Sources of law and law making process in Nepal

Sources of Law and Law Making Process in Nepal

Sources of law and law making process in Nepal

Definition of Law

Law is the academic field and profession that deals with social norms that are accepted as obligatory by the community, such as conventions, practices, and codes of conduct. A controlling authority is in charge of enforcing the set of rules.

Law refers to the body of rules to manage and regulate human behaviour. It is an important instrument to operate state mechanism. It is the formal and supreme power for administering justice and maintaining morality and acceptable behaviour in the society.

Law is an obligatory or mandatory power and its violation is punishable. It governs the relationship and conduct of the people, society and nation at large. International treaties, Constitution, Acts, rules, directives, etc. are the commonly used instruments of law.

Characteristics of Law :-

  • Controls the discretionary and arbitrary activities of government.
  • Supreme power.
  • Tools for maintaining social ethics and standards of behaviour.
  • Constructed by sovereign authority.
  • Equal treatment to all and equal protection to all.
  • Designs mechanism for operating state.
  • Defines relationships between the units involved in governance system,.
  • Instruments for maintaining peace order, and preventing anarchy.

Sources of Law

Source of law refers to the foundation or point of origin from where law is originated or derived. The prime sources of law are:-

i) Legislation :- It is the direct and prime source of law. Legislature has the power provisioned by the constitution to enact, amend and annual the law. It can be further categorized into supreme/primary legislation and subordinate/delegated into legislation; the former being the job of the Legislature whereas the job for latter is entrusted to other organs of government by the Legislature. For Example, Civil Service Rules, 2049 is the product of primary legislation by the parliament whereas Civil Service Rules, 2050 is the product of delegated legislation entrusted to the executive branch of the government by the parliament.

ii) Custom :- It encompasses tradition, values, norms and usage prevailing in the society which have historical, cultural and social recognition, that are authentic and acceptable in contemporary context. They are also the source of law. For example, Killing of cow is treated as criminal offence by the prevailing law of Nepal but the same act is not treated as criminal offence by the prevailing law of Pakistan.

iii) Precedent : – Legal principles and norms propounded by the court in the course of lawsuit is known as precedent. It is a principle established in a legal case that is either binding on or persuasive for a court when deciding subsequent cases with similar issues or facts. The principle by which judges are bound to precedents is known as stare decisis-a Latin phrase which means “Let the decision stand”. Generally, precedent is propounded by the supreme court which must be observed by all. Thus, it is regarded as a source of law.

iv) International treaties and agreements :- International conventions, treaties and agreements provide legal framework to formulate and align the national/municipal law in line with them. Therefore, various national laws derive their legal provisions form the related international treaties and agreements.

v) Professional opinions and writings of scholars :- Legal experts and scholars propound various legal principles. They are not direct source of law but taken as reference while enacting and interpreting the law.

vi) Judicial order :- Court of law can issue orders and directives to the executive and legislature in case of loopholes and vacancy of law, and law and executive actions inconsistent with constitution and prevailing law. judicial order refrain or direct other organs of the governments to act in accordance with the spirit of law. Thus, it act as a source of law.

Law Making Process in Nepal

According to constitutional provision in Nepal, federal legislative procedure and Province legislative are provisioned at federation and province level respectively as legislature`s law making procedure in their respective jurisdictions. Law making procedure remains almost the same in both the federation and province level. The process is discussed here under:

Bill can be tabulated in the legislature parliament by ministers or members of the parliament. But, Money bill and bill related to security bodies can be introduced as government bill only, which should be tabulated by the respective minister. Law making process through government bill consists of following steps:

i) Identification of need of law : By the concerned ministers to formulate new law or amend and repeal the existing law in line with contemporary context.

ii) Draft : Draft of the law is prepared by concerned authority through discussion with experts and stakeholders, stating the reason for formulation or amendment.

iii) Consultation : The draft is forwarded to the Ministry of Law, justice and Parliamentary Affairs for consultation.

iv) Proposal and Discussion : The draft, including suggestions form the Ministry of Law, justice and Parliamentary Affairs , is proposed to the cabinet by the concerned ministry. Thereafter, discussion is held in the Bill Committee of the council of Ministers where experts can be invited, and draft bill is finalized.

v) Approval of Draft Bill : The draft bill, after being finalized, is approved by the Council of Ministers for tabulation in the parliament.

vi) Tabulation in the parliament : The bill is tabulated by the concerned minister in any house of the parliament for discussion and approval. But, Money Bill can be tabulated in the House of Representatives only.

vii) Detailed discussion : In parliamentary committee, detailed discussion is done, and submitted back to the house along with its report.

viii) Pass by the parliament : With necessary amendments, if necessary, the bill is sent to the the next house for approval. After approval by both house, it is presented before the President for certification. In case of Province Assembly, the bill is presented before Chief of the Province for certification.

ix) Authentication/Certification : Bill passed by the parliament is certified by the President in the Federation, and Chief of the Province in Province. After authentication, Bill gets the status of Act, which is recognized as law. In case pf non-government bill, the Member of Parliament, after prior approval of the speaker or chairperson of the parliament, can tabulate the bill in the parliament. Then, similar process as stated above (vii, viii, ix), is followed.

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