Types of Legislation

Introduction

Legislation is derived from the Latin words’ legis’ and ‘latum’, where ‘legis‘ means law and ‘latum’ means making. Therefore, legislation means making, settling, or enacting law. Legislation is acts of parliament, which are written law created by parliament, also known as statute. Therefore any law enacted by the parliament or under the subordinated power given by the particular Act made by the parliament is known as legislation. It is one of the primary sources of law.

Definition:

According to Salmond: “Legislation is that source of law which consists in the declaration of legal rules by a competent authority.”

According to Gray: “Legislation is the formal utterance of the legislative organs of the society.”

According to Black Law Dictionary: “The act of giving or enacting laws are known as Legislation.”

legislation is the most potent and sovereign source of law-making. It is the only source of law which has all power of enacting new law, repealing old laws and amending current laws.

Types of Legislation

Legislation can be divided into two types, Supreme legislation and Subordinate legislation.

i. Supreme Legislation

Supreme Legislation means the legislation which has been enacted by the supreme authority or a sovereign law-making body, like a legislature of an independent and sovereign state. It is supreme legislation because no other authority can annul, repeal or control it. The laws enacted by the British parliament is the example of supreme legislation.

In the context of Nepal, The laws made by the Nepal parliament are known as supreme legislation. For example: Evidence Act 2031, National Civil Code 2074, and National Criminal Code 2074, But these laws are subject to the Constitution of Nepal which is the fundamental law of the land. This means any laws passed by the parliament must be consistent with the constitution of Nepal. If a law Contradicts the constitution, the Judiciary, Particularly the Supreme Court and High Court of Nepal has the authority to declare it unconstitutional and void.

Therefore, laws made by the parliament of Nepal are supreme legislation but they are subordinate to the fundamental law of the land viz Constitution of Nepal.

ii. Subordinate legislation

Subordinate legislation is legislation conducted by an authority other than the supreme authority of a state. It is also known as delegated legislation which is made under the power delegated by the supreme authority. Legislation made by a subordinate law-making body is capable of being controlled by the supreme authority. Rules, bylaws, and regulations made by England’s administrative bodies in pursuance of an Act of Parliament are examples of subordinate legislation to the legislature.

In the context of Nepal, The laws made under the authority of a power conferred by an Act of parliament are known as subordinate legislation. It conveys the idea that the authority making the legislation is subordinate to the legislature. If any subordinate legislation is found to be inconsistent with the supreme legislation and constitution, it can be declared void or unconstitutional by the high court and supreme court of Nepal.

Land Rules 2064, Environment Protection Rules 2054, Income tax Rules 2059 are the examples of subordinate legislation of Nepal.

According to Salmond, the chief forms of subordinate legislation are the following :

(a). Colonial Legislation: Colonial Legislation refers to the that laws which were imposed or enacted by a colonial authority in the territories it controlled during the period of colonization. These laws were typically drafted to serve the interest of the colonizers often at the expense of the local population.

For example : The Indian Penal code, 1860

(b). Executive Legislation: The laws which are made by the executive are known as executive legislation. The main function of the executive is to implement or enforce the laws made by parliament. Along with this, the executive is also given subordinate legislative power to make rules that supplement the supreme legislation. Such power are given to the executive in order to find the best possible way to implement the supreme legislation.

For Example: Environment Protection Regulation,2077

(c). Judicial legislation: Law-making power is also exercised by the law of courts for the regulation of their internal business proceedings of the courts concerning their day-to-day functioning. This is known as judicial legislation and is different from judicial precedent.

For Example: Supreme Court Rules,2074 which governs the Supreme court of Nepal.

(d) Municipal Legislation: The By-laws making power of municipal authorities is another form of subordinate legislation. The Municipal authorities have the power to make rules for the areas under their jurisdiction concerning water, land, house tax, traffic, cleanliness e.t.c.

Foe example : Kathmandu Metropolitan City Education Act, 2075

(e). Autonomous legislation: Autonomous legislation are that legislation, rules, by-laws which is made by organizations, institution for their functioning. Autonomous bodies like, Universities, corporations, railway companies, clubs e.t.c. have the power to make rules for the conduct of their business.

For example: Online and Distance Education Regulation,2077 of Lumbini Buddhist University.

Importance of legislation

1. The laws made through legislation is more scientific clear and precise.
2. It is a codified law so, It is certain and relatively stable.
3. It is the only source of law with the power to amend current laws, repeal old laws, and make new laws.
4. It helps to implementation of the constitution.
5. It helps judges to deciding cases.
6. It is supreme law after constitution.
7. It helps to preserve the custom through codification which are suited to the people of the country .e.t.c.