TyroCity: Legislative Principles and Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

The topic of this lecture is bit odd. It aims at exploring the influences of Education, Media, Religion, Morality, Economic Structure, Political Structure, Social Structure and Societal Value system on the law making process. It seems the intention is to study the influences on law rather than the law making process. It is hard to imagine how the law making process can be influenced by morality. The course assumes law making process in a democratic society, where legislature makes law. Therefore, in our lecture we are going to focus on the influences of the above instrumentalities on law, while also touching upon their influence on the law making process, when possible.

Morality

Barely universal or coherent notion. Some may regard something moral while others may regard very thing immoral. And even when a universal principle of morality is discovered, there may be disagreement as to their status or relation to the rest of human knowledge and experience.

Hart: apart from Primary Rules identified through official system with the help of secondary rule, other rules also continue to exist in society, which are termed as non-legal rules including moral rules.

are arbitrarily and subjectively created by society, philosophy, religion, and/or individual conscience.
ideal code of belief and conduct which would be preferred by the sane “moral” person, under specified conditions.
is synonymous with ethics.

Issues of morality are normally decided by conscience and instinct. So morality is something that comes natural to a person, of course society, values, norms on which that person grows and matures can have big role.

Lon L. Fuller

Attempted to distinguish ‘the morality of aspiration’ and ‘the morality of duty’. The former is concerned with the desired norm of human conduct, independent of human activity; the latter involves the standards followed by human beings in social relations in particular circumstances. Fulfillment of the morality of aspiration necessitates a legal system which will assist in this task by the recognition and maintenance of social order. The morality of duty will involve the creation of acceptable codes of conduct which the law will seek to enforce. Further, law itself must have its own morality.

Positive and Critical Morality

Positive Morality are those social conventions that created by man. So positive morality may become ‘immoral morals’.

Critical morality being the standards by which those social conventions can be judged. But then finding such standards can be like a dog following its tail. Anyways, some people argue morality and its coherence can be tested in the public domain. And that morality too shall be, subject to stringent requirements of rationality. FOR INSTANCE LORD Devlin’s Litmus test/reasonable person test (No Clapham Omnibus)

However, morality based on unreasonable, irrational and unfair grounds slowly but surely loose their strength and identity and wither away as morality. For Example, Sati, Homosexuality (at least in case of justification provided by the Emperor Justinian, who disapproved homosexuality because it caused earthquakes) and so forth.

So what is then the place of Morality in Law?

No one denies that morality can figure in legal argument and legal practice.

So debate lies somewhere else. First there lie many important variants in the claim itself that there is a necessary connection between law and morality. Second there is debate on the issue of extent of influence of these two standards. Merger or intersection – Hart Fuller Debate.

As far as the issue of variants in the claim, Natural, Positive School (Inclusive and Exclusive Legal Positivism)

Classical Natural School – first there are certain principles of true morality of justice, discoverable by human reason without the aid of revelation even though they have a devine origin. Second, that man-made laws which conflict with these principles are not valid law. Lex iniusta non est lex.

Sometimes moralities are enforced by law.

Examples, Interim Constitution of Nepal Articles 12 (3) (1) & (3), 15 (1)

Where Constitution qualifies the application of right to freedom of opinion and expression, right to form political party, union and associations, on assurance that such freedom do not go against public morality.

Public Offence Act 2027, Section 2 (c), (c1), (h)

The Act prohibits acts such as, swearing in public, presenting vulgar materials or signs in public, behaving improperly in public and so forth.

Emanuel Kant, Regarded laws prescribe external conduct whereas morals prescribe internal conduct, that is, morals alone are concerned with subjective factors, such as motive.

The Law may be too cumbersome an instrument to justify legal intervention in some spheres, and might thus do more harm than good, as in the case of some sexual irregularities, or it may be felt that certain moral duties are best left to the individual conscience, as, for instance, the duty to rescue a drowning man. Again, many legal questions are morally indifferent, for instance, the rule of the road, or where a choice is to be made whether a loss is to fall on one or other of two innocent persons.

Is abiding by a law moral?

Is abiding by a bad, discriminatory and unjust law immoral?

Hart – differences between moral and legal responsibility is due to substantive differences between the content of legal and moral rules and principles, rather than in semantic distinctions, eg, there may be important differences in the criteria applied, as for instance, where the law may rely upon concepts of strict or even absolute liability, which are hard, if not impossible, to reconcile with our present concept of morality.

Hart…similarities between Moral and legal rules

They are alike in that they are conceived as binding independently of the consent of the individual bound and are supported by serious social pressure for conformity
Compliance with both legal and moral obligations is regarded not as a matter for praise but as a minimum contribution to social life to be taken as a matter of course
Both include rules governing the individuals recurring in situations constantly recurring throughout life rather than special activities or occasions, and though both may include much that is peculiar to the real or fancied needs of a particular society, both make demands which must obviously be satisfied by any group of human beings who are to succeed in living together

Hart – Devlin Debate

Report of the Committee on Homosexual Offences and Prostitution, Wolfenden Report

“It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary to carry out the purposes we outlined.”

Hence, the Report suggested the decriminalization of specific homosexual acts between consenting adults in private, and stressed the significance of two particular principles. First that the function of the criminal law, in the area with which the Report had been concerned, was to preserve public order and decency, to protect the public from that which was injurious or offensive and to safeguard the vulnerable against corruption and exploitation. Second there must remain a realm of private morality which is not the law’s business.

The report argued that unless a deliberate attempt is to be made by society acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.

So, the Report sought to differentiate between Private and Public Morality, and exclude private morality altogether from the criminal law’s purview.

Devlin in his 1958 lecture criticizes the Report in following terms

Certain moral principles which our society does require to be observed; their breach can be considered as an offense against society as a whole. The law does not punish all immorality; it does not condone any immorality. Further, Lord Devlin asks following questions;

Has society the right to pass judgment at all on matters of morals? Ought there, in other words, to be a public morality, or are morals always a matter of private judgment?
If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?
If so, ought it to use that weapon in all cases or only in some; and if only in some, on what principles should it distinguish?

In answering first question, Lord Devlin gave a resounding yes. Lord Devlin argued that public morality is important in keeping a society together and if and when public morality are relaxed, then members of society will drift apart.

In answering second question, Lord Devlin argued that it is not possible to set any theoretical limits to the government’s power to legislate against immorality. A society has an undeniable right to legislate against internal and external dangers. The loosening of communal bonds may be a preliminary to total social disintegration and therefore a society should take steps to preserve its moral code. Hence, a society is entitled to use the law in order to preserve its morality in precisely the same way that it uses the law to safeguard anything else considered essential to its existence.

To the last question, Devlin devises a ‘reasonable man test’ in determining the extent of immorality that law should address. Under this test first Lord Devlin suggests tolerance of the maximum individual freedom consistent with society’s integrity. Secondly, when any activity goes beyond this tolerance limit such activity is punishable, this in-turn is determined by the ‘intolerance, indignation and disgust’ created in the mind of the reasonable man. Thirdly, Privacy must be respected and balanced against the need to enforce the law. Finally, since law is concerned with minima, not maxima, society should set its standards above those of the law.

Hart then criticized Devlin in the following line. First Hart argued that breach of morality will not necessarily affect the integrity of society as a whole. Second, criminal sanction for private morality is in all likelihood disproportionate in inflicting misery and pain to the ‘offender’. Thirdly, the reasonable man test which judges on the basis of ‘intolerance, indignation and disgust’ is vague and legislature can never be expected to formulate law to such effect. Furthermore, since the degree of ‘intolerance, indignation and disgust’ may change from society and time there will be lack of predictability and coherence in law, if Lord Devlin’s arguments were to be supported.

