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ROLE OF LEGISLATURE IN LAW MAKING PROCESS IN NEPAL

A seminar paper Submitted to

The Central Department of Law,

Nepal Law Campus

Tribhuvan University

For the Fulfillment of the Partial Requirements for

Masters in Law (LL.M.)

Presented by

Madan Prasad Pokhrel


LLM (3 Years)
Roll No. 5/072
TU Registration No.: 6-2-14-1345-99

Date: May 23, 2016

i
Preface

It is in the very general concept for every member of democratic society that law is
made by legislature however; they may unknown about the process. This paper aims to
analyze the procedure and role of legislature and find out whether eour legislature is
practicing its law making function effectively or not? In this sense, it is significant for them who
are intending to know the legislative process of law making.

In parliamentary government system, the executive is a part of legislature itself. They


shared law-making role with each other. Being representatives of people, legislature practices
autonomy and makes executive branch accountable. However, it seems that those concepts
are limited within theory; legislature is being a place of breaking and making the government
rather than forming law, oversight the functions of executive and taking them towards the
peoples voice.

This seminar paper lights up the process and law-making role of the Legislature-
Parliament of Nepal as described in the Constitution of Nepal, the Constituent Assembly
(Conduct of Business of Legislature-Parliament) Rules, 2014 and found in parliamentary
traditions with conclusions and suggestions.

Madan Prasad Pokhrel

LLM 1st year

2016

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Acknowledgements

This seminar paper leaves me indebted to my respected teachers specially, Associate


Professor of Law, Dr. Bal Bahadur Mukhiya who provided me advices, guidance and
encouragement. The knowledge I received from our teachers in the class has been the main
source of inspiration that brought me to make this paper. It would never have been
accomplished without their contributions.

I am highly grateful to secretary-general of the Legislature-Parliament Mr. Manohar Prasad


Bhattarai who provided me the opportunity to join the LLM degree. My sincere appreciation
also goes to my seniors, colleagues and staffs who are supporting me, without their support
I would not get enough time to complete it. My sincerest thank to Dr. Bharat Raj Gautam, Dr
Rabi Sharma and Mr. Bishnu kaji Thapa for their steady encouragement and scholarly
supports.

I am equally obliged to my class friends for their suggestions, encouragement and


constructive critics. I would like to pay my thankfulness to Mr. Peshal Kumar Luitel for
correcting the grammatical error of this paper.

My sincere appreciation goes to my spouse Radha and my daughter Pragya and other family
members for their inspirational love and support.

Madan Prasad Pokhrel

iii
List of Abbreviation

BS = Bikram Sambat

CCRI = Citizens Campaign for Right to Information

MP = Member of Legislature- Parliament

TU = Tribhuwan University

UK = The United Kingdom

USA = The United State of America

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Contents
Preface .............................................................................................................................................. ii
Acknowledgements .......................................................................................................................... iii
List of Abbreviation ...........................................................................................................................iv
CHAPTER - ONE ................................................................................................................................. 1
INTRODUCTION AND METHODOLOGY ............................................................................................... 1
1.1 General Background ........................................................................................................... 1
1.2 Statement of the Problem .................................................................................................. 2
1.3 Objective of the Study ........................................................................................................ 2
1.4 Significance of the Study .................................................................................................... 2
1.5 Methodology of the Study .................................................................................................. 2
1.6 Literature Review ............................................................................................................... 3
1.7 Scope of the Study ............................................................................................................. 4
1.8 Limitation of the Study ....................................................................................................... 4
1.9 Organization of Structure ................................................................................................... 4
CHAPTER TWO .................................................................................................................................. 6
CONCEPTUAL FRAMEWORK OF ROLE OF LEGISLATURE IN LAW MAKING ........................................... 6
2.1 Concept of Law and its type ............................................................................................... 6
2.2 Sources of Law ................................................................................................................... 8
2.3 Legislation as a source of Law............................................................................................. 9
CHAPTER - THREE ............................................................................................................................ 12
LAW MAKING PROCESS AND ROLE OF LEGISLATURE IN USA, UK AND INDIA .................................... 12
3.1 Law making and role of congress in the USA..................................................................... 12
3.2 Law making and role of parliament in UK ......................................................................... 15
3.3 Law making process and role of parliament in India ......................................................... 17
CHAPTER FOUR ............................................................................................................................. 19
LAW MAKING PROCESS AND ROLE OF LEGISLATURE IN NEPAL......................................................... 19
4.1 Structure of Government ................................................................................................. 19
4.2 Ministerial Role in Making Bill .......................................................................................... 20
4.2 Constitutional Provision ................................................................................................... 22
4.3 Legislative Process ........................................................................................................... 25
CHAPTER FIVE ............................................................................................................................... 32
FINDINGS, CONCLUSION AND SUGGESTIONS ................................................................................... 32
5.1 Findings ........................................................................................................................... 32

v
5.2 Conclusion ....................................................................................................................... 36
5.3 Suggestions ...................................................................................................................... 37
Bibliography .................................................................................................................................... 40

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CHAPTER - ONE

INTRODUCTION AND METHODOLOGY

1.1 General Background

Law making is the function of legislature. In parliamentarian (west ministerial) system


of government, legislature is the mother branch of executive. The theory of separation of
power does not apply completely in this system.

Members of the Legislature-Parliament is elected in periodical elections. MPs lead the


public opinion, through whom Lincolns democracy of the people, for the people by the
people is exercised.

The Constitution of Nepal has been promulgated from 3 Ashwin 2072, but institution
under this constitution yet to be formed. Constitutional assumption will be more formalized
after the election held and boundaries of state is not determined. A federal commission is
formed to suggest about it.

The federal legislature is bicameral and state legislature is a cameral legislature.


Federal Legislature consists of House of Representatives and National Assembly. There are
165 directly elected and 110 proportionally elected members are in the House of
Representatives. There are 59 members in National Assembly, which is a permanent
assembly.

But in now, till the first election under the provision of this Constitution transformed
legislature-parliament is doing the job of federal and state legislature.

Nepal has bicameral legislature from when democracy was introduced. Although, the
Constituent Assembly was focused only on the constituent making, it had to fulfill the job of
legislature too. Main job of legislature is to make law and oversight executive activities to
make them more accountable to the people. It seems that our legislature is focused more on
breaking and making government rather than concentrating its core business. This seminar
paper is focused on role of the Legislature-Parliament in law making process which is one of
the core function of our Legislature-Parliament.

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1.2 Statement of the Problem

In west ministerial government system, making and breaking the government


(executive) is one of the major function of the legislature parliament. Like our country, where
democracy is not being matured, many political parties existed and due to proportional
election system small sized political parties play important role in this process. It makes
politics unstable and unpredictable.

If the whole system is in transition, it can be easily predicted that other functions are
not perfectly done. This study is focused on those contemporary issues facing in the law
making process by Nepalese Legislature, now Legislature- Parliament of Nepal.

1.3 Objective of the Study

The objectives of this study are as follow:

To identify the process of how a bill is converted to an act.

To evaluate the role of the Legislature-Parliament in Law making Process.

1.4 Significance of the Study

Legislature represents the will of the people. It is the place for making the rules and
approving governmental policies. There are certain processes that are followed in legislature
parliament. The General understanding of those process is necessary subject to all the people
because it would be an effective tool to judge their representatives.

This seminar paper aims to provide not only the basic idea but its goal is to evaluate
their effectiveness. Therefore, this paper is significant to all of them who want to know the
law making process and role of legislature on that process.

1.5 Methodology of the Study

Legislative procedure depends on the rules that is made by itself. Parliamentary


tradition and customs are also an important role on this process. There are many traditions
established in matured parliamentary systems that are working as unwritten rules of
parliament. For example in Parliament of UK the practice of bills being 'read' three times in

2
both Houses is not in the Standing Orders for example. Other procedures have developed
through precedents such as rulings made by the Speaker and resolutions of the House.1

The study is based on constitution, rules and tradition and custom based practices of
the Legislature-Parliament of Nepal. Analytical and descriptive methods have been used in
this study.

