"Law plays a pivotal role in the development process of Nepal"

RAJENDRA KISHORE KSHATRI, secretary at the Nepal Law Commission

May 12, 2013, 5:45 p.m. Published in Magazine Issue: Vol: 06 No. -22 May. 10- 2013 (Baishakh, 2070)

At a time when Nepal has been in the process of political, social and legal transition, Nepal Law Commission is making efforts to reach to broader stake holders. RAJENDRA KISHORE KSHATRI, secretary at the Nepal Law Commission, spoke to New Spotlight on various issues. Excerpts:

What Nepal Law Commission does?

Generally, the Commission advances law reform proposals, systematic review of the law on any aspects of Nepalese Laws and makes recommendations for reform and development of the law. It also recommends on ways to make the law as fair, simple, understandable and accessible to all. The Commission is headed by a Chairman and supported by a Vice-chairman and three part-time Members. Apart from them there are three ex-officio members in the Commission represented from the Cabinet Secretariat, Ministry of Law and Justice and the Office of the Attorney General. The Commission is supported by the staffs of the Law Commission, who are civil servants and led by a Secretary, who works as a Member-Secretary to the Commission. Nepal Law Commission was specially made in 1953 and consecutively thereafter the second, third, fourth and fifth Commissions were constituted in 1960, 1963, 1972 and 1979 respectively as an ad hoc body institute. Nepal Law Commission being a statutory body is established under Nepal Law Commission Act, 2063. It is a non-departmental public body which gives it a degree of autonomy; nonetheless it is a part of the family of the Government of Nepal.

What is the basic objective of the Commission?

The Commission is responsible to take the lead on legal drafting of the sectoral legislations of the government line ministries and departments in order to make coherent and principle based laws to have confidence in the integrity of our legal system. The prime objective of the Commission is to improve the quality, relevance and effectiveness of Nepalese law. The Commission believes that an interesting way to begin with is to collect and consider views and priorities from all stakeholders affected.

What are the mandates and functions of Commission?

The Commission has been given explicit mandate for its required functioning as a permanent law making body. The principal statutory functions of the Commission under Section 10 of the Nepal Law Commission Act, 2063, among others, are to: initiate proposals for the review, reform or development of any aspect of law in a systematic way; initiate, sponsor and carryout studies and research for the development and reform of laws together with contemporary issues of justice; conduct and initiate public debate and consultation in the law reform process; give priority and focus in setting and applying standards for quality legislation; advise and assist government departments for review, reform and development of sectoral legislations;  undertake to consolidate areas of law and integrate statutory laws;  suggest the government for the inclusion of covenants of international treaties and agreements, on which Nepal is a party; recommend and advise the government for development and reform of laws; provide and submit certain draft legislations along with explanatory notes before the government; and deliver its annual progress report to the Government of Nepal within sixty days of the expiry of every fiscal year.

Apart from the above, the Commission is also responsible for follow-up action on its delivered recommendations. In addition to the above, the Office of Prime Minister and Council of Ministers, responding on the request of Nepal Law Commission to activate and implement the provision of Section 21 of the Nepal Law Commission Act, 2063, issued a circular on 21 November 2012 to all its functional line agencies to acknowledge the status of Nepal Law Commission, as an independent law reform organization and to mandatorily consult the Commission for all related law reform project if that fall within one of the following criteria:

i. If the subject is related or would be related to various government agencies and professional groups' benefit and interest;

ii.  If the subject is substantively lies with long term government commitment or has long term effect;

iii. If the subject is related to the requirement of fundamental review of any prevailing laws;

iv. If the subject is of complex legality or requires extensive public or professional consultation;

v. If the subject of law is to be devised independently from any ministry or any central level organization of the government; and

vi.If the subject is fairly legal and juridical or that requires to be made within the basis of independent role.

What other works Nepal Law Commission does?

