1
IMPORTANCE OF LEGAL RESEARCH METHOD FOR LEGAL
PROFESSIONALS·
Narendra Man Shrestha
INTRODUCTION:
No doubt, mastering legal research is a primary element in achieving success and
growth in the legal profession. Our law school studies do not emphasize legal
research as an essential component in the curriculum and thus students, legal
professionals, legal researchers and the person so concerned are unprepared to
consider the larger picture of law practice - resolving legal problems and the act
of legal research have become increasingly challenging and complicated to the
legal professionals, legal researchers and the students. As we know, that legal
research can either make or break a case. Thus, a legal professional discovers that
learning about the legal research process means learning the tools of legal trade.
Law is the entire body of rules of conduct created by the government and
enforced by the authority of government.
Before we begin with legal research, an explanation must be made on how the law
relates to our government system. Legal research makes sense when we
understand how particular law books relate to the legal and political institutions
that create law. The Constitution of the Kingdom of Nepal provides that our
government be divided into three branches: such as legislative, executive and the
judiciary. The each of the branches has a particular role in making laws. All the
same, there is a system of check and balances, which illustrates the interplay
among the three branches.
The legislature is composed of the National Assembly, House of Representatives
and the king enacting laws or Statutes. The executive branch, which is headed by
the Prime Minister of the Council of Ministers, is charged with the enforcement of
laws in cooperation with its different agencies. Since the various department and
administrative agencies under Executive body are assigned to implement the laws,
· The paper is submitted to Kathmandu School of Law by the LL.M Student, Mr. Narendra Man Shrestha
2
the said agencies are given with certain powers by virtue of the Statue to issue the
necessary rules and regulation pursuant to the standards so prescribed by the
Statutes. Council of Ministers has also powers to issue administrative and
executive orders. Once enacted, the Constitution, the Judiciary, Attorney General
and Secretary of the Ministry of Law, Justice and Parliamentary Affairs interpret
Statutes and regulations, if it is brought before them. Their interpretations and
opinions are usually contained in decisions or written opinions on specific issue
raised in litigated disputes. The judicial powers rest with the Supreme Court and
in the lower courts as established by law. The lower courts of Nepal are Appellate
Courts, District Courts, Special Courts, tribunals to be constituted from time to
time and the newly created Family Courts and Juvenile Courts.
The Supreme Court is the highest court of the Country and the precedents and
principles laid down by the said Court are binding on all including the Courts.
Thus no doctrine or principle of law laid down by the Court in a decision rendered
en banc or in division may be mo dified or reversed except by the court Sitting en
banc. The Supreme Court also frames and charts rules on pleading, practice and
procedure in all courts.
There are administrative agencies, which belong to the Executive but are
empowered either by the Constitution or Statue to hear and decide certain classes
or categories of cases and thus, exercises quasi-judicial powers. Examples of
quasi-courts created by the Constitution are the Public Service Commission,
Election Commission, Land Reform Officer, Civil Aviation Authority of Nepal
and Commission for Investigation of Abuse of Authority etc.
Their decisions may be appealed in the Court of Appeals and the Supreme Court.
This is a descriptive and analytical research; therefore, this research paper will be
based on a few primary sources and primarily on secondary sources published in
national and international periodicals, books and other sources.
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The first chapter of this research paper briefly discuss about the meaning of legal
research and objectives. The second chapter deals with the aid memories of legal
research and there will be a brief discussion about aid memories of research and
the sources to be followed by the legal professional while carrying out the legal
research. The third chapter deals with the method of finding laws and there will
be discussed about the method of legal research and computer assisted legal
research in keeping view to the different websites created by the agencies so
concerned. The fourth chapter briefly discuss about the memorandum to be
prepared by the legal professionals and finally, the fifth chapter deals with the
conclusion.
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Chapter -1
1. Meaning of legal research:
“Legal research is the field of study concerned with the effective marshaling of
authorities that bears in a question of law” 1
“The systematic investigation of problems and matters concerned with such as
codes, acts etc. is called legal research.”2
“Legal research is an investigation directed to discovery of some fact; careful
study of a subject."3
Keeping in view to the said definitions, we can say here that legal research is an
act that discovers the legal principles relevant to a particular problem and it is the
foundation for good legal advice.
2. Objective of legal research:
As we know that, all research has its objective and this objective is the collection
of authoritative material relevant to problem. These authoritative materials
comprise legislation in force and judicial decisions. Judicial decisions need to be
divided into (a) binding and (b) persuasive authorities. They are binding if they
meet the following conditions:4
· They are decisions of a higher court (or, sometimes, a court of coordinate
status) in the same jurisdiction; and
· There are theoretical and practical difficulties in determining when a decision
is directly relevant.
If either or these conditions is unsatisfied the decision is merely persuasive.
It may be objected that this statement of the basic objective of legal research
places and undue emphasis on litigation and that the vast majority of situations in
which a legal professional is consulted are situations win which no litigation is
1 . Henry Compbell Black, Black's Law Dictionary, P. 846.
2 . S.R. Myneni, Legal Research Methodology, P. 3.
3 . Ramanath P. Aiyer, Concise Law Dictionary , P. 745.
4 . Enid Campbell and Mac Dougall, Legal Materials, P. 157.
5
contemplated and in which none occurs. In such circumstances, comprehensive
legal research may involve an inordinate use of the office’s resources. They reply
to this is obvious. Legal research is the foundation for good legal advice. Before
advising a client a legal professional should satisfy himself that, if the necessity
arises, he will be able to persuade a court that there is a legal principle which is
supported by convincing authority and which, properly interpreted, governs the
questions in dispute. Poor legal research may result in advice which, at the least,
is incomplete and inaccurate, and which, at the worst, may be positive wrong.
Quite apart from questions of professional negligence, no responsible lawyer will
want to compromise with mediocrity. If litigation arises unexpectedly, it may be
too late to remedy the miscalculation of the past. All legal advice should be given
on the basis that litigation is an ever-present possibility.
The sheer mass of authoritative materials is the greatest difficulty confronting
some one engage in legal research. If the problem involved is a simple one, which
arises continually in practice, and experienced legal professionals may be able to
select the appropriate statute or case report immediately from his library shelves.
However, this store of built-in knowledge is rapidly exhausted. What is the legal
professional to do when he is faced with an unusual problem and the frightening
array of volumes of legislation and judicial decisions available in any modern law
library?
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Chapter -2
AID MEMORIES OF LEGAL RESEARCH
We can take aid memories of legal research to the sources as follows.
Primary and Secondary Sources:
Primary sources contain the actual law. Constitutions, court decisions, cases,
statutes, treaties and administrative regulations are all examples of primary
sources.
Secondary sources are materials, which comment, explain and annotate on these
primary sources. Usually, they include treaties, legal periodical, articles, legal
encyclopedias, annotations, law dictionaries, commentaries, continuing legal
education publications, opinions of the Attorney General, Secretary of the
Ministry of Law, Justice and Parliamentary Affairs and other agencies.
On the other hand, finding tools are reference publications, which are used to find
out primary and secondary sources. They include digests, indexes to legal
periodicals, indexes to annotations, law dictionaries and citations.
1. Primary Sources: The following sources are considered as primary sources in
the legal research by the legal professionals.
1. Constitutions,
2. Statutes,
3. Treaties,
4. Court decisions, and
5. Administrative regulations.
2. Secondary Sources: The following sources are the secondary sources used in the
legal research by the legal professionals.
1. Treaties,
2. Commentaries,
3. Law review/Legal periodicals,
4. Articles,
5. Continuing legal education publications,
6. Law encyclopedia,
7
7. Annotations, and
8. Opinions of the Secretary of Justice.
3. Finding tools: The sources as mentioned above can be found from the finding
tools and the finding tools are as follows.
1. Digests,
2. Indexes.
3. Annotations,
4. Legal citations, and
5. Law dictionaries.
Legal research calls for judgment, creativity and flexibility. There are many
approaches to legal professionals. Each research situation calls for different
strategy and depends on the working familiarity of the legal professionals in the
area of law being researched. The ultimate goal of any legal professional is to find
the primary source materials applicable to the problem as efficiently as possible.
4. Five-step approach to legal research:
Professor Myrana S. Feliciano views that the legal professionals while carrying
the research shall have to follow five-step approaches and these steps will help the
researcher so concerned to gather the essential facts required for the research.5
These steps are as follows.
1. All facts on paper:
This is very simple if we utilize the five "Ws'" and one "H" in gathering the
essential facts of the problem.
· Who did it and to whom?
· What has it done?
· When was it done?
· Where was it done?
· How was it done?
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The research can either do it in outline form first and then resort to the narrative
from later on when the legal professional start doing his memorandum or
pleading. These facts should be concisely stated.
While researching on any legal problem, one must look under the right words in
the indexes. An efficient way to utilize indexes and digest is to use the TAPP rule.
TAPP is an acronym for Things, Actions, Persons, and Places. Using the TAPP
rule, the legal professional can categorize the facts into terms the author or
publisher might have used to index the legal problem. Think of common or
generic words suggestive to the Thing, Act or the Person without which there
would have been no controversy. Sometimes, the legal professional must consider
the relationship of parties to each other or whether they belong to a special class.
For Example:
In Basantapur or Kathmandu Municipality a child eight years of age was playing
in their backyard with a child of the neighbor when a dog owned by the neighbor
bit her. She was treated for multiple lacerated wounds in the hospital and was
administered an anti-rabies vaccine by a doctor. According to the neighbor, the
dog was tame and was merely provoked by the child into biting her. You are
asked to research on this matter. What key words will you research on among the
reference or finding tools?
2. All Issues on Paper:
For legal professionals so concerned with the awarding of judgment, it is easy to
spot issues because the pleadings themselves through the complaint and answer
place the issues before the court especially after the pre-trial procedure. But if it is
merely a problem or a case, it is hard to spot the issues, whether patent or hidden.
This process is the core of the analytical process inherent in legal research. Legal
issues involve questions about how the law relates to the facts of the case.
Accordingly, issues such as jurisdiction and statute of limitations precede other
5 . Myrana S. Feliciano, Methodology in Legal Research, P. 1- 6.
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issues if their legal requirements are not met, the entire lawsuit will be dismissed.
Another guideline to be remembered is that issues dealing with the legal claim or
"because of action" should precede issues dealing with relief or remedy sought
because only a limited range of remedies is available for each of the action.
Thus, in the given example, certain issues may be formulated.
a. Was there any negligence on the part of owner who own the dog?
What are the elements of the negligence?
b. Was there any action on the part of the child, which induced the
