What's Legislature (PAD170)

TOPIC 2: LEGISLATURE

WHAT’S LEGISLATURE??

 Definitions:

      Elected, multi-member official government agencies that debates & ratifies laws;

      A branch of govt that formulates & expresses the will of the state;

      A type of representative deliberative assembly with the power to create, amend and ratify laws;

      An organized body having the authority to make laws for a political unit.

Functions of Legislature:

      Legislative function (Law-making):

      Make, amend or replace laws;

      Laws are introduced as ‘bills’ in the legislature;

      Legislature debates the bill;

      If bill is approved it becomes a law.

      Representative function:

      Main forum of public opinion;

      Represents the people in the govt;

      Represents the various groups/interests within a nation;

      Act as the eyes, ears & voice of the people.

      Amending the constitution:

      Makes & amends the constitution;

      3 methods of amending constitution:

      Direct vote;

      Amendment proposal followed by ratification by constitutional convention;

      Proposal followed by ratification of states.

      Supervision:

      Monitor & supervise the executive branch;

      Has the power to reject bills;

      Parliamentary Q&A sessions.

      Financial function:

      Theory of “no taxation without representation”;

      Control & regulation of national finances by the legislature;

      Presentation, consideration & authorization of national budget.

      Electoral function:

      Some legislatures act as electoral college;

      Become the tie-breaker in cases of deadlock.

      Judicial function:

      Some have power to adjudicate the behaviour of administrative officials;

      Can remove judges from office;

      Court of impeachment.

      Inquest/Investigative function:

      Make inquiries into matters of national interest;

      Appoint commisions of inquiry.

Methods of appointment of Legislature:

      Members of the unicameral legislature & lower house in the bicameral legislature are appointed through elections/by-elections;

      Malaysia: members of upper house are appointed by the govt and YDPA;

      Method of membership may be different in other countries.

Methods of removal of Legislature:

      Termination: refers to the process that causes a person to be disqualified from being a member of the legislature;

      Malaysia: Article 48 of the Federal Constitution provides for the disqualification for membership of Parliament;

      The method may be different for other countries.

Types of Legislature:

Unicameral

      A one house or chamber legislative assembly.

      Advantages:

      Allows speedy action & decision-making;

      Clarity of responsibility;

      No duplication or confusion of responsibility;

      Less expensive;

      Members are appointed by the people;

      Better representation of the will of the people.

      Disadvantages:

      Less check on hasty/ill-considered legislation;

      Risk of a despotic legislature;

      Heavy workload;

      Lack of intelligent discussion or criticism.

Bicameral Legislature:

      A two house/chamber legislative assembly.

      Advantages:

      Provides check of hasty/ill-considered legislation;

      Avoids despotic legislature;

      Lighter workload;

      Better representation of various classes, minorities & professional interests;

      More feedback, discussion & criticisms.

      Disadvantages:

      Duplication of responsibility;

      Slower legislative process;

      Expensive;

      Divides the legislature.

Legislative Process                              & Constitutional                                              Amendments

Legislative Process in Malaysia

      Provided under Article 66 of Federal Constitution & the Standing Orders of both Houses;

      3 types of Bills:

      Public Bills: affects the community or alters general laws;

      Private Bills: local or personal matters;

      Hybrid bills: introduces as public Bills but deals with private bill matters.

Preliminary stage:

      A bill is usually introduced by the minister related to the topic of the bill;

      Minister usually consults the Attorney General’s Chamber;

      Consults various ministries & government agencies that may have interests in the bill;

      Minister brings up proposed bill into Cabinet meeting to obtain feedback & endorsement;

      If Cabinet agrees, minister informs Secretaries of both Houses;

      Bills may be introduced in any House.

First Reading:

      The minister will read the title of the bill & the reasons for its introduction;

      No debate or amendment;

      No debate or amendment;

      The Bill is printed & circulated.

Second Reading:

      The general principles of the bill are debated;

      If accepted, it proceeds to the next stage;

      If rejected, it could be modified & presented again or stops at this stage.

House of Committee:

      Debate on the details of the bill;

      Less formal meeting;

      Committee may call experts related to the bill;

      May propose amendments;

      Minister submits a report on the Bill to the House.

Third Reading;

      Minister reports that the bill has been accepted with or without amendments;

      Minister proposes that the bill be read a third time & voted on;

      Amendments need to be put to a vote.

Others House;

      Goes through the same process;

      If the other makes amendments to the Bill, it must get the approval of the first House.

Royal Assent

      The Bill is sent to the YDPA for the Royal Assent;

      YDPA has to approve within 30 days;

      If YDPA does not approve?

      Bill becomes a law upon publication in the govt gazette.

Constitutional Amendments

      Amendment: the process of altering, correcting or changing  the better something or a document.

      A constitution must be able to adjust to the ever-changing environment of a state;

      Without amendments a constitution will become irrelevant & ineffective.

