Let’s look at Post-Legislative Scrutiny (PLS) as a progress report card of laws prepared after evaluating and analyzing legislation based on its performance en route to its expected objective. It is an effective tool for probing whether the legislation is operative and effectively adapting to the socio-cultural dynamics of society. Legislation is a very precise and objective document that should not be stagnant. It needs to be dynamic and adaptive to the socio-cultural time and realities, and this is exactly why the PLS needs to come into play. Primarily, PLS helps contextualize laws and keeps them synchronized with the changing reality. While this is a substantially accepted concept, is it limited to only contextualizing the existing laws and to legislation’s harmonization to meet its objectives. Diving into granular deconstruction it is not only limited to that, PLS also accounts for reviewing the executives’ performance in ensuring the legislation’s futility and legislation meeting its objectives. PLS definitely reflects the law-making and executing body’s capacity in terms of adapting to the changing dynamics and efficiency in updating laws to stay relevant.
Example of PLS for a larger Nepali context
To understand the poignant situation of PLS in our legislative mechanism let’s take the example of the first PLS to be ever done in Nepal which was on The Social Practices Reform Act 2033, a complacent act that was unperturbed by the social realities. The law includes provisions like criminalization of weddings hosted with more than 51 guests and bans extravagant decorations or gatherings that are a part of societal norms. This law for two decades remained free from any form of scrutiny standing with full legal authority but with zero social acceptance.
In light of this, PLS should have analyzed the legislation’s social perception and monitored its acceptance and adaptability along with any form of reluctance way back when it started becoming irrelevant. It highlights the situation legislation might face, shedding light on the importance of PLS to track the existing laws and giving them periodic report cards of their performance along with recommendations. This would help in repairing imperfections, and contextualizing laws that have failed the test of time through amendments, repeal, and introduction of new unified codes. The legislative realm and PLS have many expectations, but they remain unaltered which is evident as laws like—The Civil Service Act 2048, and the Police Act 2012 desperately waiting to be revisited.
Post legislative scrutiny is evolving into a global legislative bandwagon. However, PLS is in its blooming phase and navigating through to the social and legislative consciousness and is still facing challenges in implementation. To begin with, we are already falling short when it comes to prioritizing the PLS, additionally, its core being an advisory instrument, and not enforceable, highly hinders its easy adoption and giving it due consideration. A report by the legislative management committee in 2023 indicates that the implementation status of directions from PLS reports is mediocre. Similarly, the Law, Justice and Human Rights Committee of the House of Representatives has not shown satisfactory execution of its PLS findings. Nepal with its not-so-impressive trajectory when it comes to listening and acting upon the ‘advisory’ reports is rather underwhelming and since PLS is all about offering input and proposing recommendations in the absence of enforcement of the prevailing laws, it is rather treated with the lack of gravity than it deserves.
How can we bring PLS to the forefront?
We should embrace PLS as a core element of the legislative cycle and institutionalize it. In 2018, PLS was initially only under the scope of work of the National Assembly’s Legislative Management Committee. The committee then drafted and included—evaluation, study, and research on the implementation status of the Act under its work parameters, however, up until now, the protocol has been developed and given to the speaker but hasn’t been released yet. The process for assessing the state of law implementation must be decided by the speaker of the house. Understandably, the concept of PLS is new in Nepal however our legislative framework is taking longer than expected to familiarize.
However, the predominant issue here is that laws do not have mandatory PLS clauses. It is rather inconvenient and the hitch will proceed to last as long as we do not have a blanket PLS provision covering all the acts. As of now, only a dozen of the newly drafted laws include the provision of the relevant ministries evaluating the implementation of laws after five years from their enactment. Yet, PLS will not be in full working order unless the Bill relating to management of legislation 2080 takes effect as it also has a similar PLS provision that will blanketly apply to all the laws.
Hence, parliamentary practice in Nepal has been focused on legislating laws after a swamp of problems arose in a wholesale way with collective amendments through single acts, which is a legislative disaster on its own. If PLS were to be effectively implemented at regular intervals, this swamping legislation would be replaced by effective and proactive amendments or better laws.
Currently, only seven of the acts have been scrutinized at the federal level including full act PLS, partial provision scrutiny, regulation, and procedure review. Karnali and Lumibni provinces have started scrutinizing their laws too. We now also need proper communication channels within the tiers of parliament for the PLS coordination.
All three—Legislature, Executive, and Judiciary—should be involved in the PLS process and upskill all human resources engaged, especially in thematic PLS.
We may look at the UK as an example, the cabinet office has been providing ministries with comprehensive PLS assistance since March 2008, and in 2022, the Guide to Making Legislation was reprinted with PLS-specific instructions. The laws are mandatorily reviewed three to five years after receiving royal assent. The finest feature of the UK PLS model has to be its cooperative method that involves both the government and parliament in the process. This is something that can be adopted here too. From a practical standpoint, when it comes to law-making or proposing necessary amendments, it is the relevant ministry that sets the motion. However, there should be a clear distinction between the roles of each body involved as PLS is the primary responsibility of the legislature thus, the parliament and the committees should hold the ultimate authority concerning the final recommendation PLS report.
Similarly, the judiciary can also be involved and play a crucial role in driving the PLS efforts. The Legal Aid Act 2054 is a significant example. The act was in the shadows for a long time until judicial intervention pumped life into it but even after that, the law remains intact and there have been fewer concerns about its overall provisions. Although a notable step was taken by bringing forth the unified legal aid procedure 2078, is it monitored, and evaluated? and is the government effectively working to ensure people’s access to legal aid? A PLS could be a way to go.
