State and Explain- Which of two- Judiciary or Legislation is being more appropriate as a law making organ in a modern state

Introduction

The starting point to understanding state organs and their powers is to recall an oft-quoted statement from the opening paragraphs of the 1776 American Declaration of Independence:

We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that … it is the right of the people … to institute new government, laying its foundation on such principles, and organizing its power in such form, as to them seem most likely to effect their safety and happiness.[1]

This statement emphasizes the fact that the power of governmental organs is necessarily limited and defined by the society that creates the government. There is thus no magic in the powers of state organs; their power is given and defined by the people. Every society has rules that define the structures of the state and spell out their powers. These rules may be written or unwritten, or a combination of both. A totality of these rules makes up what is called the Constitution of a country. The law emanating from such rules is called constitutional law. Professor Peter Hogg has aptly described constitutional law as follows:

Constitutional law is the law prescribing the exercise of power by the organs of a state. It explains which organs can exercise legislative power (making new laws), executive power (implementing the laws), and judicial power (adjudicating disputes) and what the limitations of those powers are …. Civil liberties are also part of constitutional law because civil liberties may be created by the rules that limit the exercise of governmental power over individuals.[2]

Indeed, in most countries, the rules defining the structure and powers of governmental organs are embodied in its Constitution. It is mainly to these documented rules that reference should be made in order to understand the powers of state organs. Answers to the following questions are all a matter of constitutional law: Which organ(s) make(s) law? What are the requisite law-making processes?

 Constitutional law utilizes the principle of separation of powers. In its classical sense, this principle of separation of powers requires that, as a guarantee for the liberty of the individual, political power should not be concentrated in one individual or organ of government. It requires that governmental functions be separated into three different groups and each be performed by different persons. This is thought to be a way of creating ‘checks and balances’ by one organ against another. The three main governmental organs are the legislature, the executive, and the judiciary[3]. Thus, the organ that makes law[4] (the legislature) should be different from the organ, which implements it (the executive), and should both be different from the organ which interprets it in the event of a dispute (the judiciary).

 All the three organs of the Republic manifest unitary features, which are enshrined in the constitution. All the legislative powers are vested in a single chamber parliament. All the powers of government are conferred upon a single central government. All judicial powers of the Republic are vested centrally in the Supreme Court of the country, comprising two Divisions namely, the Appellate Division & the High Court Division (Kamal 1994: 16)[5].

 The legislature is empowered to central law making, oversee policy formulation, and scrutinize taxation & public expenditure. However, when a bill in general & money bill in particular is passed by the parliament it shall be presented to the President of the Republic for assent. When parliament stands dissolved or is not in session, the President of the Republic may make & promulgate ordinances. An ordinance promulgated by the President must be laid before parliament at its first meeting.

 With reference to independence of the judiciary, article 94.4 of the constitution says that, “the Chief Justice & the other judges shall be independent in the exercise of their judicial function”(GOB1972:87). The Supreme Court also has rule making power & advisory jurisdiction[6].

  Competent Legislature

One of the most efficient public documents is legislation, the law made by a competent Legislature[7]. Being the most appropriate way of communication between the elected and the elector, it ought to be efficient too. While electors choose to elect acceptable candidates as their representatives, they reasonably expect in return effective legislation that governs the elector’s conduct. Brevity, clarity, and precision play a very important role, while reducing the commands of the Legislature, by way of legislative drafts.

 Being the prime source of law, legislation and the legislative counsel who writes it assume unprecedented importance in the modern civil society. Legal history reveals that law in its evolution came in the form of natural justice and developed and enriched by its customs and traditions. It is intriguing to determine which came first: customs for protecting human rights or principles of natural justice for protecting them[8]. Nonetheless, it is very obvious and acceptable to all that the law in the form of legislation came into existence and gave definitive expression to principles of natural justice. It binds the people of a civilized State for their governance and is made on their behalf by the sovereign.

 Natural justice

The principles of natural justice are the dictate of reason and conscience existing in the human beings and the customs and traditions developed by long and constant observance in the society. The courts recognize the principles of natural justice in forms of customs and traditions when the written law is not available and they develop the principle of natural justice as the law known as equity and good conscience[9]. The written laws should provide certainty, solidarity, and stability in the society and leave little scope of interpretation to the courts in comparison to the application of new principles of equity by courts. The effect of legislation has a far-reaching consequence. As observed by L.H Fuller, “the strength of law lies in public acceptance.”

 The role of law in governing the civilized society is very efficacious in comparison to customs and traditions as well as principles of natural justice. The nomadic and primitive societies were governed by their customs and traditions[10]. Civilized societies always consider providing law to their people in the form of legislation considering mainly, its efficacy and utility. Hence, while translating the policy, a legislative counsel needs to check if the directive is in consonance with the principles of natural justice. His job is not just transcription or typing but to uncover pitfalls that might trap the Government as well as the Legislature if these principles are ignored or escape his attention.

