Forms and Functioning of The Parliament: Reformed Parliamentary Practices of Nepal

Forms and Functioning of the Parliament: Specific
Context of reformed parliamentary system in Nepal
-Khimlal Devkota, CA member, Senior Advocate
Abstract:
The purpose of the paper is to try to present a picture of the current understanding of the
parliament. How the highest body of peoples' representative plays the role in their respective
countries and political systems adopted. The main focus of the paper is to examine the role and
function of the parliament along with comparative study. Based on their current status, the study
can reveal perspectives and challenges they have faced in their parts of the world. In the specific
context of Nepal, the country has adopted a reformed parliamentary system. The constitution of
Nepal has envisaged a parliament, which is beyond the conventional one. The pertinent question
raised in this article is whether the parliament is reformed in terms of law making process or
deliberation or oversight functions or others?
The paper is mainly based on available texts and materials as well as some practical experiences
comparing with British parliamentary practices. Outcome of the paper will include some
recommendations of reform in the essence of the parliamentary practices.
Keywords: Parliament, law making, deliberation, Oversight, legislative scrutiny and

deliberation.
Background of the study:

The main objective of the study is to explore current status of parliamentary practices around the
world. Nepali politicians have claimed the constitution is in line of reformed parliamentary
practices basically to fulfill the purpose of the political stability. My research question is does it
really bring about reform in both principle and practice? The article attempts to find right
answers from features of Nepalese parliamentary system focusing principally on the parliament-
Forms and Functioning of the Parliament: Specific context of reformed parliamentary system in Nepal by Khimlal Devkota
HOR and the National Assembly. The House of Representative and their specific roles are
discussion in no confidence motion, parliamentary hearing of constitutional appointment,
engaging in law making process, several functions through committee system on oversight
functions and interrelationship among them.
The paper tries to reach a correct conclusion based on available literature, archival documents
and formal and informal discussion with concerned stakeholders and in comparison with the
conventional principles and practices of United Kingdom.
Introduction: Forms of parliament:

Although Parliament is constantly in the news and televised daily, much of its work remains a
mystery to outsiders and is sometimes perplexing even to its own members [ CITATION Wal06 \l
1033 ]. The paradox of our times is that we hail the victory of democracy while lamenting the fact
that in many countries parliament - the central institution of democracy - is facing a crisis of
legitimacy. The executive branch dominates the agenda, international cooperation and
globalization have led to decision making that lacks democratic control, and people question
whether current political processes are really able to produce parliaments that can represent their
interests in all their diversity (Beetham, 2007). In this situation we have to answer what
parliament is? The simple answer is it is the highest body of people’s representative. In modern
politics and history, a parliament is a Legislative body of the state. Generally, a modern
parliament has three functions: representing the peoples, making laws, and overseeing the
government via hearings and inquiries. Very recently scrutiny1 functions have been added as new
practices of the parliament. Philosophy of parliament is people’s representation. There are
different kinds of parliament. The kind of parliament with constitutional monarch always has the
monarch as the head of the state and head of the government is always from the member of the
parliament like in the UK, Sweden, Denmark and Japan. It is completely different than
presidential system where there is a president instead of monarch. In republic the head of the
government and the head of the state can also be same person. If they are not, then the head of
the state will be a ceremonial position and the head of the government will always be responsible
to the parliament. In terms of chambers if parliament is bicameral head of the government is
1
Devkota, Khimlal. Paper presented Legislative Scrutiny in Nepal with international Experiences at Federal
Parliament organized by Legislative Management Committee, National Assembly, 2018,Kathmandu
elected from the lower house. In parliamentary system there is not much difference with
monarchy or single or bicameral houses. Forms are not more important than essence. Therefore
parliamentary system runs by its principles. It is always accountable to the parliament as a
sovereign and people’s representative’s body.
There are different practices around the world. In the African continent, South Africa 2 and
Botswana3 have similar practices, where the parliament elects the president who appoints the
cabinet. In Somalia parliament elects the president who appoints the prime minister. Canadian4
practice is different than the African one, the leaders of the political party that has the support of
a majority in the House of Commons of Canada is appointed Prime Minister of Canada by the
Governor General of Canada, who then appoints the Cabinet of Canada on the advice of the
Prime Minister(Canada, Canada, & Canada, 2012). In Asian countries parliamentary practices
are slightly different. President of India appoints the leader of the political party or alliance that
has the support of a majority in the Lok Sabha as Prime Minister of India, who then forms the
Union Council of Ministers(Coi_part_full.pdf, n.d.). However in Japan National Diet nominates
the Prime Minister who appoints Cabinets of Japan(Japan_1946). In Thailand the Monarch
appoints the MP nominated by the House of Representatives usually the leader of the largest
party or coalition as Prime Minister, who forms the Cabinet of Thailand(Thailand_2017). But
current junta, the appointee is nominated by the National Legislative Assembly. In Pakistan the
parliament of Pakistan appoints the cabinet of Pakistan 5. European and Nordic countries have
different practice. In Denmark, the Monarch appoints, based on recommendations from the
leaders of the parties in Danish Parliament called Folketinget, the cabinet leader who is most
likely to successfully assemble a Cabinet which will not be disapproved by a majority in Danish
Parliament6. Finland parliament appoints the Cabinet of Finland. However in Germany, German
Federal Parliament Bundestag elects the Federal Chancellor (after nomination from the President
of Germany), who forms the Cabinet. Sweden has different provision in constitution. The
Riksdag is the foremost representative of the people. The Riksdag enacts the laws, determines
State taxes and decides how State funds shall be employed. The Riksdag shall examine the
2
The Constitution of Republic of South Africa, 1996.
3
The Constitution of Botswana, part II article 42[3]
4
A Consolidation of the Constitution Acts, 1867 to 1982 part III article 14.
5
The Constitution of Islamic Republic of Pakistan 1956
6
The Constitutional Act of Denmark of June 5, 1953.
government and administration of the Realm(Sweden_2012).In Norway, the Monarch appoints
the MP leading the largest party or coalition in Norwegian Parliament called Stortinget, as Prime
Minister, who forms the Cabinet. According to the Australian Constitution, the leader of the
political party that has the support of a majority in the Australian House of Representatives is
appointed Prime Minister of Australia by the Governor General of Australia, who then appoints
the Cabinet of Australia on the advice of the Prime Minister(Australia & Australian Government
Solicitor, 2016). In New Zealand, Leader of the political party that has the support of a majority
in the New Zealand House of Representatives is appointed Prime Minister of New Zealand by
the Governor General of New Zealand, who then appoints the Cabinet of New Zealand on the
advice of the Prime Minister(New_Zealand_2014). United Kingdom, the mother of
parliamentary system has different tradition. The monarch appoints the MP leading the largest
party or coalition in the House of Commons as Prime Minister, who forms the Cabinet.
In Nepal, the president appoints the Member of the House of Representatives as the Prime
Minister who is a leader of the parliamentary party who hold the majority solely or leads the
coalition in the parliament. According to the constitution of Nepal “the President shall appoint
the leader of a parliamentary party that commands majority in the House of Representatives as
the Prime Minister, and the Council of Ministers shall be constituted under his or her
chairpersonship. In cases where no party has a clear majority in the House of Representatives,
the President shall appoint as the Prime Minister a member of the House of Representatives who
can command majority with the support of two or more parties representing to the House of
Representatives.”(Constitution of Nepal 2015, n.d., p. 53).
Origin of the Parliament:

In 14th century the term parliament was derived from the term of French parliament, which
means to talk. Originally, the term referring to any discussion, conversation or negotiation
through various kinds of deliberation summoned by the then Monarch. The term legislature
referred to deliberative or judicial groups, often summoned by a monarch. By the 15th century,
in Britain, it had come to specifically mean the legislature. Since ancient times, when societies
were tribal, headman custom was in practice. The word parliament comes from the French word
parler, meaning ‘to talk’7 and There is evidence that citizens’ assemblies were held in ancient
Mesopotamia as far back as 2500 BC(Closer Look: A short history of Parliament, n.d.)
England is a mother of parliamentary system, therefore, a writer of a book on short history of

parliament writes “OTHER states today have second-chamber problems: whether there should be
a second chamber at all, and if so, what its powers should be, etc. But Britain, it should be
remembered, has no written constitution, no judicial review. Parliamentary sovereignty in
modern times extends even to the power to amend the frame of government. Thus the Lords may
play a useful role in the use of the suspensory veto to check hasty or radical legislation. As an
assembly of the king’s vassals in feudal days, the Lords, of course, have a much longer history
than the Commons. Only gradually did that...” (THOMPSON, F. 1953).
The democratic political history of Nepal is Parliamentary system. Presently, Nepal has the
Federal Parliament including House of Representatives and National Assembly. The parliament
of Nepal is federal and supreme legislative body. It is a bicameral federal legislature that consists
of the National Assembly as the Upper House and the House of Representatives as the Lower
House.
After the success of the April 2006 people's movement, on January 15, 2007, the old parliament
was dissolved and replaced by the 330-member interim legislature of Nepal as per the Interim
constitution of Nepal.8 The Interim Constitution was promulgated by the legislature and a
constituent assembly election was held in April 2008. The 601-member assembly on 28 May
2008 abolished the 238-year-old monarchy and declared the country a republic 9. Both Interim-
Legislature parliament and Constituent Assembly were unicameral10. The second Constituent
Assembly was converted into legislative parliament of Nepal after the promulgation of the
constitution on September 20, 2015. The earlier unicameral house was replaced by bicameral
house along with the new constitution. According to the Constitution of Nepal 2015, Nepal has
two different chambers. The House of Representatives has 275 members elected for five year
term, 165 from single-seat constituencies and 110 from a proportional electoral system. The
National Assembly has 59 members elected for six years term. Among the 59 members three
7
https://www.peo.gov.au/uploads/peo/docs/closer-look/CloserLook_Short-History-of-Parliament.pdf
8
The Interim Constitution of Nepal, 2006.
9
As per the provision of the Interim Constitution the first meeting of the Constituent Assembly declared republic.
10
See The Interim Constitution of Nepal 2006.
members are nominated by the President. The remaining 56 are elected from 7 provinces equally
(Eight each) including 3 female 1 Dalits and 1 from differently-abled groups. 11 As per the
constitution, there shall be a Federal Legislature consisting of two Houses to be known as the
House of Representatives and the National Assembly, which shall be called as the Federal
Parliament.12
Indian constitution also mentions similar provision in the constitution as bicameral house.
Constitution of Parliament.—There shall be a Parliament for the Union which shall consist of the
President and two Houses to be known respectively as the Council of States and the House of the
People.13
Parliament is a supreme legislature with representation of the peoples at large. The supreme
legislative body the federal parliament use to deal with important public and national and
international policy matters. With these remarks it can be understood that the parliament plays
various roles in different capacities. The functions of the parliament are different based on
different forms of democracies. However, core roles are applied with same manner throughout
the world irrespective of the form of democracy adopted by a particular country.
Background Information:
Parliament is a popularly elected, representative political assembly that ensures responsiveness
and accountability of government to citizens by performing various political functions: such as
political debate making and breaking of government, debating in politics of national concerns,
debating and discussing government and nongovernmental legislations, discussing and debating
on budget and government policies its formulations and implementations and dually
representation of the peoples at large relating to governance. As a sovereign body of the country
sovereign peoples have handed over their power through election on behalf of the people.
Therefore, parliament has a variety of functions that are crucial to a democratic society. To
enable the effective discharge of these functions, parliament and its members have certain
powers, rights and immunities that are collectively called parliamentary “privileges.”
11
The Constitution of Nepal 2015 Articles 83, 84 and 86
12
The Constitution of Nepal 2015 Article 83
13
The Constitution of India Article 79
Functions and Roles of the Parliament:
In the age of rules of law it is considered that each and every functions of the society must
govern by the law. Parliament represent the people not only the person but also the spirit and
psychology of the masses of the people. Democratic society mainly mandated by the people’s
aspirations. Therefore the functions of the parliament are judged by the standard of people’s
mandate. The law making is a main business of the legislature. If so no matter law is good or bad
