Identif icationa nd Prioritization oftf Laws Necessary or he Implementation otf he Constitution a nd t he Current Stateo f Law Making Government of Nepal Ministry of Law, Justice and Parliamentary Affairs Singha durbar Identif icationa nd Prioritization oftf Laws Necessary or he Implementation otf he Constitution a nd t he Current Stateo f Law Making Government of Nepal Ministry of Law, Justice and Parliamentary Affairs Singha durbar Page E Page G Page H Table of Contents 1. General introduction 1 2. Process of Formulation of Laws in Nepal 4 2.1. Process of Formulation of Act 4 2.2. Process of Formulation of Laws under Delegated Legislative Power 8 2.3. Process of formulation of Ordinance 8 2.4. Order to Remove Diffi culties 8 3. Formulation of Laws for the Implementation of Constitution of Nepal 10 3.1. Review of Existing Laws 10 3.2. Prioritization of Formulation of Laws to be Formulated as per the Constitution of Nepal 11 4. Initiatives for Law Formulation for the Implementation of Constitution and Present Situation 13 4.1. Bills Passed by the Legislature Parliament 14 4.2. Bills tabled at the Legislature Parliament since the promulgation of the constitution 15 4.3. Bills with ready drafts 17 4.4. Subjects approved in principle 18 Schedules Schedules 1: Details of the Subjects of Laws to be Formulated as per the Constitution of Nepal 22 Schedule 2: Existing Acts to be Revised and Amended in relation to the Constitution of Nepal 40 1 General Introduction As the seventh constitution in the history of constitutional development in Nepal, the Constitution of Nepal was promulgated on September 20, 2015 by the Constituent Assembly. Th e constitution has transformed Nepal from a unitary state into federal republican state. Th e new constitution consolidates the multiparty system, fundamental rights and social justice, adult franchise, independent judiciary and social inclusion to usher in the economic prosperity and development in the country. Th ere is a need to formulate various laws in order to enforce over one-third of the Articles of the new constitution. Many fundamental rights guaranteed by the constitution are enforced from the time of the proclamation of the constitution whereas a few of them will require formulation of laws for their enforcement. Th e constitution stipulates that the laws needed to implement fundamental rights should be enacted within three years. It has laid down parliamentary monitoring to examine the progressive enforcement of the directive principles of the state, policies and obligations. It has ensured participation of at least 33 percent of women in federal parliament and state assembly. Th e constitution has embraced the civil and political rights, economic, social and cultural rights and the principle of social inclusion along with federal structure. As such, the Ministry of Law, Justice and Parliamentary Aff airs (hereafter referred to as Law Ministry) has identifi ed the need to formulate federal laws on 110 issues; state laws on 22 issues; and local level laws on 6 issues. Th e detail description of these issues/subjects is given in Schedule – 1. Th e Constitution of Nepal has divided the structure of state and powers of state into three levels. Th e main structure of the republic of Nepal has been divided into federal, state and local level. Besides, it has also provided for special, protected and autonomous regions to ensure social, cultural and economic development. Likewise, the powers of the state can now be exercised from federal, state or local level. Th e Constitution of Nepal has recognized the local level as an important interface with the local people and has provided for corresponding structures, procedures and rights. Th e Schedule-6 of the Constitution provides for the list of state power and the Schedules 7 and 9 provide for the concurrent list of powers. Page 1 Th e constitution has embraced the ideology of optimum utilization of available resources to attain rapid economic growth, and the judicious distribution of the fruits of economic development by ending inequalities and off ering the state resources to all by ensuring equal opportunity and access. In order to translate the development goals of the constitution into reality, the center, states and local level bodies will need to carry out their programs in a coordinated manner. To build a foundation for their development activities, necessary legal provisions will have to be made for all the three levels. Such legal provisions are must to implement the principle of proportional inclusion provided for by the constitution and to attain development goals. In the new constitutional order, the power to formulate laws has been divided into federal, state and local level. All three levels can formulate and implement laws related to their competence. Th e center has the power to formulate necessary laws related to subjects in its list and in the concurrent list. Likewise, the center also has the residuary power to formulate laws related to any subject not in any list of powers for center, state or local level bodies. State and local bodies can formulate laws related to subjects in their respective lists. States can formulate laws related to subject in the concurrent list of power for states and center by ensuring that such laws do not contravene federal laws. Similarly, local level bodies can formulate laws related to subject in the concurrent list of power for center, state and local level by ensuring that such laws do not contravene federal or state laws. Such is the manner in which the legislative powers have been divided among the center, state and local level bodies. Apart from formulating laws for the implementation of the constitution, there is also the need to revise the laws that were formulated before this constitution was promulgated. Th e Article 304 of the constitution states that the laws in force at the time of commencement of this Constitution shall continue to be in force until such laws are repealed or amended; and that any law which is inconsistent with this Constitution shall be invalid to the extent of such inconsistency, after one year of the date on which the fi rst session of the Federal Parliament is held. In this context, there is a need to make existing over 315 Acts and around 270 Rules compatible with the constitution. Likewise, the Article 47 of the constitution determines that necessary laws related to implementation of fundamental rights should be formulated within three years. Th e Constitution of Nepal considers that the period till January 21, 2018 shall be a transitional period. Th erefore, in order to complete the elections of local level, states and federal parliament within that period and to provide for necessary legal foundation, the government of Nepal has accorded top priority to formulation of laws. Th e Ministry of Law declared the year following the promulgation of the constitution as the year of making laws and is working hard to identify, prioritize, coordinate and cooperate in the formulation of laws necessary for the implementation of constitution. Concerns have also been raised by general public, civil society, media and others regarding the timely conclusion of transitional period by implementing the constitution. Since the center, state and local level structures are not in place as envisaged by the constitution and since the federal parliament, state assembly, village assembly and municipal assembly have not yet been created, the transformed Legislature Parliament will be responsible for making laws as per the Article 296 (1) of the constitution till they are created. Th e Constitution has clearly specifi ed that the Language Commission and High Courts need to be formed within one year of its promulgation. As per this specifi cation, the Language Commission and High Courts have been formed. Likewise, in order to operationalize the fundamental rights guaranteed by the constitution, it has specifi ed that necessary laws must be formulated within Page 2 three years. Th ere is a clear need to formulate laws related to the elections of the federal parliament, state assembly and local level; laws related to competence of local level bodies; laws related to distribution of revenue; and laws related to new constitutional commissions within this transitional period. Although the Ministry of Law will support all activities related to law formulation, it does not formulate all the laws by itself. According to the Government of Nepal (Allocation of Business) Rules 2015, the Ministries of the Government of Nepal will need to initiate the process of formulation of laws related to their area of business. In fact, various agencies and organs of the state are involved in the various stages of formulation of laws such as principle approval, preparation of draft, solicitation of feedbacks/suggestions on the draft from diff erent agencies and stakeholders, revision of draft, approval, tabling in the parliament, presenting in the parliament, discussions, amendments, approval, authentication by the president and publication in the Gazette by Ministry of Law. Th erefore, this book has been prepared and published based on the feedbacks received by the Ministry of Law from various sectors and with the objective of supporting the implementation of the constitution by providing brief overview of the process of formulation of laws, informing about the responsibilities of various agencies in the formulation of laws for the implementation of constitution, and providing updated information about the subjects of laws that need to be formulated and the current state of the aff airs in this matter. Page 3 Process of Formulation of 2 Laws in Nepal Th e process of legislation can be understood both narrowly or broadly. In narrow terms, it means formulation of Acts.