dog to bite him?
c. How about the minority of the child? Does it affect the outcome of
the case?
d. What is the liability of the owner of the dog, which bit the child?
e. Did owner see to it that the dog received regular anti-rabies
vaccine?
The legal professional has to arrange the legal issues raised by the facts in the
logical order for research.
5. List of Books to Use:
The best plan is to make a list of books or publications in the order so that it can
be consulted with reference to the case.
6. Gather Authorities:
Before the legal professionals can proceed to it, he/she has to classify the problem as
follow.
· Is it a constitutional problem?
· Is it a statutory problem?
· Is it an administrative law problem?
· Is it a case law problem?
· Is it a procedural law problem?
Once the subject field is ascertained as mentioned above, it is better to list down the
treaties or textbooks that can be consulted to obtain background information.
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After that the legal professional must examine legal indexes and digests to locate
"mandatory primary" authority, which the courts must follow. What are these
mandatory primary authorities? It includes Constitution, Statutes, treaties,
administrative regulations and rulings, courts rules and cases.
If there is no primary authority that addresses the issues, then it is better and look for
"persuasive primary authority." This is primary authority, which is not binding on the
courts such as the opinions of the Attorney General, Secretary of the Ministry of Law,
Justice and Parliamentary Affairs, the interpretations of administrative agencies, and
primary authorities from foreign jurisdiction. Note that in order to utilize foreign
authorities, their law must be similar to legal professional to which he/she belongs.
Another alternative is to locate secondary authorities and other persuasive materials
such as textbooks, commentaries, annotations, surveys, legislative history and
periodical articles that comment or criticize certain statutes or cases
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Chapter -3
MEHODS OF FINDING LAW
1. Main Methods of Finding Law:
Professor Clyde Emery, namely, suggested that there are two methods of finding
materials, which are as follows.6
1. The Short Cut or the "100 Meter Dash:" Method:
The short cut or the "100 Meter Dash" method usually consists of the
following steps:
(a) Exhausting the statutes and their annotations and/or digest on the
point under search;
(b) Reading the cases so found.
As we read each provision or case, ask the following questions: Does that
provision or case bear (favorably on unfavorably) on the point? Mark the material
found with a piece of paper and indicate the pages which the legal professionals
can use and indicate whether it is pro, contra, analogous, or distinguishable the
issue. Leave this marker in the book.
2. The Long or? Marathon" Method:
The long or? Marathon method turns back to the list of books to be used as
Primary sources, secondary source and their finding justice. Each book should be
expanded thoroughly. Whenever there is a listing of cases or statutes, either in the
text or in footnote, the legal professionals has to note or read them.
2. COMPUTER-ASSISTED LEGAL RESEARCH (CALR)
Computer-assisted legal research (CALR) provides for new ways to find and read
he law. It is defined as research that is conducted with the use of computers,
6 . Emery Clyde, A Streamlined Briefing Technique, P. 15-31.
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computer networks and CD-ROMs.7 The word Internet means a computer
network linking over large number of computer networks together that open new
opportunities for legal and non-legal research. When a legal professional goes on
line, this is used to describe one who is using a computer to connect by a modem
to the memory of another computer stored at a remote location.
1. Formulating the Search:
Before going on-line, the legal professionals should have a working knowledge of
the legal issue being researched. The legal professionals has to remember that online
computer research can be expensive because the organization so concerned
will class us or are being charged of computer time. It is also imperative to select
the proper database.
2. Internet Sources:
Examples of Internet sources are as follows:
1. URL LINKS TO MINISTRIES, DEPARTMENTS,
COMMISSIONS ETC
S.N. Name of the Ministry Web Site URL
1 Ministry of Population & Environment www.mope.gov.np
2 Ministry of Forest & Soil Conservation www.biodiv-nepal.gov.np
3 Ministry of Finance
4 Ministry of Industry, Commerce & Supplies www.moics.gov.np
5 Ministry of Culture, Tourism & Civil Aviation www.tourism.gov.np
6 Ministry of Foreign Affairs www.mofa.gov.np
7 Ministry of Local Development www.mld.gov.np
8 Ministry of Home www.moha.gov.np
9 Ministry of Science and Technology www.most.gov.np
10 Ministry of Defense www.rna.mil.np
11 Ministry of Health www.moh.gov.np
12 Ministry of Information & Communication www.moic.gov.np
13 Ministry of Law, Justice & Parliamentary Affairs www.moljpa.gov.np
14 Ministry of Labor & Transport Management www.moltm.gov.np
15 Ministry of Education & Sports www.moe.gov.np
7 . S.Barba and M.A .McCormick, Legal Research, P.P. 206-207.
13
S.N. Name of Commission Web Site URL
1 National Planning Commission www.npc.gov.np
2 Election Commission www.election-commission.org.np
3 Supreme Court www.supremecourt.gov.np
4 Commission for The Investigation of Abuse of
Authority
www.akhtiyar.org.np
5 Parliament www.parliament.gov.np (corrected)
S.N. Name of other Institutions Web Site URL
1 Nepal Telecommunication Authority www.nta.gov.np
2 Nepal Rastra Bank www.nrb.org.np
3 Radio Nepal www.catmando.com/radionepal
(Source: Ministry of Science and Technology)
2. Find Law:
www.findlaw.com
Contains U.S. federal and state cases, statutes and rules etc.
3. Website of United Nations
http://www.unsystem.org/
http://www.un.org/aroundworld/map/
http://www.un.org/
http:/www.un.org/documents/
http:/www.un.org/Depts/dhl/resguide/index.html
http:/www.icj.org.
http:/www.un.org/Depts/dhl/resguide/spechr.htm
http:/www.unhchr.ch/women/focus.html
http:/www.unhchr.ch/women/
http:/www.unhchr.ch/women/genderequality.html
http:/www.unhchr.ch/tbs/d…/CERD+General+recom.+25.En?Opendocum
5/30/02
http:/www.unhchr.ch/html/menu2/7b/tm.htm
4. Website of United Nations Relating to Human Rights Bodies:
1. Commission on Human Rights (Country and Thematic Mechanism, Resolutions,
Decisions and Various Documents of the Commission
(http:/www.unhchr.ch/html/menu2/2/chr.htm and
http:/www1umn.edu/humanrts/commission/commission.htm).
14
2. Human Rights Committee (Individual Complaints, Decisions, Official Records,
Country Report and General Comments, Decisions, and Views, and Annual
Reports (http:/www.unhchr.ch/html/menu2/6hrc.htm and
http:/www1.umn.edu/humanrts/hrcomittee/hrc-page.html).
3. Committee Against Torture (Individual Complaints, Decisions, Country Report
and Consideration of Reports and Decisions and views
(http:/www.unhchr.ch/html/menu2/6cat.htm and
http:/www.umn.edu/humanrts/cat/cat-page.html).
4. Committee on the Elimination of Discrimination Against Women (Country
Report and Other Documents, Various Documents and CEDAW Committee
(http:/www.unhchr.ch/html/menu2/6/cedw.htm,
http:/www1.umn.edu/humanrts/cedaw/cedaw-page.htm,
http:/www.un.org/womenwatch/daw/cedaw/commit.htm and
http:/www.un.org/womenwatch/daw/cedaw/archive.htm)
5. Committee on Right of Child (Country Reports, Other Documents and Comment
on Country Report) (http:/www.unhchr.ch/html/menu2/6crc.htm and
http:/www1.umn.edu/humanrts/crc/crc-page.htm)
6. Committee on Elimination of Racial Discrimination (Individual Comments,
Selected Decisions, Country Reports, Other Documents, General
Recommendations, Opinions, Country Observations, Decisions and Other
Documents and World Conference Against Racism
(http:/www.unhchr.ch/html/menu2/6/cerd.htm,
http:/www1.umn.edu/humanrts/country/cerd-page.htm and
http:/www.racism.gov.za/)
7. Committee on Economic, Social and Cultural Rights (Various Documents and
Country Report and General Comments, Concluding Observations on Country
Reports and Other Documents) (http:/www.unhchr.ch/html/menu2/6/cescr.htm
and http:/www1.umn.edu/humanrts/esc/esc-page.htm)
15
5. Website of Other United Nations Human Rights Documents:
· UN human rights document (http:/www.unhchr.ch/html/otherdoc.htm,
http:/ilis.ilo.org.trib/ilintrtr.html and
http:/ilolex.ilo.ch:1567/public/English/50normes/infleg/iloeng/digestq.htm
6. European Human Rights System:
a. European Courts of Human Rights (http:/www.echr.coe.int
(General information, pending cases, and judgments)
b. European Commission of Human Rights
(http:/www.humanrights.coe.int/)
c. Council of European Case-Law
Collection(http:/hudoc.echr.int/hudoc/)
7. Inter-American Human Rights Systems:
a. Inter-American Commission (annual reports from 1991-1999)
(http:/www.cidh.oas.org/publications.htm)
b. Inter-American Court Jurisprudence
(http:/www.corteidh.or.cr/juris_ing/index.html)
c. Inter-American Court of Human Rights Advisory Opinions and
Contentious Cases
(http:/wwwl.umn.edu/humanrts/cases/commisin.htm)
d. Inter-American Human Rights Database
(http:/www.wcl.American.edu/pub/humright/digest/index/html)
(Source: ASIL Guide to Electronic Resources for International Law)
8. World Law:
http:/beta.austlii.au/links/world
9. Project Dial (Development of the Internet for Asian Law):
http://www.austii.edu.au/dial/ located anywhere on the Internet a search
facility for finding legal resources.
10. ASIL Guide to Electronic Resources for International Law:
www.asil.org/resouce/home.htm
11. CD ROMs Available: Available in the Nepal Bar Association.
16
12. Foreign CD's:
· Tiara. Treaties and International Agreements Researchers Achieves.
· USSC+CDROM. Unites States Supreme Court (1953-1997).
· Wilson Disc. Index to foreign periodicals and books.
· CRC Publications. International Committee of the RED Cross.
· REFWORLD. United Nations. WB Product, 1997.
· No Peace Without Justice. United Nations Documents.
· Multilateral Treaties Deposited with the Secretary General:Status as at 31
December 2002.
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Chapter -4
MAKING LEGAL PROFESSIONALS MEMORANDUM
Before proceeding with a formal memorandum, an outline or skeleton
memorandum should be made. This provides series of answers listed in No. 2,
with all the materials found on each question, so that the strength of each
proposition can be measured at a glance. This is usually handy in preparing for a
trial or briefing job for a client.
The formal memorandum of varying degrees of formatting is usually required in
the following:
a. Appellate brief;
b. Brief to be submitted to a trial judge;
c. Memorandum to an opposing, counsel;
d. Memorandum to a "law conscious" client;
e, Proposed contents of a decision.
In making memorandum, the legal professionals have to pay attention to the
grammar, the substantive content, the brevity of arguments and its development,
the preciseness of the words used, and the accuracy and completeness of the
citations.
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Chapter –5
Conclusion
Conclusion:
Legal research plays a very important role in recommending solutions to existing
problems of the society or in solving the already solved problems in better way. It also
helps to discover or invent new legal ideas and technologies for legal professionals. As
we know, that legal research can either make or break a case. Therefore, legal
professionals must carry out on their parts some level of legal research before filing a
lawsuit and giving verdict to it. Failing to pursue research, a case may fail to present its
strength and verdicts may be made in favor of wrong person. Legal research helps
analyze legal professionals about the case effectively and award justices to the genuine
victims.
Practices of legal research do exist in Nepalese legal practices but not in a state that has
been followed the particular legal research method. Research is carried out in a very
limited way. In order to carry out legal research, by the legal professionals, it shall be
required to follow the legal research method as mentioned above efficiently and
effectively by all legal professionals.
In the end legal research method helps to impart just and genuine verdict in favor of true
victims. It enables the legal system to function effectively. To effectively function the
judiciary of a country, legal professionals including legal research have a crucial and very
important role to play.
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Bibliography
1. Anne Burnet et al, ASIL Guide to Electronic Resources for International Law,
2nd revised and expanded edition, American Society of International Law,
Washington D.C: 2002.
2. Emery Clyde, A Streamlined Briefing Technique, 4th edition, Oxford
University Press, Oxford: 1998.
3. Enid and Donald Mac Dougall, Legal Research: Materials and Method, 3rd
impression, the Law Book Company, Sydney, Australia: 1974.
4. Henry Compbell Black, Black’s Law Dictionary, 7th edition, the Publishers
Editorial, USA: 1999.
5. Ministry of Science and Technology, URL Links to Ministries, Departments
and Commissions, Kathmandu: 2002.
6. Myrana S. Feliciano, Methodology in Legal Research, PHILjA, Philippine:
2002.
7. Ramanath P. Aiyer, Concise Law Dictionary, Abridged edition, Law
Publishers, New Delhi: 2001.
8. S. Barbara & M.A. McCornick, Legal Research, 2nd edition, George Allen
and Unwin, London: 1996.