but it is considered the law made properly as per the mandate of the people? Is it made for the
welfare of the people or nation? In an open and democratic society, people are encouraged to
give their inputs to make sure that proposals for laws are carefully considered and materialized
for the people and the nation. In a representative democracy, when Parliament is sitting (having
meeting), MPs generally spend their time working in the parliament – whether it is unicameral or
bicameral. This includes raising issues affecting their constituents, attending debates and voting
on new laws.
The functions of Parliament include making laws, taking up a critical/inquisitorial role to check
on the actions and policies of the Government and scrutinizing the State's finances. 14 In
democratic countries such as South Africa, the legislature or Parliament plays a very important
role. The members of Parliament are elected to represent the people of the country. They also act
as the voice of the people. Parliament, therefore, is accountable to the people of South Africa.15
As per the website of the Malaysian parliament the functions of the parliament has been
described as followings,
“The primary functions of Parliament are to make laws, to represent the people, and to
provide scrutiny and oversight of government. 16 Parliament is the legislative authority for
the Federation and it enacts laws to be enforced nationwide. Parliament passes Federal
laws, makes amendments to existing Federal laws, examines the government’s policies,
approves the government’s expenditures and approves new taxes. Parliament also serves
as the forum to discuss matters of public interest. To enable Parliament to undertake its
responsibilities fully and effectively, the Constitution confers certain rights and legal
immunities under “Parliamentary Privileges” to Members of Parliament. Each House is
empowered to regulate its own procedure; each has exclusive control over its own
14
https://www.parliament.gov.sg/about-us/parliament-information/functions
15
https://www.parliament.gov.za/what-parliament-does
16
http://www.naurugov.nr/parliament-of-nauru/about-parliament/what-does-parliament-do.aspx
proceedings, the validity of which may not be questioned in any court; and each House
can penalize its members for breaches of the privilege or contempt of that House. In
general, Members of Parliament individually enjoy immunity from civil and criminal
proceedings in respect of things said or done by them in Parliamentary proceedings.”17
Law-making:
Of course, Parliament is the supreme legislative body of a state as well as a major organ
of the state. The formal and legal bodies, where elected representatives assemble, debate
and pass new laws, or amend the existing laws. Most important function of the parliament
is law making. The constitution is considered as the fundamental law of the land. Where
there is a tradition of written constitution, it is also made and amended by the parliament
as per the rules of procedure of the parliament. Most of the parliament practices two types
of bills - government and private bill. Mostly money bill and bills relating to the security
forces are considered as government bill, which can be tabled and moved forward only
by the government. Except money and security bill, any individual Member of Parliament
[MP] can table and move forward any bill in the parliament. According to the
constitution of Nepal, ”A Money Bill and a Bill concerning a security body including the
Nepal Army, Nepal Police and Armed Police Force, Nepal shall be introduced only as a
Government Bill”(Constitution of Nepal 2015), (interim_constitution_of_nepal_2007).
Subject to the provisions of articles 109 and 117 with respect to Money Bills and other
financial Bills, a Bill may originate in either House of Parliament(Coi_part_full.pdf,
n.d.). About the law making process there are different traditions in practice. In some of
the countries governments take initiatives, however in some other countries there is a
tradition whereby MPs take initiative to make the law and the title of the law is also
recognized by the name of the particular MP. When we are talking about authority we
need to understand Hobbes, Locks and Rousseau. It is a real unity of them all in one and
the same person, made by covenant of every man with every man, in such manner as if
every man should say to every man: I authorize and give up my right of governing myself
to this man, or to this assembly of men, on this condition; that thou gives up, thy right to
him, and authorize all his actions in like manner. This is why Thomas Hobbes, writes in
17
https://www.parlimen.gov.my/fungsi.html?uweb=p&lang=en
his famous book Leviathan,(n.d.).Since ancient age similar practices have been carried
out with some reform and update. In each and every parliamentary system the law
making processes are almost the same. Parliament is responsible to form government and
the tenure of the government depends on the trust of the parliament. Law making job is
exclusive right of the legislature but initiation has to be taken by the government. At first,
the government has to feel urgency of the law after research. If government reaches
conclusion that the existing laws are not sufficient to perform the task then with the
consent of the council of minister drafting process moves forward. After long and
rigorous process involving consultation with concerned stakeholders, the legislation will
be registered in the parliament. In most of the parliamentary system, money bill and bill
related with security are exclusive domains of the government whereas rest of the bill can
be registered by the individual MP. The whole law making and policy making through
parliament is within the core understanding of parliamentary sovereignty. This is
borrowed from British constitutional principles debated as followings:
“The idea of Parliamentary sovereignty is considered as a constitutional theory in

