Introduction
Simply
put, delegated legislation mean, laws made by bodies other than
parliament such as government departments, local authorities professional
bodies and the corporations. As legislation has remained the responsibility of
the legislature so many people had wondered and criticized the existence of the
practice of delegation.
As observed by an erudite scholar in his book,2
The power to legislate, the power to formulate policy” and cloth such policy
with legality rests with the legislature”. In a democratic setting, such
authority is reposed on the elected representatives of the people. This essay
seeks to briefly survey the occurrence or circumstances and the attack to which
delegated delegation has been subjected to in Nigeria,
with a view to showing that despite the perception in some quarters that
delegation is unnecessary or wrong, it’s existence serves useful purposes and
has continued to do so in a democratic Nigeria. It therefore canvasses the
view that delegated legislation may not always be evil as some may think. It is
my opinion that delegated legislation where they exist ought to be examined
each on its merit before the description of “evil” is ascribed.
The
article first examines the preliminary matters relevant to the discussion ie,
the legislature and it powers over delegated legislation and proceed to examine
the different kinds of legislation and their sources and relevance as a matter
of necessity. It shows that as much as some of the delegated legislation may
well look unconstitutional they are extremely necessary in our shores and
points out the dilemma which law and policy makers will face without delegated
legislation”.
The
Legislature.
The
legislature is the organ of government that is responsible for the peace, order
and good governance of the Federation through its making of laws. The executive
arm is charged with the implementation of the laws, while the judiciary
possesses the power of adjudication of disputes by interpreting the laws. The
legislature in any system of Government derives its legitimacy and authority
from the constitution of the country. The constitution has been defined by,
E.C.S wade and Godfrey Phillip3, as,”.
A document having special sanctity
which sets out the frame work and the government function of the organs of
government within the state and declares the principles by which those organs
must operate.”
Form the foregoing definition, it is the
constitution that gives delegation its legitimacy. The function of law making
as performed by the legislature in Nigeria
is contained in chapter 1, part, 1 section (4) of the 1999 constitution of Nigeria.
The legislature is one of the fundamental concepts which give rise to the
success of any civilian administration. The National Assembly has two distinct
divisions namely, the senate and the House of Representative. This bicameral
legislature is maintained, so as to ensure representation based on the division
of states into senatorial districts and constituencies, and check on each other
which prevents the passage of ill- considered legislation.
It has been postulated by Aristotle that
man is a political animal. This postulation seems to be quite correct in the
light of the observation of the school of thought stated below:
“Political institutions are the work
of men. They owe their origin and their whole existence to human will. Men did
not wake on a summer morning and find them spring up, neither do they resemble
trees which once planted are growing. While men are sleeping on every stage of
their existence, they are made what they are by voluntary human agency4”
Thus,
what can be deduced from the above view of the school of thought by John Stuart
Mill, is that any political institution like the legislature is a product of
political struggle which has led to political and constitutional advancement.
The
Black’s law dictionary defines the legislature as, “the department, assembly or
body of persons that makes statutory laws for a state or nation”. The power
vested in the legislature has been upheld in, Archbishop Olubunmi Okojie V. The
Attorney General of Lagos
State5.
Where it was held that when interpreting the constitution the court must bear
in mind that it is dealing with an instrument which controls and regulates the
power and functions of government, controls the rights and obligations of the
citizens and controls the peace and order of the society upon which the
institution is supposed to operate”. The legislature therefore, can be seen as
a bedrock of any system of government without which there will be abuse of
powers within the organs of government. The role of the legislature which sets
guidelines for the organs of government cannot therefore be over emphasized.
Nigerian courts as in the case mentioned above recognize that the legislature
(National Assembly) at the center and the state assemblies in the states has
the right to legislate on every topic in the executive legislative list that no
other body may legislate except, with the authority or delegation by the
legislature.
It
is therefore, the aim of this work to highlight the need for the law to amplify
the necessity whereby many corporations carry out public functions within the
limit of powers delegated to them. “Power to appoint and terminate appointments
such powers need to be encouraged. It has thrived well in Nigeria in the past. It only needed
to be garbed with legality.