1.6 Literature Review

In the short for the political changes, Nepal has faced many over the past 25 years.
After the peoples revolution of 1990, it turned to a democratic constitutional monarchical
kingdom. From that time legislation became formally the subject of Parliament by the
Constitution of the Kingdom of Nepal, 2047.

Many researches were conducted on the practice and procedure of law making
process in parliament. But democracy was not able to be mature because of unstable
government and Kings intervention on system.

After the restoration of democratic system through another peoples revolution,


Nepal became a federal democratic republican state. New Constitution made through
Constituent Assembly. In this period all political and social force are centralized in the
Constitution making process. There were very little research and study are done in the field
of legislative research other than making constitution. But Some INGOs did some work over
this matter. Some of them are reviewed here:

Legislation Drafting and Oversight Function of Nepalese Parliament, A Process Review,


Report June, 2015, published by Nepal Constitution Foundation, Kathmandu is one of them.
Some constitutional expert Dr. Bipin Adhikari, Ganesh Datta Bhatta, edited this report. In this
report, the fundamental function of parliament; Legislation drafting and oversight function is
discussed briefly. After briefly description over the constitutional process of those two
functions suggestions for reform are subscribed at the end of the report.

1 Rules and traditions of Parliament (May.21, 2016. 7:00 PM),


http://www.parliament.uk/about/how/role/customs

3
Another reviewed document while this paper is being written is Prolonged Legislative
Process: Law Making in Nepal, May, 2012, published by Citizens Campaign for Right to
Information (CCRI), Kathmandu. This research paper is edited by Santosh Sigdel. When it is
published, first Constituent Assembly is doing their job actively. At that time, the Constituent
Assembly was worked for the Legislature-Parliament too. This study is focused on the
legislative process and try to find out the reason of prolonged legislation.

1.7 Scope of the Study

It is the Constitution, which determines the structure of government, its branches and
their functions. As written in the Constitution of Nepal, Nepal is a democratic republic and
parliamentary country. However, the theory of separation of power does not imply
completely in this system, legislation is function of legislative body of government. Currently,
converted Legislature-Parliament is in this role.

There are constitutional provisions, rules and traditions regarding the role of legislature
in law making process. The study involves in analysis those rules and regulations and the
practice critically and analytically.

1.8 Limitation of the Study

Making the law is the main function of the Legislature, but in practice, it cannot be
limited to this branch of government. Because in the contemporary world, rapidly changing
society needs immediate actions in many cases that is done through delegated legislation by
executive branch of government. Laws and regulation are being internationalized as well as
localized and the role of government is being narrowed. Conversely, this study does not cover
those aspects and is limited to the following.

This study is only based on law making process described in the Constitution of Nepal,
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2014 and
parliamentary practice.

Delegated legislation and impacts of political influences are not analyzed.

1.9 Organization of Structure

This study is organized in following five chapters.

i. Introduction and Methodology

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ii. Conceptual Framework of Role of Legislature in Law Making Process

iii. Role of Legislature in Law Making Process in UK, USA and India

iv. Law Making Process and Role of Legislature in Nepal

v. Findings, Conclusions and Suggestions

Chapter (i) is focused on introduction and methodological aspect of this study, chapter
(ii) describes the legal framework and in chapter (iii) legislative practice in different countries
are briefly analyzed. Chapter (iv) is concentrated in law making process and role of the
Legislature-Parliament and at last, findings, conclusions and suggestions are written in
chapter (v).

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CHAPTER TWO

CONCEPTUAL FRAMEWORK OF ROLE OF LEGISLATURE IN LAW MAKING

2.1 Concept of Law and its type

2.1.1 Concept of law

Law is an institution formed by social norms that are accepted and followed by the
people. There is not a single definition of law because of different approaches are being
practiced to study about it. It is a rule or bundle of rules that is used to maintain social harmony
and to systematize our life.

Naturalists define law as the dictate of reason, positivists define it as the command of
sovereign and realists define it as the practice of court. These differences are creation of
different perspectives developed over the ages. But in all sense, it creates an order in the
society and lays some criteria that guides our behavior.

In Blacks law dictionary law is defined as following senses:2

1. The regime that orders human activities and relations through systematic application
of the force of politically organized society, or through social pressure, backed by
force, in such a society; the legal system <respect and obey the law>.

2. The aggregate of legislation, judicial precedents, and accepted legal principles; the
body of authoritative grounds of judicial and administrative action; esp., the body of
rules, standards, and principles that the courts of a particular jurisdiction apply in
deciding controversies brought before them <the law of the land>.

3. The set of rules or principles dealing with a specific area of a legal system <copyright
law>.

4. The judicial and administrative process; legal action and proceedings < when
settlement negotiations failed, they submitted their dispute to the law>.

5. A statute <Congress passed a law>.

2
BLACKS LAW DICTIONARY, at 2580, (8th ed.2004)
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2.2.2 Types of Law

There are different criteria to interpret the types of law. In the broad sense law can be
classified into these two categories:

i. International law: International law is that law which is accepted as a guidelines of


country to country relationships. It is not accepted as a law by positivists because of
not having coercive power behind it. But nowadays it is taken as an active law and
many international institutions are established to implement it. Subjects of
international law are also changed with time that not only the country but even a man
is the subject of it.

ii. National law: It is the rules accepted and created by the state. It is backed by sanction.
National law can be divided into following categories:

a. Constitutional Law: It is the main law of land. Structure of government, governance


system, relation between state and people and many more is the contents of
constitution. It is the supreme law of any country.

b. Customary law: Generally, this types of law is not found in written format, but in
practice it is assumed as law.

c. Statute Law: Statue law is that type of law which is made by government, generally
legislature makes acts, and executive creates rules and regulations. Precedents are
also a types of law that is created by courts.

Law can be classified on the basis of relation established by it, they are:

i. Public Law: Public law establishes relation between the individual and the state. If this
law is about the relation between the sovereign states and multinational organizations
it is said public international law.

ii. Private Law: The law which establishes relationship among individuals is called private
law.

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Another types of law is relating the functions of law. If law is related with procedure of
legal activities that is procedural law and the law which lays guidelines of peoples behavior is
substantive law.

Next criteria of types of law may be by its objective. If the content of law is concerned with
the relation between two parties, that law is civil law. The law that deals with the crime is
criminal law.

2.2 Sources of Law

Source of law indicate the origin from where the law comes to existence. There is not
a universally accepted source of law as differences found on definition.

Salmond divided source of law as formal and material sources. 3

1. Formal source: It is that from which law gets power. In general, sovereignty is the
formal source of law.

2. Material source: It is the source of the content of the law. There are two types of
material sources of law:

a. Legal Sources: Immediate and legally recognized sources are legal sources of
law. Legal sources of law can be categorized as follow:

i. Legislation: It is the main source of law in democratic state and made


through legislature.

ii. Custom: Customs are taken as the main source of law by historical
school of jurisprudence and is one of the prominent source of law.

iii. Precedent: It is judge made law and also called case law.

iv. Professional Opinions: Professional opinion and juristic views are also
one of the material sources of law.

3
JOHN W. SALMOND, JURISPRUDENCE, Stevens and Haynes London, at 126, (4th ed., 1913)
8
v. Agreement: Agreement between two or more parties works as law on
their relating business. It is also one source of law.

b. Historical Sources: These sources are remote and not legally recognized. It
cannot be claimed in court as a right.

Salmonds view on sources of law almost covers every types of sources of law.
Historical schools of jurisprudence more focused on customary law, whereas naturalist
consider human conscience as a source of law. Positivist takes will of sovereign as only
an authoritative source of law and realist takes verdict of judge as source of law.

