TyroCity: Law Making Process Notes

Features of Public Opinion

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

(a) Temporary but efficient in law making.

(b) Modern form of Constitutionalism.

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

(e) It is a democracy beyond voting.

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

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

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Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended.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Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended.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

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 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 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.

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.

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.

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.

Introduction

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

Utilitarianism (Latin utilis, “useful”), in ethics, the doctrine that what is useful is good, and consequently, that the ethical value of conduct is determined by the utility of its results. The term utilitarianism is more specifically applied to the proposition that the supreme objective of moral action is the achievement of the greatest happiness for the greatest number. This objective is also considered the aim of all legislation and is the ultimate criterion of all social institutions. The utilitarian theory of ethics is generally opposed to ethical doctrines in which some inner sense or faculty, often called the conscience, is made the absolute arbiter of right and wrong. Utilitarianism is likewise at variance with the view that moral distinctions depend on the will of God and that the pleasure given by an act to the individual alone who performs it is the decisive test of good and evil.

British philosopher and economist Jeremy Bentham (1748-1832) was the originator of the doctrine known as utilitarianism. He declared that in order to come into accord with the laws of nature, government and citizens should act to increase the overall happiness of the community. The utilitarian principles of Bentham and others who shared his beliefs, including British philosopher-economists James Mill (1773-1836) and his son, John Stuart Mill (1806-1873), helped to bring about social and political reform in Britain.

In the Introduction to the Principles of Morals and Legislation, Bentham advanced utilitarianism as the basis for reform. He claimed that one could scientifically ascertain what was morally justifiable by applying the principle of utility. Actions were right if they tended to produce the greatest happiness for the greatest number of people. Happiness was equivalent to pleasure. Through a kind of moral-mathematical calculation of pleasures and pains, one could tell what was a right or a wrong action. If all pleasures and pains were of the same order, then a utilitarian evaluation of moral, political, and legal activities would be possible. Also, Bentham argued, if values were based on pleasures and pains, then theories of natural rights and natural law were invalid. John Stuart Mill, severely modifying some of Bentham’s principles, discounted Bentham’s method for calculating quantities of happiness.

In Britain, liberalism was elaborated by the utilitarian school, chiefly the jurist Jeremy Bentham and his disciple, the economist John Stuart Mill. The utilitarian reduced all human experiences to pleasures and pains, maintaining that the only function of the state was to increase pleasure and reduce pain and that legislation was acceptable as an evil designed to reduce worse evils. Utilitarian liberalism had an especially beneficial effect on the reform of British criminal law. Bentham demonstrated that the harsh penology of the 18th century was uneconomical and that leniency was shrewd as well as decent. Mill defended the individual’s right to act freely, even to the person’s own detriment. His essay “On Liberty” (1859) is one of the most eloquent defenses of free speech.

WORK OF BENTHAM

Utilitarianism was enunciated in its most characteristic form by the British jurist and philosopher Jeremy Bentham in his Introduction to the Principles of Morals and Legislation (1789). In Bentham work, utilitarianism is as illustrated in his definition of virtue as the “doing [of] good to mankind, in obedience to the will of God, and for the sake of everlasting happiness.” Bentham employed the utilitarian theory as a foundation, not merely of an ethical system, but also of legal and political reforms. He maintained the necessity of sacrificing smaller interests to greater, or, at all events, of not sacrificing greater interests to smaller, and so posited as the ethical goal of human society the greatest happiness of the greatest number.

Bentham sought to illustrate the doctrine of utilitarianism by counterpoising it to the doctrine of asceticism on the one hand and to the theory of sympathy and antipathy on the other. Asceticism he defined as the principle that pleasure should be forfeited, and pain incurred, without expectation of any recompense. The theory of sympathy and antipathy he held to be based on the “principle which approves or disapproves of certain actions, not on account of their tending to augment the happiness, nor yet on account of their tending to diminish the happiness of the party whose interest is in question, but merely because a man finds himself disposed to approve or disapprove of them: holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the necessity of looking out for any extrinsic ground.”