http://www.lawcommission.gov.np
1
http://www.lawcommission.gov.np
Good Governance (Management and Operation) Act,
2064 (2008)
Date of Authentication and publication
2064/10/23(February 6, 2008)
Act No. 36 of the year of 2064 (2008)
An Act enacted to guarantee (ensure) good governance,
Preamble: Whereas, it is expedient to make legal provision in relation to good
governance by making public administration of the country pro-people,
accountable, transparent, inclusive and participatory and make available its
outcome to the general public; upon adopting the basic values of good
governance like rule of law, corruption–free and smart (lean or smooth)
administration, financial discipline, and efficient management of public work
and resources to create situation for providing public services in speedy and
cost-effective manner; by bringing into execution (enforcement) of the right of
the citizens upon having good governance by translating it to practical reality;
and transform the administrative mechanism into service delivery mechanism
and facilitator;
Now, therefore, the Legislature Parliament has enacted this Act.
Chapter-1
Preliminary
1. Short title and commencement: (1) This Act may be called “Good
Governance (Management and Operation) Act, 2064 (2006)”.
(2) This Act shall come into force immediately.
http://www.lawcommission.gov.np
2
http://www.lawcommission.gov.np
2. Definitions: In this Act, unless the Subject or the context otherwise
requires;
(a) “Constitution” means the Interim Constitution of Nepal, 2063
(2007).
(b) “Minister” means Prime-minister, Deputy Prime-minister or
Ministers and this term also includes the Minister of State who
takes independent responsibility of a Ministry.
(c) “Secretary” means secretary of the Ministry and this term shall
also includes the chief-secretary of the Government of Nepal and
officials of special class carrying out the function of secretary.
(d) “Ministry” means Ministry of Government of Nepal and this term
also includes the office of the Prime Minister and Council of
Minister or constitutional organ (body) or office at the central
level.
(e) “Head of the department” means an authority acting as chief of
the the department or office equivalent to such department.
(f) "Office in charge” means an official acting as a chief of any
governmental office.
(g) "Prescribed" or "as prescribed” means prescribed or as prescribed
in the Rule framed under this Act.
Chapter-2
General Provisions Regarding to the Operation (execution) of Governance
3. Functions to be carried out at different level: (1) Government of
Nepal shall carry out administrative function at central, regional, zonal,
district, and local level to maintain good governance within the country.
http://www.lawcommission.gov.np
3
http://www.lawcommission.gov.np
(2) Division into region, zone and district and determination of
geographical areas of local level pursuant to Sub-section (1) shall be
made according to the prevailing laws.
4. Thematic (subject wise) Ministry and Department to be
Constituted: (1) There shall be thematic Ministries and departments as
required to carry out the functions at the central level.
(2) Number of ministries and its division of works shall be made
in accordance with the Government of Nepal Division of Works Rules
(Nepal sarkar karya bibhajan niyamawali).
(3) There shall be the Office of the Prime Minister and Council
of Minister as the chief administrative organ of the Government of
Nepal.
(4) There may be department, office and other bodies established
under the Ministry as required.
5. Essential body may be constituted: (1) In addition to Ministry,
Department and Offices, Government of Nepal may constitute
secretariat, commission, board, centre, committee or other such body as
per necessity to carry out administrative functions.
(2) The functions, duties, powers and other terms of reference of
the secretariat, commission, board, centre, committee or other such
bodies constituted under Sub-section (1) shall be as determined by the
Government of Nepal.
6. Basis for executing administrative functions: While carrying out
administrative functions to maintain good governance in the country
pursuant to this Act or other prevailing laws, the concerned authority
shall carry out its functions on the following basis, in addition to the
provisions of the constitution and other prevailing laws :-
(a) greater interest of nation and people;
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(b) equity and inclusiveness;
(c) rule of law;
(d) guarantee of the human rights;
(e) transparency, objectivity, accountability and honesty;
(f) economic (financial) discipline, corruption-free, lean(smart) and
people–oriented administration
(g) impartiality and neutrality of administrative mechanism;
(h) access of people to administrative mechanism and its decision;
(i) decentralization and devolution of powers; and
(j) popular participation and optimum utilization of local resources.
7. Policies to be pursued by the Government of Nepal: (1) In addition to
the policies stipulated in the constitution and other prevailing laws and
the policies pursued from time to time, the Government of Nepal shall
pursue the following policies while carrying out the administrative
functions of the country:
(a) economic liberalization;
(b) poverty alleviation;
(c) social justice;
(d) sustainable and efficient management of natural and
public resources;
(e) empowerment of women and promotion of gender
justice;
(f) environmental protection;
(g) uplifting of ethnic groups, dalit, economically and
socially backward classes;
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(h) development of remote areas and balanced regional
development;
(2) Government of Nepal shall, from time to time, operate
necessary programmes and projects to implement policies pursued
according to Sub-section (1).
Chapter-3
Operation and responsibility of administrative function
8. Maintaining Good Governance to be the duty of Concerned
Authority: It shall be the duty of the concerned authority to carry out
administrative function of the country pursuant to this Act or other
prevailing laws, in speedy manner, with the objective of maintaining
good governance and make available its outcomes to the people in time.
9. Responsibility of the Minister: (1) In addition to the responsibilities
mentioned in the constitution and other laws in force, it shall be the
responsibility of the concerned minister to perform or cause to perform
the entire jobs to be carried out by the Ministry under his/her
responsibility including the policy matters.
(2) Without prejudice to the provision of Sub-section (1), the
concerned minister may provide necessary directions to the officials of
his/her Ministry and its subordinate; and it shall be the duty of the
concerned officials to comply with such direction in time.
10. Chief Secretary and his/her Responsibility: (1) The Chief Secretary
shall be the chief administrative officer of the Government of Nepal and
carry out his/her responsibility in that capacity.
(2) Without prejudice to the generality of the provision of Subsection(
1), the chief secretary shall have following functions, powers,
duties and responsibilities, in addition to the functions, powers, duties
and responsibilities entrusted by this Act or other laws in force;
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(a) To perform or cause to perform the functions of the
office of Prime Minister and Council of Ministers
as an administrative chief of that office under the
supervision and direction of the Prime Minister,
(b) To supervise the functions carried out by the
secretaries and other special class officers of the
Government of Nepal as a supervisor and issue
necessary direction in relation to their
administrative works,
(c) To coordinate or cause to coordinate among the
functions of different Ministries and other
concerned bodies,
(d) To coordinate among the different Ministries and
other institutions of the central level to implement
or cause to implements governance reform
programme as an integral part of the country’s
public administration,
(e) To act as the secretary of the Council of Ministers
and authenticate the decisions of the council of
minister in that capacity,
(f) To mobilize or cause to be mobilized the concerned
ministries for the execution of the decisions of
Government of Nepal (Council of Minister) and
supervise the status of implementation of those
decisions,
(g) To motivate the secretary and other officials for
making administrative mechanism of the country
lean (smart) and effective,
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(h) To convene the meeting of secretary, from time to
time, to make functions of the Government of
Nepal effective; and supervise the status of
implementation of the decisions taken by such
meetings,
(i) To monitor, inspect and supervise or cause to do so
to administrative functions of the different
ministries and other offices at the central level,
(j) To scrutinize (examine) the agenda/proposal
submitted by the secretaries and present them for
the decision of the Government of Nepal, Council
of Ministers, and return or cause to return in case
such agenda /proposal found to be incomplete,
(k) To monitor or cause to be monitored the state of
enforcement (execution) of bilateral and
multilateral treaty of which Nepal is a party,
(l) To perform other prescribed functions.
11. Responsibility of the Secretary: (1) Secretary shall be the chief
administrative authority of the concerned Ministry, constitutional body
or office at the central level and shall carry out the duties in that
capacity.
(2) Without prejudice to the generality of provision of Subsection
(1), the secretary shall have following functions, duties and
powers, in addition to the functions, duties and powers entrusted by this
Act or other laws in force.
(a) Facilitate the concerned minister to formulate
policy of the Government of Nepal.
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(b) Carry out the functions of the ministry or
constitutional body or central level office of his/he
incumbency under the direction and supervision of
the concerned minister.
(c) Present proposal before the concerned minister for
necessary reform in policy matters in the ministry
or constitutional body or central level office of
his/her incumbency.
(d) Control and supervise over the management, daily
work performance and civil servant of the ministry
or constitutional body or central level office of
his/her incumbency.
(e) Make necessary supervision and/or control of the
functioning of the ministry, constitutional body or
central level office or departments of his/her
incumbency or office subordinate to such office and
give them necessary directives.
(f) Implement or cause to implement the policies and
programmes approved by the Government of
Nepal.
(g) Submit a monthly report to the Office of the Prime
Minister and Council of Minister, as prescribed, on
the major works performed by the ministry or
constitutional body or central level office of his/her
incumbency and other concerned offices.
(h) Formulate and submit the annual programme of the
ministry or constitutional body or central level
office before the minister and implement, monitor,
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evaluate and make progress assessment or cause to
do so to the approved programme.
(i) Prepare and submit annual report before the
minister on major works performed by the ministry
