TyroCity: Legislative Principles and Law Making Process

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.

Function, Duty and Power of the Nepal Law Commission Sec. 10

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

a) To make and cause to be made study and research on enactment of new law or amendment of existing laws or the contemporary issues relating to law and justice,

(b) To prepare necessary draft for codification of law, and submit the same to the Government of Nepal.

(c) To unify or review the prevailing laws, and to provide necessary suggestion in this regard to the Government of Nepal,

(d) To submit a draft along with explanatory notes, in regard to enactment of new law and amendment of prevailing law as per necessity,

(e) To make study about the laws which are obsolete, contradictory to each other, unequal, discriminatory, conflicting with human rights as well as unimplemented ones, and to submit suggestion to the Government of Nepal in regard to repeal, amendment or review of such laws,

(f) To provide draft or suggestion to the Government of Nepal for inclusion of the covenants of international treaties and agreements in the prevailing laws, as per necessity,

(g) To make consultation, discussion and interaction with concerned agency, organization in regard to drafting, codification, integration, review, reform
and development of laws as per necessity, or to co-work with the concerned agency or organization in this regard,

(h) To obtain service of experts for study, research and drafting of special type of laws,

(i) To collect public opinion, views and suggestions in course of processing enactment of laws as per necessity,

(j) To launch programs like symposium, seminar and interaction as per necessity in course of reformation of draft of laws,

(k) To exchange necessary information and knowledge with law commissions as well as laws drafting agencies of other countries having contact with
them,

l) To make study whether there is or not an existence of laws in consonance with the principles laid down by the Supreme court and to submit a draft to the Government of Nepal in regard to promulgation, repeal and review of laws in case of being found a gap thereto,

(m) To prepare annual programs of the Commission,

(n) To accomplish other function relating to law and justice as prescribed by the Government of Nepal and as deemed necessary by the commission.

Behavior and Accountability of Law makers

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

A Legislator:

Person who writes and passes the law.
Usually politician, often elected by people
Different names are provided to it like Parliament, Diet, Legislative Assembly, Congress.

When there is room for interpretation, the intents of the Legislator will be questioned, and the court is supposed to rule in the direction, that it judges to fit the legislative intent the best, -which can be uneasy, in the case of conflicting laws or constitutional provisions.

Formulating new legislation is not an easy task. In fact, it requires comprehensive study done by legislators, regarding various issues.

There is question, whether the criteria education requirement and training is required for legislators or not?

Constraints

Legislator should be confine between some constraints while formulating law or fulfilling their role and responsibility.

(a)Constitutional Constraints:
Some constraints are mentioned in constitution like no death penalty, no exile to anyone, no prohibition to political parties, etc.

(b)Legal and Natural Principles Constraints:

Like: – rule of law, natural justice, fair trial right to hearing, appeal, Judicial review

(c)Self-restrained limitation:

Like: – Law should be reasonable, rational, judicious, good conscience.

Authority

(a)Legislature with absolutely define authority:

– Legislature has authority to formulate law on fixed and defined subject.

– Not other than that.

– American Congress can only formulate law in monetary, finance, public welfare and altogether 18 issues.

(b)Legislature with absolutely non-defined authority:

– Like: -British Parliament, New Zealand Parliament and Italian Parliament.

– There is non-defined authority to make legislation on any issues.

(c)Legislature with relatively defined authority:

– India and Germany parliament.

– Indian federal parliament has some authority to make law.

Legislator must keep in mind

Draft or passing of any law should be contextual.
Knowledge about other related prevailing laws.
Precedent.
Use of simple word.

Weapons for Legislator for law drafting and pairing

(a)Constitution

(b)Policies

(c)Law on Interpretation

(d)Precedent

(e)Foreign Laws

(f)Legal dictionary

(g)Convention, treaties

(h)Prevailing Acts

(i)Articles of Jurist and experts.

Process of Law Drafting inside Law Commission

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

Initiation of tasks:
Commission may initiate drafting and law reform on referral of the concern ministry or on its own.

It may receive a proposal from stakeholder, i.e. individual, non-governmental organization, civil society and community organization.

Formation of working team:
Commission decides annual program on the basis of the priority, and for WORKING TEAM involving experts to act on approved area by providing clear mandate and time frame.

Preparation of Consultation paper:
WORKING TEAM carries out in-depth study, research of the issue.

WORKING TEAM may invite experts, stakeholder and Government official for consultation. WORKING TEAM prepares a consultation paper and make available to anyone interested.

