Chapter 3

Prepared By;
Miss JunaidaHj Ismail

TOPIC 3
THE LEGISLATIVE (BODY) / LEGISLATURE
Copyright@MissJ unaidaHjIsmail 2
Elaborate on the term legislative (body)
Explain the methods of appointment and termination of its members
Differentiate between the forms of legislature
Learning Objectives; Learning Objectives;
3.1 Definition and Functions
3.1.1 Definition
It is the first government body Parliament, Congress etc
Is a body, responsible for making laws / policies or
amendment of laws
It occupies a superior place
The executive and judicial bodies cannot function until the
legislature has functioned
It has unique characteristics as argued by Nelson W.
Polsby.
The Characteristic Of Legislative Body (Nelson W. The Characteristic Of Legislative Body (Nelson W. Polsby Polsby). ).
: :
Legislatures are official government
agencies,
They are multi-member,
They are directly elected by the citizens,
Their members are formally equal,
They arrive at decisions by deliberating on
alternatives,
They register decisions by counting the
votes of their members.
3.1.2 Functions of the legislature
The functions of the legislature are no
identical in every country depends
strongly on the form of the government.
The functions differ from one state to
another and no uniformity and the main
functions can be classified as the
following:
legislative functions
deliberative functions
administrative functions
judicial functions
constituent functions
electoral functions
miscellaneous functions
Functions of legislature depends on the form of Government
In Parliamentary System, as Britainthe legislature is superior to the executive
in the sense that the latter is responsible to the legislature for all its acts & ministers
remain in office only these can retain its confidence. Legislature also play a double
role & combines the constitutional & legislative powers.
In United States Of Americapower of legislature are co-extensive with those of
the executive.
In Czarist Russialegislature was merely a consultative body subordinate to the
executive for all practical purpose whilst dictators such Hitler in Germany & Mussolini
in Italy pay attention to the existence of the legislature.
ILLUSTRATION THE ILLUSTRATION THE
MAIN FUNCTIONS OF MAIN FUNCTIONS OF
LEGISLATURE LEGISLATURE
Law-Making Law
Deliberative Function
Representation
Financial Functions
Electoral Functions
Judicial Functions
Supervision
Inquest & Interpellation
Amending Constitution
Law-Making Law
Main function of legislature make laws / amend / replace old laws
In modern system laws are introduces in the form of a bill by a minister / member of
the legislature. Than discusses & debates the bill which go through several readings
& committee stages before becoming a law.
Legislative Procedure :
1. Drafting The Bill a minister concerned draft the bill to be introduced & brings up the
proposed bill into the cabinet meeting to get feedback & endorsement of members of the
Cabinet.
2. First Reading Mentioned the full title that must have been provided to the Secretary
of the House
3. Second Reading This level is the most important for several reasons. 2
nd
reading
done after the proposed bill has been printed & distributed to members of Parliament.
When the general principles surrounding the bill comes up for debate.
4. House Committee debate the finer & may propose amendment
5. Third Reading - Proposes the bill be read for the third time & passed. If the bill has
been passed by House of Representatives- sent to House of Senate when passed, the
bill will then be presented to His Majesty the King for the Royal Assent .
Parliamentary Systemas in Britain & Malaysia, the executive has a direct hand in
making laws where at the initial system the cabinet discusses the proposal to introduce a
bill initiated by a Minister.
If the proposal accepted by Cabinet, it is introduced in the House Of Legislature & it is
the duty of the Minister concerned to pilot the bill through all stages of parliamentary
procedures & ensure that is is finally passed & duly enacted.
Presidential SystemThe executive is not in direct touch with legislature.
It only exert its influence via Presidential message / members of Congress who belong
to the Presidents party.
Although the law initiation may originate in the executive branch, where one of the
agencies drafts out a bill & then introduces it in Congress, thefinal authority in making
laws lies in the hands of the legislature.
Deliberative Function
Make law really mirror of public opinion need proper thrashing so that its contents
& ends may be considered from all points of view.
deliberation becomes an important process by which a policy is determined & laws
are made
The institutionalization of political deliberations led to the development of elaborate
codes of parliamentary procedure & practices such as in the British House of Common
& the Congress of the United States
Deliberation leads to better & fruitful discussion & this procedure, is actually the act
of hammering legislation & chiseling it into a law.
