LECTURE 4

DATE: Tuesday 08 October 2024

TOPIC: Machinery of Government

The Legislature

The Legislature is a word that comes from the Latin language,

meaning "those who write the laws." A legislature is therefore a
group of people who vote for new laws, for example in a state
or country.
Each person in the legislature is usually either elected or
appointed.
The constitution of that state or country usually tells how a
legislature Is supposed to work.
In many countries, the legislature is called a Parliament,
Congress, or National Assembly
Sometimes there are two groups of members in the legislature.
This Is called a "bicameral legislature. A unicameral legislature
has only one group of members.
A country, district, city, or other small area may also have
something Ilke a legislature. These are often called councils,
and they make smaller laws for their areas.

Meaning

Of the three organs of the government, the place of primacy

belongs to the Legislature. The function of government begins
by law-making and is followed up by law-enforcement and
adjudication functions. As such, the legislature is the first organ
of the government The term legislature is a generic term
meaning a body which legislates. The term "Legg" means law
and lature" means the place.

Basically, Legislature means a place for law-making Another

term, which is used as a synonym of Legislature, is Parliament."
This word stands derived from the French word "Parley" which
means to talk" or to discuss and deliberate.
In this way, we can say 'Parliament means the place where
deliberations are held. Combining the two views, we can say
Legislature or Parliament Is that branch of government which
performs the function of lawmaking
through deliberation.

The legislature is that organ of the government which passes

the laws of the government. It is the agency which has the
responsibility to formulate the will of the state and vest it with
legal authority and force. In simple words, the legislature is that
organ of the government which formulates laws. Legislature
enjoys a very special and important place in every democratic
state. It is the assembly of the elected representatives of the
people and represents national public opinion and the power of
the people.

Types of Legislatures

A moder legislature is either Bicameral or Unicameral.

Bicameralism means a legislature with two houses/chambers
while uni-cameralism means a legislature with a single
house/chamber. Many modern legislatures, particularly of big
states, are bicameral i.e. legislatures with two houses (Bi =
Two, Cameral = House).

However, several states, mostly the small states and provinces

of a federal system, have unicameral legislatures, i.e.
legislatures with single houses. Where the legislature Is
bicameral, the first house is usually called the lower house, and
the second house is called the upper house.

Bicameral and Unicameral Legislatures

Unicameral legislatures exist when there is no widely perceived

need for muiticameralism. Many multicameral legislatures were
created to give separate voices to different sectors of society.
Multiple chambers allowed for guaranteed representation of
different social classes (as In the Parliament of the Trinidad and
Tobago and the United Kingdom or the French States-General),
ethnic or regional interests, or subunits of a federation.

Where these factors are unimportant, in unitary states with

limited regional autonomy, unicameralism often prevails.
Sometimes, as in Dominica and Guyana, this comes about
through the abolition of one of the two chambers, or, as in
Sweden, through the merger of the 2 chambers into one, while
in others a second chamber has never existed.

A bicameral legislature divides the legislators into two separate

assemblies, chambers, or houses. Bicameralism is distinguished
from unicameralism, in which all members deliberate and vote
as a single group, and from some legislatures that have three
or more separate assemblies, chambers, or houses. As of 2015,
fewer than half the world's national legislatures are bicameral.

Advantages of Unicameral Legislature

 one advantage of a unicameral legislature is that it is

democratic. Democratic tenets postulate that people who
make laws for the masses must be elected in a free and
fair election. Members of a unicameral chamber are
directly elected by the people, which makes it democratic.

 Unicameral legislature is easy to maintain, that is, it is

cheaper to run than bicameral legislature, since there Is
no second chamber to maintain.
 Unicameral legislature is also known to be Ideal for unitary
states. In a bicameral legislature, some form of rivalry Is
present and unavoidable as the two chambers struggle for
superiority. Unicameral legislature prevents squabbles as
to which of the houses Is upper and which is lower.
  Unicameral legislature provides room for a faster process
of law making and is applicable in moments of emergency.