or constitutional body or central level office.
(j) Transfer, recruit or depute the personnel up to
gazetted class two officers of the ministry or
constitutional body or central level office of his/her
incumbency or subordinate office.
Provided that, transfer of civil servants from
one ministry or constitutional body or central level
office or other body or department or subordinate
offices to another ministry or constitutional body or
central level office or body or department or
subordinate office shall be made according to the
provision of the prevailing laws.
(k) Make nomination of the officers up to gazetted
class two for foreign study, training, study tour, or
for other such purposes on behalf of Government of
Nepal and approve foreign visit deputation.
(l) Implement or cause to implement the decisions
taken by the Government of Nepal (Council of
Ministers) on matters related with the ministry, or
constitutional body or central level office of his/her
incumbency and supervise the state of
implementation of such decision.
(M) Implement the decisions made by the meeting of
the secretaries.
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(n) Honour the personnel with outstanding or
appreciable work performance with the reward of
up to Three grade increment in salary or cash prize
of up to Five Thousand Rupees with the detail
description of the work performed by such
personnel.
(o) Make frequent supervision of the projects run by
the ministry, constitutional body or central level
office or head of the department under these offices
and give necessary direction.
(p) While making supervision pursuant to Clause (o), if
it is found that the project has not been completed
within stipulated time or the completed project
found to be less than the quality, make necessary
inquiry and take necessary action against the head
of the department or project chief under whose
authority the concerned project is operated.
(q) Undertake or cause to be undertaken the other
functions, duties and powers as prescribed.
(3) The secretary shall communicate immediately to the
concerned minister about the work performed pursuant to Clause (j), (k)
of Sub-section (2).
(4) The secretary shall be accountable to the Government of
Nepal for functions mentioned in Sub-section (2) and shall also have the
responsibility and duty to give updated information to the Government
of Nepal about any matters related to the ministry or constitutional body
or central level office of his/her incumbency when required.
12. Responsibility of the Head of the Department: (1) The head of the
department shall be the chief administrative authority of the concerned
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department and shall carry out necessary functions to accomplish the
responsibility of the office.
(2) Without any prejudice to the generality of the provision of
Sub-section (1), the head of the department shall have following
functions, duties and powers, in addition to the functions, duties and
powers entrusted by this Act or other laws in force.
(a) Perform work of the department of his/her
incumbency.
(b) Carry out the management, day to day work of the
department and supervise and control over the
subordinate staffs of the department of his/her
incumbency.
(c) Arrange for providing expeditious and qualitative
services to the people by continuous improvement
of activities and work performance of the
department of his/her incumbency and subordinate
offices.
(d) Present to the secretary, with justification, for
reform to be made in the law or policy to be
implemented by the department of his/her
incumbency or subordinate office.
(e) Organize orientation and training programmes for
continuous improvement of the level of work
performance and skill of the employee of the
department and subordinate office.
(f) Submit monthly, annual or other reports of the
department of his/her incumbency and subordinate
offices before secretary as prescribed.
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(g) Make transfer, placement and deputation of
personnel up to gazetted class Three officer
working under the department of his/her
incumbency.
(h) Honour the personnel working in the department of
his/her incumbency or subordinate office with
excellent or appreciable work performance with the
reward of up to One grade increase in monthly
salary or with cash prize of up to Two Thousand
Rupees mentioning the detail description of the
work performed by such personnel.
(i) Make frequent inspection of the project
implemented by the office-in-charge and give
necessary direction; and while making supervision,
if it is found that the project has not been executed
within stipulated time or the completed project
found to be less than quality, make necessary
inquiry and initiate appropriate departmental action
against him/her and submit the report of such action
to the concerned secretary along with the
description of such departmental action.
(j) Exercise or cause to exercise other functions, duty
and authority as prescribed.
13. Responsibility of the Chief Office-holder: The office in charge shall
have the following functions, duties and powers in addition to functions,
duties and powers conferred by prevailing laws;
(a) Carry out the management of the office of his/her incumbency, its
daily functioning and supervision and control over staffs working
in the office;
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(b) Make deputation of the personnel of office of his/her
incumbency and subordinate office;
(c) Transfer the non-gazetted staffs from one office to another office
from the office of his/her incumbency or subordinate offices ;
(d) Make recommendation to head of the department for honouring
the personnel of his/her incumbency with outstanding or
appreciable work performance with the reward of increase in
grade or cash prize mentioning the detail description of the work
performed by such personnel;
(e) Cause to complete the work of the projects implemented under
the office of his/her incumbency within stipulated time;
(f) Make effective to the service to be provided to the general public
by the office of his/her incumbency
(g) Exercise or cause to be exercised other functions, duties and
powers as prescribed.
Chapter - 4
Procedure to be Adopted while Carrying out Administrative
Function
14. Certain Procedure to be Followed: Officials authorized to make
decision pursuant to this Act or other prevailing laws, while making
decisions in any subject, shall follow the procedure prescribed by
prevailing laws; and in absence of such procedure shall follow a
reasonable procedure taking into consideration of the subject matter to
be decided.
15. Decision to be Made Within Certain Time: (1) Officials authorized to
make decision pursuant to this Act or other prevailing laws, shall take
decision within the time stipulated by prevailing laws if there is such
stipulation; in absence of such stipulation one shall decide within a
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reasonable time taking into consideration of the subject matter to be
decided.
(2) In case it is not possible to make decision within the period
mentioned in Sub-section (1) due to unavailability of necessary fact,
information or evidence, the decision making authority shall decide the
matter mentioning its reason.
(3) After making decision mentioning the reason pursuant to Subsection
(2), the decision making authority shall present its information to
his/her superior authority as soon as possible.
16. Transparency to be Maintained while Making Decision: (1) Officials
authorized to make decision pursuant to this Act or other prevailing
laws, shall act in transparent way while making decision in any subject.
Explanation: For the purpose of this Act, transparency means
procedure of decision making on the basis of certain standard and this
term may not prejudice to the matter required to be kept confidential
pursuant to prevailing laws.
(2) To maintain transparency pursuant to Sub-section (1), the
decision making authority may pay due attention to the opinion and
advice of the subordinate staffs on the subject to be decided.
(3) If the process of decision of the subject has to be initiated
from one level and subsequently decided from the higher level, the
authority involved in each level has to present the subject to the
deciding authority enclosing his/her clear opinion on the subject.
(4) The decision making authority, while making decision, shall
address the questions, if any, raised in the opinion submitted by
authority of all level involved in the process of decision making in each
level pursuant to Sub-section (3).
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(5) While making decision, the decision making authority may
seek an opinion of a legal or technical expert in the subject, if he/she
deems it reasonable, if a legal or technical question has to be settled.
(6) If the opinion has been sought pursuant to Sub-section (5),
decision may be made also on the basis of such opinion, and if it does
not seem necessary to follow such opinion its reason shall be mentioned
in the decision.
(7) Other provision regarding transparency shall be as prescribed.
17. Basis and Reason to be mentioned in the Decision: The concerned
authority, while making decision pursuant to this Act or other prevailing
laws, shall mention the clear basis in the decision on which it is based
and reason why such decision has been made.
18. Decision not to be made in conflict of interest: (1) Official authorized
to make decision pursuant to this Act or other laws in force, shall not
decide the matter with conflict of interest by the fact that his/her direct
benefit, concern or interest is involved in the matter, or the decision
directly affects his/her successor or close relatives or provides direct
benefit to the business or profession carried out by the member of the
joint family of the decision maker.
Explanation: For the purpose of this Section, the decision shall
not be deemed to be in conflict of interest where the authority decides on
the matter for the greater public interest.
(2) In case where the official authorized to make decision could
not make decision due to the condition mentioned in Sub-section (1),
he/she shall refer the matter to the official corresponding to him/her rank
of the same office, in absence of such official in the office the matter
shall be referred to the higher official for decision.
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(3) If there is no official mentioned in Sub-section (2) in the
concerned office or such official also could not make decision due to the
situation mentioned in Sub-section (1), the decision making official shall
submit the matter to chief-secretary if he/she is a secretary, and the
matter has to be referred to his/her senior if the decision making official
is other official.
Provided that, if the decision-making authority is chief-secretary,
the matter shall be submitted to Government of Nepal (Council of
Ministers).
(4) The officer working in policy making or law enforcing body
of any sector or sub-sector or regulatory body of any sector or sub-sector
shall not be involved in the management of the firm, company or any
other enterprise of non-governmental or private sector, engaged in the
production of goods, service or carry out business related to the decision
made during the tenure of his/her office or involve directly or indirectly