Economic Structure

Economic policy and structure have great influence on law and law making process. Law acts as a tool to transfer economic principles into practice. For example, liberalization legal tools, WTO related Laws. In addition, many laws have to speak to the economic structure of the society and interpreted accordingly. For example, Competition Law.

Political Structure

Many political institutions such as the parliament and their nature, form of governance, structure of the state, influence of pressure groups, lobbyist have influence on law and the law making process.

Media, Education, Religion, Social Structure and Societal Value System also influence the law making process by mooring the process on the foundation of social values and popular aspirations. In addition, such instrumentalities, allows accountable, predictable and democratic procedure of law making.

Contents to be included while drafting law

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

In modern state the enactment of legislation is primarily a function of the government. Government can not conduct policies of the state in any meaningful sense without the capacity to govern. The executive in essence constitutes source of legislation. Strictly speaking, Legislative Drafting is the drafting of measures intended to become past of statute law. However, it includes the drafting of statutory orders, rules and other institutions issued by departments of the government as well as the drafting of by law of corporations and other firms of sub-ordinate legislation.

At present scenario, introduction of bill is daunting task for an individual Member of Parliament. Serious exercise and sincerity requires for preparation of any draft bill to introduce in the house. Such Member of Parliament must be acquainted with all the pros and cons of the proposed bill, each and every provisions of the bill must be elaborately discussed in the format. Hence, from above discussion what can be summarized is that in the orchestra of law, it is legislation that plays the role of the composer. Legislation sets the music, one may regulate the pitch soften the tone, or choice his octave but can not change the melody.

Concept of Legislative Drafting

Legislative Drafting is even sometime compared or linked to a child’s game of Snakes and Ladders. Snakes and Ladders are game of chance whereas Legislative Drafting is game of skill. We started Legislative Drafting from sheer necessity. Due to the welfarishic philosophy in the governing systems of the country, the state activism led every aspect of human life. The state has to run with those need of the people, it has to carry functions to maintain peace and order, it has to protect weaker section of the society, it has to undertake trade and commerce, it has to run different system, security, health, education etc. All the functions of the state become possible only by making law that is why legislation is necessary in every aspect of human life.

We perceive legislation as source of law that part of law. The term legislation may be used in the wider and narrow sense, which though connected are different. It may connote process of legislation that is the action, which results in the birth of law, or it may signify the result itself, that the law that is born, and Legislative Drafting is moreover concerned with the first sense that with the second.

understanding of problems will help in finding the problem will help in finding the solution but what should bear in mind is drafting is attempt to solve existing problem not like a acute and precise mathematical formula, which brings 100 % result. Moreover, Legislative Drafting is not always imitating one another and there is usually nothing absolutes new in a statute if in case law, the courts look to their own past decisions for the purpose of finding out a rule.

Legislative Drafting is both science and art. It is science in so far as certain rules can be laid universal application to all kinds of measures that come up for drafting and in so far as a certain set of rules are always observed by all drafts men for the purpose of securing method in their drafts.

It is, however, mainly an art; efficiency in drafting comes not by a mere mastery of the rules, by the exercise of a faculty of the mind, which can be described as skill or natural gift. The art of draftmanship consists of a sense of use of language; together with knowledge of the technical interpretations, which are placed by law in certain form of language. The sense of the use of language is the main qualification of a draftsman just as a good artist decides by instinct, the colour to be used for particular part of a picture or a good musician spontaneously fixes up the particular notes to which a part of a song should be set. Similarly, a good draftsman senses the word or group of words to be used to carry out the intended meaning.

Why a law is drafted

When any problems come before the legislatures or before the government, and it is also noticed that, the problem can not be effectively addressed without legislative mechanism or any other mode of address will not last longer to diminish the problem then only any new law or any amendment on existing law is drafted. Sometimes there may be constitutional compulsion that there should be legislation to address particular subjects.

Content of the Drafting

The content or let’s say the nature of drafting exclusively depends upon the nature and purpose for which the bills are to be drafted. For example, the bills for establishment of industry some how or in most of its content differs with bills for regulations of industrial work. Hence, a legislative drafting differs from the very nature, for which kit is to be drafted. Legislative drafting is an extremely onerous, exacting and highly ‘skill task. It is often appreciated that it is difficult task. It is not easy to express in words exactly what is clear in the mind and even if that can be easily expressed it is not easy to do so in such a way that there can be no misunderstanding. It is not a task for amateurs and dabblers. It is highly technical discipline, the most vigorous form of writing outside of mathematics.

A candidate for legislative drafting must have facility in the use of the language of legislative instruments. Experience in legal practice is desirable, so is an interest in drafting. As a systematic mind and an orderliness in the formulation of thoughts, the ability to pay meticulous attention to detail and the ability to work with accuracy under pressure. We can’t rule out the infallibility of human foresight and indeed of language itself, yet parliament must do the best they can to reduce doubt and ambiguity and to bring difficulties to a workable minimum by an intelligent application of knowledge to bear on their drafts. Here is some of the content of the legislative drafting, which is defined briefly.

Title
- Long Title
- Short Title
Definition
Section and Sub-Section
Commencement
Constitutions of Board of Executive Committee
Qualification for Members of Executive Committee
Disqualifications for Members of Executive Committee
Term of Office of Executive Committee, Their resignation and Removal
Powers
- General Powers
- Particular Powers
Constitutional Limitations
- Fundamental Rights
- Equality
- Development
Interpretation Section
Repealing and Amending Provisions
Referential Legislative
Offences and Penalties
Introduction in the house

Title

Long Title

Generally an act has always a long title, which indicates the nature of the legislative draft. It is a device to tell the members of Parliament what the bill is about and even helps to determine the scope of bill when it is being dealt in the Parliament. The title comprises the main theme, which is the pith and substance of the bill. The long title should not be vague and imprecise. It has to a large extent taken the place of preamble and therefore should cover the main theme of legislation.

Short Title

The Short title is the convenient means of citing the act. It is the short name of the act. In the words of Lord Moulton “the short title is a statutory nickname to deviate the necessity of always referring to the act under its full and descriptive title. As the name explains should be short, should be designed with great care and concern for those, who have to use the act.

Definition

It is an attempt to state in precise terms the meaning of a word or of an expression. In legislation, it should be used only as an aid to clarify and to reduce vagueness as much as possible. It should be used when necessary and should be as simple as possible.

Section and Sub-Section

An act of Parliament is divided into Sections and Sub-Sections. A section should contain one idea and therefore one enactment. It should be self explanatory and should be self contained. It should be simple, short and lucid. There should be no ambiguity as to its meaning or be difficult to read. In case of the section turns out to be long one the section should be broken into Sub-Section, all the sub-section read together must form a coherent and consistent whole. They should deal with the same idea, the same subject matter.

Commencement

The commencement clauses in the statute usually run as follows:-

This Act shall come into force on ………………………………………………………….
This Act shall come into force on such date as the ……………………………………
The Act may be made to commence at once in which it comes into force as soon as the last formality for it passing is undergone, instead of commencement of the entire Act in the whole country on one date, it may be necessary to provide for what can be called as partial commencement. Commencement of Act may be partial in respect of parts of an Act, area, subjects, or one or more of these matters.

Constitutions for Board of Executive Committee

Constitution is a document different from an Act of Parliament. It is a body of framework of politics. It aspires all authority and strength, also limit upon their power and function. It is a law regarding their job, it covers several things like eligible members, qualification powers etc. being organic in nature its construction must be beneficial but it’s not a private contract. It is essential to remember that a constitution is a mechanism under which laws are made and not mere Act which declares what a law is to be.