Historical Development of the Practice of Delegated
Legislation
The transferring of legislative power to
other bodies by means of delegated legislation dates back to the sixteenth
century in the case of the British parliament. In 1531, the statute of servers
delegated to the commissioners of sewers, powers enabling them to plan drainage
schemes and levy rates on landowners. Also, in 1539, parliament entrusted Henry
(VIII) with wide powers to legislate by proclamations.
The modern type of delegated legislation
started in 1834. The poor law amendment of that year authorized and required
the poor law commissioners to make and issue from time to time as they should
see the occasion.
“All such rules, orders and
regulations for the management of the poor or the Government of workhouses and
the education of the children therein, and for carrying this Act into execution
in all other respects as they think proper”6
It is therefore very clear and
understandable, that even in Britain
that the tremendous growth of delegated legislation prior to the nineteenth and
twentieth centuries was a sequel to the increase of the function of central and
local governments.
Indeed, due to increased complexity of
modern government and the tendency of the state to interfere more and more in
the economic and social life of the community, the volume of delegated
legislation has increased tremendously since world war 11. Similarly, just as
the government had increased its volume of work to cover all spheres of life,
parliament, has consequently not been able to cope with the volume of work. And
so, a phenomenon had developed whereby most Acts of parliament, nowadays,
consist of statements of general intention confirming upon the appropriate
ministers, commissioners, or administrative bodies, the necessary powers to
make laws on behalf of the parliament or National Assembly. It then mean, that
the law making powers of the legislature have become delegable to subordinate
law making bodies, which in their capacities as delegates of constitutional law
making bodies make laws for various purposes as directed by the legislature. In
some situations, the delegates of such power sub-delegate them to yet
subordinate bodies, which also make binding enactments for purpose directed by
the donor. From early times as I said earlier, there were instance of
parliament granting the task of legislating in specialized fields to
subordinate authorities.
For example in England, king James I
made full use of this power with the result that in 1611, Sir Edward Coke was
consulted by the kings council along with three brother Judges for an opinion
on the legality of proclamations. And the determination has been regarded as
the end of proclamations. It was held among other things that:7
1.
The king by his proclamations cannot
create any offence, which was not one before, for then he might alter the law
of the land; in a high point for if he may create an offence where none is,
upon that ensues fine and imprisonment.
2.
That the king had no prerogative but
what law of the land allows him.
3.
That the king for the prevention of
offences may by proclamation admonish his subjects that they keep the laws and
not offend them upon punishment to be inflicted by law, the neglect of such
proclamation aggravates the offence.
4.
That if an offence be not punishable
in the star-chamber, the prohibition of it by proclamation cannot make it so.
The
summary of the case of proclamation is that the king is the executive, and his
business, the enforcement of existing laws (made by parliament) his prerogative
is under the law and that parliament alone can alter the law, which the king is
to administer. Also, after 1689, the Mutiny Acts in England delegated power to the
crown to make legislation for the better government of officers and soldiers
but in general, it was not until the period of social reforms in the nineteenth
century that delegation of wide legislative power to government departments and
other subordinate bodies granted peace meal as the need arose. Again, during
the First World War, the defence of the Realm Acts granted power in very wide
terms to government to make regulations for the conduct of the war. In the same
period between the First and Second World War, lawyers became conscious of the
wide legislative powers of the government departments. Then the committee on
Ministers powers (1932) concluded that unless parliament was willing to
delegate powers of law making, it would be unable to pass the kind or quality
of legislation which modern pubic opinion required. The committee also drew
attention to probable dangers of delegation and suggested the introduction of
greater safeguards against abuse.
It
is based on these that a standard argument for the phenomenon of delegated
legislation has it that it is necessary for cases where the legislature cannot
attend to matters in detail. Other groups and commentators on the issue agree
that in emergency, the legislature should delegate legislative powers
sufficiently to enable the executive deal with all issues of that moment.
A
view was also held by an observer about the findings of the Committee on
Minister’s powers (1932) as follows:
“I feel that in the conditions of
the modern state which not only has to undertake immense new services but which
before long may be responsible for the parliament delegating legislation and
the power to make regulation instead of being grudgingly conceded ought to be
widely extended and, new ways devised to facilitate the process.”
The
forgoing summarizes the view widely held today all over the democratic nations
that delegated legislation is desirable and also, inevitable.
