Which of two is more appropriate as an organ of law-making in modern society- Judiciary or Legislature?

Introduction:

As we know there are three brunches of a democratic government, Judiciary and Legislation are among those two. The branch of government that is given the authority to interpret and apply the law, adjudicates legal disputes, and otherwise administers justice is the Judiciary.[1]On the other hand Legislature is the body that is elected by the electorates. A legislature is the embodiment of the guideline of popular sovereignty, which recognizes that the people are the source of all political power. Citizens choose their representatives whom they want to see as their servants by voting them. The representatives are expected to be sensitive to the needs of their constituents and to represent their constituents’ interests in the legislature.[2] The purpose of a legislature is to make, alter, amend, and repeal laws. Legislatures are empowered to enact laws by virtue of legislative jurisdiction, which is the authority vested in them by the national or state constitution. It is clearly visible that the responsibility of the legislators is to make laws. On contrast the duty of the judges is to interpret laws made by the Legislative brunch.

 What is Law?

Laws are a set of rules and regulations to control the behavior of the citizen that comes from a sovereign authority and backed by sanction or punishment. Holland and Webb (1996) mentioned in their writing that, “Law … is definable as a system of rules. It guides and directs our activities in much of day to day life: the purchases we make in a shop, our conduct at work and our relationship with the state are all built upon the foundation of legal rules”[3].

Law is the set of rules that guides our conduct in society and is enforceable through public agencies. Our relation with one another are administered by many rules of conduct- from important concepts of ethics and fair play to minor etiquette matters such as which fork to use and how to introduce strangers to one another. We obey these rules because we think they are or simply because we desire the approval of others. If we do not follow these rules, others may treat us differently.[4]

 Judiciary and its Role:

The judiciary is the branch of government which directs justice according to law. The term Judiciary is used to refer broadly to the courts, the judges, magistrates, adjudicators and other support personnel who run the system. The courts apply the law, and settle disputes and punish law-breakers according to the law.[5]

The judiciary is comprised of the total judicial system in the country, for example courts, judges and justices and is assigned with the power to ensure justice, fairness and the rule of law by deciding cases filed by the people who have been denied some genuine right or privilege.[6] The origins of judicial action, judicial power, and judicial process may be traced back to the first communities that depended on neutral or unbiased third parties to solve legal disputes.

Judicial action is any action taken by a court or other judicial body to interpret, applies, or declares what the law is on a particular issue during a legal proceeding. It is also the action taken by a judicial body to settle a legal dispute by issuing an opinion, order, decree, or judgment.

Judicial power is the authority of a court to hear a particular lawsuit or legal dispute, and take judicial action with regard to it.

Judicial process is the procedures by which a court takes judicial action or exercises its judicial power.

Juries played an important role in the development of the English judicial system. As more legal disputes were submitted to juries for resolution, this system became more self-conscious. Concerns were expressed that both judges and juries were giving biased decisions based on irrelevant and untrustworthy evidence. The people who were asking for justice complained that trial procedures were haphazard, arbitrary, biased and unfair.[7] This is why the importance of Legislature increased in modern days.

The judiciary’s foremost role as the third branch of any government is to defend and uphold the Constitution and assure the rule of law is ensured. Under that general duty and mandate, the everyday work of the judiciary reflects to some extent the level of a court’s or judge’s jurisdiction. However, a universal element in the judiciary’s role at every level is the protection of each person’s Constitutional, human, civil and legal rights. The judiciary also has an essential role in protecting us from the wrong-doing of others, protecting the weak from the strong, the powerless from the powerful as well as protecting individuals from the unwarranted or unlawful exercise of power by the State. Moreover, the judiciary plays a crucial role in securing domestic peacefulness by providing a structured institutionalized forum for the resolution of discord and dispute and the justification of civil and criminal wrong-doing[8]

In short the major duties of the Judiciary are as follows-

• Interpreting laws
• Interpreting the Constitution
• Resolving legal disputes
• Trying criminal and civil cases
• Determining guilt or innocence, degree of accountability, etc.
• Imposing sentences and other legal punishment
• Protecting individual constitutional rights
• Considering writs, motions and other legal actions
• Checking the power of the Legislative and Executive branches

Legislature and Its Roles:

Legislature is an officially elected or otherwise selected body of people vested with the responsibility and power to make laws for a political unit, such as a state or nation.