Disadvantages of Unicameral Legislature

 Unicameral legislature does not make room for adequate

and equal representation in a country as large as the US.

 A unicameral legislature creates room for the emergence

of a dictatorial head of state because it does not check
excesses as well as a bicameral legislature. The absence
of a second chamber removes those moments of sober
reflection on laws that are passed

 It also creates the opportunity for a government to use the

single chamber to force horrible laws through, especially if
it has majority in the chamber.

 Another disadvantage of a unicameral legislature is that

the members of the chamber can be unduly influenced
especially by a ruling government that has majority in
parliament but sometimes also by the minority party.

Advantages of Bicameral Legislature

 Bicameral legislatures make it possible for better laws to

be made in the country, since bills are somewhat property
debated in bicameral legislature.

 It is difficult for the executive arms to dominate the two

chambers.

 The second chamber of bicameral legislature reduces the

workload of the upper house.
  The second chamber of bicameral legislature checks the
excesses and guides against the tyranny or dictatorship of
a one chamber.

 The second chamber of a bicameral legislature corrects

any fault legislation coming from the first chamber.

Disadvantages of Bicameral Legislature

 The second chamber of bicameral legislature may be used

as a dumping ground for political rejects at the polls, if its
membership is by nomination or appointment.
 A bicameral legislature encourages duplication of
functions, since they perform the same function.

 A bicameral legislature is not good for passing bills in

times of emergency because of delays that result from
having two chambers. Many legislators must go through
the bills before they are passed or carried out.

 Appointment rather than election of members of the upper

house as it is done in Britain is undemocratic. This is
another disadvantage of a bicameral legislature

 Bicameral legislatures cause a serious delay in the act of

law making.

General Functions of the Legislature

1. Legislative or Law-Making Functions:

The first and foremost function of a legislature is to legislate
i.e., to make laws. 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 the
contemporary era of democracy, legislature is the chief source
of law. It is the legislature which formulates the will of the state
into laws and gives it a legal character. Legislature transforms
the demands of the people into authoritative laws/statutes.

2. Deliberative Functions:
To deliberate upon matters of national importance, public
Issues, problems and needs is an important function of a
modern legislature.
Through this function, the legislature reflects the public opinion
over various issues. The debates held in the legislature have a
great educative value for the people.

3. Custodian of National Finances:

A near universal rule is that the legislature of the state is the
custodian of the national purse." It holds the purse of the nation
and controls the finances. No money can be raised or spent by
the executive without the approval of the legislature. Each year
the executive must prepare and get passed from the legislature
the budget for the coming financial year. In the budget, the
executive must place the account of the actual income and
expenditure of the previous year and estimated Income and
expenditure for the New Financial Year.

4. Control over the Executive:

A modern legislature has the power to exercise control over the
executive. In a parliamentary system of government, for all its
actions, decisions, and policies, the executive is collectively
responsible before the legislature. It Is accountable before the
legislature.
The legislature has the power to remove the executive by
passing a vote of no-confidence or by rejecting a policy or
budget or law of the executive. The Prime Minister and all other
ministers are essentially
the members of the legislature. They are bound by the rules
and procedures of the Parliament.

The Executive Arm of Government: Definition and Structure

The executive is the branch of government that is responsible
for the day-to-day management of the state. Under the doctrine
of the separation of powers, the executive is not supposed to
make laws (role of the legislature), nor to interpret them (role
of the judiciary). The executive is supposed to put the laws into
action.

The executive is led by the head of Government. The Head of

Government is assisted by several ministers, who usually have
responsibilities for areas (e.g. health, education, foreign
affairs), and by many government employees or civil servants.

In a presidential system, this person (the President) may also

be the head of State, but in a parliamentary system, he or she
is usually the leader of the largest party in the legislature and is
most termed the Prime Minister.