in the management of firm, company or enterprise engage in the
production of goods, service or carry out business, during the tenure of
his/her office or for at least One year of the retirement from the post.
Explanation: For the purpose of this Sub-section, such period,
for the person working in more than one body, shall mean the period of
the latest two years before his/her retirement.
(5) If a person acts in contrary to the provision of this Section, the
secretary of the concerned ministry may take departmental action on that
ground if such person is incumbent in his/her position and if s/he has
been retired from the office the concerned secretary may order to fine
such person up to Ten Thousand Rupees.
(6) The person dissatisfied with the order made pursuant to Subsection
(5) may file an appeal to the concerned Court of Appeal within
Thirty Five days.
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(7) The work performed by the authority, contrary to this Subsection,
during his/her incumbency (tenure) shall ipso facto be void.
19. Performance contract may be made: (1) If any work to be performed
by the Government of Nepal has to be carried out within certain period
or to be executed with the achievement of certain quantity or if it is
necessary to execute any programme or project of national priority,
performance contract may be entered into with any official assigning
him/her the responsibility of executing such work.
(2) The contract made pursuant to Sub-section (1) inter alia, shall
consist of terms of reference, the period of performance and quality or
quantity of work performance.
(3) If contract has been made pursuant to Sub-section (1), the
person assigned with the responsibility by the contract shall perform the
act according to such contract.
(4) In case the work to be performed pursuant to Sub-section (3)
could not be performed within stipulated time due to force majeure it
shall be communicated to the secretary with the detail statement of its
reason.
(5) If statement submitted pursuant to Sub-section (4) seems to be
reasonable, the performance contract may be amended to perform the
work within extended period excluding the time of such stoppage of
work due to the force majeure.
(6) Departmental action shall be taken against the official failing
to perform the work pursuant to Sub-section (3) or (5) without
reasonable cause.
(7) In case, any person having responsibility pursuant to this
Section fails to perform the work with malice (malafide intention) or by
recklessness or negligence thereby resulting loss to Government of
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Nepal or causes to increase the cost of the project, compensation for
such loss or increase may be recovered from such official.
(8) Other provisions relating to performance contract shall be as
prescribed.
20. Consultation may be made with Civil Society or Stakeholders while
Implementing the Matters of Public Concern: (1) Government of
Nepal may make necessary consultation with stakeholder and civil
society, if necessary, before the implementation of any matter of public
concern.
(2) While making consultation pursuant to Sub-section (1) the
possible impact assessment that can be attained from the proposed
subject shall be made by overall analysis of positive and negative
aspects.
(3) Government of Nepal, while executing the subjects of public
concern, shall give due attention to the suggestion received from the
consultation with stakeholders pursuant to Sub-section(1) or (2) during
execution of the matter of public concern.
Explanation: For the purpose of this section, ‘matter of public
concern’ shall mean any of the following subject:-
(a) any subject establishing/introducing a
fundamentally new system or fundamentally
repealing the existing system,
(b) subject relating to execution of any development
programme or project of public concern, or
(c) Other subject as prescribed.
21. Responsibility not to be set Evaded: (1) Official who has been
entrusted with the responsibility to perform any work pursuant to this
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Act or prevailing laws shall perform the work according to stipulated
terms within stipulated time limit.
(2) Official entrusted with the responsibility to perform work
pursuant to Sub-section (1), shall not evade his/her responsibility or
cause to do any work by any other/person.
(3) An official who gets the work done by others contrary to Subsection
(2) or evades his/her responsibility of any kind or fails to
perform the work within stipulated time with malicious intention to
evade the responsibility or does not attain the achievement as per work
performance indicator, he/she may be admonished by the Government
of Nepal if such officer is the chief secretary, by the concerned Minister
in case he/she is secretary, by the concerned secretary in case she/he is
the official under ministry or head of the department and the concerned
head of the department in case he/she is any other official.
(4) In case there is no improvement in the conduct and activities
of the official even after the admonition given pursuant to Sub-section
(3), departmental action shall be taken against such an official pursuant
to the prevailing law on the grounds of incompetency.
22. Power may be delegated: (1) Notwithstanding anything contained in
this Act, an official may delegate his/her authority to his/her equivalent
or subordinate official to be exercised according to the prevailing laws.
Provided that, the responsible official shall not be exempted from
his/her responsibility owing to such delegation of power.
(2) The power delegated pursuant to Sub-section (1) may be
withdrawn at any time.
(3) Notwithstanding anything contained in Sub-section (1), the
power to make decision using judicial mind shall not be delegated.
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23. Provision Relating to Official or Professional Code of Conduct: (1)
Every person holding public office shall comply with the official or
professional code of conduct as prescribed during the tenure of his/her
office or to the specified time after retirement no matter what the reason
of retirement be.
(2) Following bodies or authorities shall formulate official or
professional conduct for the following official to be complied pursuant
to Sub-section (1):-
(a) Judicial council for judges,
(b) Concerned constitutional body for the officials and
the staff of concerned constitutional body,
(c) Government of Nepal, Council of Minister for civil
servants,
(d) Supreme Court for the personnel working in the
courts,
(e) Attorney General for public prosecutors and other
staffs of the office of Government Attorney,
(f) Concerned ministry for chief of the organization
established pursuant to prevailing laws and; and by
concerned organization for other staff thereof,
(g) Legislature-parliament, Execution and Management
committee for the staff of secretariat of legislatureparliament,
(h) Prescribed authority for other persons holding
public offices except the official mentioned in the
above Clauses.
(3) Notwithstanding anything contained in the Clause (c) of Subsection
(2), Government of Nepal may delegate power to the concerned
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ministry or central body authorizing it to formulate code of official or
professional conduct to be complied by the personnel working in any
ministry or central body or its subordinate body, taking into
consideration of the nature of the duty to be performed by such
personnel.
(4) It shall be the duty of concerned person to comply with the
official or professional code of conduct formulated pursuant to this
Section, and departmental action shall be taken against the person
violating such code of conduct based on the gravity of such violation
and record of such departmental action shall be maintained, if such
official is an employee (personnel) ; and in case of official other than
civil servant such record shall be maintained by the authority
responsible to formulate professional code of conduct for such officials.
(5) Notwithstanding anything contained in the Sub-section (4), in
case any matter concerning to the non-compliance or violation of the
official or professional code of conduct has been criminalized by the
prevailing laws, shall not prevent from initiating proceeding according
to law against such person.
Chapter-5
Miscellaneous
24. Discharging Official Responsibility: An official, responsible to
perform work pursuant to this Act or prevailing laws, while exercising
the authority or discharging duties, shall pay attention to the following
matters:
(a) Take self-initiation to perform one's own official work within
stipulated time,
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(b) Mobilize the governmental or public resources in cost-effective
manner which might lead to their maximum utilization and
productivity,
(c) Pay attention on the fact that the government or public office is a
service providing organization, the concerned authority is the
servant of the country, and general public are the holder of the
right to receive service,
(d) Keep in the mind that lingering and delay in the work
performance is the misuse of resources as well as additional
expenses of resource and wealth of the country,
(e) Supply information to the higher authority in case the work could
not be performed in time due to the inevitable condition,
Provided that, in case in matter concerning to public
service or service user (customer), the information shall be
disseminated to the general public by broadcasting or publicizing
as per necessity,
(f) The responsible officer shall make decision by her/himself in the
matters falling under one's own jurisdiction and shall not seek the
direction of superior agency in an ordinary issue without any
legal complication or ambiguity.
(g) The person holding public office, while performing official or
public work, shall show modest behaviour toward the the service
user (customer) consistent with the prevailing values, norms and
culture,
25. Citizen's charter to be maintained: (1) Every governmental office
(public office) responsible for delivering public service or involved in
public relation shall maintain citizen's charter in prescribed form and
locate it in the visible place of the office.
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(2) The citizen's charter, made pursuant to Sub-section (1), shall
contain, and inter alia, the following matters:-
(a) Detail statement of service offered by the office
and its nature,
(b) Procedure to be followed by the service user
(customer) to obtain the service,
(c) Estimated time for delivering the service,
(d) Description of the officer responsible for providing
service and his/her chamber,
(e) Particulars of the fees to be charged or other
amount to be paid, if any, to receive the service,
(f) Other matters as prescribed,
(3) The matters mentioned in Sub-section (1) shall be mandatory
to the concerned office and it shall be the duty of the chief of the
concerned office and other personnel thereof, to deliver service by
performing the work accordingly.
(4) Departmental action may be taken against the in charge of
concerned office and responsible staff thereof in case the service user
(customer) does not receive service due to the failure of the office to
perform the work (job) pursuant to Sub-section (1) as mentioned in
citizen's charter without any reasonable cause,.