2.3 Legislation as a source of Law

There are main three division of government by its nature of work. One is Legislature,
which formulates the law, second is executive which executes the law and the third is judicial
that check the functions of other branches of government and makes judgment according to
law.

The term legislation is derived from two Latin words, legis meaning law and latum
meaning to make, put or set. Etymologically, legislation means the making or the setting of
law.4

Legislation is the main source of law in democratic country. It is the main function of
legislature of a country. Legislation is that source of law, which consists in the declaration of
legal rules by a competent authority.5

In democratic system, people choose their representatives through periodic elections.


They delegate the power to make rules. In Parliamentarian democracy, government is formed
by legislature and it has control over the government.

In the broad sense legislation includes all forms of law making that can be divided into
direct legislation and indirect legislation. Another sense of legislation is related with all

4
V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY Eastern Book Company, at 159 (5 th ed. 1987)
5
SALMOND, Supra note 3 at 127
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expression of the will of the legislature. And the third sense is that the creation of law by way
of authoritative declaration is legislation. 6

Legislation is either supreme or subordinate. The former is that which proceeds from
the supreme or sovereign power in the state, and which is therefore incapable of being
repealed, annulled, or controlled by any other legislative authority. Subordinate legislation is
that which proceeds from any authority other than the sovereign power, and is therefore
dependent for its continued existence and validity on some superior or supreme authority.7

There are five types of subordinate legislation, explained by Salmond

i. Colonial legislation

ii. Executive legislation

iii. Judicial legislation

iv. Municipal legislation

v. Autonomous legislation

Other kinds of subordinate legislation is executive legislation or delegated legislation.


It is true that the main function of the executive is to enforce laws but in certain cases, the
power of making rules is delegated to the various departments of government. This is
technically called subordinate or delegated legislation. 8 In recent years there are significantly
increase in delegated legislation due to following reason:

i. Lack of enough time and pressure of work in parliament

ii. Lack of expertise in legislature what is needed in current complex modern society
to address technical social problem.

iii. It cannot be foreseen complexities of future and executive has to address these
complexities immediately.

6
Ibid. at 143
7
Ibid at 129
8
MAHAJAN, Supra note 4 at 161
10
In context of Nepal, legislation is the subject of the Legislature-Parliament. The practice
of subordinate and delegated legislation is increasing.

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CHAPTER - THREE

LAW MAKING PROCESS AND ROLE OF LEGISLATURE IN USA, UK AND INDIA

3.1 Law making and role of congress in the USA

The principle of the separation of powers recognized by modern constitutional states


determines the mechanism of the law making and the place of the legislative bodies in it. The
principle divides the state powers into three branches - the legislative, executive and judicial
powers. The legislative power is vested in the legislative bodies. This principle singles out the
representative bodies and empowers them to adopt laws. 9

The place of a legislative body in the law-making process depends from the character
of the principle of separation of powers recognized in a country. The principle of the
separation of power has specific features in countries. It may have firm form or flexible form. 10

The USA is an ideal example of the use of separation of power. The legislative body of
the USA is known as a Congress and is formed by s Senate and House of Representatives.

All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.11

The system of the governmental bodies is organized so that the main task of the
Congress is to make laws. At the same time each governmental branch has powers to balance
other one. The President may recommend to the Congress to adopt legislative measures and
control the law-enforcement, has the right of veto. For balancing the legislative body should
be divided in two chambers. The division of the legislative body was a mean against possible
tyranny. The legislative body has balanced structure, was able to reflect social changes (as the
House of Representatives is elected every two year, while senate 6 years (1/3 are reelected
every 2 years), secured stability and continuity. This position has been realized in the

9
I. Bogdanovskaia, The Legislative Bodies in The Law-Making Process 7 (May.21, 2016. 7:20 PM),
http://www.nato.int/acad/fellow/97-99/bogdanovskaia.pdf
10
Ibid at 7
11
U.S. CONST. art. 1, 1.
12
Constitution of the USA. In the result the Congress has been able to keep strong positions in
the law-making process. It is separated from the executive power and the last has to find
different (as a rule political) channels for contacts with the Congress in the law-making
process.12

Sources of ideas for legislation are unlimited and proposed drafts of bills originate in
many diverse quarters. Primary among these is the idea and draft conceived by a Member.
This may emanate from the election campaign during which the Member had promised, if
elected, to introduce legislation on a particular subject. The Member may have also become
aware after taking office of the need for amendment to or repeal of an existing law or the
enactment of a statute in an entirely new field.

In addition, the Members constituents, both as individuals or through citizen groups,


may avail themselves of the right to petition and transmit their proposals to the Member. The
First Amendment guarantees the right to petition to the Constitution. Similarly, state
legislatures may memorialize Congress to enact specified federal laws by passing
resolutions to be transmitted to the House and Senate as memorials. If favorably impressed
by the idea, a Member may introduce the proposal in the form in which it has been submitted
or may redraft it. In any event, a Member may consult with the Legislative Counsel of the
House or the Senate to frame the ideas in suitable legislative language and form.

In modern times, the executive communication has become a prolific source of


legislative proposals. The communication is usually in the form of a message or letter from a
member of the Presidents Cabinet, the head of an independent agency, or the President
himself, transmitting a draft of a proposed bill to the Speaker of the House of Representatives
and the President of the Senate.13

12
Bogdanovskaia, Supra note 9 at 7
13
John V. Sullivan, How Our Laws Are Made, (May.21, 2016. 7:30 PM),
https://www.congress.gov/resources/display/content/How+Our+Laws+Are+Made+-
+Learn+About+the+Legislative+Process
13
Bills may originate in either the House of Representatives or the Senate with one
notable exception. Article I, Section 7, of the Constitution provides that all bills for raising
revenue shall originate in the House of Representatives but that the Senate may propose, or
concur with, amendments. By tradition, general appropriation bills also originate in the House
of Representatives.

There are two types of billspublic and private. A public bill is one that affects the
public generally. A bill that affects a specified individual or a private entity rather than the
population at large is called a private bill. A typical private bill is used for relief in matters such
as immigration and naturalization and claims against the United States.

Any member of either house may introduce bills. However, the Constitution provides
that: "All bills for raising Revenue shall originate in the House of Representatives." As a result,
the Senate does not have the power to initiate bills imposing taxes. Furthermore, the House
of Representatives holds that the Senate does not have the power to originate appropriation
bills, or bills authorizing the expenditure of federal funds.

When a bill is introduced in any house of Congress, it goes through several stages in each
house. In first stage, a bill is sent to committee. Committees have jurisdiction over a particular
subject.

In this stage, committee seeks feedbacks from relevant governmental departments as well as
collect public views through public hearing. Committees may amend the bill. At last,
committee presents its report to the house. If amendments are suggested, the full house may
accept or reject them. The full house may bypass or overrule the committee stage but it is
rarely used.

After the getting the report of committee, it is debated in full house. The house may amend
the bill. Once a bill is approved by one house, it is sent to the other, which may pass, reject, or
amend it. For the bill to become law, both houses must agree to identical versions of the bill. If
the second house amends the bill, then the differences between the two versions must be
reconciled in a conference committee, an ad hoc committee that includes both senators and
representatives.

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If the bill is agreed on the exact wording by both house, it is sent to the president for approval.
The President may also choose to veto the bill, returning it to Congress with his objections. In
such a case, the bill only becomes law if each house of Congress votes to override the veto
with a two-thirds majority.

3.2 Law making and role of parliament in UK

The parliament of UK consists two house; the House of Commons and the House of
Lords, on which the legislative power is vested.