Qualifications for Members of Executive Committee

Certain criteria are remarked by every Act so that it could assume that the assigned job to be done with full efficiency. The criteria or qualifications may be in example like:-

should be at least graduate
should be experience of drafting
sound mentality
knowledge of Constitutional Law
thirty years of age
excellent spoken and written Nepali and English

Disqualifications for Members of Executive Committee

Certain barriers are also pointed which disqualify to be a member of committee, for example

Lunatic
Infant
Not a Nepali Citizen
Criminal background
Educational Qualification

Term if Office of Executive Committee

It specifies the tenure of the working session of the member, which is generally 5 years. It also must mention the provision of removal and regulations with ground for doing so.

Powers

There is found often in legislation power conferred on an authorized to make regulation for the better carrying into effect the purposes and principles of an Act. Power is almost inevitable to carry out the job assigned. There are, however, different aspects of conferring power like general and special powers, which are conferred as per the demand of situations.

Constitutional Limitation

Drafting of Legislation can never outgo from the spirit of constitution. There is certain limitation, which should be considered while drafting. An enactment is void from the begging if it is inconsistence with the constitution or in contravention of the constitution. A constitution brings into sharp focus the theory of Parliamentary and people sovereignty. While drafting legislation a good draftsman always consider.

Issues of fundamental rights: – either it is absolute or relative can it be seized or not, how does it safeguard people rights. Fundamental rights are as old as mankind does legislation respect this liberal idea or not etc.

Equality is perhaps the primary human rights. Fundamental rights are useless unless there is a right to equality.

Development issues: – how it ensures people’s participation.

Interpretation Section

It is now well established that an Act have an interpretation section. Definitions are used in legislation as an aid to clarify, to achieve consistency and as method of reducing vagueness. There is merit in having the interpretation section. At the outset a reader finds a list of terms with their meanings before coming across them later in the Act. The readers mind is prepared that there are certain words, which have specific meaning for the purpose of the Act. On the other hand one does not refer to the dictionary before reading a book thus interpretation is must in process of drafting legislation.

Repealing and Amending Provisions

Provisions, repealing or Amending Acts should be placed towards the end of the Act but before the commencement provision. It is a principle that a parliament can not fatter the hands of subsequent parliament, an Act passed in one session can be repealed by an Act passed in another session.

Referential Legislation

The corporation of the provision of the one Act into other is known as referential legislation, which can be useful or even necessary for example country law when gives signature to the International Conventions.

Introductions of Legislation

Introduction of legislation or bills in the house is the final task of the drafting. After introducing if the bill is not able to get majority the house it shall be again repealed or amended.

Conclusion

Legislative Drafting follows that good lawyer is not necessarily a good draftsman. Knowledge of law is intelligence, memory and judgment while drafting is skill and art. The good draftsman brings to bear upon his work the retentive and analytical faculty of his mind. It is not is should not ever be the matter of debate either legislative drafting is science or an art rather legislative drafting is always made for public good. The process of legislation is thus also a foundation for process of social change. This process of legislation involves changing the existing law where the existing law as perceived by government to longer serves a useful purpose. Thus, as far as the science pf government is concerned the important part of legislation is not only the regulatory aspect but the law making process itself that is the creative and dynamic aspect of government.

Hence, it is clear that legislative drafting is a very challenging job and directly concerned with the public life. It is worthwhile to have some knowledge on legislative drafting. Since the programme of Parliament depends upon legislative programme by government drafting has crucial role to play and promote individual’s rights.

Law Making Steps

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

With respect to legislative bills introduced by the Cabinet(“Cabinet-introduced bills”), the following chart illustrates the process in which they are drafted, approved, and promulgated.

(Note: For the sake of simplicity, the chart assumes that the cabinet-introduced bill is approved by the Diet without any amendment.)

Outline of the chain of events from the drafting of a legislative bill to be introduced by the Cabinet, to its approval and promulgation.

(1) Drafting of a legislative bill

A legislative bill that is to be introduced by the Cabinet is drafted by the ministry having the jurisdiction. A ministry draws up the first draft of a legislative bill, once it decides either to enact a new law or to amend or abolish an existing law in order to achieve a policy goal set in the performance of its administrative duties.
On the basis of this first draft, consultations take place with other ministries concerned and the political party(ies) in government. In addition, where necessary, procedures are followed for its referral to advisory councils or to public hearings. Once all of the above has been completed and the legislative bill is considered ready, the ministry in charge puts the draft into a proper statutory form. The final draft of the legislative bill has now been prepared.

(2) Examination by the Cabinet Legislation Bureau

All legislative bills that are to be introduced by the Cabinet are examined by the Cabinet Legislation Bureau before being brought before Cabinet meetings. In principle the examination of a bill by the Bureau should begin only after the request addressed to the Prime Minister for a Cabinet meeting relating to the bill is sent by the ministry in charge. In recent practice, however, a way has developed whereby the Bureau conducts a “preliminary examination” of the bill for which the necessary consultation has been completed. The request for a Cabinet meeting therefore is sent on the basis of the bill for which the Bureau’s preliminary examination is completed.
During the examination by the Bureau, the bill is examined from all angles, legally and technically. The points examined include the following. :
- The relationship between the proposed bill on one hand and the Constitution and other existing laws on the other, as well as the legal appropriateness of the contents of the bill;
- Whether or not the intentions of the proposed bill are accurately expressed in the text;
- Whether or not the structure of the bill (e.g. the order of articles.) is appropriate;
- Whether the usage of letters or words is correct.
Once the preliminary examination is completed, the state minister in charge of the legislative bill follows the procedure for sending to the Prime Minister the request for a Cabinet meeting regarding the submission of the bill to the Diet. The Cabinet Secretariat, which receives the request, sends it on to the Cabinet Legislation Bureau, which then conducts a final examination, considering the results of the preliminary examination already conducted, makes any revisions as necessary, and returns the result back to the Cabinet Secretary.

(3) Cabinet decision to submit the bill to the Diet

As to the legislative bill for which a Cabinet meeting has been requested, the Director-General of the Cabinet Legislation Bureau gives its outline explanation at the Cabinet meeting, and if the Cabinet decides in favor without objection, the Prime Minister submits the bill to the Diet (either to the House of Representatives or to the House of Councilors). The administrative work related to the submission to the Diet of a bill intoroduced by the Cabinet is conducted by the Cabinet Secretariat.

(4) Examination by the Diet

When a legislative bill is submitted to either the House of Representatives or the House of Councilors, the leader of the House (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors), in principle, refers the bill to an appropriate committee. The committee then conducts an examination, starting with an explanation by the state minister in charge regarding the reason for proposing the bill. The examination itself largely follows a question-and-answer format (with the committee asking questions about the bill, and the state minister answering). When the committee completes its questioning and deliberation, its chair person declares, and a vote is taken on, the issue of whether or not to approve the bill. When the committee finishes its examination, deliberation continues at a plenary session of the House concerned.
When the legislative bill passes both the committee and the plenary of the House to which it was first submitted, it is sent on to the other House (i.e. it is sent from the House of Representatives to the House of Councilors or vice versa). The same procedure involving deliberation and decisions both by a committee and a plenary is then followed by the second House.

(5) Enactment of a new law

Except otherwise provided by the Constitution, a legislative bill becomes a law when it passes both the House of Representatives and the House of Councilors. The leader of the House that examined the bill second (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors) then submits the new law to the Emperor via the Cabinet (the Emperor’s approval is a formality).