Although, the Commission has no specific statutory obligation to collect and disseminate information on Nepalese laws; nevertheless, it took a proactive role to make available the free access on Nepalese laws to the general public through from its website: www.lawcommission.gov.np. Older reports and consultation papers are also available through the Commission's Documentation Centre or can be supplied electronically on request. The Commission is now working to make its website more secured and reliable. For this purpose the Commission is giving priority to upgrade, update and to make its website interactive to make it readers' friendly. The Commission encourages readers' comments and responses.

What other roles it do?

Generally the Commission does not provide any legal opinion. Nevertheless, the Commission as the role entrusted on it, it leads and promotes debate on, and make recommendations for the reform of existing law, through which it promotes and supports quality standards in the development of new legislation and deliver a broader advisory function to the Government. As a matter of fact, the Commission provides legal and policy advice to the Government following the referral of any specific legislation. The Commission contributes to the development of associated Cabinet papers and draft legislation, with the administering department, and provides legal advice on an ad hoc basis in response to specific requests from Cabinet Committees, specifically to the Legislative Committee in particular.

What are the challenges before the commission?

It is now obvious that law plays a pivotal role in the development process of Nepal. The legal reform and its content must be confirmed with the country's needs. Considering the major political shift in Nepal, the Commission has had an essential role in guiding and legitimizing the process of change. Nepal still needs to move strategically and there is an ample area wherein establishment of rule of law is essential. In the absence of law it is just impossible to create a climate of stability and predictability. Only the rule of law can provide credibility to commitments on the part of the Government of Nepal, and reliability and enforceability to applicable rules. The Commission, now therefore, has the lead role to play in order to prove how law may be utilized to achieve economic revival and sustainable development in the country.

How do you see legal drafting process?

Every step of the legislative drafting process is about teamwork. It requires multiple analytical tools and capabilities from different disciplines as well as well-rooted skills and values for collaboration, participation and transparency. The Office of Prime Minister and Council of Ministers has a central coordination role to play with respect to the government’s legislative agenda, with which the Commission feels it urgent to work closely with it. The Commission has been giving continued priority in setting up a multidisciplinary team consisting of drafters, policy developers, litigators and legal counsel together with required experts specialized in the subject area, to ensure that all aspects of the question of law and policy are duly taken into consideration.

 

What are the modalities of Commission?

The Commission establishes connections with a wide range of professional and community groups that will be interested in a variety of projects. The Commission believes that the process of legal reform must ensure that the content of a law must respond to genuine social needs, reflect a pre-existing or emerging public opinion based on adequate data and studies and result from some form of participation, especially by those likely to be affected by them. If these processes are not considered seriously, confidence in the legal system will suffer.

How is the relation of Commission with other agencies in Nepal or abroad?

The Commission focuses and believes on both internal and external working relationship in building appropriate legal regime. The Commission is much focused now to work in a partnership between the Parliament, Supreme Court, Attorney General, law schools, law society and in some instance general public of the country. The Commission is entrusted to recommend law reform measures to enhance the legal system’s relevance, effectiveness and accessibility; improve the administration of justice through the clarification and simplification of the law. The Commission may jointly review judicial administration to ensure that delays are eliminated, arrears are cleared and disposal of cases is quick and cost-effective without forgoing the fundamental principle of justice and fairness. The Commission is now working to establish strong links with a wide range of organizations and individuals who have an interest in law reform, and greatly values these relationships. Apart from this the Commission wishes to establish contacts with the other law commissions in general and law commissions within the SAARC region in particular.

How is the relation of the Commission with donor communities in Nepal?

Given the complexity and interdisciplinary nature of the Law Commission's work, a heavy reliance on teamwork and extensive partnerships (in both knowledge sharing, operational and promotional work) with donor communities, INGOs, NGOs, the private sector, and local experts are required. The Commission at this point of time focuses on governance in its on service delivery through enhanced capacity building. For that purpose it may need to even work on reorganizing the present Law Commission to fit for all its delivery including its law reform agenda. The agenda is to continue to foster these changes through the advancement of analytic tools, new approaches to the design of project identification and selection and required stakeholder consultations and expanded emphasis on partnership with donor communities, and progressive shifts in staffing, incentives, and evaluation techniques in pre and post Bill preparation. To be effective, the Commission is ready to work with our potential partners to understand and address the broad range of incentives both inside and outside of government—that affect the overall law reform work of the Commission. The Law Commission needs to work harder across all sectoral legislations to identify reform options that are feasible and can be readily implemented on the ground.

