Advantages and dis-advantages of delegated legislation.

ADVANTAGES AND DISADVANTAGES OF DELEGATED LEGISLATIONS

Delegated legislation, (also referred to as secondary legislatkion or subordinate legislation or subsidiary legislation) is a legislation made by subordinate authority duly authorized by an Act of the Parliament to do so for a certain purpose and they can be orders, regulations or notice or by law .

Section 4 of the Interpretation of Laws Act , defines subsidiary legislations to mean any order, proclamation, and rule, rule of court, regulation, notice, by-law or instrument made under any Act or other lawful authority. Following the provision of the definition provided, it may not be wrong to equate subsidiary legislation to delegate.

The Legal basis of delegated legislations in Tanzania is found under Article 97(5) of the Constitution of the United Republic of Tanzania of 1997 , where according to this Article the parliament is not precluded by the constitution to confer it’s power of making laws to any person or department of government to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government. Generally despite the legislature is conferred with powers under Article 64(1) (2) , but Article 97(5) of the Constitution of the United Republic of Tanzania as amended time to time empower the parliament to delegate those powers to other organs or department to enact laws.

In that sense, the  local  government  authorities  (Urban and  Rural)  which are  established  by  virtue  of  Article  145  of  the  Constitution  of  United Republic  of  Tanzania ,  has  given  such  powers  by  legislature  to  make  subsidiary legislation  on  its  behalf. For  example  section  153,  160  and  168  of  the  Local  Government District  Authorities  Act , provides  legislative  power  for  District  authorities  to  make their  own  by-law  for  the  people  of  that  specified  areas.  The  same  power  is  enjoyed by  urban  authorities  as  it  is  stipulated  by  section  88,  89,  90,  and  94  of  the  Local Government  Urban  Authorities  Act .

Therefore, the framework of Tanzania laws shall give room for the parliament to delegate its power of making laws to other organs or people and the rationale for this is to form laws that are more specific and addressing the local variation we have in Tanzania rather than having general laws that pay little attention to local variations. If the framework of laws will prevent the parliament to delegate it’s power there is a danger of missing the crucial role played by delegated legislations, as they have the following advantages:-

Delegated legislation saves parliament time in making the law, as it avoids overloading the limited parliamentary timetable as delegated legislation can be amended and or made without having to pass an Act through Parliament, which can be time consuming . In that sense, therefore changes can be made quickly without the need to have a new Act of parliament a thing that avoids parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.

Moreover, delegated legislation can easily incorporates expert’s ideas in making law patterning certain matters that are technical in nature. Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters . Here, the legislative power may be conferred on experts to deal with the technical problems . For example matters relating to gas, atomic energy, drugs, and electricity may require expert in a particular field and it’s believed that these experts are found within administrative organs.

Nevertheless, delegated legislation plays a great role to the society at large as it allows the participation of individuals in the affairs of their government. In  any democratic  state  the  Constitution of  the  country,  allow  people  to  participate  in  the  affairs  of  their  government.  In  The United  Republic  of  Tanzania  individuals  are  participating  in  the  affairs  of  the government and  the  government  is  accountable  to  the  people .

Not only that, but also delegated legislation are best in responding to emergence situations. In times of emergency, quick action is required to be taken. Unlike the principal legislations, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation . For example in case of eruption of diseases or floods the delegated legislation can be passed quickly to respond to such emergences.

Furthermore, delegated legislation enables the government to experiment as its practice of enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience . For example, healthcare matters, an experiment may be conducted and in the light of its application necessary changes could be made. Therefore the delegated authority is in best position to experiment a particular law to people who are likely to be affected by such law and if they appear successful they can be adopted while the contrary will require some changes.

Last but not least, unlike the principle legislation, delegated legislation are flexible as they may cover situations that the parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making . Therefore delegated legislation can easy adopt the ever changing need of the society such as ban rates or foreign exchange which parliament had not anticipated when they enacted the Act of Parliament.

Despite the fact that delegated legislations have several advantages in Tanzania but such legislations are also characterized by several disadvantages as it shown below:-

Firstly, delegated legislations may be challenged  under  the  supremacy  of  the enabling  Act  and  the  supremacy  of  the  constitution and  declared  void  while  principal  legislation  even if challenged  remains valid  until parliamentary amendment  process . This means that the delegated legislation are subjected to challenges in  the  courts  of  law  as  courts  have  mandated  supervisory  control  over subsidiary  legislation  and  may  nullify  such  legislation  or  declare  it  not compatible  with  the  enabling  Act  or  unconstitutional, hence its disadvantage. This position is affirmed in the case of Attorney  General  and  2  others  v  Aman  Walid , where Nyalali  C.J  (as  he  then  was)  noted; “The  High  Court  of  this  country  has  a  supervisory  jurisdiction  to inquire  into  the  legality  of  anything  done  or  made  by  a  public authority  and  private  institutions,  and  this  jurisdiction  power includes  the  power  to  inquire  into  the  legality  of  an  official proclamation  by  Electoral  Commission  as  it  is  a  subsidiary legislation”

Secondly, delegated legislation sometimes are criticized for violating the doctrine of separation of power, in the sense that by that doctrine making the laws or legislation is the main domain of legislature and therefore with delegated legislation such power will be exercised by other bodies hence violation of doctrine of separation of power . In Tanzania, the doctrine of separation of power is enshrined under Article 4 of the constitution of United Republic of Tanzania of 1977 as amended time to time.

Thirdly, delegated legislations may be inconsistent with the constitution and infringe some people’s rights. This is evident in the case of Nanal Damodar  Kanji  v  Tanga  Township  Authority , where the accused was convicted after some  old  papers  were  found  in  the  street outside  his  house as it was against  rule 25  of  the  Township Rule. He was convicted without being heard and it was against the provisions of Article 13(6) of the constitution. On  appeal  it  was  held  that  the  by-law  in  question  was uncertain,  unreasonable  and repugnant to the constitution therefore  null  and  void.   

Finally, delegated legislations may contain too technical and ambiguous words that possess challenges to the general public to understand what they mean. Since some are formed by technical experts, there is a likelihood of incorporating technical terms or words used in a particular field in delegated legislations that will be difficult to be understood by normal majority in the society .

Generally, despite several advantages delegated legislations posses but they are also characterized by a number of disadvantages and this have led to people  grievances and  complains  on  delegated  legislation, therefore there is a great need of closely monitoring these delegated legislation in Tanzania so that the problems associated to their operations can be easily tackled and eliminated.

REFERENCE

BOOKS

Chipeta, B.D. (2009). Administrative Law in Tanzania: A digest of cases. Dar es Salaam: Mkuki na Nyota Publisher.

Takwani, C.K, (2004). Lecturers on Administrative Law, (6th Ed,). New Delhi: Universal Publishing Company.

CONSTITUTION

The Constitution of United Republic of Tanzania, [Cap 2 R.E 2002]

STATUTE

The Interpretation of Laws Act, [Cap. 1 R.E 2002].

Local Government District Authorities Act, [CAP 287 R.E 2002].

Local Government Urban Authorities Act, [CAP 288 R.E 2002].

ELECTRONIC SOURCE

http://www.lawmentor.co.uk/resources/essays/discuss-disadvantages-delegated-legislation/ Retrieved on 26 November 2016 at 10:00HRS