General Legislative

Process of law and

Types of Legislation
 Process
 The law making process can be termed as legislative process.
 Legislative process embodies many stages of process from
the introduction of a bill in parliament to its enforcement.
 Legislative Process are usually governed by Constitution i.e.
determines who and how to make it. For e.g. Art. 109 of the
2072 constitution
 The legislative process could differ in State level and in
Federal level depending on the nature of government. It is
different in Federal State because of federal constitution at
federal level and it is different in Unitary State because of a
State’s unitary constitution at State level for e.g. The Interim
Constitution of Nepal. However, after 2072 constitution in
Nepal, legislative process differs from federal level to
provincial level. (See: Part 9 vs. Part 15 of the 2072
constitution). [Remember that local governments can also
make laws. (Article 221 and 226)
 Therefore, we could expect legislative process to be
determined on such basis in the future
 General Legislative
Process
 Legislative process always begins with the introduction of a bill
in Parliament.
 However, sometimes bill could be introduced in its preliminary
stage or sometimes in its final stage. Usually, supreme
legislation are introduced in its preliminary stages; whereas,
subordinate legislation are introduced in its final stage. For e.g.
Art. 110 of the Constitution has the provision which ensures
that any member of the Legislature-Parliament may introduce
a Bill in the House. Likewise, there are some laws which are
already drafted by concerned agencies and are then presented
at the Parliament. Please also look into Part 9 (Art. 109 to 113)
and Part 15 ( Art. 197 to 201), and Article 221 and 226 of the
new constitution that have followed the same provision.
Differentiate them as federal, provincial and local government
law-making process. In terms of Nepal, legislative Process are
guided by two major laws: (1) The Constitution of Nepal
2015, (2) House of Representative Regulation 2075
 General Legislative Process
Usually, legislative process involves following stages:
1.Introduction of the Bill (Usually Bill is either categorized as
private or public/government Bill; however, there could be bills
that aim to amend existing legal provisions)
2.Referral to certain committee. For e.g. a bill relating to
human rights is referred a committee that looks after human
rights issues. [For e.g. Art. 97 of the Constitution has
authorized the Parliament to form committees. This is not
provisioned in current constitution, but is a part of normal
legislative process. Therefore, will be seen in legislative laws]
3.Committee hearings that could have multiple hearing stages.
4.Scheduling Floor debate: After Committee hearing, Bill are
scheduled for floor debate at the house. Sometimes, there
could be clause-wise discussion and sometimes not
5.Voting over the bill
6.Authentication or the Passing of the Bill: Finally, after all
phases, Bill becomes law once approved by Parliament.
 Process
In terms of Nepal, there are few major institutions that have a
great role during legislative process:
1.Legislative Parliament: It has the overall right and duty to
look after the legislative process. (Constitutionally empowered)
2.Legislative Committee: It is formed under the Parliament,
House of Representatives . It is the main committee that has
the sole responsibility of looking after legislative process.
(Constitutionally empowered)
3.Nepal Law Commission: In recent times, it has played a
vital role for legislative process by drafting legislation,
reviewing and recommending government on existing laws.
4.Agencies empowered to make laws: There are so many
agencies who are authorized to make laws for their
administrative purpose, mostly it includes statutory body who
are involved in subordinate legislation making.
5.Public Institutions: It helps during consultation phases.
Sometimes they too can make subordinate legislation.
 General Legislative
Process
 There has been change in general legislative
process because of the federal structure
introduced by the new constitution of Nepal.
For e.g. change in laws making at provincial
and local levels. Remember that they are also
sovereign body along with federal parliament
and they can determine their own law making
process. Remember how and what we talked in
our class.
 Therefore, think and find out what is legislative
process at provincial and local level)
 Types of Legislation:

Constitution: Role and Significance

What actually is constitution?
Why constitution is regarded as legislation?
What could be role and significance of constitution?
Is constitution really needed? (See in Britain and also
relate with the present experience of Nepal)
Imagine a state, without constitution? Is it possible in
modern day?
How does it affects agencies of a State and
individual???
 Constitution
 Professor KC Wheare,1996, defined constitution as: “… the whole
system of government of a country, the collection of rules which establish
and regulate or govern the government.”
 Thomas Paine, 1972: “A constitution is not the act of a government, but
of a people constituting a government, and a government without a
constitution is power without right ... A constitution is a thing antecedent
to a government; and a government is only the creature of a constitution.
 Hilaire Barnett: “In lay terms, a constitution is a set of rules which
governs an organisation.”
 Generally, Constitution is the law of a State, which is supreme in nature,
defining the political and legal nature of a State.

 In lay terms, a constitution is a set of rules which governs an organisation.