British tradition. Two general explanations for this idea are considered: firstly,
that the existence of a sovereign entity is a conceptually necessary precondition
for the existence of a state or constitution; secondly, that Parliament is sovereign,
if it is, in virtue of a rule of recognition whose existence and content may be
empirically determined.”(Lakin, 2008).
Many people are very critical about parliamentary sovereignty by saying that
parliamentarians are imprisoned by doctrine of sovereignty .Jeffrey Goldsworthy's book,
Parliamentary Sovereignty: Contemporary Debates offers a modern defense of the
doctrine of parliamentary sovereignty. But it fails to offer a sufficiently clear
interpretation of the statement that Parliament can do anything except limit its powers, a
statement open to many different interpretations (Bogdanor, 2012).
In the context of the reformed parliamentary practices of Nepal, most of the legislations
have been drafting by the government authority. Of the provision about private bill in the
constitution has been rarely used. With majority in the parliament, there is rare chance of
government bill failing in the parliament - which means the right of legislation has
unknowingly shifted towards executive which is not reformed.
Budget Making:
Concept: No taxation without representation is a famous statement of the parliamentary
system originating from England. Government executes the purse but is mandated by the
parliament. No doubt executive controls the money, allocates the budget and spends it as
per their plan but approval has to be sought from the parliament. Parliament is a people’s
representative; thus, without approval from the people nothing can be done and any such
thing done without the approval from the parliament can be called null and void.
According to OECD Principles of Budgetary Governance “the budget is a contract
between citizens and state, showing how resources are raised and allocated for the
delivery of public services. Such a document must be clear, transparent and credible if it
is to command trust, and to serve as a basis of accountability.” 18 According to World
Bank Group study, trade-offs and prioritization among programs must be made to ensure
that the budget fits government policies and priorities. Next, the most cost-effective
variants must be selected. Finally, means of increasing operational efficiency in
government must be sought. None of these can be accomplished unless financial
constraints are built into the process from the very start.”
Process: The process of money bill is quite different than other bill. Money bill is
presented only by the government based on policy and program of the government.
Different countries follow different traditions. In the phase of pre-budget discussions,
priorities and principles are focused. The tradition started because of the legislative
process of the parliament. In Legislative process there is always a chance to put-forward
the amendment; however money bill is an exception. Money bill will be effective then
and there. Therefore, in the legislative process of money bill there will be no chance to
move amendment likes in others bills. However, as a gesture, one can register theoretical
reservation. This is a unique nature of amendment system of money bill.
18
Draft recommendation of the OECD council on principles of budgetary governance 2014
According to the constitution of Nepal, Money bill is considered as a privilege of the
executive. As per constitutional provision of article 110(2), A Money Bill and a Bill
concerning a security body including the Nepal Army, Nepal Police and Armed Police
Force, Nepal shall be introduced only as a Government Bill. Again, the principle of no
taxation without representation also has been violated impliedly.
Deliberation:
Concept: Another major task of the parliament is deliberation. Parliament is a sovereign
body elected by the sovereign people. Individual parliamentarian represents the people in
the name of voters in the parliament. Peoples' voices have to be reflected in the
parliament as the true exercise of people’s sovereignty. Deliberation in parliaments
aspires to convey to public the justification to general norms mandatory for all.
Deliberative theory looks at the normative and empirical implications of this institutional
role. In deliberative theory, parliamentary debates are supposed to transform the political
discourse of the public sphere into a more controlled forum (Tschentscher, Bächtiger,
Steiner, & Steenbergen, 2010). The objective of the deliberation in the parliament are to
make sure that people’s demands and voices are taken into account by the Government,
to make sure it an appropriate and legitimate forum for discussion on the public issues
that represents the masses of the people. People at large are eagerly waiting to listen and
see their representative in the parliament. It is a forum to make sure that parties in
parliament duly attempt to reflect the people’s voices. Representation in parliament is
not only a formal business it is beyond that. Some of the emotional things also will be
vested on. Each and every individual MP attempts to represent the people in their
constituency, with their language, traditions, culture, and their own communities. Once
people’s aspirations reflect in vote and next time will be beyond that. It means they are
looking for their caste, communities and regions, whether they voted for them or not. The
discourse quality of parliamentary debates is not the only criterion of legitimating.
Deliberation in parliament is, after all, only one relatively small feature within a number
of criteria. The diversity of criteria is due to the multi-leveled concept of discursive
legitimating (Tschentscher et al., 2010).
Process: Deliberation takes place in different modalities. Each and every time elected
representatives represent their voters. Parliament is an appropriate forum to do that. Zero
hour is a quite interesting time for the people and representative both. This is because
zero hour is unplanned but urgent. It links the people through the voice of the parliament.
Role playing in the parliament through law and policy making process is indirect but
long-term strategic type of representation. Third type of representation is very informal
way of giving guardianship, partnership and mentorship representation.
It is the practice of deliberation in the parliament to allocate time to respective parties

