TyroCity: Law Making Process Notes

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.

Law as an instrument of social change

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

The conversion of Rome from republic to empire could not have been accomplished except by means of explicit legal decree buttressed by the doctrine of imperial sovereignty. Law, far from being a reflection of social reality, is a powerful means of accomplishing reality – that is, of fashioning it or making it.

The Soviet Union succeeded in making enormous changes in society by the use of law.
In Spain law was used to reform agrarian labor and employment relations.
China also managed to moderate through law its population growth and as a result devote more of its resources to economic development and modernization.

The law, through legislative and administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly not only articulates but sets the course for major social change. Attempted social change, through law, is a basic trait of the modern world. Many authors consider law as a desirable necessary and highly efficient means of inducing change, preferable to other instruments of change. In present-day societies, the role of law in social change is of more than theoretical interest. In many areas of life such as education, race relations, housing, transportation, energy utilization, protection of the environment, and crime prevention, the law and litigation are important instruments of change. Law plays an important indirect role in social change by shaping various social institutions, which in turn have a direct impact on society. [eg. Mandatory school attendance upgraded the quality of the labor force, which in turn played a direct role in social change by contributing to an increased rate of industrialization. The law interacts in many cases directly with basic social institutions, constituting a direct relationship between law and social change]. Social change through litigation has always been an important feature in the US. Whether the change produced by such action is considered ‘constructive’ or ‘destructive,’ the fact remains that law can be a highly effective device for producing social change.

Social changes as causes of legal changes

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

In a broad theoretical framework, social change has been slow enough to make custom the principal source of law. Law could respond to social change over decades or even centuries. Today the tempo of social change accelerated to a point where today’s assumptions may not be valid even in a few years from now. The emergence of new risks to the individual as a result of the decrease of the various family functions, including the protective function, has led to the creation of legal innovations to protect the individuals in modern society. Eg provisions of workers compensation, unemployment insurance, old-age pensions. Many sociologists and legal scholars assert on the basis of a large amount of accumulated data that technology is one of the great moving forces for change in law in three ways: (read page 335 paragraph 3). The computer and easy access to cyberspace, especially internet, also have inspired legislation on both the federal and the state levels to safeguard privacy, protects against abuse of credit information and computer crime. Change in law may be induced by a voluntary and gradual shift in community values and attitudes. [eg. People may think that poverty is bad, and laws should be created to reduce it in some way.] Alternations in social conditions, technology knowledge values, and attitudes then may induce legal change. in such cases law is reactive and follows social change. However, changes in law are only one of many responses to social change. Additionally, laws can be considered both as reactive and proactive in social change.

Behavior and Accountability of Law makers

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

A Legislator:

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

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

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

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

Constraints

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

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

(b)Legal and Natural Principles Constraints:

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

(c)Self-restrained limitation:

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

Authority

(a)Legislature with absolutely define authority:

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

– Not other than that.

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

(b)Legislature with absolutely non-defined authority:

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

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

(c)Legislature with relatively defined authority:

– India and Germany parliament.

– Indian federal parliament has some authority to make law.

Legislator must keep in mind

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

Weapons for Legislator for law drafting and pairing

(a)Constitution

(b)Policies

(c)Law on Interpretation

(d)Precedent

(e)Foreign Laws

(f)Legal dictionary

(g)Convention, treaties

(h)Prevailing Acts

(i)Articles of Jurist and experts.

Limitations of Law in Creating Social Change

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

To most people law is imposed externally in an almost coercive way. Today people are characterized by a “crisis of confidence” and alienation from social institutions because of uncontrollable economic conditions. Therefore, law is hardly an expression of their will. Few people participate in the formulation of laws and legislation. One of limitations of law as an instrument of social change is the possibility of prevailing conflict of interest. Other limitations related to the efficacy of law in social change include divergent views on law and the prevailing morality and values. The scarcity of resources causes conflicting interests. Decades ago, Karl Marx and Max Weber said that many laws are created to protect special economic interests. This is because economic interests are strong factors influencing the creation of laws. Weber recognized that besides economic interests law protects other interests too such as personal security, personal honor, and it guarantees political, ecclesiastical, and other positions of authority and social preeminence. Weber emphasizes two points:

Conflict of interests provide the base for the formation of laws that bring change; so the stratification of society and the preferences of those who promulgate the changes determine the role of laws in social change.
Law as an instrument of social change can be seen as the organization of power and processes that protect special interests in society and result in social change.

For powerful and influential people “the law in effect structures the power relationships in a society, maintains the //status quo//and protects various //strata//against each other”. Many legislative enactments, administrative rulings, and judicial decisions reflect the power configurations in society. Even members of legal professions serve to unify the power elite by serving as “professional go-betweens” for principal political, corporate and other interest groups.
Interestingly, a lot of people who are coerced or oppressed by the laws imposed by a ruling minority are unaware of their oppression. They may even strongly support the existing legal system because the ruling party has used its power to confuse them as if they are protecting their true interests. However, a distinction should be made between what people claim as their interests and what their “true” interests are. There are many examples when people are organized to protect what they conceive as their interests. Blacks have been instrumental in the passage of many civil rights laws. Farmers have affected laws dealing with migrant workers, farm subsidies, importation of food items, etc. so it is the division of society into the “powerful” and “powerless” that simple? The mechanisms of change through law include large segments of the population. Even in democratic countries, the large-scale participation of citizens in social change is not feasible; however, the lack of participation doesn’t mean lack of representation.

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.

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 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.

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

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.

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.