The consultation process on Draft Bills may involve the government issuing a paper for
public discussion and response. The best-known examples of this are White and Green
Papers.14

Although not formal definitions, Green Papers usually put forward ideas for future
government policy that are open to public discussion and consultation. White Papers generally
state more definite intentions for government policy. 15

In the UK, The belief that most government bills derive from its manifesto
commitments is mistaken.The great majority of bills originated within government
departments.16 Parliament may thus be described as a policy influencing rather than a
policy making legislature.17

Regarding the process, a Bill can be introduced in any house but finance bill can be
presented only in the commons. A bill must be approved in the same form by the both house
before becoming an act. In case of finance bill the Lords can consider but cannot block or
commend.

14
Draft Bills, http://www.parliament.uk/about/how/laws/draft/ (last visited May 21, 2016)
15
Ibid.
16
MICHAEL ZENDER QC, THE LAW-MAKING PROCESS, Cambridge University Press New York at 2, (6th
ed. 2004),
17
LORD NORTON OF LOUTH, P. NORTON, DOES PARLIAMENT MATTER?, Prentice Hall, Harvester
Wheat sheaf, Northern Ireland, at 50-51 (1993)
15
Legislative process can be categorized as follow after a Bill is presented:18

i. First reading: there is no debate and only a bill takes place in any house.

ii. Second reading: debate on general principle of the bill and at the end of the
debate, house decides whether the Bill should be given its second reading by
voting, meaning it can proceed to the next stage.

iii. Committee stage: During Committee Stage, every clause of the bill has to be
agreed to and votes on any amendments can take place. All suggested
amendments have to be considered, if a member wishes, and members can
discuss an issue for as long as they want. The government cannot restrict the
subjects under discussion or impose a time limit. This is a key point of difference
with procedure in the House of Commons.

iv. Report stage: Report stage gives all members of the Lords a further opportunity
to examine and make amendments (changes) to a bill. During report stage
detailed examination of the bill continues. Any member of the Lords can take
part and votes on any amendments may take place. After report stage, the bill is
reprinted to include all the agreed amendments. The bill then moves to third
reading.

v. Third reading: Third reading in the Lords is the chance for members to tidy up
a bill, concentrating on making sure the eventual law is effective and workable
without loopholes. Amendments at third reading are often used to clarify
specific parts of the bill and to allow the government to make good any promises
of changes they made at earlier stages of the passage of a bill.

After third reading, if the bill started in the Lords, it goes to the House of Commons
for its first reading. And if the bill began in the Commons, it is sent back after third reading in
the Lords for consideration of Lords amendments, or, if there have been no amendments in the
Lords, is sent to the monarch for royal assent.

18
Drafts, supra note 15.

16
When a Bill has passed through third reading in both Houses it is returned to the first
House (where it started) for the second House's amendments (proposals for change) to be
considered. Both Houses must agree on the exact wording of the Bill. There is no set time
period between the third reading of a Bill and consideration of any Commons or Lords
amendments.

If the Commons makes amendments to the Bill, the Lords must consider them and either
agree or disagree to the amendments or make alternative proposals.If the Lords disagrees with
any Commons amendments, or makes alternative proposals, then the Bill is sent back to the
Commons. A Bill may go back and forth between each House (Ping Pong) until both Houses
reach agreement.

When a Bill has completed all its parliamentary stages in both Houses, it must have
Royal Assent before it can become an Act of Parliament (law). Royal Assent is the Monarch's
agreement to make the Bill into an Act and is a formality.

3.3 Law making process and role of parliament in India19

Parliament consists of two Houses: the Lok Sabha, or House of the People, and the
Rajya Sabha, or Council of States. The process of law making, in relation to Parliament, may
be defined as the process by which a legislative proposal brought before it, and then is
translated into the law of the land. It can be broadly divided into three stages / phases Pre-
legislative phase, Legislative phase and Post-legislative phase.

Pre-legislative phase comprises identification of need for a new law or an amendment


to an existing legislation, drafting of the proposed law, seeking inputs / comments from
different ministries and public, revision of the draft bill to incorporate such inputs, and getting
the same vetted by the Law Ministry. It is then presented to the Cabinet for approval.

The summary of pre-legislative process is also required to be placed before the


Department Related Parliamentary Standing Committee by the Department/Ministry

19
Law Making Process in India, (May.20, 2016. 7:20 PM), http://www.cuts-ccier.org/BHC-
RIA/pdf/Draft_Law_Making_Process_in_India.pdf

17
concerned when the proposed legislation is brought to the Parliament and is referred to the
Standing Committee.

After the Cabinet approves the Bill, it is introduced in the Parliament. On introduction
of the Bill, the Minister of the concerned Department may send notice demonstrating the
intention that the Bill may be moved, considered and passed; be referred to the Select
Committee of the House/ Joint Committee of both Houses or for eliciting public opinion. Once
the Bill is taken for consideration, perusal must be made on clause-to-clause basis and the
same may be accepted, amended or rejected. Subsequently, the House votes on the Bill with
amendments, if any. If the Bill is passed in one House, it is then sent to the other House. In
case of a deadlock between the two houses or in a case where more than six months lapse in
the other house, the President may summon, though is not bound to, a joint session of the
two houses, which is presided over by the Speaker of the Lok Sabha and the deadlock, is
resolved by simple majority. Once both the Houses pass the Bill, a copy of the Bill is sent to
Legislative Department of Ministry of Law and Justice for scrutiny. Post scrutiny by the Ministry
of Law and Justice, it is presented to the President for assent. The President has the right to
seek information and clarification about the Bill, and may also return it to the Parliament for
reconsideration.

After the President gives assent, the Bill is notified as an Act. Subsequently, the Bill is
brought into force, and the concerned ministry frames rules and regulations to implement the
Act. The same are then tabled in Parliament.

18
CHAPTER FOUR

LAW MAKING PROCESS AND ROLE OF LEGISLATURE IN NEPAL

4.1 Structure of Government

A government is the system used for controlling a country, city, or group of people. 20
It is also referred for the group of people who officially control a country. 21 The form of
government of Nepal shall be multi-party, competitive, federal, democratic, republican,
parliamentary form of government based on pluralism.22 The main structure of the Federal
Democratic Republic of Nepal shall be of three levels, namely the Federation, the State and
the Local level. 23 The Federation, State and Local levels shall exercise the power of State of
Nepal pursuant to this Constitution and law. 24

In this way, by constitution Nepal is a federal, republic country and pluralism based
parliamentary democracy is its government system. After a prolonged constitutional making
process, the Constitution of Nepal was commenced on 20 September, 2015. But most of the
provisions related to federalism are even to be applied. Because of limited application,
practically legislative power of Nepal is remaining with converted legislature parliament of
Nepal. It is written in the constitution; the Constituent Assembly existing at the time of
commencement of this Constitution shall ipso facto be converted into the Legislature-
Parliament after the commencement of this Constitution, and the term of such Legislature-
Parliament shall exist until 7 Magha 2074. Provided that if an election is held to the House
of Representatives set forth in this Constitution prior to the expiration of that tenure, the
Legislature-Parliament shall continue to exist until the day before the day specified for the
filing of nominations of candidates for that election. 25

20
CAMBRIDGE ADVANCED LEARNER'S DICTIONARY, at 624 (4th ed. 2008).
21
Ibid.
22
THE CONSTITUTION OF NEPAL, Art. 74, (2015)
23
ibid, art. 56 1.
24
ibid, Art. 56 2.
25
ibid, Art. 296 1.
19
The Legislature-Parliament set forth in clause (1) shall perform the business required
to be performed by the Federal Parliament in accordance with this Constitution until election
to the House of Representatives is held pursuant to this Constitution.26

The legislative power of the State Assembly with respect of matters set forth in
Schedule-6 shall, upon the commencement of this Constitution, be vested in the Legislature-
Parliament set forth in clause (1) until the State Assembly is formed. Any law so made shall
be inoperative in relation to that State after one year of the date of formation of the State
Assembly set forth in this Constitution.27

4.2 Ministerial Role in Making Bill

There are 29 ministry in Nepal. These ministries have many departments on need
basis. There are regional, zonal and district offices under the ministry and departments.
Generally, departments role is to have bridge between ministry and district offices. It is also
for technical assistance and development. District offices are center of serving to the people.
Generally, policy problems are discovered at that level and these go up through reporting.