The Nature of Delegated Legislation in Nigeria
Nigeria,
has achieved considerable growth in democracy, economic output and sociological
advancement. Since 1960, democratic development essentially implies the
creation of a social order, which guarantees to every one maximum opportunity,
productivity, self-fulfillment capacity, social justice and security. Social
justice entails social development, that is, the social objective whose essence
is the social democratization of the development process. At independence in
1960, Nigeria
comprised of only three regions. After the attainment of republican status in
1963, it added a fourth region (Mid West Region.) the same Nigeria is now made up of thirty-six states and
the Federal capital territory, Abuja.
In accordance with the 1999 constitution, there are now seven hundred and
sixty-eight local government councils and six area councils in Nigeria.
These councils as well as the states are centers of development. They all have
a share of the Federal revenue. These developments need organization and
development of personnel apart from the legislature to meet expected intention
of government. Again, this growth has given rise to a number of requirements to
keep pace with the growth. Using the economic terminology, increase in the
demand for the basic necessities of life in Nigeria for example, implies a
commensurate increase in personnel and other basic requirements to keep the
institutions of government through which those basic requirement of life get to
the citizenry functioning. These are some of the chips, which make delegated
legislation a sine qua non for good governance. The urgent need therefore, for
an effective and successful governance of our country in this current
dispensation has called for an increasing use and wider application of
delegated legislation to assist our law makers for legislation to get to the
wider spectrum of our larger society, and timely too. Government today is
concerned with the guidance, protection and control of society and control is
achieved in many nations by the formulation and determination of policies
having legal consequences on members of the society. These policy decisions are
expressed in legislative form and communicated to the society, as, legislation8
To
buttress this point a look has to be made on the case of, Williams V. Majekodunmi9. In this case, the
plaintiff’s freedom of movement was restricted under an emergency powers Act.10
On
29th May 1962
parliament of the Federation met in both Houses and resolved:
“That in pursuance of section
sixty-five of the constitution of the federation, it is declared that a state
of public emergency exists, and this resolution shall remain in force until the
end of the month of December nineteen hundred and sixty two.”
There
was later another resolution approving under section 5 of the emergency powers
Act 1961, thirteen sets of Regulations including the Emergency Powers (Restricting
orders) Regulations 1962 under which the defendant as the Administrator
appointed for the emergency restricted the plaintiff’s movements to a distance
of three miles from a certain address at Abeo Kuta.
The
plaintiff claims inter alia that:
(a) The emergency
powers Act 1961, or alternatively section 3 (1) thereof is ultra views; unconstitutional
and void. It is clear according to the plaintiff that power to make emergency
laws was conferred on parliament by S. 65 of the constitution of the federation
which provides as follows:
(1) Parliament may at any time make such laws for Nigeria
or any part thereof with respect to matters not included in the legislative list as may appear to parliament to be
necessary or expedient for the purpose of maintaining or securing peace, order
and good government during any period of emergency.
(2) Any provision of law enacted in pursuance of this
section shall have effect only during an emergency. One reason why the
plaintiff wished to have it declared unconstitutional was the provision of S.
65 (2) of the constitution of the federation, 1962, and which appeared on
paragraph 11 of his statement of claim, that the Act was passed at a time when
there was no emergency in existence; but that was a clear over sight on the
part of the plaintiff and in law, ignorance of the law will not amount to an
excuse for disobeying the law.
The
other reason advanced by the plaintiff as given in (a) of that paragraph is
that:
(a)
The emergency powers Act 1961 under
which the regulations were made is ultra vires the parliament, because it
purports to delegate or abdicate the legislative powers of parliament to the
Governor General in council and the said Act also purports to authorize the
Governor–General in Council to delegate or abdicate those powers to the
Administrator”.
This
is delegated legislation at work. The court held that there is of course no
abdication, for the legislature still has control under section 5 of the
emergency powers Act11 to
subsidiary legislation per se, there can be no objection. The decision of the
court is so apt in the circumstances. It went further to say;
“If parliament chooses to go a step
further and authorizes the subordinate legislator in his turn to authorise
another person to do one thing or another again there can be no objection to
that taken by itself. Suppose for example that the emergency is that the federation
is at war, it would be desirable to conserve petrol for military operations and
undesirable to expend it on frequent meetings of parliament-which would make it
wise to have regulations made by the Governor General in Council and as action
should be swift, it would be desirable to enable say, the Administrator of some
remote parts of Nigeria to do what may be necessary in his area forthwith.