In his exposition of the theory of utilitarianism, however, Bentham postulated “four sanctions or sources of pain and pleasure,” namely, the physical, the moral, the religious, and the political. The physical sanction, according to Bentham, is the basis of all the others. He sought further to devise a scale of pleasures and pains, rating them in terms of their intensity, purity, duration, propinquity or remoteness, certainty, fruitfulness, and the extent to which pleasure and pain are shared among the greatest number of people.

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.

Legislation

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

The word legislation is derived from Latin words ‘legis’ which means a law and ‘latum’ to make. Legislation means making and setting the law. This term is used in three senses (according to some jurist)

In a broad sense: All methods of law-making (contracts judge made law etc.)

In a technical sense: every expression of the will of the legislature. It includes all will of the legislature, which may have legal effect or not.

In a strict sense: It means the morality of rules and laws to be followed and enforced. Competent law-making body under the constitution of the state.

Legislation is a general term that covers laws enacted by parliament and laws made by persons and bodies to whom parliaments have delegated law- making powers. The laws made under delegated authority of the parliament are know as delegated legislation or sub- ordinate legislation.

Legislation encompasses within itself making of laws, criminalization as well as decriminalization of acts, enactment , amendment, repeal of law.

Legislation refers to the process of enactment of laws by a legislative body through its law making process. The legislative process includes evaluating amending and voting on proposed laws and is concerned with the words used in the bill to communicate the values, judgements and proposes of the proposal.

Legislation is the decision made through a deliberative process of elected officials. It is also called written law, statutory law, enacted law and law of parliament.

As per Salmond, “Legislation is that source of law, which consists in the declaration of rules by a competent authority.”

As per Gray, “Legislation is the formal utterance of the legislative organs of the society.”

Legislation is a positive, active and artful process. It is also the art of making law which is also called as enacted law.

As per Merriam-Webster, legislation is the action of legislating. Specially the exercise of the power and function of making rules (such as laws) that have the force of authority by virtue of their promulgation by an official organ of a state or other organization.

As per Salmond based on British legal system and practice there are two types of legislation they are supreme legislation and subordinate legislation.

The term ‘legislation’ connotes two different meanings; the laws made by the legislature itself are also called legislature whereas the process by which the laws are made is also termed as legislation.

Legislation refers to the set of statutory law which has been passed by a legislature and confirmed by the executive.

Black law dictionary, “The process of making or enacting a positive law in written form according to some formal procedure by a branch of government constituted to perform this process.”

Legislation is an action of legislating; specially the exercise of the power and functions of making laws that have the force of authority by virtue of promulgation by an official organ of the state.

According to Allen “Legislation is the characteristic law making instrument of modern societies, expressing the relationship between individuals and the state. In modern societies legislation is the most direct and prolific source of law.

Legislation is making of law or creating new legal norms by sub- legislative authority.

Legislation is creation, alteration or repeal of law by a sovereign authority.

Legislation is the characteristic law making instrument in modern society.

Holland: The making of general orders by our judges is as true legislation as is carried on by the crown.

Austin: Activities, which results into law making or amending, transforming or inserting new provisions into the existing law.

UK Parliament: Legislation is a law or a set of laws that have been passed by Parliament.

The making of legislation is done with the following principle in mind:

“omnis definitio in iure civili periculosa”

Or,

“Every definition of law is dangerous”

Legislation is law which has been promulgated by a legislature or other governing body or the process of making it.
Legislation can have many purposes:
- To regulate
- To authorize
- To outline
- To provide
- To sanction
- To grant
- To declare
- To restrict
Legislation is the laws enacted by parliament or institution using the parliamentary authority.

According to:

Cambridge Advanced Lerner’s dictionary: A law or set of laws suggested by a government and made official by a parliament.

Collins English Dictionary: Legislation consists of laws or laws passed by the government.

Sir Henry Maine: Legislation is the last ameliorative agency of social reform and social change after legal friction and equity.