(6) Promulgation of the new law

The newly enacted law must be promulgated within 30 days from the date on which the leader of the House that examined the bill second submits it to the Emperor via the Cabinet. As to the promulgation, it is done after a Cabinet decision to do so, and by publication in an official gazette . (An outline of the law is also published in the gazette to serve the general public’s understanding of the law. )
Promulgation is to ensure that a newly enacted law becomes widely known by the public. In other words, it is an act whereby the people is enabled to know the law. A law must be promulgated before it actually takes effect.
A law is said to “come into effect” or “come into force” when it generally and actually takes effect and starts to apply. Laws usually stipulate in their attached clauses when they come into effect.
When a law is promulgated, it is given a serial number and signed by both the state minister responsible for the law and the Prime Minister.

Public Opinion, Introduction and Importance

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Public opinion is shaped by relatively permanent circumstanced and by temporary influences.

Permanent circumstances such as race, religion, geographical location, economic status and educational level can strongly influence the public opinion. (Individuals or a particular group)

Temporary factors such as impacts of current events effects of main communications media, propaganda and concerned campaigns of public relations professionals.

It is a survey research in sociology, means collection and analyzing responses of large samples of people.

Public opinion in Nixon’s Vietnam war policies, polls showed that 60% of US people considered war as “immoral” and 70% demanded immediate withdraw from Vietnam.

Importance of Public participation(People’s voice) in Law making process

-Constitution and other law making is not an easy task.

-In societies in which sharply divergent aspirations are present and a common life cannot be assumed, constitution making is difficult task at best.

-It cannot be supposed that clever-drafting can solve the problem by merely writing around it.

-In countries with socio-economic, cultural and geographical diversity as well as with diverse aspirations and needs of people it is even more taken as challenging job.

-Hallmark of present day constitution making process is to ensure maximum participation in law making process.

This is newer form of constitutionalism in order to make law legitimate.

Apparently, it is important in Nepalese context to strengthen democracy and actual justice.

This don’t form an individual’s stand point view but from wider sense.

In contemporary Nepalese constitution building phase, the relationship between people and law is needed; it can be built through it.

-People’s voice is to have their say in different affairs.

It is a participatory democracy, which is accepted on the quite genius democracy.

It’s not only a constitution but entitles public spaces and direct engagement of people.

It is not an end but means to change and develop society.

-Public hearing, consultation, etc.

-Representative from different diverse sector facilitate the process.

Built on a belief that citizens can be trusted to shape their own future, participatory development uses local decision making.

Use of legislation as a state’s tool power to administer governance

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

In simple language, ‘what government does is governance’. Governments are empowered to establish and regulate the interrelationships of the people within their territorial confines, the relations of the people with the community as a whole, and the dealings of the community welfare.

The word government may refer to the people who form the supreme administrative body of a country, as in the expression “the government of Prime Minister Churchill.”

The system or manner of government is governance, which is run by the administrative law of the nation or state. Administrative law is the area of law dealing with the affairs of agencies of the executive branch of a government, and with the judicial review of public bodies generally.

Administrative bodies or government agencies (VDC, Municipalities, Forest department, CDO office, Tax Revenue office, etc.) are created as the government’s agencies and given power by federal or state legislation.

The administrative law is basically concerned with whether proper standards are applied by government’s agencies in exercising their powers and in making and enforcing regulations. If an agency does not apply the proper standards, its failure may be redressed by application to the courts.

Government require to maintain peace and security, generate and control the economy etc. there are many function of democratic government, therefore to run and regulate these action a government requires different legislation as ‘administrative laws’. Administrative Law is body of law applicable to the operations of agencies established by the legislature to carry out the functions of the executive branch of government. Administrative law are used in a way to maintain peace and security crime control act, police act; to regulate the economy income tax act, VAT, Nepal Rastriya Bank act and other banking acts; for regulation of industrial and other business activities there are company act, contract act etc.

Legislative just promulgate the constitution and act which determine the substantive or principle aspects like the framework, structure, jurisdiction, role and responsibility. But legislative can’t determine procedural aspect of each and every activities, it is not practicable to determine each and every procedure of an act. That’s why legislative provided delegated legislative authority to executive. For ex: there is ‘Forest Act’ which is enacted by legislative. This ‘Forest act’ provided the substantive aspect to run forest and forest administration, they are administrative power- authority to forest office, administrative discretionary power to forest officials, administrative adjudication (quasi-judicial) authority, etc. But in case of its procedure to run an administration, ‘Forest act’ provides delegated legislative authority to forest office to formulate its own procedure by formulating ‘Rules and Regulation’ by forest office themselves.

In this way government use the legislation (use of administrative law) as a state’s tool power to administer governance like forest department use ‘Forest act’ as its tool to administer forest governance.

Two major aspects arises (i) why? And other is (ii) how?

Answer to Why?

To protect individual right and liberty (Fundamental rights).
To maintain Rule of law
- Control the behavior of the people through criminal laws.
- Reform and adopt new laws with the social change.
- Public welfare
- Strengthen democratic process
To establish government of people
Separation of power with effective check and balance
Equality before law

Answer to how?

Through administrative laws like: Local government Act and regulation, Civil service Act and regulation etc.

Elements to Administer governance are:

1.By delegated legislation

Allowing minor laws (rule) making authority under the scope provided by act and regulation.

2. By administrative power and authority

Executive has an authority to govern and enforce. For ex: Village Development Committee and Municipality are autonomous to govern themselves.

3.Administrative discretion

The freedom or authority to judge something or make a decision about it by an executive authority is an administrative discretion. Ex: traffic police and tax official discretionary power to impose the amount of fine.

4.Administrative adjudication

Resembling power of court by an executive body, it describes decision making power of executive that are similar to court. Ex: Quasi-Judicial body.

5.Control over administrative abuse of power and authority by supreme source of law (Constitution)

Conceptual Framework in Democratic Governance

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Democratic “governance”; political organization comprising the individuals and institution
(i) authorized to formulate public policies
(ii) conduct affairs of state.

Government is empowered to establish and regulate the inter-relationships of the people.

The peculiar and essential qualities of the government are:

First, it is representative.
Second, recognizes the liberty of individual citizens.
Third, separation of power accompanying with the check and balance mechanism.
Fourth, implementation (enforcement) of law.

Executive, Legislative and Judiciary are the most essential ingredients of government. They do have own governance system. Whereas, legislative: formulate the laws according to the requirement of society, assimilating current phenomena into law.

Executive: enforcement of law generally. But usually executive branch is fully devoted to administer the country’s law. Executive head or executive power may differ from country to country.

In regard to, judiciary: which check on rationality, objectives of law with interpretation? Protect the constitutional norms and values (Judicial review or judicial activism help to protect liberty and establish remedy).

Nepalese governing system has been adopting up to down approach in authority and delegation of power. Bottom to up approach in responsibility and accountability. Our governance should not be like “army fighting in war without arm and weapon”. Law should be used as a weapon to good governance.

Indeed, Nepalese do expect of good governance; (comparatively good than the present)

Many challenges have been appearing a hurdle to govern the state. Like as follows:

Problem of peace and security
Address issues of excluded groups:
Poverty
Political instability

Despite of these challenges, gain occurred in governance by considerer-able progress with

(a) Tax policy
(b) administrative reform
(c) combat corruption
(d) independence of judiciary
(e) advancement and development of communication system

Law making for Social Change and Social Control

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Background

Savigny: “Law is found but not made.”

Particular society themselves develop legal system by sense of common consciousness (Volkgeist).

HLA Heart:

He made a bridge between primitive society and modern society.

In primitive society there were some rules and principle to govern the society but there are de-facto rules.