(5) The amount of compensation, for the loss incurred to the
customer in case he/she does not receive the service due to the failure of
the office to deliver service according to citizen's charter made pursuant
to Sub-section (1), shall be as prescribed.
26. Mobile service may be operated: The Government of Nepal may make
arrangement for offering mobile service at the service user's locality,
requiring specific office to deliver service in the prescribed location
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(area) with the objective of delivering the service on the matter of
collective or individual concern.
27. Provision of fixing reasonable service fees: (1) Different levels of fees
may be fixed based on the principle of social justice while fixing service
fee (charge) to be paid by the customer to the Government of Nepal or
governmental agency for utilizing the service.
(2) While fixing the service fees pursuant to Sub-section (1) the
service fees shall be fixed with the provision of concession to the
residents of the remote or backward areas than the residents of other
areas
28. Provision Relating to Public Participation and Ownership: (1) The
Government of Nepal may arrange for the provision of operating any
project or programme with direct participation and ownership of the
people.
(2) The provision relating to the direct participation and
ownership in project or programme shall be as prescribed.
29. Provision relating to establishment of Governance Reform Unit: (1)
Governance Reform Unit shall be established in every ministry.
(2) The functions, duties and powers of the Governance Reform
Unit, established pursuant to Sub-section (1), shall be as prescribed.
30. Public hearing to be held : (1) The Chief office-holder at regional,
zonal, district and local level involved in delivery of service, shall
conduct public hearing as prescribed, with the purpose of making the
activities of the office fair, transparent, and objective and addressing the
lawful concerns of general people and stakeholders.
(2) While conducting public hearing pursuant to Sub-section (1)
the expert of the related subject, stakeholder, and representatives of civil
society and officials of the local bodies shall be invited.
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(3) Notwithstanding anything contained in this Section, public
hearing shall not be required to be held in the matters to be decided
judicially.
31. Grievance management: (1) A complaint box shall be maintained at
the visible place of every ministry, department, and government agency
and office for the management of grievance relating to quality,
effectiveness of the work carried out by such ministry, department and
agency or office and possible irregularities in them.
(2) Whosoever may submit complaint in the complaint box
managed pursuant to Sub-section (1).
(3) For the management of complaint submitted pursuant to Subsection
(2), the responsible officer of the concerned ministry, department
and government agency or office shall open complaint box in the
presence of other officials in every Three days and if the grievances and
suggestions are found to be reasonable, necessary step shall be taken for
the proper management thereof.
(4) In case complaint received pursuant to Sub-section (3) is
irrelevant to the concerned ministry, department and government agency
or office, however relating to the individual conduct of chief of such
ministry, department and government agency or office, the detail of such
grievances shall be submitted to higher authority thereof.
(5) The information of action taken pursuant to Sub-section (3) or
(4) shall be published in concerned notice board.
(6) Notwithstanding anything contained in this Section, in case
the complaint is irrelevant to the function of concerned ministry,
department and governmental bodies or office, its information shall be
given to the concerned person if identified and returned to such person
and in case the complainant is not identified the complaint shall be
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posted in the notice board of the concerned ministry, department and
government agency or office.
32. Approval to be Obtained to Open an Account in Foreign Bank: (1)
Any official employed in the service of the Government of Nepal should
obtain prior approval from the Government of Nepal to open an account
in a foreign bank save as prescribed otherwise.
(2) The procedure relating to taking prior approval of the
Government of Nepal to open an account in foreign bank shall be as
prescribed.
33. Not to encroach (interfere) on the authority of other officials: (1)
While performing a function pursuant to this Act or other prevailing
laws, no official shall interfere to the authority, responsibility or duty of
other official.
(2) Legal action may be taken against an official acting contrary
to Sub-section (1).
34. Advisor may be appointed: (1) While obtaining the service of expert in
the concerned subject wherein the work cannot be performed by the
official of civil service, the Government of Nepal may appoint an
individual advisor on the subject.
(2) The number, qualification and procedure of the appointment
of the advisor pursuant to Sub-section (1) shall be as prescribed.
(3) The functions to be performed by the advisor, his/her terms
of reference, authority, duty, responsibility and remuneration or other
facilities of the advisor appointed pursuant to Sub-section(1) shall be as
mentioned in the terms of reference approved by the Government of
Nepal at the time of appointment.
(4) The code of conduct to be complied with by the advisor
while performing duty on that capacity shall be as prescribed.
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35. Spokesperson to be appointed: (1) Every ministry, department and
government agency and office shall appoint any of its officials as a
spokesperson, for the purpose of providing information to the
stakeholders or general public about the activities and functions carried
out by the ministry, department, and governmental agency or office.
(2) The function, duty and powers of the spokesperson appointed
pursuant to Sub-section (1) shall be as prescribed.
36. Constitutional body and local body shall comply the Act:
Constitutional body, local body, regulatory body or public corporation
under full or partial ownership or control of the Government of Nepal
requiring to perform work according to the constitution or prevailing
laws and official working in these bodies or corporation , while
performing their work, shall mutatis mutandis implement or cause to
implement the provisions mentioned in Section 6, 7, 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 23, 24, 25, 26, 28 and 30.
37. Information technology may be brought into practice: (1) Every
ministry, department and government agency and office may bring
computerized information technology into practice based on the
availability of their resources and means.
(2) Other matters relating to bring into practice of information
technology shall be as prescribed.
38. Monitoring and evaluation committee: (1) With the objective of
making the service delivery system effective and transforming the
bureaucracy into service provider agency and carrying out evaluation
and monitoring of the work performed by the official entrusted to
perform the work pursuant to the prevailing laws, there shall be a central
monitoring and evaluation committee established under the coordination
of chief secretary.
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(2) Monitoring and evaluation committee may be constituted in
regional, zonal and district level as prescribed.
(3) There shall be an evaluation and monitoring mechanism in
every ministry as prescribed to facilitate the central monitoring and
evaluation committee.
(4) The secretariat of the monitoring and evaluation committee
shall be located in the office Prime minister and council of minister.
39. Disposal of Government Function and Supervision of Government
Office: In addition to the provision mentioned in this Act or other
prevailing laws, other provision related to the clearance (completion)
and supervision of the governmental work shall be as prescribed.
40. Facilities of service shall be as prescribed: In addition to the facilities
received by the chief secretary, secretary, head of the department or
Chief office-holder for work performance in that capacity, the other
facilities of such officials shall be as prescribed by the Government of
Nepal.
41. Annual report to be submitted: (1) Ministry or department and other
government agency at the central level shall, every year, prepare an
annual report including the programme implemented, works that has
been performed and condition of such work, progress and expenditure
and other necessary matters; and submit it within prescribed period, to
the office of the Prime Minister and Council of Minister by the ministry
or agency of central level, to the ministry by the department; and to the
higher office by other office or agency. Such report may be made public
with the approval of the superior Authority.
(2) The report as per Sub-section (1), in addition to the matters
mentioned in the Sub-section, shall include the reform programme to
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maintain good governance implemented by the concerned ministry or
agency in the ministry or agency or the sub-ordinate office.
(3) The prime minister, on the basis of report as per the Subsection
(1), shall submit report every year to the legislature-parliament
concerning the significant progress achieved in the matter of governance
reform and good governance.
42. Work Performance indicator: The indicator of work performance of
the work to be performed by any authority pursuant to this Act shall be
as prescribed.
43. Saving of Acts done in Good faith: No action shall be taken against an
official for his/her bona fide act done while performing any work or
carrying administrative function as per this Act or other prevailing laws.
44. Power to frame Rule: The Government of Nepal may frame necessary
Rules to implement the objectives of this Act.
45. Directive or Manual may be framed: Government of Nepal, for the
purpose of carrying out the activities of government offices or work
performance in a manageable, speedy and economical manner in term of
process, may frame and implement necessary directive or manual.
46. To be governed as per the prevailing laws: This Act shall apply on the
matter contained in this Act and prevailing law shall apply in other
matters.
47. The Effect of Repeal of Good Governance (Management and
Operation Ordinance) 2062: After the repeal of Good Governance
(Management and Operation Ordinance) 2062, unless a different
intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the
repeal takes effect;
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(b) affect the previous operation of ordinance so repealed or anything
duly done or suffered thereunder; or
(c) Affect any right, privilege obligation or liability acquired accrued
or incurred under the ordinance so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against the ordinance so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of
any such right, privilege obligation. liability, penalty forfeiture or
punishment as aforesaid; and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may be imposed
of if the repealing ordinance had not been passed.

