TyroCity: Law Making Process Notes

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Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended.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Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended.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

Morality and Values

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(m) To prepare annual programs of the Commission,

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

Behavior and Accountability of Law makers

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

A Legislator:

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

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

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

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

Constraints

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

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

(b)Legal and Natural Principles Constraints:

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

(c)Self-restrained limitation:

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

Authority

(a)Legislature with absolutely define authority:

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

– Not other than that.

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

(b)Legislature with absolutely non-defined authority:

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

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

(c)Legislature with relatively defined authority:

– India and Germany parliament.

– Indian federal parliament has some authority to make law.

Legislator must keep in mind

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

Weapons for Legislator for law drafting and pairing

(a)Constitution

(b)Policies

(c)Law on Interpretation

(d)Precedent

(e)Foreign Laws

(f)Legal dictionary

(g)Convention, treaties

(h)Prevailing Acts

(i)Articles of Jurist and experts.

Constitution : role and significance Of Constitution

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

The word “constitution ” is derived from latin word “constitute” which means to form or to establish.

CFStrong:

constitution is a collection of principles according to which the powers of government, the rights of the governed and the relationship between the two are adjusted.

Constitution is a basic political document which explains the nature of government, confers fundamental rights to the citizens and regulates the relationship between the government and the citizens.

Constitution is an aggregate of fundamental principles or established precedent that constitute the legal basis of policy, organization or other type of entity and commonly determine how that entity is to be governed.

Constitution provide scope for good government, while at the same time placing limitation on the power of governors.

constitution defines how the government operates it defines the power of government while also limiting the government from power prohibited to its and reserved to all the states or to the people.

Constitution forms the basic structure of government constitution is base on the fact that it lays down all the legal and cultural aspects under which it people and governmental bodies will be governed and that too when there are foreign interactions in personal affairs every now and then by international organization.

Constitution: Constitution is a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.

Constitution is a set of legal political rules that are binding on everyone in the state including ordinary law making institutions and are based on widespread public legitimacy.

The Constitution is the body of fundamental doctrines and rules of a nation from which stem the duties and powers of the government and the duties and the rights of the people.

The Constitution is harder to change than ordinary laws( two third majority votes for referendum is needed in order to change it). The Constitution majorly concerns the structure and operation of the institutions of government, political principles and the rights of citizens. The constitution as a minimum should also meet the internationally recognized criteria for a democratic system in terms of representation and human rights.

A Constitution of a country is a set of written rules that are accepted by all people living together in a country. The constitution is the supreme law that determines the relationship among people living in a territory and also the relationship between the people and government. A constitution performs several functions:

(i) It generates a degree of trust and coordination that is necessary for different kinds of people to live together.

(ii) It species how the government will be constituted, who will have the power to make which decisions.

(iii) It lays down limits on the powers of the government and tells us what the rights of the citizens are.

(iv) It expresses the aspirations of the people about creating a good society.

The Constitution can declare and define boundaries of the political community. These boundaries can be both territorial and personal. Thus, the country’s constitution often distinguishes between those who are inside and those who are outside the policy.

The Constitution can declare the official religious identity of the state and democratic relationship between sacred and secular authorities. This is particularly important in societies where religious and national identities are interrelated.

The constitution entails about the emergency state of the country or when one country reaches the phase of emergency. Precisely speaking the constitution talks about both derogable and non- derogable rights of the citizen during the time of emergency. President announces the emergency state.

The notion of inclusivity at its peak as we can see women, dalit, children, disable, senior citizens,etc are given priority and have been adopting the principal of substantive equality.

Moreover, the constitution provides the jurisdiction power within the legal system of the country. It allows the different courts of law to handle different cases for example there are 5 writs and among them 2 of the habeas corpus and prohibition can be heard by the district court whereas the other 5 can be heard directly either at supreme court or high court.

Every state has the obligation to respect, protect and fulfil Human rights. The constitution of Nepal respects the human right by including it in the fundamental rights from 16 to 46 and equally protects the rights by providing the constitutional remedy in article 46 assuring the justice to the general public with the substantial amount of treatment when violation of rights. Simultaneously, the fulfillment part comes when the court of law renders satisfactory justice to both victims while punishing the offenders.

