Law Implementation Matters In Democracy

In the federal architecture of Nepal, legislative bodies are institutionalised at three tiers of the government as envisaged in the federal constitution. The federal, provincial and local level legislative bodies are mandated by the constitution to formulate laws on the subjects enshrined in the respective schedules defined for the respective levels of the government. The constitution stipulates procedure for legislative function to ensure that laws are duly formulated with a recourse to procedure established by law after thorough deliberation in the law making forums concerned. Needless to say, the lawmaking process navigates through three phases namely pre-legislative, legislative and post-legislative stages. 

Especially in the pre-legislative and post legislative phases executive government occupies more space, holds dominance and does exercise authority not only in setting agenda, conceptualising law but in also formulating supplementary bylaws through resources allocation for implementation.  In the federal democratic dispensation, where separation of power has been more or less upheld, lawmaking prerogative resides in the legislature – parliament – legally while implementation of the laws enacted by the Parliament is carried out by the executive organ of the government.  Parliament enacts laws as the sovereign representative institution of the people. 

Deficiencies and shortcomings

But if legislative body is not mindful enough to keep vigil over the application of laws, many of the laws formulated by the Parliament may not be implemented by the executive organ of the government. In Nepal’s case, law making process is beset with several deficiencies and shortcomings which, among others, includes the shelving of the legislative bills in the House for long without due   discussion and deliberation, oftentimes leading to their losing of relevance, significance and legitimacy. More than a dozen bills have gone invalidated and made irrelevant in the last Parliament as the House had failed to discuss and ensure their passage and endorsement in due time.  Another deep seated malaise has been that the most of laws and legislations passed by the federal and provincial parliaments have gone unimplemented, thus failing to fulfill the purposes they were enacted for. 

This shows the ineffectiveness of the parliaments both in the federal and provincial levels elected according to the provisions of federal constitution. Parliaments devote a large part of their human and financial resources to the process of lawmaking. However, implementation of law thus enacted by the Parliament is often times overlooked and not given needed attention. Law application and enforcement is indeed a complex matter. It depends on the mobilisation, utilisation of ideas, expertise, resources and collaborative role of different actors as well as their commitment to the spirit and values enshrined in the legislations. Similarly, it also demands full-fledged coordination and cooperation among all actors and stakeholders involved.

It needs to be recognised that implementation does not happen immediately after the enactment of laws. Several aspects can affect the course of application. The factors affecting the application of laws include changes in facts on the ground, diversion of resources, deflection of goals, resistance from stakeholders and implementing actors and so on. Furthermore, implementation of legislation and policies may also be undermined by power asymmetries, exclusion, state capture by vested interests and well entrenched clientelism.

Despite these hindering factors, according to a resource book produced by the UK based Westminster Foundation for Democracy (WFD), some overarching reasons give rise to imperatives as to why parliaments should take upon the responsibility to monitor and scrutinise the implementation of legislation and hold the government to account if implementation is not accorded due attention and priority. Parliaments should assess the implementation of laws to ensure the requirements of democratic governance and legal certainty, ascertain barriers that adversely affect their application. This process is called post-legislative scrutiny (PLS) which is needed to support a consolidated system of appraisal for assessing how effective a law is at regulating and responding to problems, issues and needs. 

Moreover, the scrutiny is also necessary to effect and support improvements in legislative quality by learning from experience both in terms of what works and what does not. PLS, according to WFD resource book, is also required to look at whether the legal provisions of the law have been brought into force, how courts have interpreted the law and how legal practitioners and citizens have used the law. It thus looks at the impact of legislation; whether the intended policy objectives of the law have been met with special focus on effectiveness. When analysing the impact of legislation, one needs to consider the cumulative effect of legislation, as well as how the state of affairs within a policy area has been shaped by different pieces of legislation. 

Secondary legislation

Legislative impact is rarely the effect of one single piece of legislation. Hence it is useful to consider the cumulative effects of the legislative products concerned. Acts of parliament often grant ministries of the government powers to make delegated or secondary legislation. It is very much important to review secondary legislation at the same time as reviewing the parent legislation from which it owes its authority. This is particularly the case in Nepal where delegation legislations formulated by the ministries hold most of the provisions to give effect to primary legislation.

Parliamentary committees across all tiers of government should therefore take upon the task of scrutinising the effects of specific secondary legislation especially to look at their crosscutting impacts. It is imperative that the parliament, whether at the federal or provincial level, give serious thought to conduct post-legislative scrutiny to ensure that the lawmaking function it undertakes become useful and produces intended results and outcomes.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)