LEGISLATION AS A SOURCE OF LAW IN THE CONTEXT OF NEPAL

Background

The term ‘Legislation’ is derived from the Latin words ‘Legis’ a law and ‘Latum’ meaning ‘make’, ‘put’, and ‘set’. Thus etymologically, legislation means making or setting the law.

Broadly, this term is used in three senses: 

Firstly, in its broadest sense, it includes all methods of law-making. In this sense, legislation includes judge-made rules of law, and even the particular rules of law or the rights created at law between parties to contract. 

In the second sense, the legislation includes every expression of the will of the legislature, whether directed to the making of law or not. In this sense, every act of the legislature is an instance of legislation, irrespective of its purpose and effect. The legislature does not confine its action to the making of law, yet all its functions are included within the term ‘legislation’, for example, the legislature may enter into a treaty with a foreign state. In this example, there is no creation of a new rule of law. 

Thirdly, legislation is used in a strict sense. In this sense, it means making rules and laws to be followed and enforced in the Courts of the state. These rules or laws can only be made by a competent law-making body, i.e., a body which, under the Constitution of the State, is empowered to make laws. This third sense is more popular and while considering legislation as a source of law, we take the third meaning of the term legislation. 

                              (Source: Legal Service India)                                                                     

Austin defines, “Legislation includes an activity which results in law-making making or amending, transforming or inserting a new provision in the existing law. Thus, there can be no law without a legislative Act.” 

                                        (Source: Wikipedia)

                                            

Salmond defines, “Legislation is the source of law which consists in the declaration of the rule by a competent authority.” 

                                        (Source: Wikipedia)

There are broadly two types of legislation:

• Supreme Legislation: Legislation made by the supreme authority or Sovereign authority is called supreme legislation. 

Example: Evidence Act, 2031.

• Sub-ordinate Legislation: Subordinate legislation is a law made under the authority of a power conferred by an Act of Parliament. 

Example: Supreme Court Rule, 2049.

Analytical School of Law regards legislation as a primary source of law. Legislation is the primary source of law in Nepal. Dating back to history, Manavnyayashastra was the first codified legislation that was promulgated in the Malla period. Other Sanads were made under this law. Ram Shah’s 26 Thitis was also the legislation under which other Sanads were made. Similarly, Muluki Ain, 1910 and Muluki Ain, 2020 were also the legislation that was the primary source of law then.

Objectives

• To analyze the role of legislation as the primary source of law in Nepal's legal system, examining how it shapes the legal framework and impacts the governance of various aspects of Nepalese society, such as social, economic, environmental, and political domains.

• To examine the constitutional provisions that grant power to the legislature as the primary source of law and discuss the significance of having representatives of the people responsible for enacting laws.

• To investigate the process of making new laws in Nepal, including the development of bills, the passage of Acts through both Houses of Parliament, and the authentication by the President before implementation.

Limitation

The research of legislation as a source is based in the context of Nepal.

Methodology

This paper is based on the doctrinal method.

Findings

Background to making new law

In Nepal, the process of making laws involves both primary and secondary legislation. Primary legislation, known as Acts of Parliament, is introduced through bills. These bills can be initiated by the related ministry in the case of a government bill, or by individual Parliamentarians in the case of private bills. Bills from various ministries are sent to the law ministry, which ensures their compatibility with the Constitution. The final bill is then presented to the Cabinet for any necessary modifications.

Once a bill is ready, the concerned minister (in the case of a government bill) or Parliamentarian (in the case of a private bill) presents it to the federal Parliament. In the House of Representatives (HoR), there is a debate on the bill, and amendments can be offered by any Member of Parliament (MP). If further discussion is required, the bill is sent to relevant Parliamentary committees, where it can be further modified. Finally, the bill is presented to the HoR for a majority vote. If it passes the HoR, it is then sent to the National Assembly (NA) for approval. Once the bill passes both Houses with the majority of members' approval, it is sent to the President for authentication.

Secondary legislation, on the other hand, consists of rules, regulations, ordinances, orders, and procedures that are made in compliance with primary legislation. These are created under the authority of a power conferred by an Act of Parliament. There are several reasons and requirements for making new laws in Nepal. 

First, laws may need to be updated and amended to reflect changing societal needs and dynamics.

Second, the legislative body is responsible for implementing constitutional provisions, as stated in Article 47 of the Constitution of Nepal. 

Third, to ensure Nepal's compliance with international treaties and laws, new legislation may be required. Fourth, consolidating laws into one statute on a specific topic is essential to improve accessibility for citizens and ensure clarity and consistency in legal provisions. Overall, the legislative process in Nepal is designed to involve representatives of the people in formulating and enacting laws, ensuring that the legal framework remains responsive to the evolving needs of society while upholding the Constitution and international obligations.

• Early development of a bill

The process of developing and passing a bill in Nepal involves several crucial steps. The initiation of a bill depends on whether it is a government bill or a private bill. In the case of a government bill, the drafting of the bill is initiated in the related ministry. On the other hand, private bills are initiated by individual Parliamentarians. It is important to note that certain bills, such as Money Bills and bills concerning security bodies like the Nepal Army, Nepal Police, and Armed Police Force can only be introduced as government bills. 

• Passing an Act

Once the bill is drafted, the concerned ministries send it to the law ministry for review. The law ministry ensures that the proposed bills from various ministries are under the provisions of the Constitution. Following the review, the final bill is sent to the Cabinet, which also has the authority to modify it further.  After the bill is finalized, it is presented to the federal Parliament for consideration. 