Organizing Seminar/Workshop:
WORKING TEAM may organize seminar/workshop inviting prominent scholars, activists and other key stakeholders to have well-versed comments on draft prepared by WORKING TEAM.

Final Report and draft bill and Submit to Government:
Report and draft bill are submitted to the Government or concern ministry by finalizing it, for the further action on draft Bill.

Autocracy Vs. Democracy

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

Democracy is a form of government in which the people either directly or indirectly, take part in governing. However, the term is also used as a measurement of how much influence a people has over their government, as in how much democracy exists. A modern democracy implies certain rights for citizens:

Right to elect government through free and fair elections
Freedom of Speech
The rule of Law
Human Rights
Freedom of Assembly
Freedom from discrimination

Is Democracy the Best System?

There is much debate on the ability of a democracy to properly represent both the ‘will of the people’, and to do what is right, but to quote Winston Churchill;

“Democracy is the worst form of government except for all those others that have been tried”.

This is because there is no system that can ideally order society. Traditionally, the purpose of the democracy is to prevent tyranny (the accumulation of too much authority in the hands of one or few. Thus, if the democracy cannot give us a good government, it puts limits to the abuse of power.

What is Autocracy?

In simple tone, an autocracy is a system where the ruler rules the people with too much accumulation of the power, or there is no kind of limits on abuse of power. Autocracy signify lacking of people’s representation or participation in the governance process.

Despotism: Autocracy might be imposed by a single person or a group. When a singular authority –either a single person or tightly knit group-which rules with absolute power is know as “despotism”. Despotism implies tyrannical rule; it suggest a form of government which exercises exacting and near absolute control over all its citizens.

Totalitarianism: Totalitarianism is any poetical system in which a citizen is totally subjected to state authority in all aspects of day-to-day life. It goes well beyond dictatorship of typical police state measures, and even beyond those measures sustain total war with other state. It involves constant brainwashing achieved by propaganda to erase any political for dissent, by anyone, including most especially the state’s agents.

Dictatorship: Dictatorship is a government headed by a dictator or more generally any authoritarian or totalitarian government. It is often equivalent to a police state, but the term dictator refers to the way the leaders gain and hold power, but not the watch kept on the people.

Police State: A political condition where the government maintains strict control over society, particularly through suspension of rights and often with use of a force of secret police.

Authoritarianism: The term authoritarianism is used to describe an organization or a state which enforces strong and sometimes oppressive measures against population. This is distinguished from totalitarianism both by the degree and scope, authoritarian government being less intrusive and in organization not necessarily backed by the force.

Autocracy in general implies an ideology or concept of regime ‘which tends to or rule by accumulation of power without being accountable to people’. People are subjected to the authority of the state. This sate of condition implies that:

People have not freedom electing government.
People exercise no freedoms
Government interferes in all aspects of life of the people.
Police measures are used to contain the people.

Legislation is Used to Rule People

Law is effectively used to:

Remove the limits of power, and prevent abuse of power. Legislation in such regime is used to empower the rulers to accumulate powers or authority.
Restrict the people to dissent. People rights to freedom of speech and assembly is restricted or marginalized.

Features of Legislation in Autocracy

Prescriptive: Legislation prescribes the duties for people to support the ruler without any question.

Regulatory: Legislation is regulatory, so that behaviors of all people are strictly regulated, deviation being punishable.

Punitive: Legislation is punitive for violation of the prescription or regulation.

Centralization of power: Governance power is centralized. The devolution of the power is effectively negated. Centralization of power weakens the authority of the Parliament, the law making body.

Legislation is abstract and ambiguous or maintains possibility double standard.
Legislation empowers executive for rule making through regulation or ordinance or bye-laws.
Legislation provides absolute power for interpretation of the statute.

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.

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.

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 as a policy instrument

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

Yehezkel Dror contends that law by itself can’t bring directed social change but it is one component of many policy instruments that must be used in combination. In the case of social problems like drug abuse, race relations, law can be used effectively as a policy instrument. But, sometimes in order to bring change law should be an ingredient of a larger policy (the Act of Economic Opportunity that attempted to decrease poverty in US). Usually law is used as an instrument of social change outside of a broader policy framework in reform oriented litigation, such as the restrictions of 1992 on abortion. But, broader issues concerning environmental or natural resources management issues should be reformed using broader policy making frameworks.

Legislative Drafting/Bill Drafting

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

The process of converting new policy into legal rules.

-Dickerson has defined it as 1st thinking and 2nd comparing of Legislation.

B.R. Atre defines- The Drafter must not lost sight of a fact that the legislative drafting is a science and also an art and he must be familiar with all intricacies of this art.