Merriam Webster: The exercise of the power and function of making rules that have the force of authority by virtue of their promulgation by an official organ of a state or other organizations.

UK Parliament: Legislation is a law or set of laws that have been passed by a parliament.

Austin: There cannot be legislation without a legislative act.

The exercise of the power or function of making rules that have the force of authority by virtue of this promulgation by an official organ of state or other organization.

What is Legislation in Layperson’s Tone

Legislation, both in the form of Parliamentary Statute or Government Regulations, are classified as substantive and procedural provisions;

Substantive Provisions (Rules) express norms of acceptable behaviors or public policy. One should violate the rights of others is a norm prescribed by a legal rule. One should necessarily obtain the receipt of goods purchased is a public policy. Norms of acceptable behaviors or public policy affect how people deal with each other and government.
Procedural Provisions (Rules) express process or methods or ways of application of rules in practice.

Technical Definition of Legislation

“Legislation is a general term that covers laws enacted by Parliaments and laws made by persons and bodies to whom Parliaments” have delegated law-making powers. The laws made by Parliament itself are called Acts or statutes. The laws made under delegated authority of the Parliament are known as delegated legislation or subordinate legislation. These laws take the form of by-laws, rules, ordinances or regulations. They are usually made by the Governor-General or State Governors but may also be made by others. Delegated legislation emanates from an Act and contains details necessary to carry out specific matters relating to the Act. For example, the University of Wollongong Act 1989 (NSW) provides for the University Council to make by-laws covering a number of areas including the form and use of academic dress. Laws enacted by Parliament or institution using the parliamentary authority are called ‘legislation’. In technical sense, such laws are referred to as “statutes”, and in this sense they distinguish laws from those made by courts or people customarily.

Legislation refers to the set of statutory laws which have been passed by a legislature and confirmed by the executive; it should be noted that some nations have little executive power, for example in the case of a parliamentary system. Passing legislation is formally known as “enacting law.” A statute is a formal, written law of a country or state, written and enacted by its legislative authority, ratified by the highest executive in the government and published, sometimes informally referred to as “black letter. The term statute is sometimes also used to refer to an international treaty that establishes a Court, for example the Statute of the International Court of Justice and the Rome Statute of the International Criminal Court. The term statute is also sometimes used to refer to international agreements establishing institutions other than courts or tribunals, such as the Statute of the European Central Bank (a protocol to the Treaty of Maastricht).

Statutory Law is written law (as opposed to oral or customary law) set down by a legislature or other governing authority such as the executive branch of government in response to a perceived need to clarify the functioning of government, improve civil order, answer a public need, to codify existing law, or for an individual or company to obtain special treatment. (Contrast common law.) In addition to the statutes passed by the national or state legislature, lower authorities or municipalities may also promulgate administrative regulations or municipal ordinances. The processes of creating these administrative decrees are generally classified as rulemaking. While these enactments are subordinate to the law of the whole state or nation, they are nonetheless a part of the body of statutory law.

Ordinance can mean:

Temporary enactment of law by sovereign,
A law made by a non-sovereign body such as a city council or a colony.
A piece of internal regulation in a university
An important ritual in Christianity
It should not be confused with ordnance, which describes ammunition, explosive devices and similar items. See also Ordnance Survey; Master-General of the Ordnance.
A private bill is the term used for legislation that originates from a particular member of a legislature or parliament or from a member of the public. Private bills developed in the United Kingdom as a means of obtaining redress from a specific wrong or obtaining a benefit that was not otherwise available through statute or the common law.
Legal Aid Act and National Human Rights Commission Act were Private Bills in the Parliament.

Legislation an Effective Instrument of Social Change and Regulation

Legislation is an effective instrument of social change, as it is often difficult for evolve custom in a short period of time. 20th Century has seen the tremendous force of legislation in bringing about the changes in the society.
Birta Unmulan Ain, Land Reform Act, Evidence Act, are very few examples in Nepal.

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.