When concerned ministry finds the gap between existing and expected law. Those
ministry has to consult council of ministry and ministry of law, justice and parliamentary
affairs with justification. Before drafting the bill, approval of principle of those bill is
compulsory and this approval is the subject of ministry of law, justice and parliamentary
affairs. After approval of principles, there would be detailed discussion over the issues. In this
stage, relevant research are done by other institutions, international practice and legal
documents are taken as references and issues like, possible economic burdens, expected
organizational structure and effect on other departments are scrutinized.

Above mentioned process is related with down-up techniques, which starts form
functional layer of government, another process of policy and law making is start from
political leadership. In democratic system, people elect their representatives on the basis of
their ideology and political manifestoes of political parties. After election, the government is
formed by this political party, which commands majority in parliament. The Constitutional

26
THE CONSTITUTION OF NEPAL, art. 296 3.
27
ibid, art. 296 4.
20
provision is that the Council of Ministers in Nepal is formed through constitutional provision.
The President shall appoint the leader of a parliamentary party that commands majority in
the House of Representatives as the Prime Minister, and the Council of Ministers shall be
constituted under his or her chairpersonship. 28 In parliamentary democratic system, ruling
party tries to change national plans and policies according to their manifestoes. It is the
responsibility of the executive branch of government to develop new policies and laws. 29 The
Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and
the Ministers shall be individually responsible for the work of their respective Ministries to
the Prime Minister and the Federal Parliament.30 In parliamentary government system, Prime
Minister practices supremacy in the Council of Ministers and ministers are responsible to the
Prime Minister. The Prime Minister leads with majority of parliamentarians vote and has
influencing role on policy and law making process.

In this way, policy and law making process may be done through political leaders too.
Law making is in general the business of the Legislature but when government feels that
certain circumstances exist which render it necessary to take immediate action, the President
may, on recommendation of the Council of Ministers, promulgate an Ordinance. In the
Constitution of Nepal, it is written under article 114.

Provisions relating to Ordinance:31 (1) If, at any time, except when both Houses of the
Federal Parliament are in session, circumstances exist which render it necessary to take
immediate action, the President may, on recommendation of the Council of Ministers,
promulgate an Ordinance.

(2) An Ordinance promulgated under clause (1) shall have the same force and effect
as an Act.

Provided that every such Ordinance:

28
THE CONSTITUTION OF NEPAL, art.76 1.
29
The Policy and law making process, http://www.etu.org.za/toolbox/docs/govern/policy.html (last
visited May 16, 2016).
30
THE CONSTITUTION OF NEPAL art. 76 10.
31
ibid, art.114.
21
(a) shall be tabled at the session of both Houses of the Federal Parliament held after
the promulgation, and if not passed by both Houses, it shall ipso facto cease to be effective,

(b) may be repealed at any time by the President, and

(c) shall, unless rendered ineffective or repealed under sub-clause (a) or (b), ipso
facto cease to be effective at the expiration of sixty days after the day on which a meeting of
both Houses is held.

Explanation: For the purposes of this clause, "day on which a meeting of both Houses is held"
means the day on which a session or meeting of both Houses of the Federal Parliament
commences or is held, and this term means the later day on which a meeting of the House is
held if the Houses of the Federal Parliament meet on different dates.

It can be summarized that ministries have a very prominent role in law making
provison. Practically, they have control over the pre-legislative procedure for making laws. As
Bogdanovskaia wrote; the executive bodies control the pre-legislative stage of the law-
making as the Government is the main initiator of the bills which have a chance to become a
law. The legislative process itself is also controlled by the Government especially in the
parliamentary countries. In some countries they are called as machine for the approvement
of the decisions of the Government.32

4.2 Constitutional Provision

Democracy is an inevitable component of constitutionalism. The democracy is based


on the principle of the peoples sovereignty. It means that the source of the state authority is
people. 33 Nepal is an independent, indivisible, sovereign, secular, inclusive, democratic,
socialism oriented, federal democratic republican state.34 In this way Nepal is a democratic
country and in preamble of the constitution it is written that .Being committed to
socialism based on democratic norms and values including the people's competitive
multiparty democratic system of governance, civil liberties, fundamental rights, human rights,

32
Bogdanovskaia, Supra note 9 at 12.
33
Ibid.
34
THE CONSTITUTION OF NEPAL, art.4 1.
22
adult franchise, periodic elections, full freedom of the press, and independent, impartial and
competent judiciary and concept of the rule of law, and build a prosperous nation 35

Nepal is a federal country. The power of the state of Nepal is exercised at federation,
state and local levels. In the article 56 of The Constitution of Nepal it is written that The main
structure of the Federal Democratic Republic of Nepal shall be of three levels, namely the
Federation, the State and the Local level. The Federation, State and Local levels shall exercise
the power of State of Nepal pursuant to this Constitution and law. 36

Federal legislature procedures are written in Part 9 of The Constitution of Nepal. In


this part there are 6 articles from 109 to 114. State legislative procedures are in part 15 of
The Constitution of Nepal, 6 article from article from 197 to 202. Local legislative procedure
is written in part 18, article from 221 to 227.

Distribution of state power at different levels of state is scheduled in Schedule 5, 6, 7,


8 and 9.

These powers are subject to relative levels of state. And law making over those powers
is the subject of legislature of different levels of state. Beyond that financial procedure of
these three level have been stated in the Constitution of Nepal differently. Part 10, Part 16
and Part 19 are related with financial procedure of different three levels; federal, state and
local.

Now, Nepal is in transitional phase. The government system is functioned under the
constitutional provision of part 15, transitional provisions. Constituent Assembly to be
converted into legislative parliament under the provision of article 296. In this article clause
4 and 5 vested the legislative power of federal legislature and state legislature regarding the
law making process to the Legislature Parliament.

There are different procedures to pass the different types of bills. A Money Bill and a
Bill concerning a security body including the Nepal Army, Nepal Police and Armed Police
Force, Nepal shall be introduced only as a Government Bill. 37Other than these bills, A Bill may,

35
THE CONSTITUTION OF NEPAL, Preamble.
36
Ibid art. 56 1 & 2.
37
Ibid art.110 2.
23
subject to this Constitution, be introduced in any House of the Federal Parliament. Provided
that a Money Bill shall be introduced only in the House of Representatives.38

Now in transition phase, constituent assembly is converted to legislature parliament


and it performs the business required to be performed by the Federal Parliament, so there is
only one house and any bill can be introduced in legislature parliament. By constitution Nepal
is a federal country but till now the boundaries of the states yet to be finalized. That is why,
there is no state legislature to practice legislative procedure. Power of state legislature is
vested on legislature parliament too. The legislature-parliament is only one institution which
can make the law at current situation of Nepal.

Any bill passed by the Legislature-Parliament is presented to the President for assent. Process
of Assent on Bills is written under article 113 of the Constitution of Nepal as follow:

Assent on Bills: 39(1) A Bill which is to be submitted to the President for assent under Article
111 shall be so submitted by the Speaker or the Chairperson of the House in which the Bill
originated after it has been certified by him or her. Provided that in the case of a Money Bill,
the Speaker shall so certify.

(2) A Bill submitted to the President for his or her assent in accordance with this
Article shall be assented to within fifteen days, both Houses shall be informed thereof as soon
as possible.

(3) If the President is of the opinion that any Bill, except a Money Bill, submitted
for assent needs reconsideration, he or she may, within fifty days from the date of
presentation of such Bill, return the Bill with his or her message to the House in which the Bill
originated.