Representation
The legislature is considered to be the main forum of public opinion.
Legislature represents the people in the government, thus the members of the
legislature are the representative of the public
The representative responsible to represent & ventilate the grievances of the
people in the legislature.
Its because, people cannot talk to the government directly, therefore legislature is
political compromise of direct & indirect democracy in a modern & complex state.
Supervision
Legislature has authority of checking & supervising the executive especially
with the gradual increase in the power & authority of this branch of government
Executive initiates the legislation, but the legislation has the power to reject the
proposed bill
Even if the bill is passed, the legislature has the power to monitor the activities
of the government to ensure that the law is implemented correctly & effectively.
Financial Functions
The control & regulation of national finances is done by the legislature
The main financial function of a legislature is the presentation, consideration &
authorization of the budget
The budget needs the approval of the legislature & it is recognized widely that no
taxes should be levied or expenditure authorized without the approval of the
legislature.
Electoral Functions
The legislature in some countries not only elect their own officers but also elect
some executive official such as the Head of State.
E.g. India the elected members of both houses of parliament from an electoral
college for electing the President,
E.g. Swiss Legislature not only elects the Executive Council but also judges of the
Supreme Court
E.g. American Congress meets in joint session every fourth year to count the
electoral votes cast for the President & the Vice President.
Judicial Functions
Legislature performs certain judicial function such as adjudicating the behavior of
administrative officials.
The British Parliaments House of Lordsthe highest court of appeal & has the
power to remove judges just by a joint address of both Houses of Parliament to the
Crown.
United StatesThe Senate sits as a court of impeachment for the trial of the
President & Vice President
FranceThe senate in the former constitution of 1875, was empowered tosit as a
High Court of Justice for the trial of the President & the Ministers for high crimes
Indiaboth hoses of parliament can prefer a charge of impeachment of the
Supreme court & High Court on the grounds of proven misbehavior & incapacity
MalaysiaParliament does not impeach the King / Ministers but has the power of
defeating a government by a vote of no-confidence / by removing a Minister, who has
been found guilty of a crime, from a cabinet.
Inquest & Interpellation
Legislature at times works as an organ of inquest where it makes inquiries into
matters of general interest.
The legislature appoints commissions of inquiry relating certain agriculture /
industry / find causes of social unrest / violence
Commissions of inquiry will collect information, receive memoranda, hear
evidences & make recommendation to the government.
Amending The Constitution
The legislature not only plays an important role in making the constitution but
also in amending the constitutions
the legislature is given this authority because it is considered to be the legitimate
representative institution of the people & is the original body which drafted the
constitution.
In Malaysia, Canada, Britain, India & United States process of amending the
constitution must start in legislature
3 methods in amending constitutions;
a. Direct votes of the legislators alone where in some countries it requires
unanimous approval & in others a majority is necessary.
b. An amendment proposal by the legislator, followed by the ratification by the
constitutional convention
c. A proposal by the legislature, followed by the ratification of states.
3.2 Forms of legislature
The forms of legislature depend on the
way how they are organised
Or the manner of the organisation of
the legislature
When there is only one legislative
assembly, the system of organisation is
called unicameral
When the legislature is organised into
two Houses, its is called the bicameral
system.
3.2.1 One Chamber / Unicameral system
This system exists when there is only one House / Chamber in the
legislative body
e.g. Norway, Bangladesh, New Zealand, Finland , and Denmark
Advantages
Allows speedy action
Allows clarity of the responsibility of the Cabinet in the
Parliamentary system of government
Reduces duplication and confusion of responsibility relating to
legislations.
Reduces conflicts between Upper and Lower Houses adds the
prestige and quality of legislators
Less expensive and faster the decision making process
Unicameral system - contd
Disadvantages
It could not persist for long because at present the
bicameral system is widely adopted
May cause difficulties to make decision when members of
House do not keep in harmony with popular opinion
(before the expiry of its term of office).
Absence of highly intelligent discussion and criticism.
There is no balancing of authority because all law-making
were concentrated at a single centre.
(J ames Bryce) there is a tendency of an assembly to
become hateful, tyrannical, and corrupt needs to check
it.
