Kinds of Legislation: Supreme, Subordinate & Delegated
Exam Snapshot
Legislation is a core source of law. Focus on Salmond's classification (Supreme vs. Subordinate) and the concept of Delegated Legislation. Understand how these function within the Nepalese Constitution and the ultra vires doctrine as a control mechanism.
Core Concept
Legislation refers to the formal creation of legal rules by a competent body. It is categorized by the authority that enacts it.
- Supreme Legislation: Law made by the sovereign law-making body (Parliament). It cannot be repealed or overridden by any other authority (except constitutional amendment). Its validity flows directly from the Constitution.
- Subordinate Legislation: Law made by any authority other than the sovereign legislature. It derives power from a parent statute (supreme legislation).
- Delegated Legislation: A key form of subordinate legislation where the Executive or non-legislative bodies (e.g., Ministries, Local levels) make rules under powers explicitly conferred by an Act of Parliament (the 'parent act'). It helps manage administrative complexity.
Nepal Law Anchors
- Supreme Legislation: Enacted by the Federal Parliament under Article 109 of the Constitution of Nepal (e.g., Muluki Codes, Contract Act).
- Delegated Legislation: Various Acts delegate rule-making power. For instance, the Local Government Operation Act, 2074 allows local levels to make bye-laws.
- Control Mechanism: Courts (Supreme Court) use the ultra vires (beyond powers) doctrine (Articles 133/144) to strike down delegated legislation that exceeds the scope of the parent act or violates the Constitution.
Confusable Terms
| Feature | Supreme Legislation | Delegated Legislation |
|---|---|---|
| Authority | Federal Parliament (Sovereign) | Executive/Local levels (Non-sovereign) |
| Source | Constitution of Nepal | Parent Act (Supreme Legislation) |
| Validity | Subject only to Constitution | Subject to Parent Act and Constitution |
MCQ Traps
- Misclassification: Assuming delegated is not subordinate. Delegated is a specific type of subordinate legislation.
- Challengeability: Assuming supreme legislation can be challenged for being 'unreasonable'. It can only be challenged if it violates the Constitution.
- Ordinances: Ordinance-making power (Article 114) is special. While originating from the Executive, it has the force of an Act and requires parliamentary sanction.
Example
The Federal Parliament passes the 'Example Act'. This is supreme legislation. The Act empowers the Ministry to create rules for implementation. The rules created by the Ministry constitute delegated legislation. If the Ministry's rule includes a penalty not authorized by the 'Example Act', that rule is ultra vires and void.
Memory Hook
Think of a pyramid: The Constitution is the base, Supreme Legislation is the middle level (Parliament), and Delegated Legislation is the top level (Rules/Bye-laws), always restricted by the level below it.
Quick Revision
- Legislation is law-making by a competent body.
- Supreme: Parliament-made, constitutionally rooted.
- Subordinate: Non-parliamentary, depends on supreme law.
- Delegated: Executive/other bodies, specific powers from parent act.
- Control: Ultra Vires doctrine voids acts exceeding parent powers.