based on their number of members. Parliamentary party and business advisory committee
deals with the time to deliberation in the parliament which is entirely against the
sovereignty of the parliament and at the same time it is against the principles of
parliamentary system.
Oversight:
The key functions of parliamentary oversight as outlined in the Tools for Parliamentary
Oversight, published by the Inter-Parliamentary Union (IPU), can be presented as
follows: mainly to detect and prevent abuse, arbitrary behavior, or illegal and
unconstitutional conduct on the part of the government and public agencies. This function
includes monitoring the achievement of goals set by legislation and the government’s
own program; and to improve the transparency of government operations and enhance
public trust in the government (Yamamoto & Inter-parliamentary Union, 2007). Checks
and balance and theory of separation of power are modern theories of democracy.
Without proper checks and balances, democracy will not sustain. The objective of the
oversight function given to the parliament is to limit the government. Limited
government is a fundamental of the democracy. Executive has all the power to rule the
country though they are not beyond control. Parliament has to conduct oversight of
government activities all the time on behalf of the people.
Concept: The core concept of Oversight means the following; to detect and prevent
abuse, arbitrary behavior, or illegal and unconstitutional conduct on the part of the
government and public agencies. At the core of this function is the protection of the rights
and liberties of citizens, and to hold the government to account in respect of how the
taxpayers’ money is used. It detects waste within the machinery of government and
public agencies. Thus it can improve the efficiency, economy and effectiveness of
government operations; to ensure that policies announced by the government and
authorized by parliament are actually delivered. This function includes monitoring the
achievement of goals set by legislation and the government’s own program; and to
improve the transparency of government operations and enhance public trust in the
government, which is itself a condition of effective policy delivery.(Yamamoto & Inter-
parliamentary Union, 2007)
Process: The process of the oversight is common in basic principles around the world.
Watching and observation of the government functions and appropriate checks and
balance from the parliament is a normal process of oversight. In the full house, asking the
direct questions to the Ministers and Prime Minister is a normal and effective way of
oversight. Giving a speech on government actions to draw attentions of the government
and concerned agencies is also another kind of oversight function of parliament.
Sometimes proposal of special urgent discussion in the presence of the government on
behalf of the people is a special kind of oversight function. Oversight from the different
committees of the parliament is also another effective tool of check and balance.
Parliamentary committee is considered as a mini parliament. Such a mini parliament have
a special privilege to investigate, to observe, to conduct field visit, hold discussion with
the experts and give appropriate recommendation to the government - as a specific
process of oversight function. Vote of confidence and vote of no confidence both are
equally important tools of government control. One of the studies carried out by Hironori
Yamamoto a comparative study of 88 national parliaments stated as followings,
“When the government or some of its members seem, in the eyes of parliament, to be
failing to carry out their duties, parliament can initiate procedures which have the
potential to replace all or part of the government. There are two different types of
procedure. One is the withdrawal of confidence in the government or in individual
ministers. The other is a decision to the effect that conditions specified in the constitution
for the removal of the office holder have been met. These measures are, in a sense, a last
resort. The requirement for a certain minimum number of votes to be obtained before
such motions can be initiated or passed highlights the relative strengths of the different
political groups within parliament. Where the government has a parliamentary majority,
it can usually count on that majority to block the motions” (Yamamoto & Inter-
parliamentary Union, 2007).
There are number of debate on role and functions of the parliament on oversight. Some
wrong-practices are prevailing such as the court stay order or interlocutory order is also
doing the function of the parliament and committees in the name of oversight. In this
connection, one research service on parliament library has found as the following;
“at least five types of parliamentary oversight committees can be identified: (a)
legislative review committees which scrutinize government and other bills; (b) Public
Accounts Committees concerned with the supervision of public finance; (c) estimates
committees to examine the appropriations of government departments and agencies; (d)
other select or standing committees concerned with the scrutiny of policy and
administration; and (e) the more recently established specialized oversight committees for
the supervision of independent investigatory bodies. The mandate of the first is to guard
against legislative invasion of individual rights, the second to guard the public purse, the
third and fourth to stand guard as watchdogs over the Executive, and the fifth to guard the
guardians of integrity”(Griffith, New South Wales, Parliament, Library, & Research
Service, 2005).
Nepal's experiences are varied. Parliamentary committees have started monitoring by
conducting field visit and issue stay order, too, which rarely happens in conventional
parliamentary practice.
Scrutiny:
Concept: Parliament is basically a legislature and members of parliament are law
makers. Law making is the primary duty of the parliament. Law making is for proper and
effective implementation. Each and every law has to have meaning and necessity. The
meaning of the law can be assessed in practice which is implementation. Objective of the
law can be met only after effective implementation. Effective implementation can be
ensured only by appropriate law. Appropriate law can be ensured only after law is made
through proper research. Therefore pre-legislative scrutiny, during and post-legislative
scrutiny are perfect tools to ensure effective implementation of legislation. If things
happen because of absence of law or inappropriate law or inadequate law, direct
accusation goes to the government but ultimately it will be because of the parliament. So
scrutiny is a duty of the parliament. If parliament performs their duty properly then state
will be effective and credible.
The “Principles for Post-Legislative Scrutiny by Parliament” is a policy document aimed

