TyroCity: Legislative Principles and Law Making Process

Role of Law Commission

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

Background:

– The Nepal Law Commission was first constituted by an executive decision in 1953.

– 2nd, 3rd, 4th, 5th commissions were constituted respectively. These all were temporary in nature.

– Till the 5th Law Commission, it is constituted by the executive decision.

– NLC was given permanent status only in 1984.

– In the year 2007, the commission was given statutory body under the “Nepal Law Commission Act, 2007.”

Establishment of The Nepal Law commission:

(1) The Nepal Law Commission
has hereby been established for drafting and codification of laws, amendment, unification and review of prevailing laws as well as to conduct study and research on law and justice.

Composition of the Commission:

(1) The Commission shall be constituted as follows.

(a) A person appointed by the Government of Nepal from among those who has served as already a Justice of the Supreme Court a person being qualified for the same post Chairperson.
(b) A person appointed by the Government of Nepal from among those having already discharged the duty as a
Gazetted Special Class of Nepal Judicial Service, or a person having worked as a law-practitioner in the capacity of Senior Advocate or Advocate at least for fifteen years, or a person having gained experience of teaching, research, drafting of law or in the sector of law or justice at least for fifteen years. Vice-Chairperson
(c) Three persons, in maximum, having at least one women nominated by Government of Nepal from
among the persons qualified under clause (b) above. Member
(d) Secretary, Ministry of Law, Justice and Parliamentary Affairs. Member
(e) Secretary (law), Office of the Prime Minister and council of ministers. Member
(f) Deputy Attorney General, Office of the Attorney General Member
(g) Secretary Member Secretary

(2) There shall be a Recommendation committee to recommend the name for the appointment and nomination of chairperson, Vice-Chairperson and Members of the commission to the Government of Nepal, as follows:

(a) Minister for Law, Justice and Parliamentary Affairs Coordinator
(b) Chairperson, House of Representatives, law, Justice
and Parliamentary Affairs Committee Member
(c) Chairperson, Nepal Bar Association Member

Honorary Member: Government of Nepal may appoint five experts, in maximum, as Honorary Member from among the outstanding experts relating to the subjects deemed necessary by the Commission

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

Seven standards for people’s voice or public participation

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

The public should have to say decisions about the actions that affect their life.
Public participation includes the promise that a public contribution will influence the decision.
This process communicates the interests of people and meets the process of all participants.
The process seeks out and facilitates the involvement of people potentially affected by the proposed decision.
The process involves the participants in defining how they will participate, thus the process will be structure.
The public participation process provides participants with the information they need to participate in a meaningful way.
The public participation process communicates to participants how their input affected the decisions.
Public hearing is basic form of people’s participation.

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)

Bentham’s ‘Principle of utility’

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

Utilitarian, in latin term it is “ütilis”, which mean ‘useful’. Bentham’s principle of utility concern with ‘welfare state, ‘Laissez faire’ policy. He was social reformer, he determined the aim of legislation to end social injustice.

Supreme objective of moral action is achievement of the greatest happiness for the greatest number of people. It must be the objective of legislation and legislative while drafting the law. ‘

In order to accord with the laws of nature, government and citizens should act to increase the overall happiness of the community/ or to secure the greatest happiness of maximum no. of people.

Pain and Pleasure

Identification of concept of “happiness” with pleasure and the absence of pain.

According to him nature has placed mankind with two sovereign matters
(1) PAIN and other
(2) PLEASURE.

Legislature is to find of what is pleasure and pain of public.
A) PLEASURE: just, good, moral.
B) PAIN: unjust, bad, immoral.
The objective of legislature is to prevent pain and promote the pleasure. Without establishing Principle of Utility, pleasure can’t be gain and pain can’t be avoided. Law making should address no. of people through research. In this way pain of Nepalese can be addressed.

Legislation (law) should be made after social research. It will help to find out whether it may be accepted by large no. of population or not.

Legislative have to forward only those legislation which will have “greatest happiness of the greatest no. of people”. It always speaks for the majority not minority. It goes with the doctrine of “majority wins” and “voice of majority prevails”.

Four major goals of legislative

Legislative has four major goals. They are:-

Subsistence: primary objective of subsistence is to provide socioeconomic rights or basic minimum standard of individuals.
Abundance (opportunity): state need to provide opportunity to work and develop.
Equality: everyone should be treated equally in case of life, liberty and property.
Security: security of one’s property and rights by the state.

Subsistence, law should fulfill the basic needs. When law ensures subsistence than state should provide abundance opportunity to develop. And then all people have to be treated equally. To protect property, security is to be provided by law. This view of Bentham is region-able.