(4) If any Bill is returned with a message by the President, and both Houses
reconsider, passes such Bill as it was or with amendments and submit it again, the President
shall give assent to that Bill within fifteen days of such submission.

(5) A Bill shall become an Act after the President gives assent to it.

38
THE CONSTITUTION OF NEPAL Art. 110 (1)
39
Ibid art. 113
24
As mentioned before, the Bill shall be originated only in the Legislature-Parliament.
The speaker should prove every Bill but in case of a Money Bill, the Speaker shall so certify
because the President cannot return it for reconsideration. After the President gives assent
to a bill it becomes act.

4.3 Legislative Process

The legislation is the main source of law in current world. In article 83 of the
Constitution of Nepal, formation of federal legislature is written. There shall be a Federal
Legislature consisting of two Houses to be known as the House of Representatives and the
National Assembly, which shall be called as the Federal Parliament. 40 But in fact, this article is
not activated and now in transition converted Legislature Parliament performed as Federal
Legislature.

A legislature is a place for making law, and because law is a serious matter affecting
the freedom and interests of all the members of the community, legislating is an activity we
ought to take seriously. 41

Procedure relating to conduct of business is written in article 104 of the Constitution


of Nepal as; Each House of the Federal Parliament shall frame rules to conduct its business,
maintain order during its meetings and regulate the constitution, functions and procedures
of the committees and procedures of the House or its committee. Until such rules are framed,
the Federal Parliament shall regulate its procedures on its own. And The conduct of business
of the joint sitting of the Federal Parliament, and constitution and proceedings of the joint
committee of the Federal Parliament shall be regulated by the rules or procedures approved
by the joint sitting of both Houses of the Federal Parliament. 42

According to above mentioned article, the rules of the Legislature-Parliament is on the


process. After promulgating the Constitution of Nepal, converted Legislature-Parliament

40
THE CONSTITUTION OF NEPAL, art. 83.
41
TSVI KAHANA RICHARD & W. BAUMAN, THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES
IN THE CONSTITUTIONAL STATE, Cambridge University Press, New York at 15 (2006).
42
THE CONSTITUTION OF NEPAL, art. 104.
25
approve an internal procedure and beyond that it is guided by the Constituent Assembly
(Conduct of Business of Legislature-Parliament) Rules, 2014.

It is said that Legislative process in law making is nothing more than a showpiece or a
formality in Parliamentarian Democracy. But that formality takes more time and go through
various stages. These stages are explained as follow:

4.4.1 Introducing the bill in the Legislature Parliament: Subject to the Constitution and
these Rules, any Member may introduce the Bill. Any Member intending to introduce the
Bill shall give a notice of his/her intention to the Secretary General or the Secretary along
with a copy of the Bill and a statement of objectives and reasons at least seven days in
advance. Provided that in case of a government Bill, it shall be adequate to give an advance
notice of ve days.43

In case a Bill creates a nancial burden after being an Act, such a Bill shall be
accompanied with a nancial memorandum with detailed description. Such nancial
memorandum shall call attention to the Sections involving expenditure and shall also give
an estimate of the recurring and non-recurring expenditure involved in case the Bill is
passed into an Act. 44

In this information giving process, if A Bill which is wholly or partly dependent upon
another Bill pending before the House may be introduced in the House in anticipation of
passing of the principal Bill. Provided that the dependent Bill shall not be taken up for
consideration before the principal Bill is passed.45

There are another rules of giving information about the proposed bill to the house
(Legislature-Parliament) they are:

Non-inclusion of Identical Bill in the List: Unless otherwise ordered by the Speaker, when a
Bill is pending before the House, notice of any other Bill, which is identical in respect of

43
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, Rule 54(1), (2014)
44
Ibid, Rule 54(2).
45
Ibid, Rule 55.
26
subject matter and objective, whether it may be received before or after the introduction of
the pending Bill, shall not be entered in the list of the noticed Bills.46

Memorandum Regarding Delegated Legislation: A Bill containing the provisions for


delegation of legislative powers shall be accompanied by a memorandum explaining the
reasons thereof and calling attention to the nature and limitation of the law to be made
under such delegated power and the effects resulting therefrom. 47

Bill to Replace Approved Ordinance: In case a Bill having the purpose of seeking to replace
an Ordinance issued by the President as it is or with an amendment has to be introduced, it
shall be accompanied by a statement explaining the reasons and circumstances which had
necessitated immediate legislation by an Ordinance. 48

Before introducing the Bill in the meeting of the Legislature-Parliament, a copy of the
Bill shall be made available to all Members two days in advance. And if Any Member
intending to oppose the motion for leave to introduce a Bill shall submit a notice thereof to
the Secretary General or the Secretary one day in advance of the day on which the motion
of leave to introduce the Bill is to be moved. 49

4.4.2 General Discussion on the Bill

After presentation the Bill in the meeting of Legislature-Parliament, the member who
opposed and the member who moved are given to put their view and if the house agree with
one of them the process starts or over there. If house agree to forward the proposed bill, the
member who proposed the bill may propose to consider over or to circulate for the public
opinion. 50

If the member who proposed the bill to consider over, there will be general discussion
on that bill. In this process only theoretical or principle aspect of the bill is discussed. After
finishing the principle discussion, the member, who proposed the bill may move either to be

46
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, Rule 56, (2014).
47
Ibid, Rule 57.
48
Ibid, Rule 58.
49
ibid, Rule 59 and 60.
50
Ibid, Rule 61.
27
discussed clause by clause in the House, or referred to the Legislative Committee for clause
by clause discussion. 51

4.4.3 Amendments to the Bill

After the general discussion on the proposed bill, as per rule 67, 68 and 69 any
member of Legislature-Parliament can give a notice of amendments. All amendments must
fulfills these conditions:52

(a) The amendment must be relevant to the subject matter of the Bill and within the
scope of the Bill.

(b) The amendment must not be inconsistent with the inherent principles of the Bill.

(c) The amendment must not be vague, or meaningless.

(d) The amendment sought to be made in any Section must be relevant to the
subject matter of such a Section.

(e) The amendment must not be inconsistent with any previously accepted
principles or previous decision of the House.

(f) The amendment must clearly and specically suggest the particular provision or
words substituting any provision or words in the Bill.

4.4.4 Committee Stage

It is said that parliamentary committees are the workshop of the Legislature. Time
constraint and other procedural Problems full house is unable to discuss intensively over the
issue of law making. Whereas parliamentary committees can do their job with specifically.
There are no boundaries and veto like as in house.

Generally, bills are extensively discussed in thematic committees of the Legislature-


Parliament. In article 110 of Constituent Assembly (Conduct of Business of Legislature-
Parliament) Rules, 2014, name and working area of the Thematic committees are written.

51
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules Ibid, Rule 64 (2014)
52
Ibid, Rule 68.
28
After discussion over the bill in thematic committee, concerned committee table its
report in the meeting of Legislature-Parliament. After the report of committee is tabled in the
Legislature-Parliament, following process is followed:

Procedures after Tabling of the Report of the Concerned Committee53: (1) After the Report
of the Concerned Committee is tabled; the Report shall be circulated to all Members.

(2) Unless otherwise ordered by the Speaker, the Member introducing the Bill may, at any
time after twenty four hours of the circulation of the Report, move one of the following
motions:-

(a) That the Bill along with the Report be considered, or

(b) That the Bill be sent back to the Concerned Committee with directives for
reconsideration in respect of any specic Section or Sections.

(3) Where the Member introducing the Bill has moved one of the motions mentioned in
Sub-rule (2), any other Member may move another motion under the same Sub-rule.

(4) Where a motion has been moved pursuant to Sub-rule (3), the Speaker shall permit the
Member moving such a motion and the Member introducing the Bill to make statements
and, if the Member moving the motion subsequently does not withdraw his motion after
both of the Members have made their statements, the Speaker shall put the motion for
decision of the Legislature-Parliament.