In political systems based on the principle of separation of

powers, authority is distributed among several branches
(executive, legislative, judicial) an attempt to prevent the
concentration of power in the hands of a small group of people.
In such a system, the executive does not pass laws or interpret
them (the role of the judiciary).
Instead, the executive enforces the law as written by the
legislature and Interpreted by the judiciary. The executive can
be the source of certain types of law, such as a decree or
executive order. Executive
bureaucracies are commonly the source of regulations.

Types of Executives

Nominal and Real Executives:

In many countries the Head of the State has nominal powers,
as in Great Britain, Japan, Denmark, Sweden, Norway, Belgium
and Holland. In these countries, the powers of the Monarch are
exercised by his ministers. Thus, there is nominal executive in
these countries.
Contrary to this, under the Constitution of the U.S.A. and
Nigeria, the President has been given many powers and he
himself exercises these powers. Therefore, there is real
executive in Nigeria and in America.

Though the Trinidad and Tobago, Barbados and Dominica have

been given many powers in the Constitution, yet in actual
practice these powers are exercised by his ministers. Thus,
there is nominal executive in the Commonwealth Caribbean
except In Guyana

Single and Plural types of Executives:

Single executive means that all executive powers are vested in

one
Head of the State, e.g., the President of the US exercises all
executive powers. In Switzerland, the executive power is not in
the hands of only one Individual, but in the hands of a Council
of seven members. The Chairman of this Council has no
additional powers. Thus, all the seven members are equally
responsible for the administration in that country. This type of
Swiss executive is called Plural Executive.

Parliamentary and Presidential Types of Executives:

In a parliamentary executive, the Cabinet is responsible to the

legislature. This system functions in England, France, Japan, Sri
Lanka, India, West Germany, Italy, Sweden, Denmark, Norway,
Belgium and the Commonwealth Caribbean.

Hereditary and Elective Executives:

When a king or queen is the Head of the State and when after
his or her death, his son or daughter or, in a case where he or
she is Issueless, some of his or her near relative occupies the
throne, the system refers to a hereditary executive. This type of
executive functions in England, Norway, Sweden, Denmark,
Belgium, Holland, Japan and Nepal.

Functions and Powers of the Executive

1. Enforcement of Laws:
The primary function of the executive is to enforce laws and to
maintain law and order in the state Whenever a breach of law
takes place, it is the responsibility of the executive to plug the
breach and bring the offenders to book. Each government
department is responsible for the implementation of the laws
and policies concerning its work. For maintaining law and order
in the state, the executive organises and maintains the police
force

2. Appointment-Making Functions:
Al major appointments are made by the chief executive.
Likewise, the President of the United States makes a very large
number of key appointments.
All the secretaries who head various government departments,
Judges of the Supreme Court and other Federal Courts, the
Federal officials in the States etc., are appointed by the US
President. However, al such appointments require the approval
of the US Senate (Upper Houze US Congress Le., Parliament).

3. Treaty-Making Functions:
It is the responsibility of the executive to decide as to which
treaties are to be signed with which other countries. The
executive negotiates the treaties in accordance with the
procedure defined by international law and in accordance with
the provisions of the constitution of the state. Each treaty is
signed by a member of the executive. Most of the treaties also
require ratification by the legislature of the State. It is again the
responsibility of the executive to secure legislative approval for
the treaties signed by it.

4. Policy Making:
Moder welfare state must carry out many functions for securing
the socioeconomic cultural development of its people. it must
formulate policies. prepare short-term and long-term plans and
implement these. All actions of the state are guided by definite
policies and plans.
It is the executive which undertakes the task of policy-making
and developmental planning. These are the two most important
functions of the executive, because by these the state carries
out its objective of promoting the welfare of its people.

5. Functions Related to Law-Making:

Law-making is primarily the function of the legislature.
However, the executive also plays a role in law-making. In this
sphere too, the role of the executive has been increasing by
leaps and bounds. In a parliamentary system, the ministers are
also members of the legislature, and they play a leading role in
law-making.

