TyroCity: Legislative Principles and Law Making Process

Legal Research

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

S.R. Myneni: – The systematic investigation of problems of and matters concerned with law such as codes, acts, etc.

-To obtain better knowledge and understanding of any problem of legal philosophy, legal history comparative study of law, or any system of law international and municipal.

-Discovering new legal facts and verification of the old ones.

Components of Research: –

Manipulation of things, concepts or symbols.
For the purpose of generalization.
To extent, correct or verify knowledge.
The knowledge may be used for construction of theory or practice of art.

Objectives of Legal Research: –

Evaluative: –
To find out how a legal rule came into being and what it is.

Explanation: –
To ascertain the nature, scope and source of law in order to explain, what law is?

Identificatory: –
To ascertain for whose benefit legal research is made.

Impact Analysis: –
Impact analysis of Legislation.

Projective or Predictive: –
To find out the degree of social acceptance to the anticipated or propose legislation.

Role of Law Commission

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

Background:

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

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

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

– NLC was given permanent status only in 1984.

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

Establishment of The Nepal Law commission:

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

Composition of the Commission:

(1) The Commission shall be constituted as follows.

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

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

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

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

Importance of Legal Research in Law making Process

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

To formulate new Legislative: –

Existing law or Legislative mechanism does not serve such modern necessity, new aspiration and desire.
Therefore to co-up-with the change and problem new legislations are formulated.
For the enactment of new legislation, adequate knowledge, information and appropriate remedy to combat is required.

(i)** To make new legislation effective, the following aspects must be kept in mind**:

(a)Identification of problems: –

Fact finding operation, survey study, which is generally conducts to access the opinion, behavior of society.

Example: – To be aware of crucial problems of the society, prostitution.

(b)Explanation of causes: –

To find out the reason or causative factor of the problem.

Example: -To find out the cause of prostitution.

(c)Formulation of policies/legislation: –

Example: -If the root cause of prostitution is poverty, then legislation is to draft to alleviate poverty.

(d)Critical Functions: –

Find the weakness and the strength of formulated act.

(ii)Method of formulating new legislation: –

(a)Analytical Research Method: –

-1st, researcher should have knowledge of law making.

-2nd, the researcher should have sound knowledge of several statute.

-3rd, the researcher has to locate the needed statutory material.

-4th, a researcher should study prevailing customs.

-5th, a researcher has to study case law on particular legislation.

-6th, a researcher has to make a choice between 2 or more conflicting views and select the best one.

(b)Historical Research Method: –

1) It provides social insight.

2) Historical oriented (facts and events to be studied in the historical perspective)

3) Historical evolution of law

(c)Comparative Research Method: –

-Comparison of International and National Law

-Comparison of one country law to other.

(d)Ethical Research Method: –

Moral values, principle.

(e)Statistical Research Method: –

Use of different tools and technique of collection of data, questionnaire, interview, etc.

(f)Critical Research Method: –

Collect the data from secondary source and use own wisdom and experience to it.

(2)To reform existing Legislation: –

Law is not static but a dynamic one.
It is reformed according to need of society, time and country.

(3)To find the situation of application and acceptance of existing legislative: –

Legal research helps to find out

(i) Consequence of existing legislation.

(ii)Shortcoming of existing legislation

(iii)Level of understanding of legislation in society.

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.

Significance of public participation in constitution making process

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

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

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

C.A. in Constitution making

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

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

Rest of the committees is classified under the thematic committees.

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

Public participation schedule by C.A.

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

Taking draft to public for discussion

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

Types of Acts

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

Not all Acts of Parliament are the same and each type of Act has a particular function and name.

Electronic Acts

Principal Act: also called an ‘original Act’, is an Act that deals with an area of law which has not been dealt with before.

Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended. These Acts usually have the word “Amendment” in their title.

Consolidated Acts (Electronic): are found in databases such as LAWLEX & AustLII. Here the database vendors have incorporated the amendments into the principal Act so that it reads as one Act. Consolidated Acts are not authorized reprints.

Hard Copy Acts

Principal Act: also called an ‘original Act’, is an Act that deals with an area of law which has not been dealt with before.

Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended. These Acts usually have the word “Amendment” in their title.

Reprinted Acts: An act may be amended numerous times over the years. To aid the researcher to find the current law, acts are reprinted. The reprinted act incorporates the principal and amending acts, so that it reads as one act. This will state the law as it exists at the time of the reprint.