The word constitution is derived from the word “constitute” which means “formally establish”. The Constitution is a set of laws and rules that establishes the machinery of a state’s government and describes and determines the relationships between the executive, legislature, judiciary, central, and local governments. It is a state or country’s Supreme Law that lays out the process for establishing legislation or rules, as well as the state’s administration. It is the foundation of any government.

The Constitution provides a basic set of rules and regulations for smooth functioning of the administrative system.

Role and Significance of the Constitution are listed down below:

It has a system of check and balance which prevents the misuse of the power vested in the government.
It regulates the relationship between the various organs as well as between citizens and the government.
It gives the valuable information about the composition of the government regarding its structure, organs, duties and responsibilities.
It also defines the country’s political system.
It protects the rights of the minorities from the suppression forced on them by the majority.
It guarantees several fundamental rights and other constitutional rights to citizens in order to protect them from facing any injustice.
Constitution creates the organs of the state ( i.e. Legislative, Executive and Judiciary) and confers power upon the organs created by it.
The Constitution explains the nature of the government.
The Constitution may incorporate the principle of separation of power between the legislature, executive and judiciary.
The constitution lays down the National goals and values of a Nation.
It contains the provision of power transfer at the time of National Emergencies.
Constitution establishes the laws.
The constitution creates the organs of the state and confers power upon the organs created by it.
the constitution guarantees fundamental rights in order to protect them from any injustice faced by them.
constitution explains the nature of government.
the constitution contains the directives to run the government.
the constitution limits the power of government so that it doesn’t become arbitrary.
The constitution guards our right as human as a citizen.
Provides for the independence of each organ i.e legislative, executive and judiciary.
It upholds the sovereignty of the nation.
It checks errors in administration and Mishandling of power.
It projects the form of government in the country.
It ensures the fundamental rights to its citizens.
It directs the states in making legislation.
It lays out the procedures for several functions, administrations, legislation, execution of the government machinery.
It provides for the separation of Powers.
The Constitution projects the form of government in the country.
It ensures the fundamental rights of its citizens.
It directs the states in making legislation.
It lays out the procedures for several functions, administrations, legislation, executive of the government machinery.
It provides for the separation of power.It provides for accountability of the government to the people of the country.
It provides for judicial review in case of laws violating the supreme procedure established by the laws(i.e constitution).
It gives people ideas/knowledge on the existing laws.

It depicts the country’s government structure.

It protects its citizens’ basic rights.

It gives states guidelines for enacting laws.

It lays out the procedures for a variety of functions, including administrations, laws, and government machinery execution.

It establishes a separation of powers.

It guarantees the legislative, executive, and judicial branches’ independence.

It protects the country’s sovereignty.

It serves as a check on mismanagement and abuse of authority.

It establishes the government’s accountability to the people of the country.

It allows for judicial review in cases where laws violate the law’s established Supreme procedure (i.e. Constitution)

The Constitution is a collection of rules and principles which set out how a state will be governed.
It acts as a framework for every decision the government makes, particularly the legislature, executive and judiciary. (courts)
People’s rights and will are included in the constitution. So, It establishes a relationship between the government and the people.
It acts as an apex body as it is superior to all laws of the country which means any law or provision that is circulated in the nation is passed down from the constitution itself.
The constitution lays down the national goal and helps the country reach it.
It is an important document that controls the transfer of power during national emergencies.
It ensures fair representation of public opinion in any state decision.
It ensures that the ones who exercise the power are held accountable for the people.
It guarantees the rights and freedom of the citizens.
It protects the identity of the state.
It ensures the protection of human dignity, equality, and liberty.
The Constitution provides a national government consisting of a legislative, an executive and a judiciary branch, with a system of check and balance among the three branches.
The constitution is an aggregate document which acts as a guiding principle to the nation.
The constitution imparts a blueprint for peace, justice, harmony that was freely negotiated and accepted by parties.
The constitution makes a clear demarcation of the responsibility assigned to each of them by applying the doctrine of separation of powers.
The constitution works as an instrument to bring changes on economic, social and political according to the needs of people.
The constitution provides scope of good governance and provides accountability of government to the people of the country.
It expresses the aspirations of the people about creating a good society.
It protects individual freedom.
It lays down the limits on the power of government.
It is a roadway to other laws.
It promotes equality among people and bars unfair discrimination of any kind.
The Constitution is the law of a state, which is supreme in nature defining the political and legal nature of a state.
It sets objectives for the state, its government, and governing institutions.
The Constitution not only creates a government empowering them with rights but also requires them to fulfill their obligations.
It places sufficient institutions and instruments to control or stop the misuse of authority.
The Constitution ensures that those who make decisions on behalf of the public fairly represent public opinion.
The Constitution contributes to the basic powers of its citizens and the legal benefits of its other inhabitants.