Judges

The purpose of judgment by application of law is to secure justice. When the general public thinks of the law as just and fair, it is a high mark of confidence in the judiciary.

Written Law acts as a protection for Judges themselves[11]. No judge who applies it can be accused of partiality. For the law does and ought to embody the collective wisdom. A judge who has to reach his conclusion without the guidance of law puts his personal reputation and the confidence of public at stake[12]. This is one of the major roles the law plays while guiding Judges. However, there are several instances of judges complaining that it is difficult to understand a certain provision or to know the mind of the Legislature. Legislative counsel has, therefore, a responsibility to put things in a straightforward and understandable manner. If the legislative counsel does not explain the subject matter simply, he or she probably does not understand it as well. Leaving certain details to the judges to interpret is an injustice the justice seeker[13]. The legislative counsel, while transforming the policy into legislation, has to foresee what the policy makers have failed to see.

  Citizens

The law instructs the citizens how to behave justly. This, you may say, is a simplistic statement. Ordinary people do not need to read the law to know how to behave. They generally behave well because they are brought up in a society to accept the same standards of conduct as those that form the basis of the law. The persons who regulate their activities by the law are more likely to be on the right side of it and usually never take advantage of loopholes, if any[14]. A well-drafted piece of legislation will always come to the rescue of the individuals it is addressed to. It would save an ordinary citizen from untold misery. Citizens sometimes have to pay for the actions of the legislative counsel. For this reason, legislation-making attracts the most serious attention of the people at large. Clarity is important for effective communication between the body that pronounces the law and the audience. For this reason alone, statutes will definitely continue to dominate in terms of their importance among all other written documents in our society. Efficiency of a Legislature is invariably reflected upon the official pronouncement that it makes by way of legislation[15], which is written by the legislative counsel.

  Lawyers

If there were no law, there would be no lawyers to consult. However, the existence of law helps lawyers provide a solution to legal problems[16]. In the course of their work the lawyers may enormously reduce the number of cases going to court if the legislation diminishes the areas of uncertainty. Legislation should enhance the possibility of a settlement, which, when negotiated by lawyers, is always the best solution to a dispute. Moreover, a great deal of the administration of justice is simply harmonizing, ensuring rights, and making adjustment in accordance with law.

 Sometimes, lawyers who bank upon legal provisions for the benefit of their clients find it difficult to present the case due to the ambiguous nature of a legal provision[17]. The administrator of the legal provision is also sometimes in a fix as to how to apply it on a certain occasion.

 In any democratic country, developed, semi-developed or developing, the Government is the respondent in most law suits. The reason, sadly, is that all legislation is either drafted by the Government counsel or touched by them by way of vetting or otherwise. A great chunk of Government money could be saved by a Government counsel, especially a legislative counsel, who applies their knowledge and expertise in drafting or rendering proper advice leaving no room for ambiguity in the language of law they resort to[18].

   Litigants

A perplexed citizen, sometimes a litigant, approaches a court expecting the final determination of their rights in their favor. The citizen expects rights to be adjudged in accordance with the law or its appropriate interpretation[19]. When the law is vague and has the effect of no law or unclear law or an inapplicable law, it results in miscarriage of justice.

 If a law is in existence, the citizen expects a determination on the basis of it; and if the existing law does not make out what it ought to, the litigant loses faith in the machinery involved in the process, including the person who wrote the law. Litigant expects a judge to decide with the help of the law, to apply the law, and to blend law and facts that result in justice[20]. The expectation of the litigant is justice, which is possible only with the existence of clear law. Sometimes, legally meaningless phraseologies and archaic expressions add insult to the already injured user of the law.

  Reasonableness and Rationality

A reasonable law abiding citizen is one who uses reason sensibly and arrives at fair and moderate results. What is reasonable and unreasonable is laid down by the law. Law here, very effectively guides the citizen to arrive at reasonableness. If we think that, a decision has been reached without reasoning at all, purely emotional or impulsive; we say that it is irrational. If we think that the reasoning power is applied wrongly, has failed to detect what is relevant, we use the word unreasonable[21]. The act has to be caught by the spirit of the words and to be within their scope as well as within their reasonable meaning. There have been many examples of legislation that judges have shaped to their purposes. They did this by ruling on question of facts and question of law.

 

  Injustice

Legislation as discussed is that which advances the policy of the Government, throws some light on injustice. There is a difference between a good citizen as an individual and in the society to which he or she belongs. The good citizen practices justice as a virtue for its own sake. The State, which is the administrative organ of the society[22], has till recently been regarded as provider of justice through legislation.

