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Changing Role of the Legislature.PDF Changing Role of the Legislature K. B. Muhamedkutty It would perhaps appear a truism to state that the Institution of Legislature occupies a significant position in the constitutional structure of every country. The ultimate goal of all Legislatures is the public welfare. The needs of public welfare have varied from time to time and the roles of Legislatures have also changed accordingly. Time was when all assumed that the Legislature made the law. In the placid days of the nineteenth century this could very well be so. Today, however, emperical and inductive investigations have left little doubt that the role of Legislature in law-making is only a formal one. The stuff of law, the substance of legislation, is moulded in the policy-making kiln of the executive government. The main role of Legislature today has come to be control and supervision of administration, and this aspect of the matter has been attempted to analyse in the following pages. Legislative control by itself is a very important role in the context of the State emerging as an Administra- tive Leviathan, thus incidentally endangering the basic human freedoms. Evolution of Legislature 'Legislature" is a common name for Parliaments,' Congresses' and similar other body of persons or Assemblies' 'chosen by constituents in a given area to represent them in enacting measures for the public benefit." Legislature is basically charged with the making, amending I. Originated from 'Legislatio', which means, 'proposing of a law'. The first known use of the word ' Parliament ' is found in the old French epic, La Chanson de Roland, See David Menhennet & John Palmer, Parlia- ment in Perspective, London, 1967, p. 13. The word has been found to be in use in the phrase en sun plemer parlement of Jordan Fantosme, who wrote towards the end of Henry H's reign, See, A. F. Pollard, The Evolution of Parliament, 2nd Ed., Longmans, p. 32. By about 1240 the Latinised or French form of Par/ementum or Parlement used in England for meeting at which the King discussed with the tenants-in-chief 'the whole state of the disorder- ed realm', to use the words of Mathew Paris at the time. Derived from Latin Congress (us), a coming together. Derived from assimulare (Vulgar Lath* to bring together. John C. Livingstone and Robert G. Thompson, The Consent of the Governed', reproduced in Focus, Vol. II, No. 3, April, 15, 1972, p. 4. 116 COCHIN UNIVERSITY LAW REVIEW 19 7 if— or repealing of laws and with the raising and appropiration of revenues. Several parts of ancient India had democratic Legislatures.' Three thousand years ago the people of Greece met and debated in their `agora' or the assembly. The Latins of ancient Italy similarly assembled in their `comita'. The Cortes consisting of represent- atives of towns and districts of Spain began to function in the twelfth century. The peasant democracy of Switzerland with all the citizens assembling in their folk-moot is as old as the thirteenth century.' But Legislatures under modern democracies are modelled more or less on the lines of the British Parliament. The British Parliament, because of its long and continued history , 'is not only the mother of Parliaments', says Ivor Jennings, 'but their preceptor'.' Other nations have had their indigenous representative systems, but they have all been abandoned or profoundl y modified under the influence of British ideas.' The institution of Parliament is a valuable gift of the English people to the modern civilization. It is rather difficult to trace historically the origin of the British Parliament, for, the British constitutional and legal history is also the history of parliamentary institutions. As Colin Rays Lovell says, "few things in English constitutional history can be said to have started at a particular moment; 'first causes' usually remain un- known, and exact dates cannot be given when we come to discuss the origins of such institutions as Parliament or the cabinet. //10 It is generally accepted" that the kings of Anglo-Saxons who migrated to England from central and western Germany between the fourth and the seventh century developed a custom of summoning their great and wise men to give them counsel and support. This meeting of great and wise men was known as Witenagemot Marriot observes that the work of the Witenagemot was at once administra- tive, legislative and judicial." The Normans who came to England in See, Radhakumud Mukherji 'Democracy in Ancient India', The Journal of Parliamentary Information, Lok Sabha Secretariat, Vol. II, No. 1, p. 49. Sir Earnest Barker, Essays on Government, Oxford, 1965, p. 57 67. Sir Ivor Jennings, Parliament, Cambridge, 1969. p 517. A. F. Pollard, op. cit., p. 3, Lovell. English Constitutional & Legal History, 1962, Introd. Sir J. A. R. Marriot, English Political Institutions, Oxford, 1955. 