Simply put, the legislature is the lawmaking branch. This organ of the democracy not only makes laws but also provides democratic representation, help direct the expenditures of government revenues, and check the executive and judicial branches etc. Last but not least, the legislature is the branch primarily responsible for providing the basis for legitimate public policy. That is because the legislature is the most democratic of the branches since it is the only one subject to a direct election by the people.

The role of legislatures varies from country to country. The form of government in each state determines their function. The nature and extent of role a legislature are different in monarchy or aristocracy or legislature in a democracy. The legislature plays very significant role in a Parliamentary System of government under such a system the legislature is superior to the executive.

Though the organisation, nature and functions of the legislatures differ from country to country, their main roles are more or less the same. They may be categorized as legislative, regulatory, financial, deliberative, judicial, constituent and electoral functions. As Dasgupta mentions in her writings about different roles of the Legislature:[9]

1.          I.          Legislative Role:

Law making is the most important function of a legislature as it is the direct source of legislation. Law is regarded as the expression or the will of the people. The laws reflect the changing conditions of society and the new social environment. The policies of the government are put to executive though the laws made by legislature. The laws have to adjust themselves to the changing requirements of the society. One of the major functions of the legislature is making law, amending and repealing them wherever they become obsolete or outdated. Laws are enacted according to prescribed procedure of the constitution. The law making powers of the legislatures are absolute. They are limited by the provisions of the constitution.

1.        II.           Regulatory Role:

In the Parliamentary System of government the legislature exercises its immediate and direct control over the executive. The executive is responsible and answerable to the legislature for all its actions. The legislature exercises its control by asking questions to the ministers to produce important information relating to matters of administration and matters of public importance. Secondly, it can move adjournment motions or raise debates to point out specific lapses of the government and most importantly it can move no confidence motion. Though such a motion it can express its lack of confidence in the government, which if passed by the legislature forces the party in power to resign

1.     III.          Financial Role

The legislature has very important powers in the field of finance. It acts as the guardian of national purse. It regulates the “income and expenditure of the government in respect of its various projects, administrative and welfare. People’s money must be controlled and spent under the supervision and control of their representatives to prevent its misuse and wasteful expenditure.

1.     IV.          Deliberative Role

The Legislature is a forum where many persons represent numerous interests, various points of view of different sections of the community. This is a body makes policies through a process of debate and discussion. This discussion provides with opportunities to each member not only to present the view and perception of his party but also permits his own views to find out the solutions to various problems in particular. Through this power the legislative acts as a bridge between the public and the government.

1.       V.          Judicial Role

The legislature also exercises some judicial function. Certain countries have entrusted to their legislatures the function of trying high constitutional authorities like the head of the executive, members of judicially and other constitutional bodies through the motion of impeachment. In India the President, the judges of Supreme Court, the members of U.P.S.C, the Comptroller and Auditor General can be impeached by the Parliament after fulfilling certain constitutional formalities. In England the Upper House of the Parliament Acts as the highest court of appeal. Also in United States the President can be impeached by the Senate. Very often the legislatures appoint commissions of inquiry relating to trade, commerce, agriculture, industry etc.

1.     VI.          Constitutional Role

Most of the legislatures have been assigned with the powers to amend the constitution. In Bangladesh all amendment proposals can be initiated only in the legislature. So is the case with Britain and U.S.A. In all such cases the legislature exercises its constituent powers under a number of procedural restrictions.

Law Making Process by the Legislature:

 In the law-making process the interest of the society and the interest of the state should be met. Society needs stable legal system, and the laws should be made on the basis of social, economic and environmental change. In order to reflect the need of the society through the laws, the law making process must be based on democracy. The mistakes of the state in the law-making process have negative results for the development of the society; otherwise the correct direction of the law-making process has positive result for the development of the state.