Most of the bills for legislation are introduced and piloted by

them in the legislature. Most of the time of the legislature is
spent in passing the government bills. The bills passed by the
legislature become laws only after these are signed by the
Head of the State.

6. Financial Functions:
It is the legislature which is the custodian of all finances. It has
the power to impose or reduce or eliminate a tax. However, in
actual practice, the executive exercises several financial
functions. It has the responsibility to prepare the budget it
proposes the levy of new taxes or changes in tax structure and
administration. It collects and spends the money as sanctioned
by the legislature.

The executive decides the ways and means through which the
money Is to be collected and spent. It formulates all economic
policies and plans. It takes suitable measures for regulating the
production and distribution of goods, money supply, prices and
exports and imports. It contracts foreign loans, negotiates
foreign aid and maintains the financial credibility of the state.

Introducing the Judiciary

 The judiciary or judicial system is the system of courts that

administer justice in the name of the sovereign or state. A
judicial system is used to resolve disputes. The term is
also used to refer collectively to the judges and
magistrates who form the basis of a judiciary, as well as
the other people who help keep the system running
properly.
Separation of powers causes separate branches of government
that each have a different purpose. The judiciary is the branch
of government that Interprets the law. Such systems as already
discussed usually have three branches: Legislature, Executive
and Judiciary. Often the judiciary branch has courts of first
resort, appellate courts, and a supreme court or constitutional
court. Decisions of the lower courts may be appealed to the
higher courts.

 Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret and
apply laws to specific cases. While deciding the disputes that
come before it, the judges interpret and apply laws. Every law
needs a proper interpretation for getting applied to every
specific case. This function is performed by the judges. The law
means what the judges interpret it to mean.

 Role in Law-Making:
The judiciary also plays a role in law-making. The decisions
given by the courts really determine the meaning, nature and
scope of the laws passed by the legislature. The interpretation
of laws by the judiciary amounts to lawmaking as it is these
interpretations which really define the laws.
Moreover, the judgments delivered by the higher courts, which
are the Courts of Records, are binding upon lower courts. The
latter can decide the cases before them based on the decisions
made by the higher courts. Judicial decisions constitute a
source of law.

 Equity Legislation:

Where a law is silent or ambiguous or appears to be

inconsistent with some other law of the land, the judges
depend upon their sense of justice, fairness, impartiality,
honesty and wisdom for deciding the cases. Such decisions
always involve law-making. It is usually termed as equity
legislation.

 Protection of Rights:
The judiciary has the supreme responsibility to safeguard the
rights of the people. A citizen has the right to seek the
protection of the judiciary in case his rights are violated or
threatened to be violated by the government or by private
organisations or fellow citizens. In all such cases, it becomes
the responsibility of the judiciary to protect the rights of the
people.

 Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The
Constitution is the supreme law of the land, and it is the
responsibility of the judiciary to interpret and protect it. For this
purpose, the judiciary can conduct judicial review over any law
for determining as to whether it is in accordance with the letter
and spirit of the constitution. In case any law is found ultra
vires (unconstitutional), it is rejected by the judiciary, and it
becomes invalid for future. This power of the court is called the
power of judicial review.

 Power to Get Its Decisions and Judgments Enforced:

The judiciary has the power not only to deliver judgments and
decide disputes, but also to get these enforced. It can direct the
executive to carry out its decisions. It can summon any person
and directly find out the truth from him. In case any person is
held guilty of not following any decision of the court, or of
acting against the direction of the court, or of misleading the
court, or of not appearing before the court in a case being
heard by it, the Court has the power to punish the person for
the contempt of court.

 Running of the Judicial Administration:

The judiciary is not a department of the government. It is
independent of both the legislature and the executive. It is a
separate and independent organ with its own organisation and
officials. It has the power to decide the nature of judicial
organisation in the state. It frames and enforces its own rules.