at assisting parliaments interested in initiating or strengthening practices of Post-
Legislative Scrutiny (Post-Leg). It summarizes relevant practices based on lessons
learned from parliaments in the UK and partner parliaments of the Westminster
Foundation for Democracy (WFD).
The Principles discuss the mandate to conduct Post-Legislative Scrutiny in Parliament

(the “why”), the scope (the “what”), the participants (the “who”), the processes (the
“how”) and the timing (the “when”). (Vrieze, 2018) post-legislative scrutiny is a broad
and undefined expression, which means different things to different people. This
statement is certainly borne out by the responses we have received. The best approach to
defining post-legislative scrutiny is to consider what its purposes and benefits should be
and we do this in detail below (UK_Post_Legislative_Scrutiny_2006). Once the law is
promulgated, the role of Parliament is to control the application of the law. However,
there are quite different practices between countries with regard to post-legislative
scrutiny. (WEB_Legislative-Scrutiny_UK_India_Indonesia_France, 2018)
Process: Scrutiny task can be performed by dividing in three phases - pre, during and
post-legislative scrutiny. Pre-legislative scrutiny can be applied for proper research. By
doing research the necessity of law and its outcome can be examined. If need and
outcomes are practical, doable and affordable then result will be positive. For law making
process if such kind of research has been made then implementation level would be high.
If law implementation is effective, then impact goes to the government and the
government will be called effective.
Others functions of the parliament:

“This parliament saw two controversial government proposals: Articles of Perth which
introduced Anglican-style ceremonies into church a new tax on interest payments. A rare
division list serve” this is a Scotland parliamentary debate of 1621(Goodare, 1995). This
is an example of debate of division and compromise at a time. Only the debate and
division at a time unite the country and the culture of reconciliation also will prevail.
Therefore, the major function of the parliament is to protect the nation and people rather
than engage in meaningless debate and division. In addition to above mentioned major
functions, parliaments have to do many other tasks. Making and breaking government,
making laws and policies for the country, amending the constitution and ordinances
issued by the president at the recommendation of the council of minister. Representation
of the people with different hats and categories, by asking questions to the Prime Minister
and Ministers in the parliament there will be checks and balance of the government and
representation of the peoples and constituencies. Budget making function is a core
function of the parliament. If budget fails then government also will have to step down
then and there. Deliberation in parliament used for implementation of the budget and plan
of the government therefore discussion in parliament each and every matters taking in
account in any forms whether it is passed or failed does not matter. Examining and
Approving Government Budget (including taxes and spending) considering that
Parliament holds ‘power of the public purse’ and obligation to hold the Executive
accountable. Forming and Sustaining the Government (the Executive) is also another
important task of the parliament. Holding the Government Accountable or/and Exercising
Control over the Executive. Redressing Grievances of the People Serving Respected
Constituents/Regions Forming National and Social Identity.
Nepal specific parliamentary system:

In the Nepalese Constitution, Article 90 mentions the disqualification of the member. The
decision to declare disqualification of any elected member can be made by the
constitutional bench of Supreme Court not from any electoral tribunal - which can be
taken as a unique provision for parliamentary system of the world. The provision has
been mentioned as “If a question arises as to whether any member of the Federal
Parliament is disqualified or has become disqualified under Article 87, the Constitutional
Bench of the Supreme Court shall finally decide that question”(Constitution of Nepal
2015). According to Article 91”There shall be one woman out of the Speaker and the
Deputy Speaker, and the Speaker and the Deputy Speaker of the House of
Representatives shall be representatives from different parties” Article 93 has a provision
for summoning of session within thirty days of the declaration of final results of the
election to the House of Representatives. Thereafter, the President shall, from time to
time, summon sessions of both or either of the Houses pursuant to this Constitution.
Provided that the interval between the two consecutive sessions shall not exceed six
months. The quorum is mentioned in article 94 and address by the president in 95. Article
97 is for committee system.
Provisions relating to vote of confidence and motion of no-confidence are a unique

