject to compulsory juridical expert examination. So as regards the drawing up of expert opinion the draft laws shall be submitted to the Centre by respective legal subject of legislative initiative within a week since their completion according to the above plan; the draft laws the drawing up of which is in competence of the Centre within a month before the date of their submission to the House of Representatives of National Assembly of the Republic of Belarus.
The term for preparation of expert opinion relating to draft laws submitted to the House of Representatives of National Assembly of the Republic of Belarus shall equal a month unless otherwise stipulated by the legislation. Other terms shall be established according to the Regulation on the co-operation between the Council of Minister of the Republic of Belarus and the National Centre of Legislation and Legal Research of the Republic of Belarus concerning the preparation of draft legal normative acts. Is a draft law submitted to the compulsory juridical expert examination by the Council of Minister of the Republic of Belarus so the term for above preparation of Centre expert opinion shall equal a two week’s term and for a draft code – a month term. Besides, the Council of Minister of the Republic of Belarus may establish other terms.
Compulsory juridical expert examination of amendments and/or additions introduced in the draft law within the House of Representatives of National Assembly of the Republic of Belarus
According to the unit 2, Article 49 and the Article 50 of the Law of the Republic of Belarus “On Legal Normative Acts of the Republic of Belarus” any amendments and/or additions introduced into a draft law within the House of Representatives of National Assembly of the Republic of Belarus shall be subject to a compulsory juridical expert examination carried out by the Centre. It is to note that the matter concerns not the whole draft law but only amendments and/or additions introduced into the draft law within the House of Representatives of National Assembly of the Republic of Belarus. The amendments and/or additions of a technical nature shall not be subject to the compulsory juridical expert examination. The Centre shall prepare such expert opinions within 10 days.