These govern the recruitment and working of the magistrates

and other persons working in the courts. It makes and enforces
rules for the orderly and efficient conduct of judicial
administration.

Judicial Independence

Judicial independence Is the concept that the judiciary should

be
Independent from the other branches of government. That is,
courts should not be subject to improper influence from the
other branches of government or from private or partisan
interests. Judicial Independence is important to the idea of
separation of powers.

Different countries deal with the Idea of judicial independence

through different means of judicial selection or choosing
judges. One way to promote judicial independence is by
granting life tenure or long tenure for judges, which ideally
frees them to decide cases and make rulings according to the
rule of law and judicial discretion, even if those decisions are
politically unpopular or opposed by powerful Interests. This
concept can be traced back to 18th-century England.

Ensuring Judicial Independence

1. Political Neutrality
Another way of ensuring judicial independence is to make them
politically neutral. The judges must be barred from taking part
in partisan politics. They must not be allowed to make any
comment or comment that may be deemed to political in any
sense or by any stretch of imagination

2. Attractive Remuneration
Again, to ensure the Independence of the judiciary, their
salaries and allowances must be so attractive that they are not
attracted to take bribes. Their salaries can never be varying
downward. If their salary and allowances must be varied, they
can only be varied upward. They must also be allowed to retire
on their salary. In other words, when judges retire, they must
continue to take their salaries as pension.

3. Recruitment Of Judges
One of the ways of ensuring judicial independence is the way
the judges are recruited and appointed. Normally, the judges
are appointed by the executive arm of government but under
the recommendation of an independent body such as Judicial
Council.

4. Immunity Of Prosecution
Another means by which the Independence of the judiciary is
ensured la to give them immunity from prosecution for acts
committed in the process of carrying out their assigned
functions, in other words, the judges can never suffer any
punishment for any judgment given as they play their assigned
role of administering justice.
 5. Salaries Charged on The Consolidated Fund
Finally, to ensure the independence of the judiciary, their
salaries and emoluments must be charged to the Consolidated
Fund. This ensures a continual flow and payment cannot be
truncated for lack of funds.

6. Tenure Of Office
To ensure that the judiciary is independence, the judges must
enjoy a secure tenure of office. This means that the judges hold
their job for as long as they capable of performing without
being fired. The only time they can be prevented from doing
their job is when they have reached their retirement age, or
where they conduct themselves in a way that bring their office
into disrepute or when they fall sick to the extent that they are
incapable to functioning in their office.

Bureaucracies
1. In the field of politics, bureaucracy refers to the
administrative machinery of the state, that is, the massed
ranks of civil servants and public officials who are charged
with the execution of
government business.
2. The academic study of bureaucracy has been dominated
by the work of Marx Weber. For Weber, bureaucracy was
an ideal type of rules based on a system of rational rules,
as opposed to either tradition or charisma.

Principles That Characterize a Bureaucratic Organization:

a. Jurisdictional areas are fixed and official and ordered by
laws and rules.
b. There is a firmly ordered hierarchy, which ensures that
lower offices are supervised by specified higher ones
within a chain of command.
c. Business is managed based on written documents and a
filing system.
 d. The authority of officials is impersonal and stems entirely
from the post they hold, not from personal status.
e. Bureaucratic rules are strict enough to minimize the scope
of personal discretion.
f. Appointment and advancement within a bureaucracy are
based on professional criteria, such as training, expertise
and administrative competence.

Functions of Bureaucracies:

a. Administration
b. Policy advice
c. Articulating Interest. Bureaucracies are brought into
contact with interest groups through their tasks of policy
implementation and their Involvement in policy
formulation and advice.
d. Political stability. The final function of bureaucracies is to
provide a focus of stability and continuity within political
systems.

Sources of Bureaucratic Power

a. The strategic position of bureaucrats in the policy

process
b. The logistical relationship between bureaucrats and
ministers.
c. The status and expertise of bureaucrats