LEGISLATION

Definition of Legislation:

Legislation came from two latin term “legis” & “latum”. “Legis” means “law” and “latum” means “make/set”.
Legislation means to make the law.

Jurists and legal thinkers have expressed divergent views about legislation.

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

Classifications of legislation:

Legislations are of two kinds : 1) Supreme Legislation

2) Subordinate Legislation

Supreme Legislation: Supreme legislation is that which proceeds from the sovereign power in the state. It can not
be repealed, annulled or controlled by any other legislative authority. The Parliament of Bangladesh possesses the
power of supreme legislation.

Subordinate Legislation: Subordinate Legislation is that which proceeds from any other than the sovereign power.
It is dependent for its continued existence and validity on some superior authority. (Legislation by bodies inferior
to the sovereign constitutions subordinate legislation). It’s controlled by Parliament.

=Classification /Form of subordinate legislation:

The chief from of subordinate legislation are five in number:-

1)Colonial Subordinate legislation

2)Executive / Delegated subordinate legislation

3)Judicial subordinate legislation

4)Municipal subordinate legislation

5)Autonomous subordinate legislation

1)Colonial Subordinate legislation:

The British colonies and others dependencies were conferred limited power of self-government varying degrees by
the Imperial legislature. The colonies in exercise this power enjoyed limited power of law making. But the laws so
made by the colonial governments could be repealed, alter or superseded by the Imperial legislature,viz,The British
Parliament.
2.Execute / Delegated Subordinate Legislation :

The essential function of the executive is to conduct the administrative department of the state, but it combines
with this certain subordinate legislative powers,which have been expressly delegated by the parliament. The rules
made in pursuance of this delegated power have the force of law. They may, however, be repealed or superseded
by the legislature as and when deemed necessary to do so.

Statutes for example, frequently entrust to some departments of the executive government the duty of
supplementing the statutory Provisions by the issue of more regulations bearing on the some matter.

3.Judicial Subordinate Legislation :

In certain cases, legislative power has also been given to the judiciary. The superior courts are allowed to make
rules for the legislation of their own procedure. It is a true form of legislation although it can not create new laws
by way of precedents.

4.Municipal Subordinate Legislation :

The municipal authority are allowed within their areas to make bye-laws for limited purpose, such as water
tax,property tax,town planing, public health, sanitation etc.

5.Autonomous Subordinate Legislation :

Sometimes the State allows private powers, like universities, railway companies, etc, to make bye-laws which is
recognised and enforced by law courts.Such legislation is usually called autonomic. The railway companies make
bye-laws for the regulation of it’s undertaking. Likewise a university may make statutes for the government of it’s
members.

Subordinate Law in Bangladesh :

Delegated legislation:

Delegated legislation is a kind of subordinate legislation. Generally the ‘delegated legislation’ means the law made
by the executive under the power delegated to it by the supreme legislative authority. Delegated legislation has
two meaning -

Firstly, it means the exercise of power that is delegated to the executive to make rules.

Secondly, it means the output of the rules or regulations etc.made under the power so given.

The Constitutional basis of delegated legislation in Bangladesh is the proviso of Article 65 of the Bangladesh
Constitution which provides —

“Provided that nothing in this clause shall prevent Parliament from delegating to any person or authority by Act of
Parliament, power to make orders, rules,regulations, by laws or other instruments having legislative effect”.
Thus the Constitution has expressly allowed to parliament to delegate its legislation power.

Sources of Delegating Power under the Constitution of Bangladesh :

Under the Constitution of Bangladesh there are two specific sources of delegated law:

1)An Act of Parliament in which power is delegated to make rules,by-law or regulations;and

2)An ordinance made by the President in Pursuance 93(+65) of the constitution in which power is delegated to
make rules, by-laws or regulations.

For example, the Bangladesh Hotel and Restaurant Ordinance, 1982 enables in its section 27 government to
frame a rule and in pursuance of that delegated power government made the Bangladesh Hotel and Restaurant
(Registration, License and Control) Rules, 1986.

Constitutional basis of delegated legislation / Sources of delegated legislation :

1) Article 65 &

2) Article 93 of the Bangladesh Constitution.

Control over Delegated Legislation :

There are following three methods of controlling the delegated legislation-

1) Parliamentary Control
2) Judicial Control
3) Controls by Public Opinion

1.Parliamentary Control :

Parliamentary Control over the delegated legislation is exercised at three stages-

The first stage is when the bill is introduced in the legislature. At this time Parliament decides how far power
would be delegated to the subordinate authority.

The second stage is when the rules made under the Statute are laid before the Parliament though the committee
on subordinate legislation.

The third stage starts in the Parliament after the committee has submitted its report. The rules along with their
reports are debated in the Parliament . If the rules are Ultra vires questions may be put to the Minister concerned
and if necessary even a motion of censure on the Minister responsible for the rules and regulations may be
moved.

2.Judicial Control :

The courts have the power to consider a weather the delegated legislation with the provisions of the “Enabling
Act’ on the ground of ultra virus. The courts can declare the Parents Act unconstitutional on the ground of
excessive delegation or violation of fundamental rights. The Parents Act may be Constitutional but the delegated
legislation emanating from it may come in conflict with some provisions of the Constitution and hence it can be
declared unconstitutional.

3.Controls by Public Opinion :

In Britain a Statutory Instrument Act was passed in 1946 which provides that the delegated legislation shall be
published for Public Information before it comes into operation. Though this Publication the people and the press
can express their opinion over the instrument.