Therefore, secondary rules for him made effective to those primary rules by (i) recognition (ii) change (iii) adjudication

Roscoe Pound

The purpose of law is to achieve ultimate goal of society, this ultimate goal can be achieve by balance of conflicting interest.

Individual interest: Fundamental rights
Public interest: -Right claim by a state to be a real state.
Social Interest: -Directive principles

So, all the source of law making is society. It is the institution felt by law makers for the society.

While making law, social order is to be considered, if not done then law can be oppose by the society: –

samajik byabahar sudhar ain

Law making for the Social change and Social Control

Law makers should make law addressing need of society not interest of elite group.

Changes through a law mean void changes. This can be as follows:

Changes in attitude, psychology, behavior and power structure (law against untouchability).
Changes brought by the present court.
Through this constitution, you can claim the right against state.
Like equality, sovereign power is people.
Pursuing equality in the land of Hierarchy, (Attitude in feudalistic pattern change into socialist)
Jurisprudential foundation of reservation.
Empowerment of woman.
Social Action and Public Interest Litigation.
Secularism
Sometime if alternative are not given and absolutely imposed.

There may be high probability of disobedience. So, alternative is to be provided to enjoy law.

Social reform Act, Consumer protection Act failed due to disobedience of society.

Cyber Law came into existence with the felt of need of it by law makers and cope up with the change in technology and human knowledge.

Other laws enacted and amended due to WTO regime, Human Right regime.

If the law is against international legal order then it will be condemned internationally.

Things that are to be considered by law makers I law making for social change are: –

First thing is that, the law should be made according to societal interest.
Purpose of law is to make people empower (capable).

For this we can make affirmative discrimination.

Law should not exceed legal principle and international norms of standard.
Law should be according to the social psychology and social fact.

Cyber law wasn’t debated but Communication ordinances was debated because it has taken dignity of media and media personal.

If any misconfusion occurs between law makers and society then either society or law can’t function.

From the historical period to modern society like Mundhum, Manab Nayab, Sartha, Muluki Ain, Constitution has brought number of changes in society.

Sati abolition, Child marriage, Birta Unmulan, etc.

Because of the advancement of democracy, science and technology. (Climate change)

Law makers are to be update through research to meet the societal interest as a whole

Legislation

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

The word legislation is derived from Latin words ‘legis’ which means a law and ‘latum’ to make. Legislation means making and setting the law. This term is used in three senses (according to some jurist)

In a broad sense: All methods of law-making (contracts judge made law etc.)

In a technical sense: every expression of the will of the legislature. It includes all will of the legislature, which may have legal effect or not.

In a strict sense: It means the morality of rules and laws to be followed and enforced. Competent law-making body under the constitution of the state.

Legislation is a general term that covers laws enacted by parliament and laws made by persons and bodies to whom parliaments have delegated law- making powers. The laws made under delegated authority of the parliament are know as delegated legislation or sub- ordinate legislation.

Legislation encompasses within itself making of laws, criminalization as well as decriminalization of acts, enactment , amendment, repeal of law.

Legislation refers to the process of enactment of laws by a legislative body through its law making process. The legislative process includes evaluating amending and voting on proposed laws and is concerned with the words used in the bill to communicate the values, judgements and proposes of the proposal.

Legislation is the decision made through a deliberative process of elected officials. It is also called written law, statutory law, enacted law and law of parliament.

As per Salmond, “Legislation is that source of law, which consists in the declaration of rules by a competent authority.”

As per Gray, “Legislation is the formal utterance of the legislative organs of the society.”

Legislation is a positive, active and artful process. It is also the art of making law which is also called as enacted law.

As per Merriam-Webster, legislation is the action of legislating. Specially the exercise of the power and function of making rules (such as laws) that have the force of authority by virtue of their promulgation by an official organ of a state or other organization.

As per Salmond based on British legal system and practice there are two types of legislation they are supreme legislation and subordinate legislation.

The term ‘legislation’ connotes two different meanings; the laws made by the legislature itself are also called legislature whereas the process by which the laws are made is also termed as legislation.

Legislation refers to the set of statutory law which has been passed by a legislature and confirmed by the executive.

Black law dictionary, “The process of making or enacting a positive law in written form according to some formal procedure by a branch of government constituted to perform this process.”

Legislation is an action of legislating; specially the exercise of the power and functions of making laws that have the force of authority by virtue of promulgation by an official organ of the state.

According to Allen “Legislation is the characteristic law making instrument of modern societies, expressing the relationship between individuals and the state. In modern societies legislation is the most direct and prolific source of law.

Legislation is making of law or creating new legal norms by sub- legislative authority.

Legislation is creation, alteration or repeal of law by a sovereign authority.

Legislation is the characteristic law making instrument in modern society.

Holland: The making of general orders by our judges is as true legislation as is carried on by the crown.

Austin: Activities, which results into law making or amending, transforming or inserting new provisions into the existing law.

UK Parliament: Legislation is a law or a set of laws that have been passed by Parliament.

The making of legislation is done with the following principle in mind:

“omnis definitio in iure civili periculosa”

Or,

“Every definition of law is dangerous”

Legislation is law which has been promulgated by a legislature or other governing body or the process of making it.
Legislation can have many purposes:
- To regulate
- To authorize
- To outline
- To provide
- To sanction
- To grant
- To declare
- To restrict
Legislation is the laws enacted by parliament or institution using the parliamentary authority.

According to:

Cambridge Advanced Lerner’s dictionary: A law or set of laws suggested by a government and made official by a parliament.

Collins English Dictionary: Legislation consists of laws or laws passed by the government.

Sir Henry Maine: Legislation is the last ameliorative agency of social reform and social change after legal friction and equity.

Merriam Webster: The exercise of the power and function of making rules that have the force of authority by virtue of their promulgation by an official organ of a state or other organizations.

UK Parliament: Legislation is a law or set of laws that have been passed by a parliament.

Austin: There cannot be legislation without a legislative act.

The exercise of the power or function of making rules that have the force of authority by virtue of this promulgation by an official organ of state or other organization.

What is Legislation in Layperson’s Tone

Legislation, both in the form of Parliamentary Statute or Government Regulations, are classified as substantive and procedural provisions;

Substantive Provisions (Rules) express norms of acceptable behaviors or public policy. One should violate the rights of others is a norm prescribed by a legal rule. One should necessarily obtain the receipt of goods purchased is a public policy. Norms of acceptable behaviors or public policy affect how people deal with each other and government.
Procedural Provisions (Rules) express process or methods or ways of application of rules in practice.

Technical Definition of Legislation

“Legislation is a general term that covers laws enacted by Parliaments and laws made by persons and bodies to whom Parliaments” have delegated law-making powers. The laws made by Parliament itself are called Acts or statutes. The laws made under delegated authority of the Parliament are known as delegated legislation or subordinate legislation. These laws take the form of by-laws, rules, ordinances or regulations. They are usually made by the Governor-General or State Governors but may also be made by others. Delegated legislation emanates from an Act and contains details necessary to carry out specific matters relating to the Act. For example, the University of Wollongong Act 1989 (NSW) provides for the University Council to make by-laws covering a number of areas including the form and use of academic dress. Laws enacted by Parliament or institution using the parliamentary authority are called ‘legislation’. In technical sense, such laws are referred to as “statutes”, and in this sense they distinguish laws from those made by courts or people customarily.