How Commission can address the social and cultural issue?

The Commission now views that its activities should bring about broader social and cultural change. It is important that the approach of the Commission must take account of views and experiences of those affected by law. While devising law reliance only on legal concepts, structures and recommendations will fail and that would not benefit the public at large. The knowledge of external bodies and methods of analysis as well as recommendations are imperative for the Commission if it is to make a contribution to the wider notion of legal system as such. For this purpose the Commission will solicit round the year a written law reform proposal seeking involvement of the Commission for consideration. While doing so the proponent will be asked to identify the specific issue to be studied and explain the adverse consequences of the current law or the effect of having no law. A detail of the solicitation will be developed for the public information shortly.

How do you see the community law reform program?

The Commission wishes to launch a Community Law Reform Program as its new scheme to address difficulties and complexities within the community created by the presence or absence of the law. Members of the community and community organizations will be invited to contact the Commission and make suggestions about the area of the law that they think need to be changed or otherwise devised. Apart from this, matters coming to the Commission's attention through the media will also be considered as part of the Community Law Reform Program. The complaints or suggestions received from individuals through the "HELLO GOVERNMENT PROGRAM" could be referred before the Commission by concerned authority, if the complaints or suggestions so received are related to the issues of law reform. It will also link this scheme to contribute to an ongoing societal conversation about law reform. We do not, however, deliver our services directly to the community.

What role the Commission has been playing in the context of legal research?

The Commission is the only one permanent legal research academia in the country. However, the functioning to that direction was not that apposite. In fact, the Commission itself or with joint effort can stimulate critical legal debate; and study areas that are underserved by other research. The Commission looks to the stakeholders and their expert knowledge to assist it in ensuring that all the relevant issues are identified and that the problems that exist would be resolved in the most appropriate way. For this purpose consultation papers will be prepared by the Commission to solicit input for possible reform of the law and distributed to stakeholders for comment, as well as posted on its website. Based on the Commission’s independent research, including the responses from the stakeholders, the Commission will prepare recommendations for legislative action.

How do you see the delegated legislation?

This is in fact a fairly new scheme, the Commission wish to initiate one of its law reform programs on delegated legislation. Delegating legislation allows law to be made more quickly than Parliament, which is vital for times of emergency. As a matter of fact delegated legislation can be amended or revoked relatively easily, so that the law can be kept up to date illustrating a great deal of flexibility in the system. But there are reasons to control over delegated legislation.

There are many instances wherein delegated legislation is made by non-elected bodies as a result many people have the power to pass delegated legislation, which have been framed offensive and unreasonable legislation. Although there is a mechanism in the Parliamentary Committee, but that is not very effective due to many reasons including the time constraints. In order to control delegated legislation to be unreasonable such legislation be scrutinized by the Commission before such legislation come into force. Similarly all government line agencies, who are responsible to implement the concerned legislation must asked to submit their concerns, disquiets before the Commission twice a year that will help the concern agencies to record their experience and similarly allow the Commission to understand the basic apprehension for law reform

How do you see the success of the Commission?

There is, however, no formal assessment being made on the substantial outcome of the Commission and on the process and procedure so far adopted by the Commission. There is no doubt that the Commission plays a crucial role in supporting the rule of law in Nepal. Changing social behaviors and expectations usually demand examination in the areas of law that governs the life of the people. In this situation, since there is no option, the Government must continues to hold the Commission’s work in high regard and remains committed to law reform. Therefore, it is essential that the Commission must be supported wholeheartedly in its continuing work to make the law clear, accessible and fit for our competitive world, which at this juncture is warranted.

What is lacking?

At present the Commission lacks considerably the required budget, physical facilities and just right number of staffing. The Commission does not have its own office building would represents how the Commission has been treated so far despite its fundamental and vital role in the governance.

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