Sources of Law and Law-Making Process in Nepal
Law
Law refers to the totality of recognized practices, traditions, customs, rituals, and rules that serve as a medium to operate any society in a disciplined, dignified, and organized manner. It encompasses all types of rules or principles enforced by the supreme power of the state to maintain peace and order in society.
Sources of Law
The origin point of law or where law originates is called the source of law. It indicates how law is created and what the bases for its creation are.
Primary Sources of Law
- Constitution
- Legislation
- Precedents
- Customs and Traditions
- Conventional Law
- International Treaties and Agreements
Secondary Sources of Law
- Religion and Religious Texts
- Historical Documents
- Writings of Jurists
- Opinions of Experts
- Decisions of International Courts
- Thoughts of Foreign Jurists
Custom
Custom refers to the behaviors, traditions, values, rituals, social systems, and habitual practices that people in a specific place have voluntarily and uniformly accepted continuously from ancient times. Custom is considered the oldest source of law, still highly recognized today. It is an expression of public consciousness, embodying national and social sentiments. It is a social rule that has been easily accepted and followed from the past.
For a custom to be recognized as a legal source, it must have the following elements:
- Antiquity
- Certainty
- Legality
- Continuity
- Morality
- Rationality
- Uniformity
- Universal Acceptance
- Binding Force
Reasons for giving legal recognition:
- Due to unforgettable continuity providing emotional legitimacy.
- As an expression of social consciousness.
- Accepted as an alternative or supplementary law in social behavior.
- Based on principles of justice and social utility.
- Believed to endure into the future.
Legislation
Legislation refers to the formal document of law created by the legislature through a formal legislative process. Laws made by the legislature are legislation. Formal written documents like the constitution, acts, rules, regulations, and directives are all legislation.
Since it is created by elected representatives after extensive discussions and consultations in line with public demands and sentiments, legislation is considered the primary and superior source of law.
- Supreme Legislation: Law created directly by the legislature or the sovereign power of the state, e.g., acts.
- Subordinate Legislation: Legislation derived from delegated authority outside parliament, e.g., rules, procedures, directives, regulations.
Importance:
- Facilitates timely creation and development of laws.
- Reflects public sentiments.
- Documented, clear, certain, and accessible to stakeholders.
- Created based on past knowledge, anticipating future implementation.
- Aims to reform social malpractices and adversarial precedents.
Precedent
Precedent is the new principle established by the court when interpreting contemporary laws to prevent a vacuum in law. It ensures judicial purity by preventing arbitrary interpretations, maintains judicial uniformity, brings promptness in decisions for quick justice, and prevents judicial deviations.
Importance:
- Product of jurists' intellectual deliberation.
- Standard for measuring legal development.
- Prevents errors, bias, or illegal actions by judges.
- Provides law based on societal needs.
- Result of continuous study and research.
Law-Making Process in Nepal
1) Pre-Legislative Stage
- Preparation of bill proposal by the relevant ministry.
- Opinion from the Ministry of Law.
- Principled approval from the Council of Ministers.
- Drafting of the bill.
- Consultation with experts.
- Approval of the bill draft (Council of Ministers).
- Registration of the bill in Parliament.
2) Legislative Stage
a) General Discussion (Principled Discussion)
- Providing information on the bill and seeking permission to present.
- Presentation of the bill.
- General discussion.
- Option to withdraw the bill.
- Amendments to the bill.
b) Clause-by-Clause Discussion
- Proposal for clause-by-clause discussion.
- Clause-by-clause discussion (in the house and committee).
- Discussion on the report and schedules.
c) Passing the Bill
- Passing the bill.
- Presentation of preamble and title.
- Incidental amendments.
- Certification by the Speaker.
- Authentication by the President.
- Publication in the Nepal Rajpatra.
Law is a tool to organize and direct society. Ignorance of law is not excusable, so laws must be refined to guide society correctly. The effective role of concerned parties is the first condition.
Who Makes the Law?
- Theoretically, the legislature.
- Constitution by the people.
- Acts by elected representatives.
- Rules generally by the executive.
- In Nepal, Parliament makes its rules.
- Courts make some rules.
- Constitutional bodies make their procedures.
- Regulations by institutions.
- Precedents by the judiciary.
- Differences in process based on institutional nature.
Constitution-Making Process
Depends on the nature of the governance system:
- By Constituent Assembly.
- By commission/committee.
- By regular legislature.
- Considered made by the people.
- Supreme law.
- Oldest compared to other laws.