3.2.2 Two Chambers / Bicameral System
The bicameral system exists when the legislature is organised into
two Houses / Chambers lower House and Upper House
Upper House Dewan Negara, Council of States, House of Lords,
Senate, Rajya Sabha etc
Lower House Dewan Rakyat, House of Commons, House of
Representatives, House of People, Lok Sabha, etc
E.g.Malaysia, Canada, India, the U.S.A. and Britain
Advantages
Provides a check on hasty and ill-considered legislation
Can avoid the concentration of powers
Ensure better decisions - checked by more experienced body
(Upper Houses)
Provides a convenient means of giving representation to
different classes and interests
Assures representation of minorities and for professionals and
vocational interests
Bicameral System contd
Disadvantages - The critics
regards second chamber as a clumsy addition
which prevents or delays the necessary and
urgent decisions.
Regards second chamber as destructive of
national solidarity, creating deadlocks and
frictions between the different sections and
interests of people.
Cause duplication of works, leads to delay in
actions etc
An expensive system
UNICAMERAL Vs. BICAMERAL: Which SystemIs Better
Non-cost effective due to lengthy debates at all parliamentary
levels
All there are limited opinions from the general public
Possibility of overlapping duties and responsibilities There is no check and balance legislative decision that may
caused depression to the people
Delay in decision-making due to the existence of many
disagreement & misunderstanding
Always involves bribery and injustice in decision making
Reflect the popular will at all times and there is no time lag Laws has been passed without careful consideration as there
was no debate on bill
Allow representation to different classes & groups It is less expensive & ensures speedy transaction of business
Do useful and careful revision of legislation Adds to quality & prestige of conflict
Help divide the workload Reduces duplication & confusion of responsibility relating to
legislation
Help public opinion to crystallize by interposing delay Avoids obstruction of the will of the people
Avoid despotism and protect individual freedom against
legislative nepotism
Allows Despotism
Provide a check on hasty and ill-considered legislation Permits Speedy Action
Bicameral : Two House Unicameral : Single House
( A.c. Kapur, 1986)
3.3 Methods of appointment and termination of legislative
members
3.3.1 methods of appointment
(Parliament and State Legislative Assembly)
Members of the legislative bodies (in the
unicameral systemand lower houses in the
bicameral system) are elected through national
elections or by-elections
In Malaysia, members of upper houses / Senate
are appointed by the Government / YDPA (the
head of the state with the advise from the head
of the government)
The appointment of members of upper houses
may different in other countries.
3.3.2 Methods of termination
Termination refers a process that causes a
person become disqualified from being a
member of any House of legislature.
Article 48 of the Malaysian Constitution provides
disqualification for membership of the
Parliament.
In other countries the provisions may different.
Closure
Closure
..
..
Homework :
Explain the functions of legislature
Outline and explain other disadvantages of bicameral system.
Identify other advantages of bicameral system
Discuss on the Articles 44, 45, 46 and 47 of the Malaysian Constitutions
Discuss the provisions that disqualify a person from being a member of
either House of Parliament. (Article 48)
Discuss on the process of making laws and amendment of
Constitution
Distinguish between upper and lower houses
Explain the direct legislation
Learning Objectives; Learning Objectives;
3.4 Law making processes and Constitutional
amendments
They are processes of passing legislations and changing Constitutional provisions, by
legislative members / legislators.
Lawmaking processes
Necessary steps must be taken for due process;
to determine the acts / policies to be enacted in the bill withprior advice from the Attorney-General Office
The acts / policies presented to the ministers
Notice to be given to House of Representatives & the senate
The bill is printed and distributed accordingly
A Bill introduced in either House in accordance with parliamentary procedure and usually goes
through four (4) stages;
- First Reading When a Bill is introduce only its title is actually read. After the Bill is
passed at this stage, its text is printed & distributed.
- Second ReadingMembers debate the Bill. If accepted, it is passed on for
consideration by committee of the house.
- A committee of House Considers the Bill in detail and may amend any part of it. The
committee then submits a report on the Bill to the House. If thereport is approved, the Bill
goes on to a third reading in the house.
- Third Reading Debates takes place and amendments may be put to vote. The house
then either passes or defeats the Bill
Other housewhen a bill has passed one house, it is sent to the other house, where it follows a
similar pattern. If there is amendment to the Bill must be returned to the first house for approval.
