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Legislature: Meaning, Functions and Types of Legislature
Legislature: Meaning, Functions and Types of Legislature
Legislature
Of the three organs of the government, the place of primacy belongs to the
Legislature. The function of government begins by law-making and is followed up
by law-enforcement and adjudication functions. As such, the legislature is the first
organ of the government.
Legislature: Meaning
The term ‘legislature’ is a generic term meaning a body which legislates. The term
‘Legg means law and “lature’ the place and etymologically Legislature means a
place for law-making. Another term, which is used as a synonym of Legislature, is
‘Parliament.’ This word stands derived from the French word ‘Parley’ which
means to ‘talk’ or to discuss and deliberate.
The legislature is that organ of the government which passes the laws of the
government. It is the agency which has the responsibility to formulate the will of
the state and vest it with legal authority and force. In simple words, the
legislature is that organ of the government which formulates laws. Legislature
enjoys a very special and important in every democratic state. It is the assembly
of the elected representatives of the people and represents national public
opinion and power of the people.
Functions of a Legislature:
1. Legislative or Law-making Functions:
The first and foremost function of a legislature is to legislate i.e. to make laws. In
ancient times, laws used to be either derived from customs, traditions and
religious scriptures, or were issued by the kings as their commands. However, in
the contemporary era of democracy, legislature is the chief source of law. It is the
legislature which formulates the will of the state into laws and gives it a legal
character. Legislature transforms the demands of the people into authoritative
laws/statutes.
2. Deliberative Functions:
To deliberate upon matters of national importance, public issues, problems and
needs is an important function of a modern legislature. Through this function, the
legislature reflects the public opinion over various issues. The debates held in the
legislature have a great educative value for the people.
The Prime Minister and all other ministers are essentially the members of the
legislature. They are bound by the rules and procedures of the Parliament.
5. Constituent Functions:
In almost every state, it is the legislature which has the power to amend the
constitution. For this purpose legislature has to pass special laws, called
amendments, in accordance with the procedure laid down in the Constitution. In
some states the requirement is that the legislature must pass the amendment
with 2/3rd or 3/4th or an absolute majority of votes.
6. Electoral Functions:
A legislature usually performs some electoral functions. All elected MPs form the
Electoral College which elects the Prime Minister of Bangladesh. In Switzerland,
the Federal Legislature elects the members of the Federal Council (Executive) and
the Federal Tribunal (Judiciary).
7. Judicial Functions:
It is customary to give some judicial power to the legislature. Usually, the
legislature is assigned to act as a court of impeachment i.e. as an investigating
court for trying high public officials on charges of treason, misdemeanor and high
crimes and remove them from office. It has also the power to pass a resolution for
the removal of Judges of the Supreme Court and of the High Court’s on the
ground of misbehavior or incapacity.
8. Ventilation of Grievances:
A legislature acts as the highest forum for ventilation of public grievances against
the executive. Besides representing every interest and shade of opinion, the
legislature acts as the national forum for expressing public opinion, public
grievances and public aspirations. Parliamentary debates and discussions throw a
flood light over various issues of public importance.
9. Miscellaneous Functions:
Some legislatures are assigned specific executive tasks. For example, the US
Senate (Upper House of US Legislature) has the power to confirm or reject the
major appointments made by the US President. Likewise, it enjoys the power to
ratify or reject treaties made by the US President.
Thus the legislative organs of the government play a very important and active
role in the exercise of the sovereign power of the state. In fact legislature is the
legal sovereign in the State.
However several states, mostly the small states and provinces of a federal system,
have unicameral legislatures, i.e. legislatures with single houses. Where the
legislature is bicameral, “the first house is usually called the lower house, and the
second house is called the upper house.
India, USA, UK, France, Russia, Switzerland, Australia and a large number of other
states have bicameral legislature.
The unicameral legislatures are working in Bangladesh, China, New Zealand,
Zimbabwe, Turkey, Portugal and several other states. The state legislatures of all
the Canadian and Swiss cantons (provisions) are unicameral.
Judicial Decisions
Judicial precedent or decisions is a process which is followed by the judges to take
the decision. In Judicial precedent, the decision is taken by following the similar
cases happened in the past. So judicial decision is based on the principle of stare
decisis i.e. “stand by the decision already made”. Let us explore the types and
principles of Judicial Precedent in detail.
Judicial Precedent
There is a term called the doctrine of stare decisis which states that the court’s
decision becomes a precedent to be followed in future cases of a similar nature.
The reason why a precedent is recognized is that the verdict of the judiciary is
assumed to be correct. The use of precedents helps the litigant gain confidence in
the judicial system. The administration of the judicial decision becomes just and
fair.
MEANING OF CUSTOM
The word ‘custom’ is derived from an old French word ‘Coustume’. Some says
that the word ‘custom’ is based on Latin word ‘Consuetudo’,some says that the
word ‘Custom’ is derived from the word ‘Consuetus’, while others say that it is the
part participate of word ‘Consuescere’ which means ‘ accustom’.
Definition of Custom
1. Salmond: - According to Salmond, “custom is the embodiment of those
principles which have commended themselves to the national conscience as
principles of justice and public utility”.
2. Austin: - According to Austin, “custom is a rule of conduct which the governed
observe spontaneously and not in a pursuance of law set by a political superior”.
3. Holland: - He defined custom as “a generally observed course of conduct.”
Reasonability/No Arbitrariness
The second significant legal trial of a legitimate custom is that it must
be reasonable. It must not be unreasonable. It must be helpful and
advantageous to the general public. On the off chance that any parties face
difficulties in a custom, the parties must fulfil and convince the court that
a particular custom is unreasonable. This means the weight of evidence lies upon
the individual who challenges the custom.
Continuance
A custom must be followed with consistency and in continuity from its inception.
If it is proved otherwise that there were a break and a pause by a particular
community in the following the custom in a court of law, then the court may have
the discretion to get the custom annulled. Therefore a custom must be followed
in consistency and continuity.
Certainty
The most important test of a valid and essential custom is that a particular custom
must be specific and less from ambiguity. If a particular custom is ambiguous,
vague and not understandable by the parties then the particular custom will be
declared as null and void by the court, the same was ruled by Privy Council
in Wilson vs. Wilson.
Juridical Nature
A custom must be of a juridical nature. A custom must refer to legal relations. A
mere voluntary practice not conceived of as being based on any rule of right or
obligation does not amount to a legal custom.
No analogical deductions
Custom can’t be stretched out by analogy. It must be set up inductively, not
deductively and it can’t be built up by earlier techniques. It can’t involve
hypothesis yet should dependably involve reality. In like manner, one custom
can’t be inferred and deduced from another custom. Custom in contravention
to fundamental rights will be declared as null and void.