Nevertheless, when our legal system was in a developmental stage, what motivated the State was maintenance of order.

 If three good citizens in three different parts of the country reach in a matter of domestic justice three different decisions because they apply three different principles for the determination of the responsibility or the assessment of compensation, the probability is that none of the three individuals involved will know anything about the other two cases. Because there will be no comparison, there will be no sense of injustice. Each individual will, if accepting that he or she has been treated fairly and reasonably as an individual, be satisfied with the result. Even if there is a comparison, it does not give rise to a sense of injustice. That must depend on whether the individuals think of themselves as belonging to the same group, i.e., as being members of the same society. If they do not, the unsuccessful would shrug it off, thus, if English, Indian, and a German judge deliver three different judgments on the same set of facts because each judge applies a different principle, no one is upset; each judge is right according to their own wisdom[23].

 Therefore, we allow that each community may have its own ideas of what is just. As we reach out towards a world community, we begin to formulate general principles, which we say all communities should adopt. Subject to that and in the application of the general principles, we accept that the results may differ. However, within as single community, they must be the same and this can be ensured only by the existence of the legislation that caters to the society in general.

Legislative Counsel

To enhance the efficacy of legislation, the legislative counsel needs to be alert to the dangers of negligence, oversight, and overzealousness. The utility or harmfulness of a legislative counsel often times becomes known a long time after the legislation he or she prepared starts rolling out. Then, sometimes the legislative counsel would have moved on to a different assignment or retired[24].

 Legislative counsel contributes to maximizing the efficacy of legislation by providing their expertise to make available every scientific tool for the best pronouncement of Legislature.

 Legislative drafts were believed drafting for lawyers and judges once upon a time[25]. In the modern democratic legislative process, a legislative provision is people-oriented. The idea is to serve the masses by extending legislative benefits to them in the most palatable manner. Every legislative Counsel should strive to achieve this[26].

  Conclusion

As correction or improvement of a statute entails cumbersome procedural hurdles, legislative communication needs to be prepared with utmost care and caution unlike many other documents. Statute making is not merely a transcription or translation of administrative or executive guidelines, but is the command of legislative intent. Legislation-making is a mixture of vision, mission, and craft. Legislative counsel is master artisans whose handicrafts are applied to bring out a workable proposition considering the background of a problem and foreseeing the ramifications of the legislative action. Efficacy always presupposes precision, brevity, and clarity.

To conclude, legislative counsel have the most crucial role in the whole exercise of legislation and its making, particularly in terms of making it a most efficient legal document. It is said, “If the law is good, praise the people who brought it and if it is bad, condemn the legislative counsel.” Nevertheless, let us continue to strive to make the best.

 Reference

ADB. (2003). Judicial Independence Overview and Country-level Summaries. Asian Development Bank. Retrieved January 10, 2005.  fromhttp://www.adb.org/Documents/Events/2003/RETA5987/Final_overview_Re port_pdf

Ahmed. S. G. (1986). Public Personnel Administration in Bangladesh. University of  Dhaka: Dhaka.

 Anisuzzaman. M. (1979). Bangladesh Public Administration and Society. Bangladesh  Books International Limited: Dhaka.

 Arafeen. A. S. M. S. (2003). Bangladesher Nirbachon 1970 – 2001 (Elections in Bangladesh : from 1970 – 2001). Bangladesh Research and Publications: Dhaka.

 Bari. & Fazlul. (2004). Separation of Judiciary How long will it take? Retrieved from: http://www.thedailystar.net/law/2004/08/04/vision.htm

 Dr. Kumar. H. (1997). Crime, Collusion and Corruption: Conceptual issue. a paper prepared for Transparency International. Bangladesh. Dhaka.

 Eleni, S. (1991). Judicial Appointments: An International Review of Existing Models(The Law Society, London, 1991). (p.12).

 Government of the People’s Republic of Bangladesh. (1972). The Constitution of the People’s Republic of Bangladesh. Dhaka.

 Hafizuddin. M. (1999). Role of Watchdog Agencies in Combating Corruption. a pap prepared for Public Administration Reforms Committee. Dhaka.

 Huber. Evelyn. & D. Stephens. (1993). The Impact of Economic Development or Democracy. Journal of Economic Prespectives. Vol.7. (pp 70-86).

 Huq. M. M. (1982). Government Institutions & Underdevelopment : A study of the Tribal Peoples of the Chittagong Hill Tracts Bangladesh. Institute of  Local Government Studies, University of Birmingham: UK.

 Kamal. M. (1994). Bangladesh Constitution : Trends & Issues. University of Dhaka: Dhaka.

 The Law Commission. (2002). Working Paper On the Proposed Right to Information Act, 2002. Dhaka.