What happens when you formulate laws but do not implement them?

In Nepal, we have scores of laws which have never been implemented. This has had a deleterious effect in good governance and rule of law.

Law
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Jivesh Jha

  • Read Time 5 min.

It is commonly presumed that if a law becomes part of the national gazette, the implementation process has started. However, Nepal’s situation is different. There are scores of laws that are legislated but have never been implemented. Let me take up some of the Acts here to show how our laws remain unimplemented.

Take Social Practices (Reform) Act (1976) which was enacted with the purpose to bring about reforms in social practices but whose provisions are yet to be implemented in true and material sense. The preamble of the Act says: “It is expedient to impose restrictions on existing as well as growing competitive pomp and worthless expenses in social practices in order to make reforms.” Section 3 of the Act prohibits taking or exchanging dowry in connection of marriage and the contravention can land a person into jail for up to one month or fine of 25,000, or both, and along with this claimed property can also be forfeited.  

Section 6(2) provides that the bride’s side shall not bear transport as well as food cost made for Janti (people who accompany the bridegroom to the house of the bride or the chamber of marriage where the ceremony is being observed). Likewise, Section 7 imposes restrictions on the number of Janti—there should not be more than 51 persons, including the persons playing musical instruments in this procession. The Act disallows the use of dancers and fireworks. Similarly, there cannot be more than 11 persons to play musical instruments during the wedding. A person breaching these provisions can face a fine of up to Rs 10,000 or an imprisonment not exceeding 15 days, or both.

Section 8 envisages that the bridegroom and bride side cannot invite more than 51 persons, including neighbours and relatives, save for close relatives, in the marriage feast. In the course of observing Chhati, Nwaran, birthday, Pasani, Shradha (annual ritual), not more than 25 persons can be invited to attend the said rituals. Chief District Officers (CDOs) are assigned to adjudicate and settle the cases thereof.

The discrepancy between the existence of good laws and their actual implementation is itself proof of lack of seriousness among the government authorities to implement them.

Come to think of it. Have the government authorities been able to ensure compliance of these provisions? In other words, have these good provisions been implemented in letter and spirit? The answer is ‘No.’ Marriage feasts or even Shradha rituals are attended by more than 100 persons. I have not seen any enforcement agencies or cops asking the hosts to organize the functions or rituals in line with the restrictions imposed by the Social Practices (Reform) Act.

A case of Janakpur

The government of Nepal enacted the Greater Janakpur Area Development Council Act (1998) for ensuring the infrastructural and cultural development of Janakpur and adjoining villages of Dhanusha and Mahottari districts.

This Act, too, is in the state of non-implementation.

The Preamble of the Act says the law has been enacted to “safeguard, maintain and develop the shrines, temples, lakes and sites of religious and historical and archaeological importance within Janakpur area and its intermediary (Panchkoshi) circuit area, and to develop the Greater Janakpur Area as a well-planned pilgrimage and religious site” among others.

Section 3 has a provision for Greater Janakpur Area Development Council established under the chairmanship of a person appointed by the government of Nepal. The objectives of the Council, as mentioned in Section, are to develop infrastructures for social, religious, economic and cultural development of the Greater Janakpur Area, to protect and manage sites of religious, historical and archaeological importance, to identify, explore and do research work on shrines, temples, lakes  within Greater Janakpur Area, to carry out necessary acts in order to maintain ecological balance of the Greater Janakpur Area and to develop Greater Janakpur Area as a tourism site.

Which of these objectives have been fulfilled? Nearly none. If this Act had been properly implemented, Janakpur would have emerged as a developed cultural site. The reality is Janakpur is one of the most polluted places in Nepal. Today it is known for rampant pollution with stranded pigs on the streets.

This is because Greater Janakpur Area Development Council Act is not even in the process of implementation as the Council has neither carried out any research work, nor has it worked for maintaining ecological balance of Greater Janakpur Area. 

Unimplemented laws

The Mother’s Milk Substitute (Control of Sale and Distribution) Act (1992) defines “mother’s milk substitute” under Section 2(a) as any food marketed or otherwise distributed as a partial or total replacement for mother’s milk. Section 9 of the Act prohibits the making of an advertisement giving an impression of creating a belief that the feeding of mother’s milk substitute is equivalent to, or even better than, mother’s milk. The popular health drinks for children, like PediaSure, Horlicks Growth Plus, Cadbury, Bournvita Lil Champs Chocolate and others, through their advertisement, give an impression that their products have nutritional value and can help kids grow physically and mentally. The advertisements of these products aired on television channels give an impression that their product is equivalent to mother’s milk.

The Breastfeeding Protection and Promotion Committee under the leadership of Secretary of Ministry of Health is empowered to conduct an inquiry and investigation as to the compliance of the law, especially regarding the label and among other information provided on milk packets whether it’s good for consumption for children. This law, too, is at the crossroads. The available dairy products in Nepali markets, especially milk packets, barely use a label showing whether they are good for consumption for children.

In the same way, the Tobaccos Product (Control and Regulatory) Act (2011) prohibits the smoking or consumption of tobacco products in public places. Section 3 defines ‘public places’ as offices, educational institutions, airports, public transports, cinema halls, hotels, motels, bars, or departmental stores. The law also requires for a mandatory display of public notice at each office indicating that smoking and tobacco consumption is strictly prohibited.

Section 19 provides for a Committee for control and regulation of tobaccos under the leadership of Secretary of Ministry of Health and Population and it’s empowered to launch awareness programs about the harmful effects of smoking and tobacco consumption.

There is a Health Tax Fund under Section 22 for controlling smoking and tobacco products’ consumption and for the prevention and control of diseases caused by consumption of the said products.

Making a law by parliament is only half the battle won. The non-implementation will push the state toward the path of corruption, abuse of power and bad governance. 

The government authorities do not seem to have taken implementation of this law seriously. I have never heard of or seen the authorities slapping a fine on a person found smoking at public places.   

Another case relates to Rule 3 of Drugs Category Rules (1986) enacted under Drugs Act (1978). It says that the Department of Drugs Administration shall prepare an official Nepali Pharmacopeia. This has not happened yet.

Implementation is a key

The implementation process can be made faster only through proper publicity and awareness campaigns. The Non-Government Organizations (NGOs) can create awareness and sensitise the stakeholders but the reality is that they only believe in showcasing paperwork or the number of cases.

If NGOs and civil society can take the charge of creating the right noise and spread awareness about the legislations, it would probably pressure the government to implement those laws.

The discrepancy between the existence of good laws and their actual implementation is itself  proof of lack of seriousness among the government authorities to implement them. Mere presence of laws does not mean anything unless law enforcement agencies actually implement them.

Implementation of law is a prerequisite to ensuring rule of law. Poor implementation will make even the greatest of the laws ineffective. Making a law by parliament is only half the battle won. The non-implementation will push the state toward the path of corruption, abuse of power and bad governance. 

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