There is nothing in section 6512 to differentiate between war and
the other two “periods of emergency” and what can be done to meet the emergency
of war can be done to meet any other emergency in so far as may be necessary or
expedient”.
This
is the nature of delegated legislation in this country and a perusal look at
the volumes of our laws shows that our laws begin with the primary laws passed
by the legislature itself and then go on to give the subsidiary legislation
made by a person or body authorized by the legislature to supplement its
enactments 13
This
convenient method of legislation has been in use over the years and there are
specific provisions in the interpretation Act which regulate the making and
effect of subsidiary legislation. There is a general understanding that
everyone who assisted in the framing of the constitution and in particular the legal
Advisers who attended the conference were all aware of this method of
legislation and that there was no intention to require that every bit of
legislation made after independence had to be made by the legislature itself,
whether Federal or Regional.
There
are among others again, the case
of Shannon and others. V Lower Mainland Diary
products Board, Attorney General for British Columbia (Intervening)14 where the objection that it is not
within the powers of the provincial legislature to delegate so called
legislative powers to the lieutenant- Governor in Council or to give him powers
of further delegation. This was set aside. This objection appears to their
Lordship subversive of the rights which the provincial legislature enjoys while
dealing with matters falling within the class of subjects in relation to which
the constitution has granted legislative powers. The court went further to
state that within its appointed sphere,
the provincial legislature is as supreme as any other parliament, and that it
is unnecessary to enumerate the innumerable occasions on which legislatures,
provincial, Dominion and imperial, have entrusted various persons and bodies
with similar powers to those contained in this Act15.
This
powerful judgement disposed off the plaintiff’s contention that it is
unconstitutional for parliament in the emergency powers Act 1961 to grant
authority to the Governo-General in Council to make regulations and therein to
empower another person to make rules and orders, provided of course that the matter
is within parliament’s legislative power and its own law has effect in that
matter. However, administrative legislation appears to be an inevitable trend
particularly as modern government committed to some social and economic
policies becomes more complex.
Delegates of Powers
1.
Governors /Governors of states
2.
Ministers, Commissioners and Heads
of Departments
3.
Local Government Authorities, Local
Government Chairmen supervisors of works etc.
4.
Statutory public corporations eg.
Nigerian Electric power Authority (NEPA) Nigerian ports Authority (NPA) etc;
etc.
5.
Special Boards and Commissions.
6.
Industrial and Professional bodies
eg. Trade Unions, the Nigerian Bar Association. (NBA) The Nigerian medical
Association (NMA)
7.
Regulatory Agencies eg. The Public
Service Commission ete
Examples or/ Methods of Delegation to make Subordinate or
Delegated Legislation
1. Section
21, Banking Act. Cap 19 laws of the Federation and Lagos 1958 (now replaced by the Banking
Decree N0. 3 of 1966) provides inter alia, that the minister may make such
regulations as may be required from time to time for carrying into effect the
provisions of this Act. In S. 2. of the Act, “Minister” is defined as the
Minister charged with responsibility for matters relating to Banking in the Federation,
or a person acting under his direction or on his behalf as was held in, Merchant
Bank Ltd v. Federal Minister of Finance16.
2.
Section 1, explosives Act
1964–provides that the Minister responsible for explosives may by regulations
make such provisions with respect to explosives as he considers expedient for
the purpose of maintaining and securing public safety.
3.
Section. 7 (1) the Nigerian Research
Institute Act 1964 empowers the council (set up under the Act) to make
regulations inter alia, for the general purpose of the Act and the discipline
of staff.
4.
Section 23 (1) Nigerian council for
scientific and industrial Research Decree N0.83 1966, S. 3 (1) Emergency powers
Act. 1961.
5.
