The Legislature and the Functions Thereof

The Doctrine of Separation of powers

One of the characteristics of many legal systems is the doctrine of separation of powers which provides that the functions of the three arms of government should be carried out by separate bodies of people. This separation of the arms of government enables a check on the concentration of power in the hands of a few. The Legislature is one of these arms.

Essentially, the Legislature is the assembly of elected representatives of the people and as such it represents the national public opinion and power of the people.  In the case of Montserrat two ex-officio members are also a part of the Legislature.  They are the Financial Secretary and the Attorney General.

Types of Legislature: Bicameral and Unicameral Legislatures:

A modern legislature is either Bicameral or Unicameral.  Bicameralism means a legislature with two houses/chambers while unicameralism 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).  Montserrat has a unicameral Legislature.

Functions of the Legislature

There are several functions of a Legislature:

1. Legislative or Law-making Functions:
2. Perhaps the most important function of any legislature is to legislate i.e. to make laws.
3. Source: 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 democratic societies, the legislature is the chief source of the law.

• The legislature is therefore responsible for making, amending, and repealing laws. New laws are made to meet the changing needs of society and;
• Old laws which are no longer suitable in view of new circumstances are amended to reflect new realities on the ground.

• Laws which have become obsolete in nature are re­pealed.
  • The legislature is said to formulate  the will of the country into laws thereby giving  it a legal character, with some authority and force
  • Increasingly the regional or international community influences the laws which are passed, because if a country wants to be a part of the regional or the world in general
  • Ultimately the Legislature is that branch of government which performs the function of law­making through deliberations.
  • First the laws are made, then they are enforced and then adjudication can take place. So when you look at it that way, the Legislature is a very important arm of Government.

*In many countries the Legislature delegates subordinate legisla­tive powers to the executive authorities – Cabinet

The Constitution

The Constitution is the highest law of the land and the Legislature played a very crucial role in negotiating the contents of the 2010 Constitution.

• If the constitution is to be amended it is also the legislature which will have to take steps to do so.
• 2/3rds of the Legislature would have to agree to such an amendment before the matter could be addressed.

2. A second function of the Legislature is to deliberate upon matters of national importance, public issues, problems and needs.
   • Through this function, the legislature reflects the public opinion over various issues.
   • A spin off effect of its deliberation and debates is that the general population can be educated and brought up to speed on some matters – important function.

3. Control over the Executive:

Ordinarily the Legislature has the power to exercise control over the executive.  In Montserrat there are four Government Ministers who form the executive and 5 non-ministerial members of the Legislature.  So if one were to set party politics aside, there are sufficient members of the Legislature to hold the Government to account, if they so desire.

• As it stands, the executive is collectively responsible to the legislature for all its actions, decisions, and policies under the parliamentary system of government
• The Legislature controls the executive through the vote of no-confidence in that it has the power to remove the executive by passing a vote of no-confidence.

• The provision of question time is another mechanism for holding the Government to account for its actions. (Opposition, but any non-ministerial member can ask questions).

• The Legislature can reject a policy, budget or law which the executive would like to have passed.

In theory the legislature controls the executive in a parliamentary system of government, yet one has to admit that the executive can enjoy quite a lot of power as it enjoys the support of a safe majority in the legislature.

4 .  Custodian of National Finances:

The legislature is said to be the custodian of the national purse.”  This is a very important part of democracy.

• It holds the purse of the nation and controls the finances in that no money can be spent by the executive without the approval of the legislature.
• Each year the executive has to prepare and present its budget to the Legislature for the coming financial year, and this has to be passed before there is any spending.
• The executive presents a lot of information in terms of the actual income and expenditure of the previous year and estimated income and expenditure for the New Year.
• It is the Legislature which approves the imposition, or repeal or collection of any tax whatsoever.
• It exercises supervision over the financial admini­stration of Government through the very important Public Accounts Committee.

5. Outlet for Grievances:

• A legislature acts as the highest forum for airing of public grievances against the executive and perhaps for seeking redress of such grievances.
• The Legislature represents the entire populace (with all their varying opinions and interests) and acts as the national forum for expressing public opinion, public grievances and public aspirations.
• Parliamentary debates and discussions are important because they highlight various issues of public importance, and help people to understand what is happening.
• The proceedings of the legislature are carried live and newspapers may also carry parts of the debate.
• So, on the one hand, the Legislature acts as a vehicle for the expression of public opinion, and on the other, acts as an organ for the formation of public opinion.
• It secures modification in government policies in accordance with the interests of the common people.
• People can make petitions to the Parliament and there is a procedure in place for dealing with such petitions.

At the end of the day, the Legislature is very important to the ordinary man on the street.

6. Judicial duties of the Legislature:

Interestingly, some Legislatures do in fact have some degree of judicial functions, for example, the House of Lords is the highest court of appeal in the U.K.  The Senate of America is the highest court of impeachment for high public officials. In India, impeachment of the President is to be conducted by the Parliament.

In Montserrat the Legislature does not get involved in judicial functions.