3 Organs Of Government Legislature Executive And Judiciary

Organs of Government Milan Shrestha Lecturer of International Studies Tribhuvan University [email protected]

Organs of Government

Organs of Government

Legislative

Executive

Judiciary

Organs of Government  In every modern government, there are three major organs of government. These are legislative, executive and judiciary.  In every modern government, there are three major organs of government. These are legislative, executive and judiciary. The legislature makes laws, the executive implement and the judiciary interprets them.  The executive and the judicial departments cannot work without legislature. Because, they should be under the laws and legislature is responsible to formulate such laws in democratic 3 society.

Functions of legislature  The basic function of the legislature is to:  make, amend and repeal laws.  amend constitutions by applying certain procedures.

 The legislative body performs financial function by controlling over the national budget.  No money can be spent and no tax can be levied without the consent of people's representation. 4

Cont’d  Legislative body can control government/executive body.

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 In parliamentary system, only those elected person can form the government who enjoys the confidence of legislature, and also has to region as soon as s/he lost such confidence.

 The member of legislative body can ask question to the government and its members/cabinet.  Both in parliamentary and presidential system of government, the legislative body can form different commissions/committees to check the works to be performed by the government. 5

Cont’d  The legislature has also judicial power in the case of impeachment.  Such action can be exercised against head of state, Supreme Court's judge and members of constitutional commission in the case of Nepal.

 Ratification of treaties.

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Two House system Unicameral/A Single House

 Prompt action  Reduce duplication  Lack of conflict between two houses Less expensive.

Bicameral/Two House

 Check legislation and common errors  Divide work load  Inclusive Protect individual freedom from despotic legislature.

Context of Nepal According to Interim Constitution of Nepal:  Constituent Assembly had been assigned to work as legislative parliament. Proposed in Constituent Assembly:  Bi-cameral House: Upper House of Federal Structure is to be formed for 6 (2+4+6) years and Lower House is to be elected for 5 years.  Provincial structure will be unicameral and to be said Pradesh Sabha.

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Executive Body of Government  Thus, executive body is that organ of state who implements the laws (Constitution, Acts, Rules and Regulation) and rules over the people by using powers.  Executive Power: Power to put decisions, laws etc., into effect (power conferred upon the executive).

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Kinds of executive  The executive may be real or nominal. The US President is the real executive and he has power to control over the all administration. In parliamentary system, head of state works as nominal executive and real executive power is used by PM and Cabinet.  The executive may be single or plural. If the ultimate power is rest in the hand of single person then such executive is called single executive. On the other hand, if such power is rest in the hand of group of persons then such executive can be called plural executive. President or PM may be single and cabinet may be plural executive.  The executive may be authoritarian. Control by single party. 10

Elements of Executive body  Unity is first requisite of executive body. Proper functions of executive will be possible if they are done by spirit of unity. (Nepalese political crisis due to lack of political unity).  The executive should be efficient and strong. For that, it must possess all those powers which are necessary to meet any emergency. But such powers should not be misused. 11

Cont’d  Delegation of power should be allowed. But action should be discharged as per direction given by head of executive.  The tenure of executive should be confirmed. It should be neither too long nor to short.  Whatever mentioned in the constitution, the relationship of legislature and executive should be cooperative.  The executive should be responsible to the people. 12

Selection of the executive  Heredity: Active monarchy  Direct popular election: Elected by people directly.  Indirect election: elected by people through their vote of electoral college. US President.  Elected by legislature: in parliamentary system. 13

Function of the Executive  Diplomatic function: the appointments of ambassadors, representatives by whom state can deal with other countries and enter into agreements, treaties.  Administrative function: the appointment/ recruitment, direction and removal of offices, the issues of instructions and ordinances and execution of laws.  Defense of country: The executive has to maintain and efficient and sufficiently strong army, navy and air force to defend its frontiers against the attacks of outsiders. 14

Cont’d  Judicial function: Quasi judicial function, power of pardon etc.  Legislative function: Especially in parliamentary system, the executive summons the legislature, draws up its time-table, decides which bills are to be enacted into laws.

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Judiciary  Judicial body is that organ of state who evaluate implementing laws (Constitution, Acts, Rules and Regulation) made by legislature by interpreting such laws.  Judicial Power: Judicial Power means deciding cases by interpreting constitution and laws. 16

Function of Judiciary  Delivery of justice: As per provision of law  Protection of human rights and fundamental freedom  Judicial Review: Declare ultra vires any law if it is passed beyond the constitutional provisions  Injunction and Interim order: Issue different orders including interim order, like: injunction to help harmful act; 17

Cont’d  Issuing the writs of  habeas corpus - the court may order the release of a person who is illegally detained,  Mandamus - Mandamus to do particular thing which the law of the country requires it to do,  Certiorari - for avoiding decision taken by government agencies,  prohibition – to be issued against judicial bodies not to go against law.  quo-warranto – issued to ask authority. 18

Independence of Judiciary Qualification and Appointment:  The appointment of judge must not be in the hands of the government alone.  In some country judge of junior court is elected by people, like some state of USA, some Cantons Swiss etc. But this method may not be suitable in all situations. Because people may not be competent to determine qualities of judge in all time. It may compel the judge to enter into politics.  In India, judge of Higher Court is generally selected from the senior practicing lawyer. In USA judges of federal court are appointed by the President with the consent of the Senate and can be removed only by impeachment. In France, competitive examinations are held for recruitment of the judges.

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Independence of Judiciary Tenure:  In order to maintain independence judiciary, the tenure of judge should be fixed in the constitution. Because fear of uncertainty may hamper to judges to discharge their jobs.  In the case of Nepal, Chief Justice and judge of the Supreme Court, once appointed, continue to hold office till they reach the age of 65. In the case of judge of Appellate Court, the age of retirement is 63 and the judge of District court retire at 63.  If the judge becomes incompetent or unfit to perform his duties on account of the loss of mental faculties of physical unfitness, he can be removed from the post by applying certain procedures. 20

Independence of Judiciary Facilities and benefits:  In order to maintain fair judiciary, they must be paid fixed and adequate salaries and other benefits. In addition, they should be paid adequate pension on retirement and compensation. If they felt less benefit than practicing lawyer, it may causes to independence of judiciary.  After retirement of judges, they should be disqualified for further appointment in state's mechanisms. 21

In Nepal Organs of Government

Legislative

Executive

Judiciary Supreme Court - 1

Special Court/Tribunal

Quasi Judicial Bodies

Appellate Court - 16 District Court - 75