Section 122. Labour Code Act cap 90
LFN and Lagos
1958
The Practice of Delegated Legislation in Nigeria
The 1999 constitution provides that a
House of Assembly may appoint a committee of its members for any special or
general purpose as in its opinion would be better regulated by means of such a
committee, and may by resolution, regulation or,-otherwise as it thinks fit
delegate any function exercisable by it to any such committee.17
A house may on its own appoint either a
standing committee or adhoc committee or both. Despite the appointment of
committees to assist her, the legislature may go out of her way to appoint
administrative bodies to assist her in the making of laws. When democracy and
delegation are properly allowed, the functions of the National Assembly are
given the fullest focus and support in order to nurture and develop democratic
values and ethics as a way of life in a society.
In Nigeria, the issue is not whether
delegated legislation is on a sound- foot, but whether its sprang up from an
enabling statute. The committee of Ministers powers 1932, expressed a principle
basically similar to the standard requirement. According to the committee18
“The precise limits of a law making
power which parliament intends to confer on a Minister should always be
expressly defined in clear language by the statute which confers it.”
The
enabling legislation must therefore contain a framework within which the
administrative action must operate, otherwise, the legislature is in effect
abdicating its function as primary legislator to the administrator,19
When electing members of the
legislature, the common man often feels that he is electing a body that would
make laws to regulate his conduct. He never anticipates that such laws will
thereafter be made by the executive.
It is therefore most disappointing to
him to observe subsequently that laws under which he live are made and executed
by the same body. He sees such a development either as an abdication of
authority or powers by the legislature or a usurpation of legislative powers y
the executive. This is not so. The executive in Nigeria has continued to emphasise
that it has acted not as a law maker but as an agent of the law maker, and that
it never makes laws, unless it is expressly and constituently empowered to do
so. According to the executive, whenever it makes laws, its enactments known as
rules regulations orders, direction etc, generally take effect subject to the
provision of any law made by the legislature. The Federal Supreme Court in 1962
was very apt to put the situation in Nigeria straight and clear to all
and sundry in the case of Williams V. Majekodunmi20
Also, another look at the Nigeria
statute books and gazettes has revealed that subordinate or administrative
legislation are increasing at a tremendous rate. For example, volume
10 of the laws of the Federation of Nigeria
and Lagos,
(1958 Ed) as amended contain
about 35 subsidiary legislations. If by 1958 these are the number so far gazetted
then from 1958 to date, one would imagine the number of many rules or
regulations and orders issued by various government department and Ministers in
the name of circulars, directives, memoranda, and so forth. However,
administrative legislation has been an inevitable trend in Nigeria, particularly as modern
government’s commitment to social and economic policies are becoming more
complex.
To buttress this fact, the learned
Supreme Court judge in the case of A.G Lagos state V. Eko Hotels Ltd
had this to say…
“The dichotomy between
administrative and judicial or quasi judicial tribunal of inquiry has long been
consigned to the rubbish heap of legal history, and that the new trend is that
such administrative bodies however described must obey the rules of natural
justice in the performance of their duties. They have the duty to act fairly”.
This is delegation at work. Again, in
the case of A.G Abia. V. A.G Federation21,
“On the interpretation of S. 162 of
the 1999 constitution, the functions and responsibility of the state government
to maintain a special account in the name and style of state joint local
government account, justice Niki Tobi stated that a state can decide to do so
by the establishment of a committee or by any other means” I see that some
states have established committees for the purpose of maintainance of the special
account. That is in order.”
This
is delegation at work. In another land mark decision in the case of, Burma
and HAWA v. Sarki,22 the plaintiffs claim against the
defendant in his capacity as the Federal Minister of internal Affairs, a
declaration that the order published as LN 20 of 1961 ordering them to leave
and remain outside Nigeria was invalid, illegal and unconstitutional, and an
injunction restraining the defendant, his servants and or agents from
interfering with their right to return to and remain in Nigeria, Justice Udo
Udoma contended that among the issues, the main question was whether the
Minister had the power to make orders on deportation. It was held that;.
“The Governor General in the exercise
of his constitutional powers in line with the Nigeria (constitution) order in
council, 1960, having assigned the responsibility for aliens and citizenship to
the Minister of Internal Affairs, it seems to me that it was competent and not
unconstitutional for the Minister of Internal Affairs to have exercised the
powers for the deportation of aliens. I am of the opinion that once power is
prescribed to be exercisable by a minister without any reference to any
particular Minister, and the Governor General assigns such powers to a
particular Minister, such an assignment operations ipso facto to confer upon
the Minister to whom the power has been assigned not only the right but the
duty of exercising such powers..”.