Legal research refers to the process of searching reference material to find the answer to a given legal question. Legal research is routinely conducted by paralegals, attorneys and other legal professionals. It can be conducted electronically or through the use of book materials, and it plays a vital role in the preparation of a legal case.
In the United States and in many other case law systems, the law is a complex and vast field made up of legislation on the state and federal level, judicial opinions, and agency decisions. While the statutes and formal bills are codified in code books, case law — or law made by judges — is found in the context of legal case transcripts that are published in numerous court reports. The body of law is constantly evolving and changing, as judges decide new cases — setting new precedent — and legislatures pass new laws.
When a legal issue arises, such as a lawsuit or an accusation of a crime or a family court dispute, it is important to understand the state of the law on that given issue. For example, if a person was having a dispute over whether his signature on a contract was enough to bind him to comply with the contract, it would be important to conduct legal research to uncover the laws regarding what constitutes a legally binding contract. The applicable rule of law that determined whether his signature was enough to bind him might be found in a state or federal court's ruling on a similar issue, or might be found in state or federal legislation dealing with contracts and signatures on contracts. All of these sources of law would have to be examined to predict how the court would be likely to rule in the client's situation.
To conduct legal research, an individual can refer to primary or secondary sources. Primary sources are those sources that will be binding in a court, such as references to case law or to a statute. Secondary sources are resources that are not binding and that cannot be referenced in court documents, but which provide a person with a good idea of where to look to find binding sources. A secondary source might be a Restatement of the Law, which is a book published by legal experts that collects all the important decisions and rules on a given legal issue, or might be a law review article, which is an article published in a scholarly journal.
Legal research can be a time-consuming process involving combing through hundreds of legal documents. Online databases have made it simpler and faster to conduct research by allowing an individual to generate searches and tailor the results to their specific location and field of interest. The trade-off to using an online legal database is that such databases often charge a hefty fee for the convenience they offer.

