It includes notes regarding the concept of legislation from exam perspective (cursory notes).
a. Definition of legislation
Generally, legislation is defined as a set of laws that is suggested by the government and made official by the parliament. The parliament of any country is regarded as the legislative arm of the government. Legislation refers to the laws which are enacted by the parliament.
In a country there exist 3 major functions namely to enact the law, to implement the law and to adjudicate the law. Legislation is regarded as statutory law which is the law produced by the governing body in order to regulate, authorize, sanction, declare or restrict the acts within a country.
In broad sense legislation means making the new rules for the regulation of human conduct.
Sir Henry Maine has stated that legislation is the last ameliorative agency of social reform and social change after legal fiction and equity.
The legislation is enacted and made by the parliament where in different countries the Parliament has different forms:-
- Nepal- House of Representatives and National Assembly.
- India- Lok Sabha and Rajya Sabha.
- USA- House of Representatives and Senate
- UK- House of Commons and House of Lords
Types of legislation
i. Supreme legislation:- it is the legislation which is made by the parliament and it cannot be controlled by any other legislative authority except the parliament itself.
Salmond states that supreme legislation proceeds from the supreme or sovereign power in a state and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority.
ii. Delegated legislation: it is also known as subordinate legislation, all other forms of legislative activity which have been recognised by law like the activities of Executive, Judiciary case laws are deemed as subordinate legislation.
It can be controlled by the parliament. Salmond states that it is that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or Supreme authority.
b. Importance of legislation.
- It is enacted by the Supreme or sovereign power of a state.
- It is a scientific source of law as it is enacted by the representatives of people.
- As per the needs of society it gets changed and amended.
- It is independent because it emerged from the authority source of law.
- It is regarded as predominant in its structure and comparatively 2 case laws it is clear, brief and effectively available and easily understandable.
- It controls human behavior in society.
- To strengthen order, development and justice.
- It acts as a bridge for maintaining the gap between individual and state.
- True laceration the activities of Executive and Judiciary is controlled for the protection of the notion of checks and balance.
c. Types of legislation.
Constitution:-
- The Constitution is regarded as the Supreme and fundamental law of state. Article1 of Constitution of Nepal has also stated the supremacy of constitution provision as well.
- It has enshrined the provisions of rights, duties, obligation, structure of the state and the governing basis of state.
- It defines the country's political and legal system whereas it also governs the nation in the transition period upholding the sovereignty of the nation.
Act:-
- It is enacted by the parliament.
- It usually includes the substantive matters only and these are brought only during the sessions of parliament.
- The Act of Parliament represents the common consciousness of people and it also provides legitimacy to other rules.
- It enforces the constitutional right and covers the deficiency which exist in other forms of law.
Regulations:-
- It is enacted by delegated authorities like Parliament, executive, judiciary, autonomous bodies.
- It usually includes procedural matters.
- The enactment of regulation related provision is mostly mentioned in parent Act itself.
- It is limited to the parent Act.
- It fulfills the aim of Act and it is enacted for the enforcement of parent act.
- However, it cannot have the provision of punishment and cannot define crime along with the prescription of punishment.
By laws:-
- It is made by the concerned authorities for the internal administration, financial Administration and the management of internal members of such authorities.
Directives:-
- It is delegated by the Act, Rules to make directives.
- To regulate the technical subject matter the implementing authority makes certain laws to provide the direction, such are called as directives.
Parameter:-
- It is also known as standard or norms.
- It is inside Acts and it is brought to remove the mistakes of Act.
Circular:-
- It is a notice given by the regulating authority to its subordinate office describing to do or not to do something which is in written form.
- For ex:- Home Ministry to all CDO
Ordinance:-
- It is a temporary law that is approved by the president on the recommendation of the Council of ministers and the situation where the both houses of the Federal Parliament are not in session.
- There exists the same force and effect of ordinance in comparison with an Act. It may be repealed by the president at any time.
The constitutional provision regarding Ordinance has been mentioned in Article 114 of Constitution of Nepal.
Prepared and Edited By: Manish Rajak & Madhu Dahal