Legislation refers to the set of statutory laws which have been passed by a legislature and confirmed by the executive; it should be noted that some nations have little executive power, for example in the case of a parliamentary system. Passing legislation is formally known as “enacting law.” A statute is a formal, written law of a country or state, written and enacted by its legislative authority, ratified by the highest executive in the government and published, sometimes informally referred to as “black letter. The term statute is sometimes also used to refer to an international treaty that establishes a Court, for example the Statute of the International Court of Justice and the Rome Statute of the International Criminal Court. The term statute is also sometimes used to refer to international agreements establishing institutions other than courts or tribunals, such as the Statute of the European Central Bank (a protocol to the Treaty of Maastricht).

Statutory Law is written law (as opposed to oral or customary law) set down by a legislature or other governing authority such as the executive branch of government in response to a perceived need to clarify the functioning of government, improve civil order, answer a public need, to codify existing law, or for an individual or company to obtain special treatment. (Contrast common law.) In addition to the statutes passed by the national or state legislature, lower authorities or municipalities may also promulgate administrative regulations or municipal ordinances. The processes of creating these administrative decrees are generally classified as rulemaking. While these enactments are subordinate to the law of the whole state or nation, they are nonetheless a part of the body of statutory law.

Ordinance can mean:

Temporary enactment of law by sovereign,
A law made by a non-sovereign body such as a city council or a colony.
A piece of internal regulation in a university
An important ritual in Christianity
It should not be confused with ordnance, which describes ammunition, explosive devices and similar items. See also Ordnance Survey; Master-General of the Ordnance.
A private bill is the term used for legislation that originates from a particular member of a legislature or parliament or from a member of the public. Private bills developed in the United Kingdom as a means of obtaining redress from a specific wrong or obtaining a benefit that was not otherwise available through statute or the common law.
Legal Aid Act and National Human Rights Commission Act were Private Bills in the Parliament.

Legislation an Effective Instrument of Social Change and Regulation

Legislation is an effective instrument of social change, as it is often difficult for evolve custom in a short period of time. 20th Century has seen the tremendous force of legislation in bringing about the changes in the society.
Birta Unmulan Ain, Land Reform Act, Evidence Act, are very few examples in Nepal.

Legislation and Legislative

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Legislation
Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.

Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.

Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.

Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.

Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God’s law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.

Legislature
Legislature, branch of government empowered to make, change, or repeal its laws and to levy and regulate its taxes. Most modern legislatures are representative: composed of many members who are chosen directly or indirectly by popular vote. Legislatures that provide direct representation are usually considered more democratic in practice because they are less susceptible to being dominated by a single faction.

Nearly all modern governments have a bicameral, or two-house, legislature. The so-called lower house is generally elected on a basis of direct representation; and the upper house commonly on a basis either of indirect representation or of direct representation limited to certain occupational, territorial, or hereditary categories. The traditional theoretical justification for an upper house is that it can exercise moderation and delay on legislation by the lower house and thus restrain the effects of impulsive or excessive fluctuations of public opinion. A few governments, however, including that of the state of Nebraska, have unicameral, or single-house, legislatures.

The various legislatures throughout the world are known by different names, such as Congress, Parliament, Knesset, Diet, and Assembly. Most are limited in their powers by the Constitution or organic law of the government of which they are a part. The enactments of the U.S. Congress, for example, can be vetoed by the president, and the Congress must approve by a two-thirds majority any bill it wishes to pass despite a presidential veto. The British Parliament, on the other hand, chooses its own prime minister and cabinet, who are ultimately responsible to it for all their administrative actions. Being legislative as well as executive or administrative leaders, these officials have considerable power to initiate and influence legislation desired by their administrative departments. The tendency in most modern governments has been toward increasing assumption of legislative powers by administrative officials, with a consequent weakening of the legislatures. Many political scientists ascribe this to growing public impatience with the uncertainties of party politics within legislatures. The trend is also attributed to the increasing complexity of modern government, which requires the use of people with specialized skills, often not found in publicly elected legislatures, for the drafting of laws.

Legislative Principles and Law Making Process

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

General Concept of Legislation

Use of Legislation as a state’s tool of power on people in autocracies

Use of Legislation as a State’s tool power to administer governance

Law making, Social Change Social Control

Law making for Social Change and Social Control

Utilitarianism

Law making for Social Change

Importance of Public Opinion in the Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

The law-making process

Drafting Principles

Law Making Process in Nepal

Legislative Drafting/Bill Drafting

Importance of Legal Research in Law making process

Role of Law Commission

Behavior and Accountability of Law maker

Behavior and Accountability of Law makers

Legislative Terms

Legislative Terms

Law making for Social Change and Social Control

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Background

Savigny: “Law is found but not made.”

Particular society themselves develop legal system by sense of common consciousness (Volkgeist).

HLA Heart:

He made a bridge between primitive society and modern society.

In primitive society there were some rules and principle to govern the society but there are de-facto rules.

Therefore, secondary rules for him made effective to those primary rules by (i) recognition (ii) change (iii) adjudication

Roscoe Pound

The purpose of law is to achieve ultimate goal of society, this ultimate goal can be achieve by balance of conflicting interest.

Individual interest: Fundamental rights
Public interest: -Right claim by a state to be a real state.
Social Interest: -Directive principles

So, all the source of law making is society. It is the institution felt by law makers for the society.

While making law, social order is to be considered, if not done then law can be oppose by the society: –

samajik byabahar sudhar ain

Law making for the Social change and Social Control

Law makers should make law addressing need of society not interest of elite group.

Changes through a law mean void changes. This can be as follows:

Changes in attitude, psychology, behavior and power structure (law against untouchability).
Changes brought by the present court.
Through this constitution, you can claim the right against state.
Like equality, sovereign power is people.
Pursuing equality in the land of Hierarchy, (Attitude in feudalistic pattern change into socialist)
Jurisprudential foundation of reservation.
Empowerment of woman.
Social Action and Public Interest Litigation.
Secularism
Sometime if alternative are not given and absolutely imposed.

There may be high probability of disobedience. So, alternative is to be provided to enjoy law.

Social reform Act, Consumer protection Act failed due to disobedience of society.

Cyber Law came into existence with the felt of need of it by law makers and cope up with the change in technology and human knowledge.

Other laws enacted and amended due to WTO regime, Human Right regime.

If the law is against international legal order then it will be condemned internationally.

Things that are to be considered by law makers I law making for social change are: –

First thing is that, the law should be made according to societal interest.
Purpose of law is to make people empower (capable).

For this we can make affirmative discrimination.

Law should not exceed legal principle and international norms of standard.
Law should be according to the social psychology and social fact.

Cyber law wasn’t debated but Communication ordinances was debated because it has taken dignity of media and media personal.

If any misconfusion occurs between law makers and society then either society or law can’t function.

From the historical period to modern society like Mundhum, Manab Nayab, Sartha, Muluki Ain, Constitution has brought number of changes in society.

Sati abolition, Child marriage, Birta Unmulan, etc.

Because of the advancement of democracy, science and technology. (Climate change)

Law makers are to be update through research to meet the societal interest as a whole

Legislative Terms

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

ACTS– The volume of bills enacted at one session; published by the Legislative Research Commission.

ADJOURN (motion to) – An action to discontinue proceedings for the day; a privileged motion non-debatable, not subject to amendment, and requires for its adoption the assenting votes of a majority of the members present and voting.

ADJOURNMENT SINE DIE– Adjournment without a day. This action ends a session, since no time is set for reconvening.

ADMINISTRATIVE REGULATION – An enactment of law by an executive branch agency or department, under authority granted by the General Assembly.

ADMINISTRATION BILL – Legislation introduced at the behest of the Governor, usually sponsored by the majority floor leader.

