TyroCity: Legislative Principles and Law Making Process

Legislative Terms

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

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

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

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

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

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

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

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

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

CHAMBER – A legislative, judicial or deliberative assembly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DEBATE – Discussion or a question according to parliamentary rules.

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

DILATORY – Designed to cause delay.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PRESIDENT – The presiding officer in the Senate.

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

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

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

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

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

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

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

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

RATIFY – To approve and make valid.

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

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

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

RECEDE – To undo action previously taken.

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

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

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

REFER – To send a measure or question to committee.

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

RESCIND – To annul or undo an action previously taken.

REPEAL – To delete and make of no effect.

REPORT – To communicate opinion or recommendations.

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

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

RESOLUTION, SIMPLE – Expression or request by one house.

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

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

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

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

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

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

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

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

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

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

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

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

SPEAKER – The presiding officer of the House of Representatives.

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

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

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

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

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

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

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

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

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

UNICAMERAL – A legislature composed of one house.

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

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

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

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

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

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

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

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

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.

Drafting Steps and Principles

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

There are 4 steps of Legislative Drafting. They are as follows:

1)Role of Interest group

The research is to be carried out by some group of people. This group of people is termed as interest groups. The interest groups may be (a) Concerned Political parties (b) Concerned Stakeholder (c) Concerned Experts (d) Concerned Local or effected community (e) Civil society.

Outcome of research are to be discussed to Interest groups. Interest groups have to have some constructive feedback and complements on it. They have to play major role for lobbing those research outcome to formulate it as a policy first and secondly for legislation. At first these are to be developed in the form of policies to cross check its pros and cons in society. After having positive response in society than they should be given Legal form (Legislation).

2)Identification of legislative problem: –

To formulate the policy, research is to be carried out to the concern stakeholder and take feedback from then. What kind of effect it may produce? Is it necessary or not? Whether the problem is there or not? Whether the problem can be solved or not? Is it necessary to be in legal form or not?

After answering these above questions legislative will be capable enough to find the research problem for legislative body. Research Problem here means to find out the social wants/ social interest.

For Ex: Is the lack of practical education cause for the poverty or unemployment in Nepal? Now legislative has the subject matter (research problem), which is to be address by law making (Legislation).

3)Framing of legislative policy: –

Among all the diverse issues raised by the interest groups, the legislative has to figure out which of the policy is essential to establish welfare-state. These kinds of policy are the legislative policy which is to be taken into parliament to enact it as legislation.

4)Identification of policy alternative: –

If that policies fails than the possible alternative should be formulated.

Policy

Definition

To address changing need of aspiration of people…For people’s welfare.
According with national interest.

Source of law

It is the source of law.
During Government rule, nation or state need different kinds of rule to govern the people at this they use policy as a tools.

Basis or group

Geographical, political, historical, economical, social, cultural, people level of awareness (civic sense)

Types of Policy

Nation/State policy: -Not easily changeable. Example: -Nepal commitment and foreign policy.
Government policy: -During the governance of state. It is comparatively changeable.
Political party policy: -Political party policy should be acknowledged and rectify by the government.

Effects of policy

i)They are the guideline for the government :-acts as directive to government.
ii) Source of law should turn into legal form: -Individual, social interest into law.
iii)Not necessary to be turn into legal for: -Foreign policy, Agricultural policy, foreign aid policy.

Need of Legal Research for Making Laws

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

The following three reasons necessitate the legal research for the purpose of making laws

Legal research is crucial to the learning and practice of law: law is associated with social facts and it is impossible to learn about laws without its relation with facts
The law is changing constantly: law functions to serve the purpose, so that it has to change with the pace of the society.
You need to ensure your information is current: law is applicable in practical life, and the law which is based on the true information of the realities, its’ making is dependent on current information concerning requirement

How Act is Made

The last century has seen an enormous growth in legislative law making. Proposals for changes to the law can come from a number of sources including:
Pressure groups
Governments who want to implement their own policies
Changing community needs
Recommendations from Law Reform Committees and Royal Commissions of Inquiry
Irrespective of the reason behind the legislative changes the process for making laws follows a predictable path.
Act of Parliament begins its life as a bill. Most bills are introduced into the Parliament by the proposing Minister and have to pass through prescribed readings in each House of Parliament.
If both Houses pass the bill it receives Royal Assent and its provisions become law. Fortunately for a researcher, a bill’s progress through both houses of Parliament is recorded in the Parliamentary Debates.
For the legal researcher, the most important and interesting stage of a bill is the second reading. At this stage, the Minister responsible for the bill explains its purpose and the general principles of the bill are debated.

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.

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.

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.

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.

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.

Public Opinion, Introduction and Importance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-Public hearing, consultation, etc.

-Representative from different diverse sector facilitate the process.

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