The permissible limits of delegation of legislative powers by the parliament. By Johnson Yesaya

INTRODUCTION

Delegated legislation is when the executive branch or a statutory authority or local or other body under the authority of the competent legislature given authority to enact law. The doctrine of delegated legislation permits the bodies beneath parliament to pass their own legislation. It is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, permits another person or body to make legislation. The Act of parliament provides sketch but the whole job to make orders and rules relating to a primary statute is left to government departments .

It is a common practice known worldwide that a legislature is a special organ of the state which imposed with exclusive jurisdiction of legislating. Due to a number of reasons (shortage of parliament time, technicalities of subject matter of legislation, the need of flexibility and the emergency and contingency matter i.e., war) a legislature become incapable to meet its legislative responsibilities and it is where other government organs or departments and institutions gets permission to enact legislations. The parliament of United Republic of Tanzania is given power under constitution to delegate its legislative powers to other institutions in case there is a need to do so basing on the reasons stated above.

The legal basis of delegated legislation in Tanzania is provided under Article 97(5) of The Constitution of United Republic of Tanzania . The Article provides that,

“The provisions of this Article or Article 64 of this Constitution shall not prevent Parliament from enacting laws making provisions conferring on any person or department of Government the power 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.”

The above provision imposes power to parliament to delegate its legislative powers to other government departments. The article went further to allow a parliament to grant legislative powers to a person if it is necessary to do so.  Delegation of legislative powers to administrative authorities is subject to a number of limitations. Doctrine of permissible limits of delegation explains functions of parliament which can be delegated to another governmental department, not all functions of legislature can be delegated.

 

PERMISSIBLE DELEGATION (FUNCTIONS WHICH CAN BE DELEGATED)

Framing of rules, primary statutes always contains provisions which direct government authorities to make rules and regulations basing on the requirements of principal Act. In this situation, all rules and regulations made by government departments under a particular provision of primary legislation are valid and are within permissible limits to delegation by parliament provided that the rules, by-laws and regulations are required to be laid before the legislature before they come into force and provided further that the legislature has power to amend, modify and repeal them .

Adoption by government of laws from other states, in some cases, parliament statutes directs government to adopt statutes from other states to cover existing legal gap, this kind of delegation is valid and within scope of permissible limits to delegate by legislature. There is no unconstitutional delegation in this case as the legislative policy is laid down in the statute by the competent legislature .

Suspension, in some cases, some provisions of the statutes authorize a government to suspend or relax some provisions of the same statute in some circumstances. This kind of delegation is not ultra-vires since it is within the permissible scope of limits to delegate by legislature .

Exclusion, there are some statutes which empower the government to exempt from their operation certain person, territories, commodities etc. The legislature which is burdened with heavy legislative work is unable to find time to consider in detail hardships and difficulties likely to result in enforcing the legislation .

Prescribing punishments, in some cases, the statutes grants powers to government to prescribe punitive actions due to hardship and different conditions in enforcing legislation. In some cases it is very difficult to a parliament to set one kind of punishment to wrongs due to different situations motivated offence, in this situation a main statute declares an and left a gap for government to set punishment .

Modifications, some statutes authorize government to modify some provisions of a statute before application, this is a totally duty of a parliament, but in some inevitable situations, legislature through parliament statutes may allow government to amend laws before its application. This is too dangerous because it interfere the doctrine of separation of powers between state organs .

Supplying details, when a parliament enacts a policy or statute, a government function is to supply details for giving effect to a particular policy, what is delegated here is ancillary function in aid of the exercise of legislative functions .

Commencement (a time when statute come into force), several statutes contain an “appointed day” clause which empowers the government to appoint a day for the act to come into force. In this case, the operation of statutes depends on decision of government .

CONCLUSION

Despite the fact that the parliament has authority to delegated power to the executive to make some laws,there are some functions which cannot be delegated (impermissible of delegation) because it is the essential legislative functions belongs to the parliament only. Section 36 of the Interpretation of the Laws Act provides for the restriction of the applicability of the delegated legislation, matters which cannot be delegated includes repeal of law, modification of law, exemption, retrospective operation, future enactment of statutes, imposition of tax ouster of jurisdiction of courts, offence and penalty.

REFERENCE

BOOKS

Thakker, C.K (1995), Lecturer on Administrative Law, Eastern Book Company, Lucknow.

Takwani, C.K.C (1998), Administrative Law, 4th Ed, Eastern Book Company, New Delhi.

Oluyede, P.O (2006), Administrative Law in East Africa, Kenya Literature Bureau, Nairobi.

ONLINE

https://www.parliament.uk/site-information/glossary/delegated-or-secondary-legislation/

STATUTES

The Constitution of United Republic of Tanzania, cap 2 of 1977 as amended.