Legislature: Meaning, Functions and Types of

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.

3. Custodian of National Finances:

A near universal rule is that “the legislature of the state is the custodian of
national purse.” It holds the purse of the nation and controls the finances. No
money can be raised or spent by the executive without the approval of the
legislature. Each year the executive has to prepare and get passed from the
legislature the budget for the coming financial year. In the budget, the executive
has to place the account of the actual income and expenditure of the previous
year and estimated income and expenditure for the New Year.

4. Control over the Executive:

A modern legislature has the power to exercise control over the executive. In a
parliamentary system of government, like the one which is at work in Bangladesh,
for all its actions, decisions, and policies, the executive is collectively responsible
before the legislature. It is accountable before the legislature. The legislature has
the power to remove the executive by passing a vote of no-confidence or by
rejecting a policy or budget or law of the executive.

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.

Types of Legislature: Bicameral and Unicameral Legislatures:

A modern legislature is either Bicameral or Unicameral. Bicameralism means a

legislature with two houses/chambers while uni-cameralism means a legislature
with a single house/chamber. A large number of modern legislatures, particularly
of big states, are bicameral i.e. legislatures with two houses (Bi = Two, Cameral =
House).

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.

General Principle of Doctrine of Judicial Precedent

There are two rules that apply to the doctrine of judicial precedents:
1. The first rule says that a court which is lower in a hierarchy is completely
bound by the decisions of courts which are above it.
2. The second rule states that higher courts are bound by their own decision
in general in matters of related to precedence.
High Court
The decisions of the high court are binding on all subordinate courts. In case of a
conflict between two benches of similar authority, the latter decision is to be
followed.
The more the number of judges on a bench, the higher their authority.
The decision of one high court is not binding on other high courts.
The Supreme court is the highest authority and its decisions are binding on all
other courts.

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’.

The word ‘custom’ literally, grammatically, or ordinarily means; tradition,

practice; usage; observance; way; convention; procedure; ceremony; ritual;
ordinance; formality; fashion; mode; manner; unwritten rule; way of doing things;
conventional social behaviour; etc.

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.”

Essentials of Valid Custom

Antiquity
The primary trial of a legitimate custom is that it must be prevalent from time
immemorial. It must be old or old and must not be of the ongoing source. Manu
stated, “Immemorial custom is supernatural law”. Days of ancient times imply in
the Civil law in the frameworks inferred consequently and initially implied in
England and additional time is so remote that no living man can recollect it or
give proof concerning it.

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.

Not opposed to Public Policy

Another test for the legitimacy of custom is that it ought not to be against public
policy. This test might be incorporated into the trial of reasonability, as it is
extensive term and it might incorporate public policy also. In Buldano vs Fasir, a
custom, where a woman was allowed to remarry again during the lifetime of her
husband was held to null and void by the court as it was against public policy.

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.