      Kenneth Wheare – 4 guidelines in the amending process:

      Should only be amended after careful deliberations;

      The people should be consulted;

      Agreement btwn central & state govts (Federal system);

      Rights of the minorities are protected.

Constitutional Amendments in Malaysia

      Reid Commission: “should not be too difficult as to produce frustration nor too easy as to weaken seriously the safeguards of the Constitution”.

      Passed in each house by a majority of at least 2/3 of the members voting.

      4 different methods of amending the Federal Constitution (Article 159 & 161E):

      Simple majority in both houses;

      2/3 majority of members in both houses;

      Same condition as 2) & the consent of the Conference of Rulers;

      Same condition as 2) & the consent of either the YDPN Sabah or Sarawak (1963).

      Another method (Article 150) – Give the executive power to declare emergency;

      The constitution does not specify which of the provisions those different methods apply;

      Not required to obtain approval of the 11 peninsula states when amending provisions that may affect them;

      Sabah & Sarawak: amendments require the consent of the head of state.

      Examples:

      Amendments to the Constitution in 1971;

      Constitutional Crisis of 1983;

      Judiciary Crisis of 1988;

      The Issue of Rulers Immunity in 1993.

Amending State Constitution

      Only the state legislative assembly can pass amendments;

      Need at least 2/3 vote of the total members;

      States with sultans: provisions regarding them & their families can only be amended by the sultan via proclamation;

      Negeri Sembilan: ruler must act with the advice & agreement of the ruling chiefs;

      States without sultans: YDPN virtually has no role.

Subsidiary Legislation

      “…any laws made by authorized person who has been given the power to do so…” (Tun Salleh Mohd Abas);

      Any proclamation, rule, regulation, order, notification or by-law made under any Ordinance or Enactment & having legislative effect (Section 3 of Interpretation Acts 1948 & 1967);

      Law passed by a subordinate authority under powers conferred by an Act @ parent/enabling Act.

      Parliament & State Assemblies: confer/delegate some legislative powers to a person/body;

      Reason: functions & responsibilities of govt are                       becoming more complex & expansive;

      Example:

      Insurance Act 1963 (Revised 1972):

•          Section 45: gives Minister power to make                      regulations to carry out                                objectives of the Act.

      Ministerial regulations can be rescinded by the Minister if it becomes impractical or outdated (Eleventh Schedule of the Federal Constitution);

      If parent Act is repealed, the subsidiary legislation will cease to exist.

Advantages:

      Useful in times of emergency or circumstances which demand flexibility;

      Example:

      Currency control during the 1998 financial crisis.

Disadvantages:

      Too much legislative power with people who are not responsible to the Parliament or the people.

Control of Subsidiary Legislation:

      Consultation:

      Conduct consultations with organized interest groups or advisory groups before making regulations;

      Parent/enabling Acts can make consultations mandatory.

      Publicity:

      Make rules/regulations available to the public;

      Subsidiary legislation should be published in the Gazette.

      Parliamentary Control:

      Parliament may repeal the provision or the parent Act itself;

      Parliamentary questions to the minister;

      Present the rules/regulations to the Parliament.

      Judicial Review:

      Declare subsidiary legislation invalid if it was made in excess of statutory authority conferred by the parent Act.

Direct Legislation

      A process where the people are directly involved in the law-making process;

      Associated with the concept of direct democracy;

      Types of direct legislation:

      Referendum

      Initiative

      Recall

Referendum

      Deciding on a law or constitutional amendment by means of popular vote at the request of govt or legislature;

      Referendum must be ratified by the required majority of the people.

      Two types of referendum:

      Facultative/Optional:

      After law is passed by legisltr, it is submitted to specified number of people for endorsement.

      Compulsory/Obligatory:

      All bills must be referred to the people for endorsement before it becomes a law.

Advantages of Referendum

      Maintains the principle of popular sovereignty;

      Indicator of public opinion;

      Minimizes importance of political parties;

      Can resolve deadlock in a bicameral legislature;

      Encourages patriotism & sense of responsibility;

      Less radical process, avoids drastic changes.

Disadvantages of Referendum

      Undermines the prestige of the legislature;

      Average citizen not qualified to form an opinion on legislative issues;

      Does not fairly represent public opinion;

      Too frequent referendum can result in electoral fatigue.

Initiative

      A process where citizens can propose legislative or constitutional changes without regard to the opinion or wishes of the legislature;

      Inherent right of the people.

      2 forms of initiative:

      Formulative:

      Proposal is formulated in a form of a bill complete in all aspects;

      Legislature must consider the proposal.

      General terms:

      Proposal is made in general terms;

      Legislature must draft, consider & pass the law.

Advantages:

      Necessary for the development of popular sovereignty;

      People are ready & willing to obey laws;

      Minimizes risk of political upheaval;

      Gives people the right to propose laws that they really need.

Disadvantages:

      Reduces the authority & responsibility of the legislature;

      Law-making process is difficult & complicated;

      Risk of the people proposing ‘unwise’ rules.