ADOPTION – Approval or acceptance; usually applied to resolutions or amendments

AMEND (motion to) – An action to modify the contents of a bill or question under consideration; the motion to amend is in order at any time prior to final passage, unless the previous question has been ordered.

AMENDMENT – Any alteration made or proposed to be made in a bill, motion or clause thereof, by adding, substituting or deleting.

CHAMBER – A legislative, judicial or deliberative assembly.

COMMITTEE AMENDMENT – An amendment to a bill which is attached to the bill by a committee and made a part of the committee’s report on the bill.

COMMITTEE, CONFERENCE – A joint committee of senators and representatives directed to reach agreement on legislation on which the two house are unable to agree.

COMMITTEE, INTERIM JOINT – A committee composed of all members of a Senate standing committee and all members of a House standing committee, which meets between sessions as a subcommittee of the Legislative Research Commission.

COMMITTEE REPORT – The document by which a committee submits its recommendations to its parent body.

COMMITTEE, SPECIAL – A committee established to consider only one issue, and which ceases to exist after submitting its report.

COMMITTEE, STANDING – A committee established to function for the entire session, to consider any questions the body cares to submit to it.

COMMITTEE SUBSTITUTE – A bill offered by a committee in lieu of a bill it has considered; technically, the committee substitute is an amendment to the original bill.

COMMITTEE OF THE WHOLE – Resolution of the entire house membership into a single committee.

COMPANION BILL – A bill which is identical to a bill having been introduced in the opposite house.

CONCUR – Action by one house to agree to modifications of its legislation by the opposite house.

CONFLICT OF INTEREST – Threat to the public interest by a private interest; usually the position of a legislator unable to vote impartially due to some personal interest in a legislative matter.

CONSENT CALENDAR (or consent orders) – A list of bills having had one (or two) reading(s), and on which members in attendance are presumed to vote yes unless they indicate a negative vote prior to the call of the roll.

CONSTITUENT – A citizen who resides in the district of a legislator.

CONSTITUTIONAL AMENDMENT – A proposal to modify a constitution in some manner.

CONSTITUTIONAL CONVENTION – An assemblage convened for the purpose of writing or rewriting a Constitution.

CONSTITUTIONAL MAJORITY – One more than half of the members of a deliberative body.

CONSTITUTIONAL OFFICER – An officer selected by a legislative body in compliance with a constitutional provision that it do so; in Kentucky these officers are clerk, assistant clerk, enrolling clerk, sergeant at arms, doorkeeper, cloakroom keeper, janitor and page.

CONTINGENCY FUND – Money appropriated (to the governor in Kentucky) to meet expenses which are unforeseen at the time of budget preparation.

CONVENE – The assembly or meeting of a legislative body, on the periodic basis provided by law.

CO-SPONSOR – A sponsor of a bill or resolution who is not the principal sponsor.

DEBATE – Discussion or a question according to parliamentary rules.

DEFICIENCY APPROPRIATION – An appropriation to compensate for an impending deficit in an account budgeted for the preceding time period.

DILATORY – Designed to cause delay.

DISCHARGE PETITION – A notice filed one day in advance of an attempt to take a bill or resolution from a committee.

DISTRICT – The area or division of the governed territory which is represented by an individual member of its legislative body.

DIVISION – A method of voting by way of a show of hands or by standing; provides a count without a roll call.

DIVISION OF A QUESTION – The separation of one item to be voted on into two or more items to be voted on.

EFFECTIVE DATE – The date on which a legislative measure begins to function as a part of the law; in Kentucky, most legislation becomes effective 90 days after sine die adjournment.

EMERGENCY CLAUSE – Provision in a bill that it become effective immediately upon approval by the governor rather than 90 days after adjournment.

ENABLING ACT – Legislation permitting an entity which depends upon the legislative body for its power to take a certain action.

EN BLOC VOTING – To consider several questions in a single vote; or to vote as a unit on a particular question, as when all senators present are presumed to vote yes enbloc on consent bills.

ENACTING CLAUSE – The clause preceding any legislative measure which expresses formally the legislative sanction of the body promulgating the enactment.

ENGROSSMENT – The act of perfecting an item of legislation in accordance with any amendments which have been adopted to it since its origin.

ENROLLMENT – The act of comparing a printed bill to be transmitted to the governor with the original introduced bill with all amendments, so as to ascertain their identical form.

EXECUTIVE ORDER – Action by the governor in implementing executive authority under the law

EXECUTIVE SESSION – A meeting of any deliberative body which excludes from attendance any person who is not a member of the body or one of its essential staff.

EX OFFICIO – The holding of an office or assumption of a duty by virtue of holding a particular office, as when the majority floor leader is by virtue of that office an ex-officio member of the Legislative Research Commission.

EXPUNGE – Action to delete certain portions of the official record of a governmental body.

FILE – A collection of documents belonging in the same or similar category; or the act of presenting a paper or document to an official entity such as a court or legislative body.

FISCAL NOTE – An attachment to a bill or resolution indicating its impact on state finances.

FLOOR – The area of a legislative chamber which is occupied by the members and staff of the body.

FLOOR AMENDMENT – An amendment filed with the clerk to be considered on third reading of the bill to which it has been filed.

GALLERY – The area of a legislative chamber from which the proceedings may be viewed by spectators; usually a balcony or other raised area.

GENERAL ORDERS – A list of measures eligible for debate, amendment and voting on a given day without reference to a particular time of day or place in the order of business.

GERMANENESS – The relevance or appropriateness of a particular question, usually an amendment.

GERRYMANDERING – The act of drawing legislative district boundaries so as to gain partisan or fractional political advantages.

GOVERNOR’S PROCLAMATION – The document issued by the governor to convene an extraordinary session of the legislative body.

GRANDFATHER CLAUSE – Exemption from regulation for certain persons having engaged in the regulated activity for a specified period of time prior to the effective date of the regulatory legislation.

HEARING – A meeting, usually of a committee, at which testimony on a question or issue is accepted, whether from the public generally or from invited witnesses.

HOPPER – Colloquial name given the repository for bills awaiting introduction; in Kentucky such bills are filed with the clerk.

HOUSE – One body of deliberation in a legislature; customarily a shortened name for the House of Representatives.

IMMUNITY – Constitutionally, legislators are privileged from arrest, except for certain offenses, and may not be brought to question for remarks made in speech or debate on the floor.

*IMPEACHMENT *– A legal procedure, originating in the legislative branch of government, by which public officials may be removed from office by reason of misconduct.

*INITIATIVE *– A procedure by which the general public may present and require consideration of legislative proposals.

*INTERIM *– The period of time between sessions of a legislature.

*INTRODUCTION *– The presentation of a bill or resolution to the legislative body for its consideration.

*INVOCATION *– The prayer preceding each daily session of a legislative body.

JOINT SPONSORSHIP – A procedure in the Kentucky House of Representatives whereby several members may sponsor legislation without one being a principal sponsor, and each bearing equal responsibility as endorsing the measure.

*JOURNAL *– The official, written record of the proceedings of a legislative body.

*KENTUCKY REVISED STATUTES (KRS) *– The official title of statute law in Kentucky; each bill creates, amends, or repeals a section of the KRS.

LAY ON THE CLERK’S DESK (motion to) – An action to place a measure in a position of temporary postponement.

LAY ON THE TABLE (motion to) – An action to declare a measure defeated.

LEGISLATIVE ADVOCATE OR AGENT – A person, usually under hire, engaged in representing a particular interest or group of interests before the legislature; commonly referred to as a lobbyist.

LEGISLATIVE ANALYST – A staff person engaged to determine the effects of legislation, and assist a committee in its deliberations.