Structure of an Act

To carry out legal research you must become familiar with the structure of an Act. The structure of Acts within the Nepalese jurisdiction follows a common pattern. Note the important parts in the consolidated Act below:

Evaluate your Search

You need to evaluate your search results for relevance and quality. Depending on your evaluation you may need to revise or modify your search strategy.

Some evaluation criteria:

Relevance
Is the information relevant to your topic, question or purpose?

Quantity
Are you finding enough information? Are you finding too much or too little?

Quality
Is the information from reputable sources?

Timeliness
Is the information up-to-date? Does it cover the desired time period?

Scope
Is the information comprehensive? Is it too narrow or too broad?

Modify your search

Once you have performed a search, you may need to modify the search if too many or too few results have been retrieved.

Too many results?

Add more terms to narrow your search and be more specific.
Consider using narrower terms
Consider phrase searching (often by putting the phrase in quotation marks e.g. “native title”)

When modification takes place, consider to

Add alternative terms if needed
Consider using broader terms
Check spelling, typing errors and variations
Consider truncation if not already used

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.

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.

Significance of Legislation

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

Legislation has Abrogative Power- Legislation can change or annul old law as per the need of time and society.

– Effectiveness– It separates the elements of making law and overseeing it between the legislature and the legal executive.

– Declaration- It gives principles of law authorization.

– Reliability– Legislation is independent and emerges out as the authoritative source of law. It has a supreme power to make law.

– Unrivalled in form– It is predominant in structure, brief, clear, effectively available and understandable as against case law, which is generally vague in comparison of legislation.

– Legislation voices the will, desire and views of people. As it is made as per the need of society, it generally recognizes the demand and desire of the people in the society.

– It is direct and unambiguous. It is clear and definite and is not ambiguous.

– Definite and precise in comparison to case laws which is bulky and voluminous. It is not broad and absurd like case laws, it is easy to understand.

– It is pre-declaration of law to the citizen before the law applied to the disputes. Laws are made before hand so if any dispute arises then that suitable laws can be applied to the disputes.

– It is constitutive (Creates) as well as abrogative (destroy). Legislation has the power to make any law and to void or destroy any laws as per the need and demand of the society and time.

– Codification makes the law stable. Generally law made by legislation are codified or written in National Gadezzets, Country code, Acts etc. This makes those laws easy to excess for everyone and makes those laws transparent for every citizen of the nation.

– Systematic and logical arrangement of law in the code. The laws which are made by legislation are easily accessible because it is systematically and logically arranged in the code. For example, Country Civil code act, 2074, Country criminal code act, 2074.

– Fills up vacancy of settle the doubt in legal system.

– Increase the efficiency by making and administrating of law. Legislation is efficient because it makes the law and administers both at the same time.

– Scientific source of law as it is enacted by the representative of people and group of experts and so on. For making any specific laws there have to be presence of the experts of that specific field and according to their suggestion and discussion laws should be made. For example, while making specific medical laws, the expert from medical field is required like doctors. Similarly while enacting commercial law, expert with the knowledge of corporate field is required to make laws more precise and standards.

– Legislation is the important instrument of government in organizing society and protecting citizens.

– It determines others the rights and responsibilities of individuals and authorities to whom the legislation applies.

– It is effective instrument of social change and regulation.

– It provides proper guidance and order upon the behaviour for all the citizens and sustain the equity on three branches of the government.

– It is an instrument promoting socio-economic justice in the society.

– It provides provision for future cases.

– Scientific source of law as it is enacted by the representative of people and group of experts and so on.

– It separates the element of making law and overseeing it between the legislature and the legal executive.

– It can change or annul old law.

– Increase the efficiency of making and administrating of law.

– It has abrogative power meaning that existing outdated laws can be abolished or amended only through legislation.

– Laws are made in line with the will of general people as the people’s representatives have power to make laws.

– It is the most scientific and definitive source of law as opposed to case laws or customary laws.

– It is through legislation that positive changes can be brought to society.

– Delegated legislation helps carry the workload of the parliament and play important roles during an emergency.

– Stable, logical, unambiguous and unrivalled.

– Regulates, authorizes, declares, and restricts

– Pre-declaration

Ignorance of law is no excuse is the cherished statment of law. Unless law can be enacted and popularized beforehand, justice cannot be really have done. Legislations are not retrospective enactment and amendment of law includes publishing and opinion gathering. Legislation is always declared before its implementation and thus, serves philosophy of justice better.