Drafting Steps and Principles

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

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

1)Role of Interest group

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

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

2)Identification of legislative problem: –

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

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

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

3)Framing of legislative policy: –

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

4)Identification of policy alternative: –

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

Policy

Definition

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

Source of law

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

Basis or group

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

Types of Policy

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

Effects of policy

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

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.

Legislation and Legislative

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

Legislation
Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.

Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.

Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.

Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.

Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God’s law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.

Legislature
Legislature, branch of government empowered to make, change, or repeal its laws and to levy and regulate its taxes. Most modern legislatures are representative: composed of many members who are chosen directly or indirectly by popular vote. Legislatures that provide direct representation are usually considered more democratic in practice because they are less susceptible to being dominated by a single faction.

Nearly all modern governments have a bicameral, or two-house, legislature. The so-called lower house is generally elected on a basis of direct representation; and the upper house commonly on a basis either of indirect representation or of direct representation limited to certain occupational, territorial, or hereditary categories. The traditional theoretical justification for an upper house is that it can exercise moderation and delay on legislation by the lower house and thus restrain the effects of impulsive or excessive fluctuations of public opinion. A few governments, however, including that of the state of Nebraska, have unicameral, or single-house, legislatures.

The various legislatures throughout the world are known by different names, such as Congress, Parliament, Knesset, Diet, and Assembly. Most are limited in their powers by the Constitution or organic law of the government of which they are a part. The enactments of the U.S. Congress, for example, can be vetoed by the president, and the Congress must approve by a two-thirds majority any bill it wishes to pass despite a presidential veto. The British Parliament, on the other hand, chooses its own prime minister and cabinet, who are ultimately responsible to it for all their administrative actions. Being legislative as well as executive or administrative leaders, these officials have considerable power to initiate and influence legislation desired by their administrative departments. The tendency in most modern governments has been toward increasing assumption of legislative powers by administrative officials, with a consequent weakening of the legislatures. Many political scientists ascribe this to growing public impatience with the uncertainties of party politics within legislatures. The trend is also attributed to the increasing complexity of modern government, which requires the use of people with specialized skills, often not found in publicly elected legislatures, for the drafting of laws.

Legislative Principles and Law Making Process

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

General Concept of Legislation

Use of Legislation as a state’s tool of power on people in autocracies

Use of Legislation as a State’s tool power to administer governance

Law making, Social Change Social Control

Law making for Social Change and Social Control

Utilitarianism

Law making for Social Change

Importance of Public Opinion in the Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

The law-making process

Drafting Principles

Law Making Process in Nepal

Legislative Drafting/Bill Drafting

Importance of Legal Research in Law making process

Role of Law Commission

Behavior and Accountability of Law maker

Behavior and Accountability of Law makers

Legislative Terms

Legislative Terms

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 Making Steps

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

With respect to legislative bills introduced by the Cabinet(“Cabinet-introduced bills”), the following chart illustrates the process in which they are drafted, approved, and promulgated.

(Note: For the sake of simplicity, the chart assumes that the cabinet-introduced bill is approved by the Diet without any amendment.)

Outline of the chain of events from the drafting of a legislative bill to be introduced by the Cabinet, to its approval and promulgation.