management of the Nepalese constitution to fulfill the objective of the political stability.
It is claimed as a reform in parliamentary system. According to the constitution of Nepal
Article 100 “The Prime Minister may, whenever he or she considers necessary or
appropriate to show that he or she has confidence from the House of Representatives,
table a motion to that effect in the House of Representatives for the vote of confidence. If
the political party which the Prime Minister represents is divided or a political party in
coalition government withdraws its support, the Prime Minister shall table a motion in the
House of Representatives for a vote of confidence within thirty days. If a motion tabled
but failed by a majority of the total number of the then members of the House of
Representatives, the Prime Minister shall be relieved of his or her office. One-fourth of
the total number of the then members of the House of Representatives may table a motion
of no-confidence in writing that the House has no confidence in the Prime Minister.
Provided that a motion of no confidence shall not be tabled until the first two years after
the appointment of the Prime Minister and until another one year after the date of failure
of the motion of no confidence once tabled.
It is a new addition in Nepalese constitution. Provisions relating to vote of confidence
and motion of no-confidence included in article 100 are different than other
parliamentary practices as “a motion of no confidence shall not be tabled until the first
two years after the appointment of the Prime Minister and until another one year after the
date of failure of the motion of no confidence once tabled. A motion of no confidence to
be tabled shall also indicate the name of a member proposed for the Prime Minister”.
According to article 82 the business of the Government of Nepal shall be allocated and
transacted in accordance with the rules approved by the Government of Nepal.
No question may be raised in any court as to whether or not the rules have been observed.
Article 81 has mentioned the provision to inform President. The Prime Minister shall
inform the President about the resolutions of the Council of Ministers, bills to be
introduced in the Federal Parliament, and current general state of affairs of the country
and matters concerning foreign relations. Article 78 has mentioned very clearly that the
non-member of Federal Parliament to be Minister is not possible. The constitution
stipulated that “notwithstanding anything contained in clause (9) of Article 76, the
President may, on recommendation of the Prime Minister, appoint a person who is not a
member of the Federal Parliament as a Minister. However, the non member appointed as
a Minister must obtain membership of the Federal Parliament within six months from the
date of taking oath. In the event of failure to obtain membership of the Federal Parliament
within the six month period, he or she shall not be qualified to be reappointed to the
office of Minister during the term of the then House of Representatives. Notwithstanding
anything contained in the clause, a person who has been defeated in the election to the
then House of Representatives shall not be qualified to be appointed to the office of
Minister as mentioned during the term of such House of Representatives.” It is also new
clause added in the constitution claimed as reformed parliamentary system. It is a kind of
honor of the people’s mandate.
Based on Constitutional provision of Nepal, one can say that it is not a continuation of
traditional parliamentary system but a reformed one. Nepal is a federal democratic
republic country. Recently, the country has turned from unitary to federal, monarchical to
republic, Hindu kingdom to secular and exclusionary to inclusionary politics. These basic
structures have been specified through constitution. The Constitution itself is a kind of
byproduct of the conflict transformation. The constitution is a precious product of the
constituent assembly. It means the constitution is a result of rigorous negotiation. It
means the constitution is a byproduct of compromise. The multiple conflicting parties
divided into two sides - earlier they were divided into status quoists and revolutionaries;
later again they were divided into federalist and anti-federalist. Likewise, conflict
between republicans and monarchists was crucial. There were also divisions among
identity based federalists and viability based federalists. Finally all stakeholders reached
to a compromised solution therefore we have a constitution. That is the reason why we
have adopted parliamentary system but the process of vote of no confidence motion and
dissolution of the house is not conventional. This is contradictory with the set and
conventional parliamentary system.
Nepalese constitution has adopted mixed electoral system as “first past the post and
proportional representation system” for the House of Representatives and Provincial
Assembly but in local levels it has adopted only the “first past the post” system. For the
National Assembly the “single vote transferable system” has been adopted whereas
Electoral College elects the President and vice President. Constitution has adopted
different electoral system for different posts. Generally, parliamentary system
understands parliamentary supremacy. Parliamentary process controls the executive -
which means parliament produces the executive. Once executive loses the confidence of
the parliament, then and there it will either resign from the post or call for fresh election
by dissolution of the house. The result will be executive replacement either by another
government or through fresh election. When questions arise in parliament then
government has to put proposal of confidence in parliament. Government is always under
control of the parliament. When government loses confidence from the parliament then
government has two choices at a time either resign or dissolution of the parliament and
announce fresh election. However Nepal’s parliamentary system is a reformed one. Due
to incessant instability in the yester-years, the new reformed system sought to ensure
stability. For this cause the constitution manages some peculiar provision that restricts
vote of no confidence motions. No confidence motions are allowed twice over the period
of time of one session. Number of cabinet ministers is limited to not more than 25.
Conclusion:
Peace and security is the major concern of this time therefore people are asking for
policing of the police. In this way, the parliament's role for good governance by policing
the police is another vital one which has been mentioned in a popular research done by
Decaf as following;
“An elected parliament is another important feature of a democratic polity. It has a