Again, D C M Yardley in his book23 said that;
“Where an act of parliament provided
that a government department, local authority, the crown, or any individual or
body shall have the force of law, that statute is regarded as laying down a
method of making delegated legislation.”
According to the words of Prof.
Nwabueze,24 delegated power implies that the delegation may be
revoked at any time by the donor, and that while it lasts, the exercise of the
power must be strictly within the terms of the delegation”. For example, the
Anambra State Government recently adopted a more dynamic approach to the
exercise of delegated legislation as contained in the laws of Anambra State25
just=like=the
Lagos State
Government which has codified its laws 26
The Anambra State Administrative law
provided for delegation of legislative powers which as has been mentioned were
vested in the state legislature by the constitution27. Therefore
every delegation of such power shall clearly define the agency that is, the
donor, the form or the procedure to be adopted and the circumstance in which
the power shall be exercised. That means in practical terms that the
fulfillment of all procedural requirement in the making and practice of
delegated power shall be as prescribed by law or the, relevant enabling statute
shall be a condition precedent to the making thereof. Any delegation carried
out without the fulfillment of such conditions shall not take effect until
there is compliance28
Finally, delegated legislation is now a
well recognized method of legislation in common law countries and basically
those countries under democratic government. Nigeria as one of them inherited
this trend from her erst–while colonial administrators though the concept has
its origin from common law. It is now based entirely on statutes. Though, it is
applied in civil and military administration, it tends to blossom under civilian
regime or administration.
Notwithstanding, delegated legislation
is now popularly practiced in many system of government. Its exercise calls for
extreme caution in view of the dangers inherent in its abuse. Many modern
enabling statutes recognize these dangers and abuses and make provisions for
safeguards.29
Justification.
From this arrangement therefore, the
constitution seems to have recognized without actually stating it, the doctrine
of separation of powers as enunciated by Montesquieu, and which had a great
deal of influence on the framers of the American constitution from whom Nigeria
borrowed a leaf. The justification of the doctrine is that it acts as a bulwark
against tyranny. However, it is not a well established principle of law; but
also one of the pillars upon which the above doctrine is built30,An agent or delegate cannot validly
sub-delegate its powers. This is usually expressed by the Latin maxim –Delegatus
non-potest delegare, i.e., an authority given to one
cannot be delegated without the authority of the principal. In other words
power given to an agent cannot be delegated to another-delegate-potestas
non potest delegare. This principle
was emphasized in the Philadelphian case of, Lock’s Appeal where the
court declared:
“That a power conferred upon an
agent because of his fitness and the confidence reposed in him cannot be
delegated by him to another is a general and admitted rule.”
Legislatures stand in this relation to
the people whom they represent. Hence, it is a cardinal principle of
representative government that the legislature cannot delegate the power to
make laws to any other body or authority. However, the legislature can make a
law to delegate a power to determine some fact or state of things upon which
the law makes or intends to make its own actions depend.
To deny this would be to stop the wheel
of government. There are many things upon which wise and useful legislation
must depend, which cannot be known to the law making power and must, therefore
be a subject of enquiry and determination out side the house of legislature”.
The maxim, delegatus non-potest delegare,
originally, a principle of private law of agency, has come to play an important
part in public law theory. In Britain,
however the maxim against delegation can be applicable only to the question of
sub-delegation within the administration and not to that of delegation by the
legislature –itself. For it is basic in British constitutional theory that
parliament is the source of legislative power and not a mere delegate with
regard to such power. No authority in England
is capable of challenging the United
Kingdom parliament on any law. Therefore if
parliament vests law making in any body or authority, it cannot be questioned
in any court of law. In the American as well as the Nigerian systems, on the
other hand, the basis of government authority is delegation from some ultimate
source of power.
“We the people
of the United States,
declares, the preamble to the Federal constitution, 1787, do ordain and
establish this constitution”. In
the same way the preamble to the 1979 constitution of Nigeria states “We, the people
of the Federal Republic
of Nigeria,
do hereby make, enact and give to ourselves the following constitution”.
