Terms of Reference (TOR)
Consultancy
On
Conducting a baseline assessment on law making process
Project ID and Title: 00075028/00087142, SPLSMP
Duty Station: Vientiane, Lao PDR
I. General Background and context
Project Context:
In September 2009, the Legal Sector Master Plan was officially adopted by the Government of Lao PDR.
The Master Plan lays out a framework for the country’s first broad-ranging legal reform in order to achieve
its ultimate goal of establishing a rule of law state by 2020. It is a comprehensive and candid statement of
the current needs of the legal system as well as a series of guiding principles for developing a rule of law
state and action plan to achieve this goal. The Plan represents an effort at coordinated legal system
development consistent with the guidance of the political report of the 9th Party Congress.
In order to support the implementation of the Master Plan, UNDP, together with other donors, launched
a new project (“Support Project for Implementation of the Legal Sector Master Plan”) in January 2014. As
the first attempt towards a programme-based approach in the legal sector of Lao PDR, the SPLSMP is
expected to deliver the following 6 key outputs:
(1) Enhanced capacity, procedures, and standards for legislative development and implementation
in Lao PDR
(2) Improved capacity, structure, and arrangements further improved at legal and judicial
institutions for more effective and responsive judicial process
(3) More systematic development of legal and judicial professionals enabled through the
establishment of a unified judicial training institute
(4) Increased public understanding of legal rights and information, and increased participation in
the legal system towards full realisation of their rights
(5) Lao PDR’s further integration into regional and international communities enabled through
adoption, implementation, enforcement, monitoring, and reporting of international legal
instruments
(6) Enhanced capacity of the Secretariat for more effective coordination in the legal sector and
implementation of the LSMP
This consultancy is related specifically to Output 1. Output 1 of the SPLSMP essentially contributes to the
objective of Pillar 1: Development of a uniform, coherent, clear, credible, and predictable legal framework
in a transparent and participatory manner.
Brief Background for Legislative Development in Lao PDR
The formal justice system is still at its infant stage in Lao PDR with the first Constitution promulgated in
1991. Prior to that the society was largely regulated by party policies/resolutions as well as customary
practices. In order to firm up the idea of establishing a society based on rule of law by 2020, the National
Assembly adopted an ambitious 5-year plan in 2011 on law-making and amendment for 90 laws. Under
this plan, it is expected that during the 5-year period of 2011-2015, 48 new laws are to be adopted and
42 enacted laws to be amended, thereby attempting to give Lao PDR and its people a more stable and
dynamic legal framework.
A coherent, effective, efficient and well-resourced legislative framework is a critical foundation for the
rule of law and development of any legal system. Given Lao PDR’s unique political history, its legislature
and related legislative culture lack standardization and proficiency. While National Assembly members
are elected in a popular election, the majority serves in a part-time capacity and does not have a legal
background. The supporting administrative machinery also lacks adequate human resources to be able to
properly review and assess draft legislation proposed by the executive.
With promulgation of the Law on Laws, the legal frame work on law-making was officially adopted in
2012, paving the way for a more systematic law-making approach. The Law clearly stipulates basic
principles for developing legislature such as consistency with existing laws (including the Constitution)
and socio-economic situation, incorporation of international legal obligations adopted by Lao PDR, and
citizens’ participation into law-making process.
Inclusive participation is clearly stipulated in the Law allowing people’s right to widely provide
comments/feedback on draft legislation for a period of at least 60 days during the bill stage. However,
much of this aspect remains to be implemented in a systematic way as there is currently no official and
systematic way of people to actively take part in the law-making process. This aspect will be addressed
under Output 1 of the SPLSMP, as it strives to provide a more systematic public consultation
mechanism.
As of December 2013, 101 laws have been officially adopted in Lao PDR including the first Constitution.
Despite efforts made by legal drafters, a majority of these laws were developed in an ad-hoc manner.
Most of the laws lack consistency in terminology coherence and compatibility resulting in frequent
amendments. The problem is further compounded due to gaps in procedures adopted in the legislative
process, lack of regulatory impact assessments and lack of feedback from society. The analysis show
approximately 30 % of the laws have been amended following its promulgation1.
Another major challenge lies in lack of sufficient human resources to engage effectively in drafting and
amending laws expected to be adopted under the NA’s 5-year plan. Most ministries and agencies do
not have their own legal department / bureau, thus they predominantly depend on the capacity of the
Ministry of Justice (especially its Legislation Department) for improving the drafts. As of December 2013,
only 11 new laws have been developed and 7 existing laws amended under the 5-year plan2.
In order to implement the legal frame work on law-making in a practical manner, developing a law
making manual has been identified as a critical step to achieve the National Assembly legislative plan
and institute a more systematic and consistent legislative process.
In the past, the National Assembly had developed a 20-page law-making handbook, but much of it has
not been put into good use as it is of a general nature and was developed prior to adoption of the Law
on Laws. In the premise SPLSMP intends to devise a manual/guidebook on law-making to be used as a
practical reference point. The manual is expected to be used by any potential legal draftsman and is
intended to help and support the end users to understand and learn the process of quality law making
The manual will be designed in a user-friendly manner enabling relevant officials to use it as a point of
reference when drafting and/or amending legislation .