mandate to represent the people and dutifully pursue matters of public interest. As
democratically elected representatives of the people, among its many mandates,
parliament is tasked with overseeing the state apparatuses authorized to bear weapons for
the protection of the state and its people, more specifically the military, police,
intelligence services, and militias. It is parliament’s role to ensure that the security sector
is effective and accountable”[ CITATION Mar17 \l 1033 ].
While we are talking about forms and functions of the parliament, there is no uniformity
in system. Except basic norms of the system there have been different practices. Practices
are developing along-with their socioeconomic and culture specific values. Parliamentary
democracy is an oldest and tested democratic system of the world though they are also
looking for alternatives. Democracy and the doctrine of the separation of powers are
considered as a part and parcel. At the same time separation of power and theory of
checks and balances is also another item. Checks and balances between executive and
legislature are more important. Executive is a product of the legislature though it is
always under the control of legislature. Executive has to be accountable to legislature for
its actions. Oversight function of the parliament is real life of parliament. Through this
life parliament represents the people and controls the executive. Oversight strengthens the
Executive. Oversight always does ensure the limited government which is fundamental of
the democracy. The core values on which the parliament stands are: professionalism,
integrity, independence, accountability, responsiveness, teamwork and confidentiality.
Ultimately, Nepalese parliament has added some unique feature on no confidence

motion, parliamentary hearing and limited numbers of council of ministers including
special checks against defeated candidate for appointment to ministerial post. With this
logic Nepalese constitution has adopted some of the features in trying to reform the
conventional parliamentary system.
References:
Australia & Australian Government Solicitor. (2016). Australia’s Constitution: With overview
and notes by the Australian Government Solicitor.
Beetham, D. (2007). Parliament and democracy in the twenty-first century: A guide to good
practice (1. repr. October). Geneva: Inter-Parliamentary Union.
Bogdanor, V. (2012). Imprisoned by a Doctrine: The Modern Defence of Parliamentary
Sovereignty. Oxford Journal of Legal Studies, 32(1), 179–195.
https://doi.org/10.1093/ojls/gqr027
Canada, Canada, & Canada (Eds.). (2012). A consolidation of the Constitution Acts, 1867 to
1982. Ottawa: Dept. of Justice Canada.
Closer Look: A short history of Parliament. (n.d.). 13.
Coi_part_full.pdf. (n.d.).
Constitution of Nepal 2015. (n.d.). 252.
Goodare, J. (1995). The Scottish parliament of 1621*. The Historical Journal, 38(01), 29.
https://doi.org/10.1017/S0018246X00016277
Griffith, G., New South Wales, Parliament, Library, & Research Service. (2005). Parliament
and accountability: The role of parliamentary oversight committees. Retrieved from
http://lpintrabp.parl.gc.ca/lopimages2/bibparlcat/4000/Ba384515.pdf
Hobbes1651part1.pdf. (n.d.).
Interim_constitution_of_nepal_2007_as_amended_by_first_second_and_third_amendments.pdf.
(n.d.).
Japan_1946.pdf. (n.d.).
Lakin, S. (2008). Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of
Legality in the British Constitution. Oxford Journal of Legal Studies, 28(4), 709–734.
https://doi.org/10.1093/ojls/gqn019
New_Zealand_2014.pdf. (n.d.).
Sweden_2012.pdf. (n.d.).
Thailand_2017.pdf. (n.d.).
Tschentscher, A., Bächtiger, A., Steiner, J., & Steenbergen, M. (2010). Deliberation in
Parliaments Research Objectives and Preliminary Results of the Bern Center for
Interdisciplinary Deliberation Studies (BIDS). Legisprudence, 4(1), 13–34.
https://doi.org/10.1080/17521467.2010.11424699
UK_Post_Legislative_Scrutiny_2006.pdf. (n.d.).
Vrieze, F. D. (n.d.). Of Post-Legislative Scrutiny by Parliaments. 13.
WEB_Legislative-Scrutiny_UK_India_Indonesia_France.pdf. (n.d.). Retrieved from
https://www.wfd.org/wp-content/uploads/2018/12/WEB_Legislative-
Scrutiny_UK_India_Indonesia_France.pdf
Yamamoto, H., & Inter-parliamentary Union. (2007). Tools for parliamentary oversight: A
comparative study of 88 national parliaments. Geneva, Switzerland: Inter-Parliamentary
Union.

Forms and Functioning of The Parliament: Reformed Parliamentary Practices of Nepal

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Forms and Functioning of The Parliament: Reformed Parliamentary Practices of Nepal

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Forms and Functioning of the Parliament: Specific

Context of reformed parliamentary system in Nepal

-Khimlal Devkota, CA member, Senior Advocate

Keywords: Parliament, law making, deliberation, Oversight, legislative scrutiny and

Background of the study:

Introduction: Forms of parliament:

Origin of the Parliament:

England is a mother of parliamentary system, therefore, a writer of a book on short history of

“The idea of Parliamentary sovereignty is considered as a constitutional theory in

It is the practice of deliberation in the parliament to allocate time to respective parties

The “Principles for Post-Legislative Scrutiny by Parliament” is a policy document aimed

The Principles discuss the mandate to conduct Post-Legislative Scrutiny in Parliament

Others functions of the parliament:

Nepal specific parliamentary system:

Provisions relating to vote of confidence and motion of no-confidence are a unique

“An elected parliament is another important feature of a democratic polity. It has a

Ultimately, Nepalese parliament has added some unique feature on no confidence

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