In the case of a government bill, it is presented to the House of Representatives (HoR) first, while private bills can be presented to either house. There is a thorough debate on the bill on the floor of the House and any Member of Parliament (MP) can propose amendments to it. If further discussion or modifications are deemed necessary, the bill is referred to the relevant Parliamentary committees. The bill is subjected to in-depth scrutiny and potential revisions within the committees. Once the committee is satisfied with the bill's content, it is presented back to the House for further discussion. Ultimately, the bill is put to a vote in the HoR, and it must receive a majority vote for it to pass. 

After passing the HoR, the bill goes to the other house, the National Assembly (NA), where it undergoes a similar process of debate, potential amendments, and committee reviews. Again, a majority of the members in the NA must approve the bill for it to pass. Once the bill successfully passes both Houses of Parliament, it is then certified by the Speaker of the HoR and the Chair of the NA. Subsequently, the bill is sent to the President, who must authenticate it within 15 days. After authentication, the bill becomes an Act of Parliament. 

To complete the legislative process, the Act is published in the Nepal Gazette and becomes enforceable as law. This thorough process ensures that proposed legislation receives comprehensive scrutiny, reflects the will of the people's representatives, and adheres to the principles of democratic governance.

• Provincial and Local level in making law

In Nepal, the Constitution provides a comprehensive framework for the legislative procedures at different levels of governance. Article 83 of the Constitution establishes the Federal Legislature, which is responsible for enacting laws at the federal level. This legislature consists of two houses: the House of Representatives (HoR) and the National Assembly (NA). The HoR represents the people through direct elections, while the NA represents the states and is elected through an electoral college system. 

Part 9 of the Constitution outlines the Federal Legislative Procedures, which govern the process of making laws at the federal level. It includes provisions for the initiation, debate, amendment, and approval of bills, as well as the role of parliamentary committees in scrutinizing proposed legislation.  At the state level, the Constitution establishes State Legislatures through Part 14. Each state in Nepal has its own legislative body, responsible for making laws concerning state-specific matters and issues. 

Part 15 of the Constitution provides the Provincial Legislative Procedures, detailing the process of lawmaking at the provincial level. It outlines the role of provincial assemblies, the submission of bills, and the approval process, similar to the federal-level procedures. 

Finally, Part 18 of the Constitution governs the Local Legislature. It empowers local bodies, such as municipalities and rural municipalities, to make laws concerning local matters and issues. These constitutional provisions ensure a clear and structured system of legislative procedures in Nepal. The federal, state, and local legislatures work together to enact laws that cater to the diverse needs of the nation. The Constitution's focus on representative democracy and decentralization of power ensures that the legislative process is responsive to the aspirations and interests of the people at all levels of governance.

                               (Source: The Kathmandu Post)

Analysis

• The Constitution of Nepal grants power to the legislature as a primary source of law

The Constitution is made by the constituent assembly which represents the people of Nepal. The preamble of the constitution declares people as the sovereign authority and the document made by the sovereign authority grants legislature to formulate laws. Here, the legislation stands at the hierarchy and is the primary source of law.

• Enactment of Legislation by the representative of the people

The legislative body consists of the House of Representatives and the National Assembly. Both these houses constitute the elected members through direct or proportional methods. They are responsible for making laws addressing people’s needs and demands. It is based on the principle of democracy. Hence, the legislation stands at the top hierarchy further delegating its power. While using the delegated power, other bodies have to be consistent with the Legislation.

• Legislation is the primary tool to implement the constitution

Article 47 of the Constitution of Nepal states, “The State shall, as required, make legal provisions for the implementation of the rights conferred by this Part, within three years of the commencement of this Constitution.” Under this, legislative bodies are required to make laws to implement fundamental rights.

• The judiciary is not entitled to define any act as a crime rather interpretation only

The fundamental principle of criminal law; no law no crime and no law no punishment clearly sheds light on the supremacy of legislation. Also, the principle of maximum certainty and strict construction abides Judiciary to be limited to the legislation.

• Government of Nepal v. Sagar Thapa et.al

The judiciary acquitted the accused on the ground that there was no law related to match-fixing and the judiciary could not define any new act as a crime. It solely depends upon the legislation to define certain acts as a crime.

Conclusion

In conclusion, legislation is considered the primary source of law in Nepal. The legislative body, comprising the House of Representatives and the National Assembly, consists of elected representatives who enact laws to address the needs and demands of the people. The legislation holds the highest authority and is responsible for implementing the Constitution by making legal provisions to safeguard and enforce fundamental rights. The judiciary, while interpreting the law, does not have the power to define acts as crimes but rather interprets and applies the laws enacted by the legislature.

Legislation delegates its power to various regulatory offices, such as the Chief District Officers (CDOs), to ensure effective administrative functioning and relieve the burden on the legislative body. Moreover, the legislation creates authoritative bindingness to other laws derived from it, rendering inconsistent laws void. Laws cover a wide range of aspects of society, including social, economic, environmental, and political domains. Specific laws and regulations address these aspects, such as the Social Reform Act, Town Development Act, Environmental Protection Act, and Political Parties Act. Therefore, legislation plays a crucial role in governing various spheres of Nepalese society and serves as the foundation for the legal system in Nepal.

Sources

1 Ishaan Saluja, ‘Analysis of Legislation as a source of law’, Legal Service India E-Journal, 2020.

2 Bare Law, ‘Austin’s Analytical Positivism’, Bare Law, 2019.

3 Pleaders, ‘Legislation as a source of Law’, Pleaders, 2019.

4 Constitution of Nepal.