Act and rule

Legislation has two virtues to establish the law
(i) By ACT (action): this say this law has to be made by the few experts.
(ii) By Science: which says carry a research about which law is to be made by going one by one to each concern stakeholders.

ACT (action) states that, when faced with a choice, we must first consider the likely consequences first to generate most pleasure. RULE, he looks at what would happen if it were constantly followed. If adherence to the rule produces ore happiness, it is a rule that morally must be followed at all times. The major distinction between RULE and ACT is about the proper object of consequence. What may be the consequence after formulation of law is essential for Bentham.

System of reasoning

According to Bentham principle of utility is ’system of reasoning’. ”public goal should be the object of legislative; it should be scientifically calculated as system of reasoning by legislative”. He said public good is to be scientifically calculated by legislature. Legislature is scientist to determine public goods. Public goods are the common interest or public interest, common will, common property. He said individual interest is not calculated in the system of reasoning.

To establish the system of reasoning legislature have to be clear about it’s objectives:-

At first they have to establish precise idea of utility who employ it: if legislature is going to make law then they have to be clear about the consequences of law after enacted.
To establish sovereign principle of utility; legislature has to establish the principle problem which is to be solved. Ex: poverty may be the principle problem of Nepal.
To determine the process to achieve above principles: to find the process to achieve the problem.

How a bill becomes Law

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

Knowing how law is made is important. The steps below describes the basic process.

Step One:

Introduction by a member of the General Assembly and committee referral. A bill may be introduced in the House or Senate. After an initial reading, it goes to a chamber’s Committee on Committees, which refers it to a standing committee.

Step Two:

Committee consideration. A committee can kill a bill by failing to act on it. Or it may issue a report on the bill that is favorable, favorable with amendments, favorable with committee substitute, unfavorable or without opinion.

Step Three:

First reading. Favorably reported bills have their first reading — by title only — on the floor of the chamber. Bills that have been reported unfavorably or without opinion are not likely to go further.

Step Four:

Second reading; to Rules. The bill is read by title a second time and sent to the Rules Committee. This powerful committee can vote to send it back to a standing committee — hindering its chances for passage — or place it on the agenda for a vote by the full chamber.

Step Five:

Third reading and passage. A legislator — usually the majority leader — makes a motion to have the bill “placed upon its passage.” Open debate follows. The bill can be amended on the floor — though each amendment must be found to be related, or “germane,” to the bill’s original subject. To pass, a regular bill must be approved by at least two-fifths of the General Assembly (40 House members and 17 Senators) and by a majority of the members present and voting. (Bills that call for spending or contain “emergency” clauses must be approved by 51 House members and 20 Senators.)

Step Six:

On to the other chamber. Bills defeated on the floor can be reconsidered, if two members who voted against it request its reconsideration and a majority approves. Bills approved on the floor go to the other chamber, where they follow much the same procedure as in the first chamber.

Step Seven:

Concurrence or conference. Both chambers must agree, or concur on the final form of each bill. If either chamber refuses, the differences must be reconciled by a “conference committee” made up of members from both chambers. Such committees can make significant changes in the bills, but their compromises must be approved by both chambers.

Step Eight:

Enrollment. After passage by both chambers, each bill is read carefully to make sure its wording is correct, and then is signed by the presiding officer of each chamber and sent to the governor.

Step Nine:

To the governor. The governor may sign a bill, permit it to become law without his signature or veto it. The governor has 10 days to act on a bill after receiving it.

Step Ten:

Back to the General Assembly. The bill can be passed over a governor’s veto by a majority of the members of both chambers.

Advantages of law in creating social change

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

In many instances, the state of the art of social change endeavors is not methodologically sophisticated enough to distinguish clearly among casual, necessary, sufficient, and contributory conditions to produce desired effects in society. The advantages of law as an instrument of social change are attributed to the fact that law in society is seen as legitimate, more or less rational, authoritative, institutionalized, generally not disruptive, and backed by mechanisms of enforcement.

Legitimate Authority

A principal advantage of law as an instrument of social change is the general feeling in society that legal commands or prohibitions ought to be observed even by those critical of the law in question. To a great extent, this feeling of obligation depends on respect for legitimate authority and the perception of power. Webber says that there are three types of legitimate authority:

1. Traditional authority bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order, but rather a matter of personal loyalty [Rule-of-elders].

2. Charismatic authority cases its claim to legitimacy on devotion to the specific and usual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. The charismatic leader is obeyed by virtue of personal trust in his or her revelation or exemplary qualities [Moses, Christ, Mohammed, Gandhi].

3. Rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority ti issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order. “Rational” people “voluntarily” make a “contract” that generates the impersonal legal order.

The binding force of law

Law is binding because most people in society consider it to be. Some consider the content of the law to command obedience, which, in turn, is seen as a compelling obligation. The law achieves its claim to obedience, and at least part of its morally obligatory force, from a recognition that it receives from those, or from most of those, to whom it is supposed to apply. Even when laws are against accepted morality, they are often obeyed. The extermination of more than six million Jews in Nazi Germany, clearly the most extreme instance of abhorrent immoral acts, was carried out by thousands of people in the name of obedience to the law. Milgram contends that the essence of obedience is that individuals come to see themselves as instruments for carrying out someone else’s wishes, and they therefore no longer view themselves are responsible for their actions. Under certain conditions many people will violate their own moral norms and inflict pain on other human beings, and that succinctly underlines the notion that most people willingly submit to authority and, by extension, the law.

Sanctions

Sanctions for disobedience to the law are surely among the primary reasons that laws have binding force. “The law has teeth; teeth that can bite if need be, although they need not necessarily be bared.” Sanctions are related to legal efficacy and are provided to guarantee the observance and execution of legal mandated to enforce behavior.

Significance of public participation in constitution making process

TyroCity.com — Sun, 18 Aug 2013 05:41:42 +0000

Representation of different section of society including backward sections in the law making process.
Empowers people to act as guardian of the constitution and creates sense of ownership to constitution.
Institutionalizes public participation as a right.
Helps to manage post conflict situation of any society (Bring change and develop society).

Indirect participation of people through election and voting has no meaning in new form of democracy.

C.A. in Constitution making

C.A. in constitution making process has formed its committee to have public participation issues wise.

Committee for Co-ordination and public opinion collection, Committee for Resource Management and Capacity Enhancing and citizen relation Committee has been classified under the procedural committees.

Rest of the committees is classified under the thematic committees.

Procedural Committee are relevant to a large context since it deals about public opinion collection and citizen relation.

Public participation schedule by C.A.

Taking questionnaire to people and filling it.
Drafting the constitutional draft based on it.

Taking draft to public for discussion

For this they used website, interaction program, suggestion collection, etc.

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

Features of Public Opinion

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

(a) Temporary but efficient in law making.

(b) Modern form of Constitutionalism.

(d) It also empowers people to engage in public affair and debates as being unit of society.

(e) It is a democracy beyond voting.

In the Canadian Case of Marshall V. Canada Communication, Case No. 205(1986); In this case the issue was brought before UN Committee on human rights which held that public participation in the form of public affairs in an emerging right such as public equality freedom of speech and association.

Doctors for life international V. The speaker of the National Assembly and other (2006) Constitutional court of South Africa stated that “Institutionalization of public participation is so much crucial stage for the nation that is going through law making process and it also makes an obligation of every state.

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.

Morality and Values

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

The cause and effect relationship between law and change is very difficult to identify because the ability of law to produce change isprobabilistic, contingent and sequential because even though some changes can occur, other factors such as the morality and values of society affect the efficacy and time lag of laws in causing change. On certain issues like truth, individual liberty, etc., a shared morality and shared values are essential to unify the society. However, not all values are essential and those should be able to change. To cause change, a law should be supported by the society. Its efficacy in change is limited on moral issues in society. Examples are the ineffectiveness of laws prohibiting adultery, homosexual marriage or sexual abuse. The laws prohibiting many drugs, especially marijuana, have been called the “new prohibition” to underline similarity with laws prohibiting alcohol usage. It seems that laws on important drives are more difficult to apply than those on less compelling drives. Marijuana is seen a source of pleasure for many people therefore control should be imposed only against polluted merchandise. Morris Grinsberg suggests that laws should deal only with acts that can be precisely defined and with external observable acts; and the laws should as far as possible respect privacy.

Thus, laws most likely change external behavior, which are consequently later on followed by changes in attitudes, values and morals. So the range of the “external” is enlarged and sometimes affects personal preferences and tastes. In contrast, William Graham Sumner said that laws can regulate only behavior and not values, morals and attitudes. Examples are laws asserting equality for blacks which were not accepted by whites for many generations. On the other hand, this law that required change in behavior has gradually changed attitudes too. Today, the idea of racial superiority is no longer characteristic of whites. The law can change morality and values under specific conditions. Even though there aren’t enough empirical studies, it is true that the efficacy of law depends on it adaptation to morality and values if it aims change.