 Constitution: Role and
Significance
 Constitution governs the overall State
 It determines both political as well as legal structure of a
State
 Helps a society during transition (e.g. Nepal, creates new
institutions and values to address societal needs).
 It also guides society. But what about US Constitution
that is more than 2 century old and 1990 Constitution of
Nepal that did not succeed?
 Usually acts as a supreme law of a State (Art. 1 of the
2072 Constitution)
 It sets out the objective of the State, its government and
governing institutions
 It also organizes, regulates and distributes State’s power
 Constitution: Role and
Significance
 Constitution not only creates government empowering
them with rights, but also requires them to fulfill their
obligations. It not only empowers government with rights,
but also limits their power. For e.g. Nepal government
can not violate someone’s right to property on every
grounds.
 It helps to reflect the spirit and demands of people. For
e.g. the spirit of Jana Andolan II in the Interim
Constitution 2063 (no longer in existence) and 2072
Constitution of Nepal
 It’s broader function can be categorized : (a) descriptive
functions for e.g. defines the power and relationship
between Executive, Legislative and Judiciary and, (b)
prescriptive functions for e.g. prescribes legislative
process, ordinance etc.
 Acts: Roles and Significance
 Duhaime's Law Dictionary: “A bill which has passed through
the various legislative steps required for it and which has
become law.”
 Acts are the by-product of the activities that are undertaken
by Parliament or supreme legislative body. In case of Nepal, it
includes federal parliament, provincial assembly and local
assembly.
 Acts are considered as supreme legislation because of the
fact that Acts are passed by Parliament which is supreme
body
 Supreme legislations are the ones that are directly
passed/made by the Legislature exercising. Therefore, all
Acts passed by Parliament is supreme legislation.
 Legislature has the sole power to make new laws, to amend
or repeal existing laws. Right to Information Act, Human
Rights Commission Act, Foreign Employment Act, Tribhuwan
University Act etc. are the examples of laws passed under
Supreme Legislation.
 Things to know before
Regulations and so forth
 Parliament cannot make laws regulating every aspect of
our society
 Shift from police state to welfare state
 Parliament delegates its law making power to government
and its agencies. Laws made by such agencies exercising
the power conferred by government are called as
delegated legislation.
 Regulations, by-laws, directives, orders etc. all are
considered as delegated legislation. However, it does not
include Ordinance
 Usually laws made under delegated legislation are speedy,
sometimes technical and consists of expertise knowledge.
 Parliament delegates its power through Enabling Act
 Regulations:
Importance
 Definition of Regulation according to Nepal Laws (Interpretation Act),
2010: Regulation “shall mean a rule made in the exercise of a power
conferred by any enactment and shall include a regulation made as a rule
under an enactment”
 Definition of Regulation by Dr. Rega Surya Rao: ““It
“ means an
instrument by which decisions, orders and acts of the government are made
known to the public.”
 Importance of Regulations:
1. Helps to fulfill legislative gaps
2. Allows less burden to legislature
3. It helps to fulfill the aim of Acts passed by Parliament. For e.g. For e.g.
Sec. 265 of the Local Self-Governance Act 2055 has authorized the
government to frame rules required to implement the objectives of this Act.

4.
 Regulations:
Importance
Importance of Regulations….Continued
1. Regulation helps to address technical issues and are
mostly made by Experts

2. Allows government or administrative agencies with the

power to frame laws for itself

3. It saves time since law is made but not following

Parliamentary process

4. It is also flexible than Acts or Constitution

5. It is also argued that regulation directly helps to meet the
welfare objective of state since Acts and Constitution only
talk about principles. How to achieve those are well
covered under regulation.
 Bye Laws
 Bye-Laws are made by local authorities to cover matters within their
own area.
 Definition of Regulation by Dr. Rega Surya Rao: “It means rules
made by the semi-Government authorities established under the Act or
statute, e.g. rules made by local authority, statutory corp., etc.”
 Rule 275 of the Local Self-governance Rules 2055 (no longer in
existence): Bye-Laws may be Framed: (1) A local body may, for
implementation of objectives of the Act, frame necessary Bye-laws on
the subjects relating to financial administration, personnel
administration, and establishment and operation of Local Development
Fund.
 Section 23(2) of the Senior Citizens Act 2063 mentions that subject to
this Act and the Senior Citizens Rules, any association operating a care
centre Senior Citizens may frame necessary Bye-laws for its senior
citizens.
 Ordinance
 Ordinance is considered as one of the important
aspects of legislation when there is no legislature in
a State. (Let’s recall the problems that Nepal faced
as a lack of legislature after the end of the first
Constituent Assembly Process.)
 It is often associated as temporary enactment of law
by a person whom the power is authorized. It could
be a President, could be a Governor and so forth.
However, mostly, they are not a sovereign body as
they are not elected directly by the People.
 Ordinance is very important aspect of legislation
considering the fact that its used not often and only
at times when there is lack of parliament.
 Ordinance
 Art. 114 of the new constitution. Similar provision in
Indian Constitution as well as in many other
constitution.
 Adv. Madav Kumar Basnet v. Government of
Nepal, 2070 (President’s ordinance allowing
amnesty for serious breaches of human rights was
nullified by the Supreme Court of Nepal)
 In US:
 Zoning ordinance by local and state government
while obtaining private land
 Federal level (President) v. State level (Governor)
 Government Standing
Orders:
Definition of Order by Dr. Rega Surya Rao: “There is not much
difference between rule and order. Only in the name it differs.
Depending upon the nature of the powers delegated to the executive, it
can make two kinds of orders such as General and Particular orders.”

Example:

1.Competition Promotion and Market Protection

Act, 2063: “Provided
“ that any provision made and any order
issued by the Government of Nepal in relation to supply and
distribution prior to the commencement of this Act shall be
deemed to have been made and issued under this Act.”

2.Sec. 24 of Banking Offence and Punishment Act

2064:
2064 “If foreign individual does not appear in front of the
investigation… inquiry officer may issue an order…”