Provision for future cases
Legislation is not case dependent and doesnt come to existence only after dispute being raised of the same subject matter. Before a lawsuit being raised of the same subject matter. Before a lawsuit begins and whenever the need be felt. Legislations are enacted and guide the course of future cases. The makes its systematic and complete source of law with better efficiency.

Certainity
Other sources of law are not as popular,clear, and unaimously generalized. Legislations are certain in their content and aid in making legal systems more certain in issues and contexts of legal disputes.

Clear and accessibleLegislation is clear, concise and accessible to general public as they are laid down earlier in a general abstract form and later used and interpreted deductively incourse of lawsuit. They can be found and understood.

Efficiency
Legislation provides generalization and work division. Good legislation also provides good laws for courts to decide on and make enforcements and adjudication efficient. Coherence Legislated laws and complete and coherent in their contact. Legislations and systematically arranged and thus cohrent aiding to better comprehension. This makes definite and comprensive form of enacted laws assist legal systems to reach better end.

Abrogative power
Legislation has both constitutive and abrogative power. That is to say, it can make both laws and repeal the existing ones. This makes legislation superior to others sources of law and most important means of legal reform.

– Legislation determines rights and responsibilities of individuals and authorities to whom legislation applied.

– It enables any state to govern its territory.

– It acts as bridge for expressing relationship between individual and state.

– Legislation makes new law to the society.

– By legislation, social control is possible.

– It helps to control, to regulate, to form and to co-ordinate the government.

– It also helps to control human’s behaviours.

– Bulk is reduced.

Precedent is too bulky as there is multiplication of cases and a maze of precedent.

Definite certainty
Case law produces gaps and uncertainties. Legislation makes law certain, layman can easily understand the law than in other sources.

Direct and unambiguous
It is in written form. It helps to understand law. Not vague like customs and precedent. Brief and understandable it’s briefly written so everyone can understand.

Benefits to lawyer
The logically articulated skeleton of law due to the codified legislation makes it easy even for lawyer to extract the principle of law.

Democratization of law
It is the people who elect the parliament, so indirectly it is the people who makes law. It determines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies.

Certainity
A legal system secures greater certainity when the law is codified by legislation than when it stands on the basis of case-law.

– It helps to m`ake news laws and amends the old ones according to public wish.

– It highly controls the executive.

– It passes budget and taxes to be implemented by executive.

– It can also controls the judiciary by means of it’s power of impeachment.

– It includes inclusiveness while formulating the law.

– Legislation enables any states to govern its territory.

– It acts as bridge between individual and state.

– It governs the basic principle of criminal law.

– It includes inclusiveness and formulating the laws.

Law Governs Human Life in All Aspects. Written law governs us before birth, in life, and after death. With growth of human affairs more complex, the importance of legislation is significantly increased. Henry Main, a noted British Jurist, in his comparative study of laws, suggested legislation as one of the most effective and powerful instrument of changing the society.

Courts of each country, where formal judicial institutions are in operation, spend more time interpreting or applying legislation than in any other function. In 1981, Allan Roger, Former Chief legislative Counsel of British Columbia, quoting a letter from Justice Lambert, noted that the British Columbia Court of Appeal dealt with issues of statutory interpretation in at least 75% of cases heard by it. It can hardly be less today or lower percentage in other jurisdictions. This is not merely a Canadian phenomenon. In recent submission to the Hanshard Society for Parliamentary Government, the English Law Society compared the volume of public Acts in the past 50 years. In the 1940s and 50s the number of pages averaged 1000 year, it has since steadily increased to average 2540 pages a year in the 1980s. (The Law Society: Reform of the Legislative Process, Submission to the Hansard Society, March 1992, para 3.1) Lord Hailsham of St. Marylebone, then Lord Chancellor, said in his 1983 Hamlyn lectures that nine out of ten cases heard on appeal before the Court of Appeal and House of Lords either turn up or involve the meaning of words contained in enactment of primary or secondary legislation. (Quoted form David C. Elliott, Getting Better Instructions for Legislative Drafting, 21 October 1992, Victoria British Columbia) Yet, despite its importance and currency, statute law is seen as outside the mainstream of the law. It is paid scant attention by most Universities, most lawyers are ignorant of most of it, and public is either intimidated or dismissive of it. University law faculties have very rarely interested to encourage students to develop interests on legislative research and principle issues. These facts clearly show the significance of legislation in the life a society.

Morality and Values

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

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

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

Conceptual Framework in Democratic Governance

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

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

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

The peculiar and essential qualities of the government are:

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

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

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

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

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

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

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

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

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

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

Seven standards for people’s voice or public participation

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

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