12. /bid, p. 136. MUHAMEDKUTTY 117 .1066 followed the Anglo-Saxon tradition of summoning the Witenagemot which they further developed. Under the Normans the Witenagemot began to be known by the title Commune Concilium. As the eleventh century advanced, the administrative and judicial work was assigned to a committee of the Commune Concilium which was known as Curia Regis or Concilium Regis. The Barones minors or knights who were lesser tenants (as distinguished from Barones majors who were greater tenants) began to appear in the Commune Concilium in a representative capacity by 1 2 13. The kings summoned them as representatives of the commons in order to win support for their taxation proposals. On one occasion in 1254 'two lawful and discreet knights' from each of the shires were summoned to Westmi- nister to gather extra-financial assistance. According to David Men- hennet and John Palmer, this express connection with the raising of money marked an important early step in the evolution within the king's court of a representative assembly, for, 'the knights were summoned in the name of one and all.'" In 1265, Simon-de-Monfort, Earl of Leicestar, brought together for the first time knights of the shires, burgesses and merchants from the cities as representatives of the community at a discussion of poli- tical and national importance in which, of course, the barons and bishops also participated. This meeting came to be known as 'Mont- fort's Parliament' and is now accepted to be the first real Parliament." In the year 1295 Edward 1 au mmoned a representative Parliament and men came to speak of it as the 'Model Parliament'. But the model had already been set in the year 1265. Edward's Parliament did not theref ore deserve that name. In the beginning the King's Assemblies consisted of only few feudal magnates. The non-noble elements had later became essenti- al to Parliament, and consequently two knights from each country and two burgesses from each borough were sent to Parliament in representative capacity. The knights and burgesses were natually drawing together, but their association with barons in Parliament had no social basis. The nobles — barons and bishops — did not regret the departure of the knights and burgesses. Upto the early f our- teenth century there was only one House of PPrliament." The rolls David Menhennet and J. Palmer, op. cit., p. 24. The Seven Hundredth anniversary of the British Parliament was celebrated in June, 1965. 15 David Menhennet and J. Palmer, op. cit., p. 24. 118 COCHIN UNIVERSITY LAW REVIEW of Parliament reveals that by 1332 the two groups were meeting separately -- the nobles in White Chamber and the knights and burgesses in Westminister Palace. As a result of this, any matter affecting the two groups had to be approved by both. From this sprang the convention which came to be regarded as an essential part of bicameralism, that both Houses had to approve everything in the same manner before it could be said to have come from Parliament. As early as 1372 the body which represented the communities of shires and boroughs came to be regarded as the people's branch of Government against kings and dukes and nobles and barons and it was called the House of Commons. Being the representative body of the common people, its authority enhanced. The right to vote initially confined to propertied class developed gradually into uni- versal adult franchise. The commons were mindful of the duties cast upon them. 'They are the servants of those who send them, and if they are false to the men of shires who pay their wage, they are not worthy of their hire.' 16 To grant or withhold revenue was the real power which enabled the commons to control the purse of the realm. Financial authority thus became the fulcrum of parliamentary machine, which, eventually provided opportunity for the commons to press certain claims or to ask for the redress of grievances before they consented to the king's demands. The commons gradually secured legislative power." Any encroachment on the powers of the commons by the kings was severely resisted. Charles I, who consequent on the present- ation in 1628 of the Petition of Rights, dissolved Parliament was beheaded in a bitter civil war. James II (1685) who wanted to establish Pope's ascendency contrary to the will of the people could not resist the power of the Parliament and had to abdicate. This followed the ascendency of William and Mary paving way to the Bill of Rights of 1689, which widened the freedom and authority of the Parliament. In each encounter with the king, the Parliament reinforced its authority. In the earliest days the feudal lords used to select one of them to go to the king and speak in their behalf. But it was in 1377 a 'speaker' came to be appointed, whose duty was to report to the king the result of the deliberations of the commons.
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