Enhance Legislative Accountability With PLS

The legislative process plays a preeminent role in ensuring the creation of robust laws that address societal needs and uphold democratic principles. However, the mere enactment of legislation is insufficient to guarantee its successful implementation and impact. In this case, post-legislative scrutiny (PLS) acts as the crucial mechanism for assessing the effectiveness and efficiency of laws after their enactment, enabling policymakers to evaluate their real-world impact and identify areas for improvements and necessary amendments. 

PLS is a concept that is associated with the evaluation of the implementation and effectiveness of a law by parliament after it has been passed and put into practice. It involves a thorough examination of how the legislation has been applied and whether it has achieved its intended objectives or not. It is a part of the broader legislative oversight process, which aims to hold the government accountable for the policies and laws it enacts.

 PLS in Nepal

Article 47 of the Constitution of Nepal stipulates that the state must enact laws within three years of the promulgation of the Constitution for the implementation and enforcement of the fundamental rights as guaranteed by the Constitution. In response to this mandate, 16 different laws were created on Ashoj 2, 2075. But the status of implementation of such laws, what effect and impact those laws have caused, and whether the laws have a substantial effect on the enjoyment of fundamental rights or not can be answered only through PLS.

The Constitution of Nepal, which resolves to build an egalitarian society based on the principle of proportional inclusion and participation, has provided that the commissions established under Part 27 shall be reviewed by the Parliament after ten years from the date of commencement of the constitution. This system of checking the validity and effectiveness of the constitutional provisions considered during the making of the Constitution seems to be related to the post-legislative examination.

The Civil Service Act, 2049 of Nepal, which is the umbrella law governing the administration of the civil service in Nepal, was amended in 2064. As per the amendment, when filling vacancies in the civil service through open competition, 45 per cent of the vacancies should be reserved for candidates from the protected groups. Among the reserved groups, 33 per cent should be allocated to women, 27 per cent to indigenous nationalities, 22 per cent to Madhesis, 9 per cent to Dalits, 5 per cent to the disabled, and 4 per cent to candidates from marginalized regions. The provision also states that the system of reservation should be reviewed every ten years in order to determine its effectiveness and make necessary adjustments to ensure its relevance. However, the review of the reservation policy has not been conducted yet.

 The Social Behaviour (Reform) Act 2033 is the most discussed yet unimplemented law in Nepal. The Legislation Management Committee submitted a report to the National Assembly on Shrawan 12, 2079, with eight policies and 15 legal suggestions to repeal the existing law and create a new law, stating that it is not possible to address the current situation of rapid development of information and communication technology and changes in the economic, political, and social sectors through this Act. The report suggested that although there is a Social Behaviour (Reform) Act, 2033, in Nepal, it has not been implemented, and it is necessary to make and implement a new law in a timely manner. Similarly, the report has been submitted to the National Assembly regarding the post-legislative scrutiny of the Infectious Diseases Act 2020 in Shrawan 12, 2079.

 The Law, Justice, and Human Rights Committee of the House of Representatives has examined the Caste-Based Discrimination and Untouchability (Offences and Punishments) Act, 2068, and presented suggestions in the year 2078 suggesting not to limit this Act only to preventing crimes but to undertake the eradication of caste-based discrimination as a fundamental responsibility. The legal provisions related to rape in Chapter 18 of the Muluki Criminal Code, 2074, have also been studied post-legislatively by this committee and recommended for improvement. The committee has also recommended six points for legal reforms, six points for structural reforms, four points for systemic and procedural reforms, and four points for other reforms. The major recommendations were that the definition of the crime of rape should be rewritten. In the definition of rape, it should be mentioned that if any kind of substance (solid, liquid, or any) is introduced inside the vagina, it is considered rape instead of the provision of introducing an object into the vagina being considered rape. The limitation on appearing before court for the offence of rape should be reconsidered. Similarly, the scope of rape victims should also be widened, and since rape can be against women, men, or any gender and sexual minority, legal arrangements should be made accordingly.

PLS is a prominent feature of UK parliamentary democracy. In the UK, the process of PLS primarily occurs through parliamentary committees. These committees can conduct inquiries, hold evidence sessions, and consult with stakeholders to gather information and insights about the legislation.

 Importance of PLS

The British Law Commission's report submitted to Parliament in October 2006 mentions the importance and reasons for the post-legislative scrutiny. According to the said report, legislation should be reviewed after it has been brought into force to see whether it is working out in practice as intended, and if not, to discover why and to address how any problems can be remedied quickly and cost-effectively. Generally, the parliament reflects the sentiments of the people into law. It formulates laws that cater to the requirements of the nation’s people. After the law is enacted, it is the responsibility of the executive branch to implement it. Though the implementation of laws falls under the jurisdiction of the executive branch, However, once laws are created through a thorough parliamentary process, it becomes crucial to assess whether the intended purpose behind these laws has been fulfilled or not. Therefore, PLS is the subject of the jurisdiction of the Parliament. The PLS is instrumental in holding the legislature more accountable as it scrutinises the laws that they have created.

 In a democracy, the opinions of the people hold significant importance and play a crucial role in shaping the laws of the nation. Unlike authoritarian regimes where decisions are made by a select few, a democratic system ensures that sovereign power ultimately rests in the hands of citizens. This empowerment is often manifested through voting, where individuals elect representatives to make decisions on their behalf. Through public discourse, debates, and consultations, citizens have the opportunity to voice their opinions on various matters, ranging from social issues to economic policies. This exchange of ideas enables lawmakers to gain insights into the diverse perspectives of their constituents, leading to more comprehensive and inclusive legislation. However, the process of enacting laws is just one part of the equation. The implementation and enforcement of these laws are equally essential. For this reason, post-legislative scrutiny emerges as an important mechanism for ensuring the effective execution of legislation. 

 Post-legislative scrutiny emerges as a vital aspect of the law-making process, acting as a potent tool to enhance legislative effectiveness and accountability. This practice ensures that laws remain relevant, efficient, and aligned with their intended objectives by subjecting enacted laws to rigorous evaluation and analysis after implementation. It allows for the identification of any unintended consequences or loopholes, fostering a continuous cycle of improvement and refinement. PLS, which involves reviewing and amending laws after they are enacted, allows legal frameworks to adapt to societal changes and emerging complexities. Embracing this process strengthens democracy by enabling the government to create just laws that keep pace with transformations in society.

(The author is a law student at Kathmandu School of Law.)