Home introduction to legislative drafting What is Legislation?-Bodies That Have Power To Make Primary Legislation

What is Legislation?-Bodies That Have Power To Make Primary Legislation

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What is Legislation?-Bodies That Have Power To Make Primary Legislation

We shall use the term “legislation” generally to refer to written rules of law made by a body that has:

  1. the necessary legislative power conferred upon it by or under the Constitution; and 
  2. followed a legally prescribed or recognised process of law-making. 

The factor that distinguishes legislation from other kinds of rules or decisions is the source of the authority to make them. Only those bodies that have the legislative power conferred upon them can make legislative instruments.

Bodies That Have Power To Make Primary Legislation

Constitutions invariably state which body or bodies have the power to make the highest level of legislation (“primary legislation”).

In a unitary state, this is typically vested in the national legislature (e.g. Parliament, National Assembly).
In a federal system, the power is shared between the national (federal) and the state (provincial) legislatures, according to a division of authority set out in the Constitution.
In a dependent territory, a legislative power to make primary legislation on local matters rests with the local legislature (e.g. Legislative Council), but it may also be exercised, or overridden, by the legislative authorities in the metropolitan country.
In a military regime, the legislative power as provided for in the Constitution has usually been usurped by a Military Council and is exercised by the authority of its own decree.

There are other cases, such as the United Kingdom, where the legislative power of Parliament rests upon a basic principle of Parliamentary sovereignty in the absence of a written Constitution.

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