– Science: – Universal application of certain set of rules.

– Art: – Sense of the use of language of skill + art.

The basic Principles of Legislative/Bill Drafting:

Pre-publication of draft to public and Parliamentarian: – For transparency and public reaction to the draft.
Principle of Equality: – Equal voting right is to be provided to all the parliamentarian.
Rational and Essential Procedure are to be followed.
Neutrality of House speaker as “Referee”.
Respect and response to the minority parliamentarian.

Types of Bill: –

Basically Bill is divided into 3 categories:

According to the subject matter: –
Economic Bill: – Bill is relation to governmental finance tax, audit of government account.
Ordinary Bill: – Rest other ordinary bill.

(b)According to the Bill passing procedure:

Government Bill: – Financial Bill, Bill concerning security agencies Nepal Army, APF, Nepal Police, Act. 84.
Private Bill: – Bill presented other than by Government Ministers. Act. 84.

(c)According to the objective: –

(i)Main Bill: – Based on some certain subject matter.

(ii)Dependent Bill: – Bill dependent to main bill.

(iii)Amendment Bill: –

(iv)Constitutional time increment Bill: –

(v)Ordinance: – Act. 88.

Importance of Legislative Drafting:

This systemizes the process.
This balance between substantive and procedural part.
This turns policy into law.
This helps to create relationship between policymaker, drafter and interest group.

Bill Drafting and Passing (Bill Passing Procedure)

There are 4 major steps in Law making process:

(1)Pre-drafting stage: –

(a)Initiation: –

It should be initiated in the related department to the subject matter in case of Government bill. Individual Parliamentarian should initiate private bill.

(b)Requirement: –

-The drafter should have background and sound knowledge to the issue.

-They should analyze the problem.

-It should have need basin assessment.

(c)Necessity: –

– Research is to be carried out (what, how and when?)

-consult with public about the legislative problem.

(d)Functions: –

-Formation of Legislative proposal.

-Consultation with Ministry of Law and Justice.

-Approval of the cabinet.

-Further process of drafting after cabinet decision (Principally approve).

(2)Drafting Stage:

(a)Structure of Draft: –

(i)Long title

(ii)Preamble

(iii) Enacting formula

(iv) Short title

(v) Commencement and extent

(vi) Definitions

(vii) Substantive Provisions

(viii) Institutional/Administrative forms

(ix) Punishment and Compensation

(x) Miscellaneous Provisions

(b) Approval of draft from the concerned ministry.

(3)Parliamentary Stage/Procedure for passage of bill

(Act. 85. legislature-Parliament Act 2063, chapter 12.)

(a)Any member, who wants to introduce a private bill in the house, should have prior notice of 7 days to the secretary General of the Legislature-Parliament.

Prior 5 days notice for Government bill.

(b)Copies of bill should be available to all members, 2 days before introduction of bill.

(d) The clause-wise discussion in the house or in the concerned committee. Report of the Committee.

(e) Amendments to Bill.

(f) Withdrawal of the bill, (Act 86)

(g)Bill passes by simple majority of the total number of the member of the house.

Post Introduction Stage:

Certification of the Bill (Act 87): –

Bill passed by house shall become an Act after certification by the speaker of the Legislative Parliament. And authenticate by President.

Committee Hearing: – (Act 85, (4), (5)), sent to it, if we clause-wire discussion by speaker.

(a)Legislative Committee: –

Members of the Parliament or any governing body given responsibility for legislation and overnight on a particular subject.

(b)Committee will have authority to forward question to the presentator, consult with experts and provide the committee report, whether to amend, approve on the bill, within 24 hours.

(c)Bill may be set twice to committee.

Plenary Discussion: –

(a)It includes introduction of bill in the house

(b)Amendments

(c)Committee

Final Adoption: –

Call for voting whether to pass or reject the Bill.

By-Law Making Process: –

(a)Supreme Legislation has authority to make by laws like rules, regulations for the fulfillment of procedural aspects and enforcement. (Not tax and punishment)

(b)By-laws, indirect legislation should be within the scope of direct legislation (made by parliament).

(c)It should be draft by concern Institutional/administrative body. It has same drafting process as of ministrative body.

(d)The concern department should approve and certify it, If require the certify through concern Ministry.

Ordinance (Act 88):

(a)If government render the necessary of any act during absence or suspention of parliament. Then the government may promulgate any ordinance.

(b)An ordinance has some force and effect on Act.

(c)It should be passed within 60 days in the next session of parliament.

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.