(5) If it is decided to send the Bill back to the concerned Committee, it shall be sent to the
concerned Committee for reconsideration on the Bill and to submit a Report thereof.

(6) The concerned Committee shall consider upon the Bill sent for reconsideration pursuant
to Sub-rule (5) as soon as possible and shall submit the Bill to the House along with its
Report prepared pursuant to Rule 76.

(7) After distribution of the Report submitted by the concerned Committee pursuant to Sub-
rule (6) to the Members, the Member introducing the Bill may, on the date and at the
time xed by the Speaker, move a motion as referred to in Clause (a) of Sub-rule (2).

53
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, Rule 78, (2014).
29
(8) After approval of the motion referred to in Clause (a) of Sub-rule (2) or in Sub-rule (7),
discussion may be held only on the Report of the concerned Committee and the
Sections of the Bill relating thereto and other sequential Sections.

In the committee stage the Bill generally handled by sub-committees, which is made
on the basis of ministerial criteria by committee. It is not mandatory but to the convenience
of parliamentarian thematic committee.

4.4.5 Withdrawal of a Bill

A member who introduce a Bill in Legislature-Parliament may withdraw proposed bill


giving notice one day in advance. Withdraw process of a bill is written in rule 77 of
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2014 as follow:

Bill may be Withdrawn54: (1) If the Member introducing the Bill intends to make a motion
for leave to withdraw the Bill, s/he shall have to give a notice thereof one day in
advance.

(2) If a motion for leave to withdraw a Bill is made while such a Bill is under consideration
of the Legislative Committee, the Committee shall submit a Report to this effect to the
sitting.

(3) The Member withdrawing the Bill shall, with the approval of the Speaker, move the
motion in the sitting of the Legislature-Parliament for withdrawing the Bill.

(4) If the motion for withdrawal of the Bill is opposed, the Speaker may permit the
Members proposing and opposing the motion to deliver short statements for clarifying
their respective stands and hereafter, s/he shall put the motion for decision without
further debate.

4.4.6 Passing and Authenticating a Bill

After clause by clause discussion over a bill in legislature-parliament of discussion


over a report of a committee the member who introduced a bill shall move the motion that
the bill be passed. And if the bill is passed by legislature parliament it shall be submitted to

54
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, Rule 77, (2014).
30
the resident for authenticating having certified by the Speaker. When the President
authenticate a Bill it becomes an Act. These processes are written in rule 79 and 83 in
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2014 as follow:

Motion for Passing of a Bill55: Where a Bill has undergone clause by clause discussion in the
House, after closure of such a discussion; and where clause by clause discussion has been
held in the concerned Committee, after closure of discussion on the Report of the
Committee, and when the amendments have been put in the order thereof for decision of
the Legislature-Parliament; the member introducing the Bill shall move the motion that the
Bill be passed.

Authentication of the Bill56: (1) The Bill passed by the Legislature-Parliament shall be
submitted to the President for authentication having certied by the Speaker.

(2) The Bill passed by the Legislature-Parliament shall become an Act after it has been
authenticated by the President.

(3) After receipt of notice of the Presidents authentication pursuant to Sub-rule (2), the
Speaker shall read out the notice to the House. In case such a notice has been received
at a time when the session is not going on, the Speaker shall cause to publish such a
notice in the Bulletin of the Legislature-Parliament and also cause to publicize the
notice.

(4) One copy of the Bill authenticated pursuant to Sub-rule (2) shall be retained at the
record of the Legislature-Parliament and one copy of the Bill shall be furnished to each
of the Ofce of the President, the Ofce of the Prime Minister and Council of Ministers
and Ministry of Law, Justice and Constituent Assembly Affairs.

55
Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, Rule 79, (2014)
56
Ibid, Rule 83.
31
CHAPTER FIVE

FINDINGS, CONCLUSION AND SUGGESTIONS

5.1 Findings

There are three major functions of the Government; making the rule, implement them
and check them. If one institution is allowed to perform those functions definitely it will think
that they make appropriate rule, it is implementing wisely and no need to check. It can
transfer anybody into a dictator. So in a democratic and constitutional state these three main
function of government are divided into three parts of the Government. They are executive,
Legislature and Judiciary.

There are mainly three types of government; presidential, parliamentary and semi-
presidential. In the Presidential structure of government, these major functions are divided
separately and rule of Montesquieus theory separation of power applied. The government
structure of the USA is one of the best examples of separation of power. In the semi-
presidential state the power of executive is divided, where some of the power of executive is
under the control of prime minister, elected from legislative body. And in parliamentary
system, executive is formed by the legislature and is a part of legislature itself.

The main roles of the Legislature-Parliament are to make law and to control over the
government to make it more responsible and accountable. In constitutional state, peoples
voice is the main guidelines of government which comes from periodical election. Members
of the Legislature-Parliament represents the values, beliefs and wants of people.

Nepal is a parliamentarian republic country. Its legislative power is vested on


legislature of three layers of governments. But now, till the federal legislature-parliament,
state legislature and local legislature is not formed transformed legislature parliament is using
their right too.

In parliamentary system, government is formed and controlled by legislature-


parliament. In the article 76 of the Constitution of Nepal, it is written that;

32
Constitution of Council of Ministers57: (1) The President shall appoint the leader of a
parliamentary party that commands majority in the House of Representatives as the Prime
Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.

(2) In cases where no party has a clear majority in the House of Representatives under
clause (1), the President shall appoint as the Prime Minister a member of the House of
Representatives who can command majority with the support of two or more parties
representing to the House of Representatives.

(3) In cases where Prime Minister cannot be appointed under clause (2) no later than
thirty days after the date of declaration of the final results of election to the House of
Representatives or the Prime Minister so appointed fails to secure a vote of confidence under
clause (4), the President shall appoint as the Prime Minister the parliamentary party leader of
the party which has the highest number of members in the House of Representatives.

(4) The Prime Minister appointed under clause (2) or (3) shall obtain a vote of
confidence from the House of Representatives no later than thirty days after the date of such
appointment.

(5) In cases where the Prime Minister appointed under clause (3) fails to obtain a vote
of confidence under clause (4) and any member under clause (2) presents a ground on which
he or she can obtain a vote of confidence in the House of Representatives, the President shall
appoint such member as the Prime Minister.

(6) The Prime Minister appointed under clause (5) must obtain a vote of confidence
under clause (4).

(7) In cases where the Prime Minister appointed under clause (5) fails to obtain a vote
of confidence or the Prime Minister cannot be appointed, the President shall, on
recommendation of the Prime Minister, dissolve the House of Representatives and appoint a
date of election so that the election to another House of Representatives is completed within
six months.

57
THE CONSTITUTION OF NEPAL, art. 76.
33
(8) Procedures on the appointment of the Prime Minister under this Article must be
completed no later than thirty-five days after the date of declaration of the final results of
election to the House of Representatives held under this Constitution or the date on which
the office of the Prime Minister has fallen vacant.

In this way, the Legislature-Parliament has full control over the council of ministers.
Only after getting the support of majority members of the Legislature-Parliament, council of
ministers can be formed.

As mentioned above, it is easily predicted that in Nepal, the Legislature-Parliament is


the key of our governance system, but in practice it is far from the truth. Reality in
parliamentarian system, legislature is controlled by the executive branch of government,
because it holds majority in legislature. It formulates policies and draft bill, which is rarely
rejected by Legislature-Parliament. There were only three bills that were passed as non-
governmental bill, after restoring of democracy in 1990 A.D.

There were thematic committees of the Legislature-Parliament to discuss over the


ministerial oversight. Clause by clause discussion over the bill is also held in those committee.
These intensive discussion is useful to reform the weaknesses of the bill. It is effective role of
the Legislature-Parliament of Nepal that is practiced on.