 Bogdanovskaia said that the law-making process of governmental bodies is very organized and structured rather too natural. It is consisted of numerous stages. As a rule, an act is prepared, scrutinized, adopted and published. The first stage includes preparing of the first version of a project (bill) in which an idea on law is realized. Individual, group of individuals, associations but usualy a governmental body, may do this work. A governmental body may take official decision concerning elaboration of a project, give the task to its internal structures (committees, departments) to write a bill, make previous analysis of the public interests, of necessity in a law, the correspondence of a possible act to the current legislation and to the constitution. The project is discussed by experts, associations, interest groups. The working commission analyzes the results of the discussion and changes the text. The next stage involves the scrutiny of a project in a governmental body. The process of examination differs in the state bodies. In the executive bodies the process is not strictly regulated (more flexible), while in the legislative bodies the process is regulated partly by the Constitutions, partly by the bodies itself. Acts may be adopted by collective body (a legislative body, Government) or by individual official – the head of the state, or a minister. The last stage of the law-making process is the publication of an act in official editions, information about it in the mass media – on radio, in the newspapers or on TV. In many countries unpublicized act does not have a legal force”.[10]

He also mentioned that, pressure group or interest group plays a vital role in law making process. They reflect more particular interests but nevertheless they influence on the law-making process. They may be any private corporations, small groups struggling for their interests and protect their rights. Actually, it depends from the social structure of the society, of the social groups, how they recognize their interests, able to express them in law.[11]

 Why Legislature should make law?

The most important reason for giving the duty to make law to the Legislature is due to the nature of modern states. Most of the states in the modern world are democratic. Whether it is parliamentary or presidential, the legislature is comprised of the representatives who are chosen by the people. They come to the legislative brunch among the general public. They know the needs and wants of the people. As they represent the population, they have better understanding about the policies and laws that should be made. The job of the judiciary is to resolve disputes, preserve the constitution and the fundamental rights of the people. The judiciary   which is made of courts and judges is not the representative of the people. Rather they are part of the democratic government. So it is not possible for them to realize people’s need and make laws accordingly. They can give interpretations to different laws made by the Legislature, but should not engage in making laws.

A judicial branch that is largely unaccountable and not subject to meaningful checks and  balances can — and does — routinely issue constitutional rulings that threaten individual liberties, compromise national security, undermine culture, and ignore the consent of the governed.

Again, a judicial branch that is composed of judges not subject to meaningful checks and balances leads to situations in which individual judges (acting by themselves or with other judges) behave tyrannically and render constitutional judgments completely divorced from the Constitution, history, and commitment to representative democracy.

 Problems when legislature makes laws:

Sometimes such laws are made only to get benefits for the political party in power or a special individual or a group of people not for the benefits of the general public.

Legislators often find that they helping to pass a law serve their self-interest even though it may reduce efficiency or cause market failure.

Legislators amend or repeal the Constitution for their own profits. They do not think about the supremacy of the Constitution.

The main disadvantage is that the words and terms used in Acts of parliament may be subject to several interpretations, rendering it unclear or ambiguous in a given fact situation

Dr. Paul and Professor Stewart (2004) said that, the Legislature is competent of making laws regarding social facts rather individual cases. Adjudication requires a careful analysis of the facts of a particular case and professional legal analysis of the legal issues. Individual legislators are simply not competent to do this, and the legislature as a whole is not competent to do this. They said, “Adjudication is interpreting and applying the law, a distinctive and specialized activity, with particular forms, procedures, and techniques that give it coherence and legitimacy. Legislators do not have the time or skill to examine the facts and law in a particular case, the way adjudication requires”.[12]

According to them, legislative supervision of individual cases undermines judicial independence, not only in the case at hand but prospectively as well. There is no way to avoid the sense that the legislature is pressuring the court, and that the court will suffer if it does not reverse the outcome of the case. This sort of step further weakens the dignity of courts, further discourages talented people from becoming judges, and encourages the legislature and other state institutions to develop even more entrenched attitudes opposed to judicial independence than they currently have. “Systemizing” or “regularizing” legislative supervision of individual cases will only entrench and legitimate it further.

Legislative supervision of individual cases is likely to create new abuses of its own, abuses of two kinds: (a) It is likely to be sporadic and chaotic, not evenhanded, and it will perhaps lead to selective supervision to help the most politically influential and well-to-do groups; (b) It is likely to open new possibilities for corruption by members of congress and their staff.

Conclusion:

The place of the legislative bodies in the law-making process is determined by two factors. From one side the acts of the legislative bodies are important source of all national legal systems and they increase in number and influence on the development of the national legal system and society in general. From the other side, the real role of the law-making process depends from political traditions, form of the government.[13] So it is obvious that the law-making responsibility of any modern state should be the authority of the Legislative. The Judiciary should interpret those laws, resolve disputes but should not engage themselves in policy making or law-making as they do not represent the mass.