Thus, this baseline has a dual objectives
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To be used as an assessment designed to be the stepping-stone for an eventual development
of a law-making manual
Formulate baselines for relevant indicators under Output 1
II. Expected Results, Objectives of the assignment
The objective of the assignment is conduct a comprehensive baseline assessment of the current legislative
system and legislative development process of Lao PDR.
This baseline assessment will be a key initiative during the initial phase of the SPLSMP to grasp how the
law drafting/amending process takes place and to understand how a systematic approach to law
drafting/amending could be developed.
This comprehensive baseline assessment will thus formulate the way forward for improving the legislative
development of Lao PDR.
1
2
Analyzed from the list of all laws existing in Lao PDR
Governance Sector Working Group Background Document for High-Level Round Table Meeting in 2013
The key results expected from the consultant are:
- Conduct a baseline assessment
- On this basis, present findings and develop recommendations for strengthening legislative
development, including guidelines on techniques, procedures and formats of the legislative
development process
- Present findings and develop recommendations on the structure of a public consultation mechanism
and or platform for the public and private entities/representatives including CSOs to systematically take
part in the law-making process
- Give recommendations on the structure of a law-making manual
Note: The baseline assessment report should include at least but not limited to the following
information:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Facts on the current legislative system and development process in Lao PDR
Flowchart of the legislative development process
Compliance with laws and other relevant legislation
Relevant statistics (number of officials involved in this process, average time taken to develop
legislation, number of law departments/bureau existing in ministries/agencies, etc.)
Main issues and challenges related to the law making process, procedural bottle necks, gaps
both technical and personnel, etc.
Reasons/causes for frequent amendments and recommendations to address this challenge
Strategy on how development partners can provide technical assistance in this process
Recommendations on how to go about installing a public consultation mechanism/platform
What elements should be incorporated in the upcoming law-making manual and how it
should be used as a reference
III. Scope of Work
The primary inputs of the consultant will be produced in close cooperation with all the concerned
ministries and agencies (Ministry of Justice, National Assembly, Office of Supreme People’s Prosecutor,
Supreme Court, Ministry of Public Security, etc.), LSMP Pillar 1, LSMP Secretariat, and UNDP’s legal cluster
team (consisting of 2 international technical advisors, 1 programme analyst and 1 programme associate)
for a period of up to 20 working days.
The consultant is also expected to work closely with other development partners (such as UN agencies,
EU, France, etc.) and apply participatory methods to this work. It will be important for the consultant to
obtain appropriate feedback and involvement, and general agreement from the Ministry of Justice (MoJ),
the National Assembly, members of the judiciary, offices of the Public Prosecutor, and other identified
stakeholders.
The Consultant will report to the Head of UNDP Governance Unit for all related matters.
IV. Deliverables, Timeframe and Places of work (21 Days)
The assignment is expected to start in May/June 2014 and be completed by October 2014.
Desk Review (2 Days)
The consultant will be expected to familiarize himself/herself with relevant literature for this work,
including but not limited to:
- Lao PDR’s Constitution, Law on Laws, and other relevant laws
- Law-drafting handbook developed by the National Assembly
- SPLSMP Project Document
- 7th National Socio-Economic Development Plan
- Legal Sector Master Plan
- Access to Justice Report
- Customary Law Report
- Terminal Reports of relevant projects
Inception Report (1 Day)
- Findings of the desk review
- Detail plan on field mission
In-Country Mission (13 Days)
- Consult all key stakeholders at the central level to assess the present legislative system and the process
of legislative development and implementation (5 days)
- Assess citizens’ participation into the law-making process (4 days)
- Consolidate all the inputs and prepare presentation materials (3.5 days)
- Present the main findings and tentative recommendations at the occasion of a debriefing workshop
(0.5 day)
Deliverables
1. Draft Baseline Assessment Report including preliminary recommendations for strengthening
legislative development, and guidelines on techniques, procedures and formats of the legislative
development process as well as the structure for a public consultation mechanism
Note: UNDP will reserve the right to comment on the draft document before finalizing it
2. Debriefing workshop on main findings and recommendations at the end of the in-country mission
Home-Based (5 Days)
During this period, it is expected that the baseline assessment report will be finalized.
Deliverables
1) Final Baseline Assessment Report
2) Final recommendations on legislative development process, development of a law-making manual,
and structure of a public consultation mechanism (to be included in the report)
V. Expertise and Qualifications and experience/profile
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Advanced university degree in Public Law, Constitutional Law, Comparative Law, Political Science,
or related relevant fields.
At least 10 years of experience in legislative development or other related fields, AND a minimum
of 5 years of international experience
Extensive knowledge and experience in assessing different countries’ legislative development
practices (countries with similar background preferred)
Experience in working with governments and institutions
Demonstrated flexibility, adaptability and understanding in taking on consultancy for
development projects.
Familiarity with the country or the region strongly preferred. Understanding of development
issues in Lao PDR an asset.
Fluency in spoken and written English including excelling drafting skills, particularly in being able
to write documents (such as reports) concisely and in simple-to-understand English that is easy
to translate into another language
This TOR is approved by: Sudha Gooty, Head of Governance Unit