Royal AssentWhen the Bill has passed both houses, it is sent to YDPA for royal assent. The Bill
becomes a law upon publication.
Publication Act comes into force.
PROCEDURE FOR THE ENACTMENT OF AN ACT OF PARLIAMENT
PUBLICATION
ROYAL ASSENT
DEWAN NEGARA
3RD READING
COMMITEE STAGE
2ND READING
1ST READING
GOVERNMENT PROPOSAL, MEETING BETWEEN RELEVANT GOVT AUTHORITIES, DRAFTING OF BILL BY PARLIAMENATY DRAFPERSON, CABINET APPROVAL OF BILL
Sources: Wan Arfah Hamzah & Ramy
Bulan. An Introduction to the Malaysia
Legal System. 2004:47
DIFFERENCES BETWEEN THE SENATE AND HOUSE OF REPRESENTATIVE MALAYSIA
Age: not less than 21 yrs old Age: Not less than 30 yrs old,
a Malaysian citizen; be of sound mind;
not be an undischarged bankrupt; and
not have a criminal record
Qualities:
Won in election ( general/ by election).
( A General Election is held every five years to
elect members of the Dewan Rakyat. Parties
with the most votes can form a government to
rule the country )
Qualities:
Persons that have rendered distinguished public
services or have achieved distinction in profession
etc, or interest / racial representatives.
has 219 elected members
Elected members according to state allotted
constituencies;
The Dewan Negara (Senate) consists of 70
members.
26 members elected by the State
Legislative Assembly to represent 13 states
(each state represented by two members).
44 members appointed by His Majesty the
Yang Di-Pertuan Agong on the advice of the
Prime Minister, including
two members from the Federal Territory of
Kuala Lumpur, and one member each from
the Federal Territory of Labuan and Putra Jaya.
DEWAN RAKYAT (HS OF
REPRESENTATIVE)
DEWAN NEGARA ( SENATE)
Sources: Malaysian Federal Constitution & Election Commission; As of 2006 ( www.spr.gov.my )
The development of lower has coincide with
the development of popular representation,
uniform in structure, academically qualified
they are almost universally elected by a
direct vote of the people who reside in different
territorial constituencies
House of commons is elected for 5 years ,
subject to dissolution and the term of office.
Consist of heredity peers & 90% of the total
membership of the whole House ( in course of time
custom became a right and a seat in the House of
Lords descended from father to eldest son law of
primogeniture)
10 % - non heredity and includes the Lords
Spiritual, the Law Lords, Peers and Women Peers,
Princes of the Royal Blood.
HOUSE OF COMMONS HOUSE OF LORDS
DIFFERENCES BETWEEN THE SENATE AND HOUSE OF REPRESENTATIVE BRITISH
Source; P J Madgwick, Introduction to British Politics, 2
nd
ed. Hutchiso & Co, London: 1976)
Age: Representative at least 25 years old and been
7 years a citizen of USA
Age: at least 30 years old and been 9 years a
citizen of USA
Qualities:
Representative not restricted to be a resident of a
district, resting solely upon cutom
Qualities:
Senators must not hold any civil office during
senatorship, or vice versa
435 members apportioned among the states
according to population
To every 30,000 & each state should have at
least 1 Reps)
The term of Reps is 2 years, elected by
people.
It is fixed by the Constitution;
100 members ( 2 senators / 50 states);
Senatorship for 6 years, but one-third of them
expire every 2 years; elected by people
HOUSE OF REPRESENTATIVE SENATE
DIFFERENCES BETWEEN THE SENATE AND HOUSE OF REPRESENTATIVE AMERICAN
Source; A.B. Saye & J .E. Allums, Principles Of American Government, 10
th
PHI, NJ , 1986
Other committee namely joint select or special or
conference
Joint Committee composed of membership both
HOR & SENATE
Conference Committee consist of few members
from HOR & SENATE
Select or Special Committee created for specific
assignments etc.
Committee system is a part of the formal
organization of Congress
Most of the work in congress is done through
committee and the most significant is the
Standing Committee;
Standing Committee are regular permanent
committee of the HOR and Senate
There are 22 Standing Committee each in
HOR & Senate
OTHER COMMITTEES COMMITTEE SYSTEM
DIFFERENCES BETWEEN THE SENATE AND HOUSE OF REPRESENTATIVE AMERICAN..