LEGISLATURE – A deliberative, representative assembly formed by constitution to enact change in statute law; usually the term legislature refers to the state level of government.

MAJORITY CAUCUS CHAIRMAN – A member affiliated with the majority party, who is responsible for convening the caucus of one party, and presiding over its deliberations.

MAJORITY FLOOR LEADER – A member affiliated with the majority party, designated to act for the party during the proceedings on the floor.

MAJORITY PARTY – The political party whose members occupy at least one more than half of the total membership of the body.

MAJORITY WHIP – A member affiliated with the majority party, designated to assist the floor leader during proceedings on the floor.

MASON’S MANUAL – A volume of parliamentary law and procedure providing a basis for ruling on questions of order in the General Assembly.

MEMBERS-ELECT – Persons having been elected members of a legislative body, but not yet having been sworn into office.

MESSAGE – An official communication from beyond the body which is read into and made a portion of its journal.

MINORITY FLOOR LEADER – The minority party officer corresponding to the majority floor leader.

MINORITY REPORT – A report filed by those members of a committee in the minority relative to the decision of the majority of the committee; the minority report may be adopted in lieu of the majority report.

MINUTES – The written record of proceedings of a deliberative body.

MOTION – A proposal, usually oral, made to the presiding officer calling for specific action by the body; the motion is the principal tool used to conduct legislative business.

NOMINATION – The placement of a person’s name in consideration for election or appointment to an office.

NON-DEBATABLE – Those subjects or motions which under parliamentary rules may not be discussed or debated.

OMBUDSMAN – An official, usually appointed, charged with the duty of receiving and investigating public complaints, and directing action thereon by the responsible agency.

ORDER OF BUSINESS – The defined routine of procedure in the legislative body each day; may be deviated from only by suspension of the rules.

ORDERS OF THE DAY – A list of bills and resolutions scheduled for third reading, debate, amendment and vote on a particular day.

OUT OF ORDER – The offer of an improper motion, amendment or question to a deliberative body.

OVERSIGHT COMMITTEE – A committee, usually legislative, created to maintain a review of some aspect or operation of government, usually related to the executive branch.

PAIRS, OR PAIRINGS – An arrangement between two members by which they agree to be recorded as voting on opposite sides of an issue, and be absent when the vote is taken.

PARLIAMENTARY INQUIRY – A question posed to the presiding officer for clarification of a particular point in the proceedings.

PASSAGE – The approval of a bill or resolution by way of an affirmative vote.

PER DIEM – A basis of compensation for services, from day to day.

PETITION – A formal, written request submitted by an individual or group to some official body or agency.

PINK SHEET – The colloquial term applied to the form used for technical or typographical changes to bills in Kentucky without benefit of amendment; this form originates in the Legislative Research Commission.

POINT OF ORDER – The calling of attention to a breach of order or the rules.

POINT OF PERSONAL PRIVILEGE – Defense of the rights, reputation or conduct of a legislator in his or her official capacity.

POSTPONE INDEFINITELY (motion to) – Action to prevent consideration of a measure for the remainder of the session, unless a constitutional majority sustains a motion to reconsider the matter.

PRECEDENT – Previous evidence or example for action or decision of a question.

PRE-FILED BILL – A bill filed prior to the session, for public discussion and printing.

PRESIDENT – The presiding officer in the Senate.

PRESIDENT PRO TEMPORE – The Senator, elected by the Senate, chosen to preside in lieu of the President when such officer is absent or unable to preside.

PRESIDING OFFICER – The person designated to preside over the proceedings of a legislative body.

PREVIOUS QUESTION (motion for) – Action to prevent additional debate on or amendment of a question, and to cause an immediate vote on the matter at issue.

PRIVILEGED MOTION – motions to which a special status is applied, whereby such take precedence if offered while other matters are pending.

PRIVILEGE OF THE FLOOR – Authorization for members of the general public to visit the floor, granted usually for the day.

PROCEDURE – Rules and traditional practices of the respective houses of the legislature.

QUORUM – The number of members of a legislative body which must be present to transact business.

QUORUM CALL – Action to require a call of the roll to determine the presence of a quorum.

RATIFY – To approve and make valid.

READING – Each bill to be enacted in Kentucky must have three readings, at length, in each house.

REAPPORTIONMENT – Redrawing legislative district boundaries so as to provide equality of representation.

RECALL – To cause removal of a legislative enactment or public official by popular action.

RECEDE – To undo action previously taken.

RECESS – Intermission during a daily session, usually for caucus or committee meetings.

RECOMMIT (motion to) – Action to send a measure to committee after it has been previously reported.

RECONSIDER (motion to) – Action to re-take a vote; the motion may be offered only by a member having voted previously on the prevailing side.

REFER – To send a measure or question to committee.

REFERENDUM – Submission of a question to decision by the electorate.

RESCIND – To annul or undo an action previously taken.

REPEAL – To delete and make of no effect.

REPORT – To communicate opinion or recommendations.

RESOLUTION, CONCURRENT – Expression of opinion or request by both houses of a legislature, without the force of law.

RESOLUTION, JOINT – To enact matters of law not to be made a portion of the statutes.

RESOLUTION, SIMPLE – Expression or request by one house.

RESOLVING CLAUSE – Language in a resolution defining the action taken.

REVENUE – The yield of taxes and other sources of public moneys.

REVISION – The process of inserting the enactments of a session into existing statute law.

RIPPER BILL – A colloquial term applied to legislation designed to harm a particular person or bill.

ROLL CALL – To determine a vote on a question by taking of names in favor and opposed.

RULES – A code of procedure adopted by each house of a legislature to govern its operations.

RULING OF A CHAIR – A decision by the presiding officer concerning a question of order or procedure.

SECTION – A division of a bill or statute, separated according to topic covered or action taken.

SENIORITY – Length of service as bearing on duties or functions.

SESSION, EXTRAORDINARY – A session convened by call of the Governor; Usually called a “special session”.

SESSION, REGULAR – A session convened on a regular basis by way of constitutional provision as to its date and length.

SIMPLE MAJORITY – A majority of those voting on a question.

SPEAKER – The presiding officer of the House of Representatives.

SPEAKER PRO TEMPORE – The member of the House of Representatives elected to preside in the absence or inability of the Speaker.

SPECIAL ORDER – An action predetermined to occur at a specific time on a specific date.

SPONSOR – The legislator responsible for presenting an item of legislation to the body

STATIONERY ALLOWANCE – a $50 allowance to each member, per session, for the purchase of stationery.

STOPPING THE CLOCK – An occasional tactic on the final evening of a regular session whereby the proceedings continue into the following day, with the clock and journal continuing to indicate occurrences of action on the preceding day.

SUNSET LEGISLATION – A law requiring termination of a particular agency or program on a predetermined date, unless justification for continuance is presented to the legislature prior to such occurrence.

SUSPEND THE RULES – Action to negate the application of a particular rule of procedure; the rule and purpose must be stated in the motion to suspend.

TITLE – A caption indicating the subject matter of a bill or resolution, required by the Constitution.

UNANIMOUS CONSENT – A vote, by voice, expressing adoption of a question without dissent or objection.

UNICAMERAL – A legislature composed of one house.

VETO – Rejection of an enactment without authority to modify; usually the prerogative of the Governor.

VETO OVERRIDE – Authority of the legislature to overturn a rejection of legislation by the Governor.

VOICE VOTE – A method of voting whereby only a vocal response to a question is indicated.

VOTE– A decision on a question by a member of a deliberative body, either affirmative or negative.

WITHDRAW– To recall, remove or delete a question from consideration.

YIELD– A parliamentary term referring to the cession of the floor by one member to another.