Detailed Law-Making Process in Nepal
The law-making process includes the entire procedure from drafting to authentication. The legislature makes laws, judiciary interprets, and executive implements, but all are involved practically.
Formulation of Law
Mainly by the executive, delegated by the legislature. Divided into: Bill proposal and draft preparation, presentation and passing in Parliament, and authentication.
Law Through Policy
- Formulate policy and convert to law.
- Policy must be transparent, based on standards, logic, and wisdom.
- Address contemporary thoughts, changes in behavior, public interest, and national welfare.
Preparation of Bill Proposal
Initial framework for law-making:
- Clearly state necessity, justification, basic policy, and concepts.
- Fundamental basis for law-making.
- For new topics not in existing laws, seek principled approval from Council of Ministers.
- Include necessity, justification, and policy points when seeking approval.
Approval Process of Bill Proposal
- Send to Ministry of Law for consultation.
- Ministry of Law studies and returns with expert opinion.
- Present to Council of Ministers for approval.
- Council approves and sends back to ministry for final draft.
- Ministry sends file to Law Ministry for final draft.
- Finance and security bills are government bills; others can be private bills.
- Present the prepared bill to Parliament.
Process of Presenting Bill in Parliament
- Minister presents the legally complete bill in proper format.
Stages After Presentation in Parliament
- Bill registration.
- Notice of opposition to bill proposal.
- Decision on opposition notices from members.
- Presentation of bill in the house.
- Principled discussion on presented bill.
- Submission of amendments.
- Approval of amendments.
- Commencement of clause-by-clause discussion (in house and committee).
- Passing the bill from the house.
- Sending passed bill from one house to another.
- Passing by joint sitting of both houses if needed.
- Incidental amendments to the bill.
- Authentication of the bill and implementation of the act.
By seriously contemplating and analyzing problems with sufficient homework and expert opinions, laws can promote national interest.
Other Additional Processes
- Provincial assemblies can make laws not contrary to the constitution, federal laws, or provincial statutes.
- Inter-legislative relations between union and provinces.
- Federal laws apply nationwide or in specific areas.
- Provincial laws apply province-wide or in specific areas.
- Union can make laws on provincial list items upon request from two or more provinces.
- Coordination between federal parliament and provincial assemblies.
- Consent of provincial assembly for amendments to boundaries or provincial powers list.
- No amendments contrary to Nepal's sovereignty, integrity, independence, or people's sovereignty.
- Any article can be amended or repealed subject to other provisions.
- For bills on provincial boundaries or powers, send to provincial assemblies for consent; majority approval needed, or bill lapses.
Provisions on Ordinances
- Ordinance is an executive order equivalent to an act.
- President can issue ordinances on Council of Ministers' recommendation when parliament is not in session if immediate action is needed.
- Ordinance has force of law but must be tabled in next session; lapses if not approved.
- Can be repealed by President anytime; automatically lapses 60 days after session starts if not repealed or disapproved.
- Ministry sends necessity, justification, concept, and policy to Law Ministry for opinion.
- After opinion, seek principled approval from Council.
- Send draft to Law Ministry, get consent, present to Council.
- Council approves and recommends to President for issuance.
Problems in Law-Making in Nepal
- Increasing pressure to make constitution, acts, rules based on vested interests.
- Laws fail to address national needs.
- Do not represent public sentiments.
- Inadequate involvement of jurists in relevant fields.
- Tendency to issue ordinances due to difficulties in passing acts influenced by vested interests.
- Lack of long-term vision; influence of donors.
- Government's failure to sense need leads to court directives.
- Hasty law-making; lack of stakeholder participation.
- Conflicting sectoral laws; weak implementation.
Improvement Measures
- Make laws only after extensive research, discussion, study.
- Focus on broader interests.
- Develop culture of collective responsibility.
- Identify public needs, take expert opinions.
- Ensure stakeholder involvement in all processes.
- Make laws to give shape to adopted policies.
- Make rules to simplify core subjects of acts.
- Utilize Nepal Law Commission as expert body.
- Discourage ordinance issuance.
- Redefine role and scope of Law Commission in state restructuring.
- Review acts commencing via Gazette notice.
- Prevent conflicts of interest in decision-making.
- Make whistleblower protection law.
- Arrange post-legislative scrutiny.
- Make laws to implement international treaties Nepal is party to.
- Conduct legal awareness programs.
- Develop as research-oriented institution.
- Ensure uniformity and coordination in law formulation.
- Implement recommendations from past commissions and committees.
By seriously analyzing problems with homework and expert opinions, such laws can promote national interest.