legal research: an overview

The purpose of legal research is to find "authority" that will aid in finding a solution to a legal problem. Primary authorities are the rules of law that are binding upon the courts, government, and individuals. Examples are statutes, regulations, court orders, and court decisions. They are generated by legislatures, courts, and administrative agencies. Secondary authorities are commentaries on the law that do not have binding effect but aid in explaining what the law is or should be. The resources available to find legal authority are vast and complicated leading many law schools to require students to take a class in legal research. See Legal education

Finding tools enable a researcher to find and interpret legal authority. Initially, many researchers turn to tools that provide summaries of a particular area of the law. Some examples are legal encyclopedias, treatises, and the American Law Reports (ALR). Law reviews and legal periodical articles provide interpretation of the law as well as detailed articles on particular legal topics. These interpretations may be found through indexes such as the Index to Legal Periodicals. Restatements provide detailed summaries of what the law generally is or what the restatement writers believe the law should be. The citations to other authorities and annotations provided in legal encyclopedias, treatises, American Law Reports, law reviews, and legal periodicals are an important element of their value in the research process.

There are also a number of specialized finding tools that enable one to search for relevant materials in primary authorities. The index volumes for statutes and regulations compilations provide a quick guide to relevant rules and regulations. There are also privately published version of statutes that are annotated. Case reporters contain the decisions in cases that have been deemed important enough to publish. Case digests enable a researcher to look up a particular area of the law and find a list of case decisions that are "reported" in relevant case reporters. If one has the common name of a law (e.g., The Lanham Act), a popular name table can provide a quick reference to where the law can be found in the statute compilation. There are also conversion tables that allow one to link a statute to the bill from which it developed and the commentary surrounding it's approval. Shepard's Citations provides references to when cases and law review articles were cited by another source.

Computer databanks have provided the legal profession with quick and efficient tools to do research. LEXIS and WESTLAW, two prominent legal search engines, provide databases that have case reporters, statutes, legal periodicals, law reviews and various secondary authorities. State and specialty law collections pulling together diverse types of authority are now appearing on CD-ROM and the Internet.

The distinct features of welfare state are discussed here.
1. An Instrument for Social Welfare:
The welfare state is dedicated to the welfare of people. It seeks to provide minimum facilities to all people, to remove poverty, hunger and unemployment, and to bridge the gap between the rich and poor. It aims at establishing social and economic justice.
2. A Compromise between Individualisms and Socialism:
The welfare state, while avoiding the two extreme theories, namely, individualism and socialism, opts for a middle path between them. It is in fact the mid-point between these two extremes; it gives equal importance to both individual and state.
It values both the liberty of the individual and the interests of the society. The state is considered the friend, philosopher and guide of the individual.
3. Establishment of Democracy:
The welfare state is a democratic state. It functions through democratic institutions and in a democratic way. Democracy is a fundamental basis of the welfare state. *
4. Equal Rights of All:
It gives equal rights to all irrespective of caste, race and religion. It does not discriminate against anybody. It treats all equally.
5. Development through Planning:
It believes in planning. It seeks to provide welfare to people through planned programmes. It follows 'mixed economy' model of development. The state controls and regulates economy through planning.
6. Moral Development of Individual:
The welfare state creates conducive environment for the moral development of individual. When the individual is able to meet his basic needs of life and enjoys fundamental rights and freedoms, his self-confidence grows and his personality develops. The development of social morality makes the state strong and individual happy.
7. A Positive State:
The welfare state is a positive state. It regards itself more as an agency of social service than as an instrument of power. It is said that in a welfare state "the individual has only to get him born, the state will do the rest". The state looks after the individual from the cradle to the grave.
8. Social welfare is the Right of Individual, not a Dole from the State:
An eminent political scientist of India, Asirvatham observes, "The first important thing to remember is that welfare is not a matter of charity, but of right. Secondly, if welfare is to be genuine welfare, the ground for it should have been prepared by the various agencies at work in the state. In the third place, if the welfare state is to be a blessing and not a curse, it should not produce a pauper mentality on the part of its recipients."

In the strictest sense, a welfare state is a government that provides for the welfare, or the well-being, of its citizens completely. Such a government is involved in citizens’ lives at every level. It provides for physical, material, and social needs rather than the people providing for their own. The purpose of the welfare state is to create economic equality or to assure equitable standards of living for all.

The welfare state provides education, housing, sustenance, healthcare, pensions, unemployment insurance, sick leave or time off due to injury, supplemental income in some cases, and equal wages through price and wage controls. It also provides for public transportation, childcare, social amenities such as public parks and libraries, as well as many other goods and services. Some of these items are paid for via government insurance programs while others are paid for by taxes.

Most advanced nations are not true welfare states, although many provide at least some social services or entitlement programs. These goods and services are generally available only to certain people who meet eligibility requirements. Those that meet the prerequisites, however, are guaranteed — or entitled to — benefits as a right. This type of system is frequently referred to as a "safety net," which is designed to help the most vulnerable. 

The welfare state is socialist in nature. It redistributes wealth by heavily taxing the middle and upper classes in order to provide goods and services for those seen as underprivileged. Even countries that don’t typically subscribe to socialism usually offer at least some form of safety net, however, and most of which continue to expand.

One example is the United States, which according to many European countries, is found lacking when it comes to altruism in government. The truth is that the welfare state on a federal level is the antithesis of personal liberty, at least according to the U.S. Constitution, which enumerates specific powers granted to the federal government. The Tenth Amendment grants all other powers to the states, "or to the people." This means that individual states should be in charge of their own welfare programs, rather than the central government.

While some nations believe that creating a welfare state is the proper role of any central government, few have managed to create efficient systems. They are unable to provide equitably for all their citizens, often leaving those most in need with the least. Rationing of goods and services also becomes a major problem when too many people depend on the welfare state.

All advanced societies view helping people who literally cannot help themselves as decent, humane, and necessary. Yet, another serious issue with the welfare state philosophy is that many people who are capable of caring for themselves have no motivation to improve their lives when they can depend on the government to provide for them. This often breeds resentment amongst those who do work when they are forced to pay for people who do not, via ever-increasing taxes.

Such a system can fuel class warfare and prevent equality instead of obtaining it. The concept of the welfare state may appear to be a good model on paper. The reality of creating a truly equitable state has thus far been impossible to achieve, however.

PROSECUTION IN NEPAL

The Attorney General

The Attorney General of the of Nepal is the principal legal advisor to Government of Nepal. In accordance with Article 134 of the Constitution she/he is appointed by the Prime Minister. The Attorney General is appointed from among the judges or jurists who is eligible to be appointed as a judge of the Supreme Court. Senior Government Advocates (called Deputy Attorney General) and Government Advocates (called Joint Attorney) are the career officers appointed by the Government Of Nepal under the recommendation of the Judicial Service Commission.

The Attorney General and his subordinates are responsible for representing the Government for the protection of the rights and interest of the state. Similarly, the Attorney General is the final authority to decide whether or not to prosecute any body on behalf of the government.

Organization and Functions

The Office of The Attorney General is the Central Office in the prosecution hierarchy. The Attorney General Office is responsible for providing legal opinions to the government, for making efforts towards the protection of the legal rights and interest of the government by pleading, practicing and counseling. Similarly it has to supervise and inspect the performance of subordinate offices.

Sixteen Appellate Government Advocate Offices are established at the location of the Court of Appeal. The Appellate level Government Advocates (called Joint Attorney) are primarily responsible for giving legal advice to the regional and zonal level government offices and authorities. Besides, they have to protect the legal rights and interest of the state by prosecuting, pleading and counseling.

Seventy-five District Government Advocate Offices are established at the location of the District Courts. The district level Government Advocates (called District Attorney) are primarily responsible for prosecuting criminal cases in which the state is a party. Besides, they are responsible for the protection of the legal rights and interest of the state by pleading, practicing, counseling and giving legal advice to the district level government offices and authorities.

Investigation in the criminal cases is carried out by the police personnel.