About the role of the Legislature- Parliament in law making process in Nepal is
described in the Constitution of Nepal and in Constituent Assembly (Conduct of Business of
Legislature-Parliament) Rules, 2014. The Constitution of Nepal lays basic norms and
procedure of law making. There were different procedure for finance and other bill, and
government and private bill. Detailed and stepwise procedures are described in Legislature-
Parliament rules and it is the main guideline to the conduct of meeting of the Legislature-
Parliament.

On the basis of current practice findings of this this study are as follows:

i. Law making function of the government is the business of the Legislature-


Parliament of Nepal.

ii. A bill can be introduced by any member of the Legislature-Parliament.

34
iii. There are different types of bill: governmental bill and private bill; finance bill
and other than finance bill; principal and dependent bill, bill to replace
approved ordinance etc.

iv. A money bill and a bill concerning a security body, including the Nepal Army,
Nepal Police and Armed Police Force, Nepal shall be introduced only as a
government bill.58

v. In Practice, bills are introduce by government and generally bills introduced by


government only passed easily. There are not any private bill passed after
election of the Constituent Assembly.

vi. It is compulsory to inform to Secretary General or Secretary of the Legislature-


Parliament in advance to give information about to introduce, to oppose or to
withdraw a Bill.

vii. After introducing a Bill into the Legislature-Parliament, general or principle


discussion held after that a bill may be discussed clause by clause in house, or
send to thematic committee or may be the Bill circulated for the purpose of
eliciting public opinion.

viii. After introducing the bill, time is given to file amendments.

ix. When committee report is submitted to the Legislature-Parliament, it is


discussed in house, time is given to withdraw proposed amendments, and
after that the Bill shall be moved to be passed.

x. It is sent to the President for authentication after certification of the Speaker,


when a bill is passed by Legislature-Parliament. After authentication of the
President, a bill become an act.

Legislation is the task of the Legislature-Parliament, but in reality drafting of a bill is


function of ministerial job. It is practically acceptable because knowing the gap between
existing and expected law is the subject of ministerial functions. In our parliamentarian

58
THE CONSTITUTION OF NEPAL, art. 110 2.
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system of government, the Legislature-Parliament is only the institution to formalize proposal
of ministry.

To make legislative body effective and efficient, it must be developed as research


center because executive body of government is engaged in providing day to day service to
people. But, in reality, our Legislature-Parliament does nothing on the field of research. There
were thematic and other special committees in the Legislature-Parliament, but their functions
are limited to formality if we leave some exceptional case.

Our legislature-Parliament is working with an ad-hoc procedural rules and mostly


depend on Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2014.
It is on process of formulation of new rule but consensus over this is not made till now.

Beside that we establish an inclusive democratic system and accept rule of law,
participatory principles, social justice, impartial and competent judiciary, periodical election
as constitutional values.

5.2 Conclusion

Our practice on parliamentarian system is not old one. It has a short history, and there
was a lot of obstacles that it had not any opportunity to institutionalize its activities. So it may
be said that it has not played its role effectively but the foundations has already made to
stabilize it.

It is not wrong to say that our parliament is using to break and form a government
rather than to do legislative research, making law and oversight executive functions. It was
also a law machine. It produces a lot of law without any research that some laws are only in
paper.

Beside those weaknesses, our representatives made a constitution through the


Constituent Assembly with consensus of highly majority of representatives. Now our country
is on the way of institutionalization of our new constitution, which can be done through
following the rules prescribed in The Constitution of Nepal.

Our country is in transition phase, though a political course has been completed after
the promulgation of New Constitution. But main institutions of government yet to be formed
as written in the Constitution. That is why it will be hurry to comment negatively about the

36
legislative function performed by the transformed Legislature-Parliament. It is because
Constituent Assembly had done a lot of research work while making a draft of constitution
and legislation is an extra job for that body.

Now, the Constituent Assembly is transformed to Parliament-Legislature. It has to


make a lot of rules to institutionalize the provisions of the Constitution of Nepal. It is not an
easy task. Lacking of knowledge, resource and research it is completely dependent on
executive to perform its core functions.

The Constitution of Nepal and the Constituent Assembly (Conduct of Business of


Legislature-Parliament) Rules, 2014 are the main guidelines of Legislative-Parliament.
Structure functions and procedures are organized and described on those laws.

Any member of the Legislature-Parliament can introduce a bill but in practice, any bill
is rarely introduced by a member who is not in the Council of Ministers. By constitution power
of state is divided into three layers of government but all layers according to it is yet to be
formed. There is a bicameral legislature-parliament in federal and unicameral legislature in
state but the functions of them are performed by transformed Constituent Assembly on the
basis of transitional provision of the Constitution of Nepal.

Function of the Legislature-Parliament is not well practiced in current situation though


it can be assumed that forthcoming elected legislature can perform as spirit of the
Constitution of Nepal. Because this Legislature-Parliament will be purely elected to do
legislative business rather than other work like converted Legislature-Parliament.

5.3 Suggestions

Nepal is a federal democratic republican country. There are three layers of


government to practice the power of state. But now in transitional period, the Constituent
Assembly is converted to the Legislature-Parliament and functions of Federal Legislature and
State Legislature are performed by it.

It is taken long time to be formulated the Constitution of Nepal. Some political parties
are disagreed to the some provisions of Constitution even now. But many of the provisions of
the Constitution are followed.

37
This seminar paper Role of Legislature-Parliament in the law making process in Nepal
is focused on current practices. Some recommendations on the basis of this study are as
follow:

i. Any member of Legislature-Parliament shall introduce a bill, but in practice only


ministers do which should be reformed because to represent the need of people is the
main job of MPs and must play effective role regarding, making and intruding the bill
in the Legislature-Parliament.

ii. Effectiveness of the Legislature-Parliament is reflected on its two basic functions,


making the law and oversight the government. These both functions demand some
basic knowledge of system and expertise. So, every MPs should be trained after
elected.

iii. Legal research is the basic tool to know gap between need and existing law. We have
not any structure regarding these functions. Independent research center should be
established under Legislature-Parliament to help parliamentarians in the law making
process.

iv. Legislature-Parliament is being a law producing machine, its pre-symptoms have


already shown. If this institution is not developed as per its need, it will be transformed
to rubber stamp of government.

v. Our democratic history is not a memorable, because Parliament was used to break a
government and form a new one. It should be corrected.

vi. Every law makers should be trained about law making process.

vii. Time to file amendments on a bill is very short. It is not possible to read intensively
and consult to propose amendments within 72 hours. It should be extended.

viii. Rules/Acts are not limited with one sector effect but directly or indirectly various
aspect of societies are affected. Very few research are performed on this issue. Our
Legislature-Parliament is not supported by any independent legal research unit, so
there should be and an independent and competent professional research unit in
Legislature-Parliament to give the Suggestions.

38
ix. We are repeatedly using removal of difficulties clause. It is open secret that its mis-
interpretation took a political crisis in BS 2059. It should be stopped.

x. Expertise is not the criteria to be elected, but the job of MPs demands. So, every
committee should have enough resource to help MPs to help them to convert their
ideas into practicable laws and policies.

xi. Very few bills are circulated for the purpose of eliciting public opinion. It should be
practiced more and more.

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Bibliography

Constitution and Statutes

1. THE CONSTITUTION OF NEPAL (2015).


2. THE CONSTITUTION OF THE UNITED STATES OF AMERICA (1787)
3. Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2014
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1. Prolonged Legislative Process: Law Making in Nepal. (2012). Kathmandu: CCRI.


2. Legislation Drafting and Oversight Function of Nepalese Parliament: A Process
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3. Mezey, S. G. (1983), Civil Law and Common Law Traditions: Judicial Review and
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Websites and online resources

1. http://www.cuts-ccier.org. (2016). http://www.cuts-ccier.org/BHC-


RIA/pdf/Draft_Law_Making_Process_in_India.pdf
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