(1) Drafting of a legislative bill

A legislative bill that is to be introduced by the Cabinet is drafted by the ministry having the jurisdiction. A ministry draws up the first draft of a legislative bill, once it decides either to enact a new law or to amend or abolish an existing law in order to achieve a policy goal set in the performance of its administrative duties.
On the basis of this first draft, consultations take place with other ministries concerned and the political party(ies) in government. In addition, where necessary, procedures are followed for its referral to advisory councils or to public hearings. Once all of the above has been completed and the legislative bill is considered ready, the ministry in charge puts the draft into a proper statutory form. The final draft of the legislative bill has now been prepared.

(2) Examination by the Cabinet Legislation Bureau

All legislative bills that are to be introduced by the Cabinet are examined by the Cabinet Legislation Bureau before being brought before Cabinet meetings. In principle the examination of a bill by the Bureau should begin only after the request addressed to the Prime Minister for a Cabinet meeting relating to the bill is sent by the ministry in charge. In recent practice, however, a way has developed whereby the Bureau conducts a “preliminary examination” of the bill for which the necessary consultation has been completed. The request for a Cabinet meeting therefore is sent on the basis of the bill for which the Bureau’s preliminary examination is completed.
During the examination by the Bureau, the bill is examined from all angles, legally and technically. The points examined include the following. :
- The relationship between the proposed bill on one hand and the Constitution and other existing laws on the other, as well as the legal appropriateness of the contents of the bill;
- Whether or not the intentions of the proposed bill are accurately expressed in the text;
- Whether or not the structure of the bill (e.g. the order of articles.) is appropriate;
- Whether the usage of letters or words is correct.
Once the preliminary examination is completed, the state minister in charge of the legislative bill follows the procedure for sending to the Prime Minister the request for a Cabinet meeting regarding the submission of the bill to the Diet. The Cabinet Secretariat, which receives the request, sends it on to the Cabinet Legislation Bureau, which then conducts a final examination, considering the results of the preliminary examination already conducted, makes any revisions as necessary, and returns the result back to the Cabinet Secretary.

(3) Cabinet decision to submit the bill to the Diet

As to the legislative bill for which a Cabinet meeting has been requested, the Director-General of the Cabinet Legislation Bureau gives its outline explanation at the Cabinet meeting, and if the Cabinet decides in favor without objection, the Prime Minister submits the bill to the Diet (either to the House of Representatives or to the House of Councilors). The administrative work related to the submission to the Diet of a bill intoroduced by the Cabinet is conducted by the Cabinet Secretariat.

(4) Examination by the Diet

When a legislative bill is submitted to either the House of Representatives or the House of Councilors, the leader of the House (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors), in principle, refers the bill to an appropriate committee. The committee then conducts an examination, starting with an explanation by the state minister in charge regarding the reason for proposing the bill. The examination itself largely follows a question-and-answer format (with the committee asking questions about the bill, and the state minister answering). When the committee completes its questioning and deliberation, its chair person declares, and a vote is taken on, the issue of whether or not to approve the bill. When the committee finishes its examination, deliberation continues at a plenary session of the House concerned.
When the legislative bill passes both the committee and the plenary of the House to which it was first submitted, it is sent on to the other House (i.e. it is sent from the House of Representatives to the House of Councilors or vice versa). The same procedure involving deliberation and decisions both by a committee and a plenary is then followed by the second House.

(5) Enactment of a new law

Except otherwise provided by the Constitution, a legislative bill becomes a law when it passes both the House of Representatives and the House of Councilors. The leader of the House that examined the bill second (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors) then submits the new law to the Emperor via the Cabinet (the Emperor’s approval is a formality).

(6) Promulgation of the new law

The newly enacted law must be promulgated within 30 days from the date on which the leader of the House that examined the bill second submits it to the Emperor via the Cabinet. As to the promulgation, it is done after a Cabinet decision to do so, and by publication in an official gazette . (An outline of the law is also published in the gazette to serve the general public’s understanding of the law. )
Promulgation is to ensure that a newly enacted law becomes widely known by the public. In other words, it is an act whereby the people is enabled to know the law. A law must be promulgated before it actually takes effect.
A law is said to “come into effect” or “come into force” when it generally and actually takes effect and starts to apply. Laws usually stipulate in their attached clauses when they come into effect.
When a law is promulgated, it is given a serial number and signed by both the state minister responsible for the law and the Prime Minister.