How are federal laws made in Nepal?

Bills on MCC, Citizenship and Guthi are a few of the examples in the recent past that displayed how lawmaking and politics intersect and can lead to constitutional and political conflicts.

But they also show that lawmaking is not an easy task, involving a complex procedure defined by a written set of rules. Outside the written set of rules, competing interests, ideologies and goals are usually at collision, making legislative work a time-consuming and challenging process.

During the stage of drafting a bill, a round of discussions takes place among the executive hierarchies and stakeholders. Another round of debates takes place among lawmakers when bills are presented in the parliament. A strong disagreement means high chances of political conflicts and maneuvers to block the passage of the bill leading to further delays in formulating a law. 

Only a few bills are passed by the parliament into law while some are not even discussed. Reportedly, some 61 bills languished in the last parliament before its tenure ended, some due to political turmoil that saw the dissolution of the House of Representatives twice leaving behind a heave of bills for discussion and endorsement. Those bills will now have to be reregistered in the new parliament that was formed last December.

But how are these bills drafted and then translated into laws in the first place?

A simple description of the pre-legislative, legislative and post-legislative phases of lawmaking:

The role of the federal parliament

Article 83 of the Constitution of Nepal states that Nepal shall have one federal parliament, bi-cameral in nature with two houses: the House of Representatives (also referred to as the lower house or HoR here) and the National Assembly (the upper house, or NA here).

These houses are primarily mandated with the responsibility to discuss proposed bills and enact them, basically making laws. These members of parliament who are the representatives of the people are often referred to as ‘lawmakers’.

Other than enacting laws, the federal parliaments also serve other key functions such as — i) forming government; discussing government plans and programs; parliamentary monitoring, hearing, and overseeing government performance; discussing and approving annual federal budget and ratifying international treaties. 

These houses have different thematic committees which undertake the tasks of discussing bills, providing oversight to the governmental businesses and maintaining many internal issues of the parliament.

Drafting a bill: A pre-legislative process
Before a bill is introduced in the legislative parliament, it goes through a thorough pre-legislative process.

First, there has to be recognition of the need to draft a bill which is done through policy identification and subject analysis. The concerned ministry or ministries then draft the bill in consultation with key stakeholders, experts, civil society organizations and Nepal Law Commission, through task forces or committees and then present it to the Ministry of Law, Justice and Parliamentary Affairs (MoLJPA) for their review.

Once the bill is approved by the Ministry, it must get approval in principle by the Council of Ministers. Thereafter, the bill is discussed in specific bill committees of the Council of Ministers, but it is not mandatory. The concerned ministry then sends the bill to the Federal Parliament Secretariat for registration.

Who can register a bill?
A bill can be registered either by the government or as a ‘private bill’ by any member and can be registered in either of the houses of parliament. A Bill can be an ‘Ordinary Bill’ or ‘Money Bill’.

‘Money bills’, for instance, the annual budget (raising revenue through taxes), shall be registered only at the HoR and by the executive body which is the government.

Money bills and ‘bills concerned with security bodies’ such as the Nepal Army, Nepal Police, and Armed Police Force shall only be introduced as Government Bills.

The practice of registering private bills is rare in the history of Nepal’s parliament. Bills on Legal Aid; National Human Rights and Health were a few of those rare examples which were even enacted into law later on. The bill on legal aid was registered in 1997. 

In the last parliament, only one private bill was registered — the regulation of the legal cannabis market but it failed to draw parliament’s attention.

Private bills are significant to draw attention to matters of public importance and counter the gaps in bills that are proposed at the parliament, for instance, in the case of restrictive laws. But lawmakers are usually reluctant to register bills on their own.

Lack of resources, skills and knowledge to draft a bill, the fact that it’s a time-consuming effort and because private bills usually receive lesser importance in the parliament are some of the reasons that contribute to the reluctance.

Registering a bill and parliamentary discussion: The legislative phase

The next step is to register a bill in the parliament. 

When registering a bill, a member has to notify the Secretary General of the parliamentary secretariat about the intention and explanation of the proposed bill along with a draft copy. 

All the members are given a copy of the draft bill two days prior to the date of presentation. Bill can be presented at any parliamentary meeting after seven days of registration. 

If a member opposes the bill, he/she can do this one day in advance of the date of the presentation. If opposed, both the members are given a chance to put their statements during a sitting discussion. 

In case no opposition is received, the bill is conceptually discussed in General Discussion. The member introducing the bill can motion the bill to be circulated to elicit public opinion. 

Once general discussions are finished, any member can propose amendments to the bill.

Any member can move the bill for clause-by-clause discussion in the house and can be sent to the concerned sectoral parliament committee. For NA, it is mandatory to discuss all the bills in the legislative committee. 

The committee can invite government agencies, experts, and stakeholders for clause-wise discussions on the bill for further consultation and opinion. The committee provides a report and discussions are held. If the report is accepted in the house, the bill is passed in the concerned house. 

What next?
The bill passed by one house is sent to the other for discussion. 

When a bill is initiated by the House of Representatives

When a bill is transmitted by HoR to the NA for suggestions/approvals, the NA has to return it within two months. For ‘Money bills’, the timeline is only fifteen days. 

The HoR is at the discretion to accept or reject the amendments proposed by NA. The HoR, with or without accepting the amendments or rejection, can pass the bill with the majority of the existing members, and forward it to the President for approval.

When the bill is initiated by the National Assembly

When a bill is transmitted by the NA to the HoR for suggestions/approval, the amendments made by the HoR have to be incorporated by the NA or HoR can also reject the bill. Again in practice, HoR is at the discretion of amendments or rejection, even when a bill is initiated by NA.

In case the NA does not agree with the rejection or the amendments by HoR, then discussions are carried out in a joint sitting of both houses.

President’s assent
Once a bill is passed, it is certified by the Speaker and then submitted to the President for authentication. 

Generally, the President has to assent to the bill within 15 days. If the President is of the opinion that a Bill except the Money Bill needs further consideration, then the President can send the message/opinion within 50 days of the presentation of the bill.

A bill becomes a law (Act) after the President gives assent to it.

Implementation — A Post-legislative phase

Once the law is enacted, it goes into implementation which is carried out by the executive bodies. After the law is enacted, the MoLJPA publishes it in the Nepal Gazette for public dissemination. Thereafter, the government is responsible for making required rules, regulations, working procedures and structural arrangements to enforce the law and carry out assessment on the implementation of the act and the achievement of policy objectives.