Continue
Source; A.B. Saye & J .E. Allums, Principles Of American Government, 10
th
PHI, NJ , 1986
DIRECT LEGISLATURE DIRECT LEGISLATURE
During recent years, the representative democracy has been subjected to much criticism
due to the popular belief that the legislature play excessive party politics and the welfare of
the people is discounted.
The whole government machinery is geared towards serving the party ends and the
governments will & decisions are actually that of the partys
Legislators & the administrators do not have a role in decisionmaking & here once again
the peoples welfare is jeopardized
In order to rectify this problem, the direct participation of the people in the affairs of the
government is recommended.
the system of direct legislation is hardly practiced, however it can be carried out through
two methods which are:
1. The Referendum
2. The Initiative
THE REFERENDUM THE REFERENDUM
Referendum literally means must be referred to.
A.C. Kapoor ( 2002: 195-382) its means the process by which the judgment of the people
is sought on a proposed law or constitutional amendment on whichthe legislature has
already expressed its opinion.
It is ratified by the required majority of popular votes, then it becomes law however should it
be rejected, it is given up
The underlying idea of the referendum is that the law must be the manifestation of the
peoples will, thus every law passed by the representative assembly should be submitted to
the people for approval.
The are two types of referendum which are:
1. Facultative Or Optional
2. Compulsory or Obligatory
Facultative or Opinion
After the law has passed through the legislature, then it is submitted to the people for
their acceptance or rejection on a petition from a specified number of citizens.
If the majority vote is affirmative, it becomes law but if otherwise, the decision is
reversed.
Compulsory or Obligatory
Here all laws of a specified type must necessarily be referred to the people for their
acceptance or rejection before they becomes laws.
This form is considered more democratic as it requires expression of public opinion
on every law.
Merit of Referendum
-Surest method of discovering the real wishes of the people
-Carries law with it fuller moral authority and commands unquestioning obedience
-Minimizes the importance of political parties and discourages partisan spirit;
-Reduces the political high-handedness of the majority party
-There is no time-lag
-It has more educative value, prompted people with keener and active interest in public
affairs
-It refrains from making sweeping changes in laws
-It is best means of resolving deadlock between the 2 houses of the legislature
-It is only the people who can put an end to controversy.
Demerits of referendum
-it has undermined the prestige of the legislative assemblies and has adversely reacted on
the quality of membership
-Inadequate qualification to deliver opinion on the technically and complication of legislation
-The result of the ballot does not fairly represent popular opinion ( as in most cases, due to
low percentage of attendance
- Involves unnecessary and harmful delay in passing many laws of vital national importance
-It accentuates political rivalry and partisan spirit that, in parliamentary government, may
prove embarrassing to the party in power.
THE INITIATIVE THE INITIATIVE
System whereby when a law has been ratified by the people then it becomes a law
even if is has been disapproved by the legislature.
Advocates of this system feel that the referendum is not sufficient to remove the
defects of the representative system.
They assert that it is the inherent right of the people to propose legislation and once
ratified becomes laws even if the legislature does not approve.
It is claimed that, by this process a voter can make his influence felt in cases where
the legislature may not agree to adopt a law or a constitutional amendment.
Advantages Direct Legislationprovides an opportunity & freedom for to voice
their opinion & make their choices & also it encourages the existences of justice for the
people & guarantees that the principles of democracy be uphold.
DisadvantagesThis system is viable only in small areas with a small number of
people.
SUBSIDARY LEGISLATION
Not passed by legislatures, but it is made by persons / bodies under powers conferred on them
Usually this type of legislation id generally base on legislation drawn up by legislature
E.g. Local Council By Laws givers legal authorization and power to local Council to act in certain
area of its jurisdiction, such as council taxes, fees, and fines.
E.g. Merchant Shipping Act provides authority to the Marine Department to issue certain, licenses
and permits to marine transports ( boats, ships, tanker)
Subsidiary legislation is a detailed rule and regulation, which eventually become a procedure to that
legislation and it is practical.
DELEGATED LEGISLATION
Passed by legislatures representing the people in absence during the process of law making as
practiced during the Era of Athens
Delegated legislation may be made at federal, state and local level, whereby representatives are
elected to represent the masses.

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