Legislative Drafting/Bill Drafting


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.

(c) Introduction of bill in the Parliament.

(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.