The legislative, executive and judicial
branches in both the United States
and Nigeria
possess power only because it has been delegated to them by the people. It
follows from the maxim against delegation that they must be the sole
repositories of such power. If we apply this theory more specifically to
legislative power, we see that under it, the National Assembly in Nigeria
itself is only a delegate, it’s possession of legislative power stems form the
delegation to it of such power in the constitution.
And as a delegate, the National Assembly
cannot delegate any of its legislative authority to anyone else.
In its essentials, this approach is
derived from John Lock who more perhaps than any other political philosopher
influenced the framers of the American constitution and a fortiori, the
Nigerian constitution. According to LOCKE31
In a passage often cited by American Jurists “the legislature cannot transfer
the power of making laws to any other hands for it being but a delegated power
from the people, they who have it cannot pass it over to another”
However, in the famous phrase of Cardozo
J. in Panama
Refining Co. V. Ryan. “If the doctrine of separation of powers were a
doctrinaire concept to be made use of with pedantic rigor,” the
rise of modern administrative agency would have been impossible in the American
system. Sir, Carleton Allen has also asserted that if the separation of power
doctrine had been applied in the United States in all its rigidity,
the constitution would have proved unworkable. In his book,32 Allen said:
“Only a series of timely adaptations
by the Supreme Court have prevented a principal sound in essence from becoming
a kind of chronic lockjaw.
The
Supreme Court’s view in this respect was well put in the panama case, (supra)
thus:-
“Undoubtedly, legislation must often
be adapted to complex conditions involving a host of details with which the
National legislature cannot deal directly. The constitution has never been
regarded as denying to the congress the necessary resources of flexibility and
practicability, which will enable it to perform its function in laying down
policies and practicability, and establishing standards, while leaving to
selected instrumentalities the making of subordinate rules within prescribed
limits and the determination of facts to which the policy as declared by the
legislature is to apply without capacity to give authorization of that, sort we
should have the anomaly of a legislative power which in many circumstance
calling for its exertion would be but, a futility”.
Under
this sort of approach, the American Supreme Court has clearly adopted the view,
that powers of delegated legislation can be vested in an administrative agency.
When power is delegated it is not necessarily a law making power but power to
fill the gaps and place the dots where necessary”. Where the legislature has
mapped out clearly the goal of its enactment, it is left to the executive to
fill the gap-where intelligible principles has been fixed and laid down by the
legislature to guide the executive in the exercise of the powers delegated to
it.
Limitations on Delegation
However, if the primary position of the
congress or National Assembly is to be maintained, there must be limitations
upon delegations of power. Chief justice Hughes in the Panama case supra aptly stated:-
“The constant recognition of the
necessity and validity of such provisions and the wide range of administrative
authority which has been developed by means of them cannot be allowed to
obscure the limitations of the authority to delegate, if our constitutional
system is to be maintained”.
Therefore in order to preserve the
position of the congress or National Assembly as the primary legislator,
delegation of power by it could not be inordinate. This means that the precise
limits of the law making power which the congress or the National Assembly
intends to confer upon an administrative agency must be defined in clear
language by the statute which conferred it. In other words, the delegated power
must be limited by standards. The discretion must not be so wide that it is
impossible to discern its limits. There must instead be an ascertainable
legislative intent to which the exercise of the delegated power must conform.
If there is no precise standard in the enabling statute to limit delegations of
power, the administrative agency, is in actuality being given a blank cheque to
make law in the delegated area of authority.
In such a case, it is the agency, rather
than the congress or National Assembly that is really the primary legislator.
The committee on Ministers powers, 1932
(supra) expressed a principle basically similar to the standard requirement.
According to the committee,33
“The precise limits of a law making power
which parliament intends to confer on a Minister should always be expressly
defined in clear language by the statute which confers it. When discretion is
conferred, its limits should be defined with equal clearness”.
The enabling legislation must therefore
contain a framework within which the administrative action must operate,
otherwise, the legislature is, in effect abdicating its function as primary
legislator to the administrator34. It
was precisely such an abdication of the legislative functions that the American
Supreme Court held to be involved in the National Industrial Recovery Act 1933.
Conclusion
Above all, it is necessary to highlight
in conclusion the prerequisites, which are the primary factors that hitherto
gave credence to the practice. They are, pressure on parliamentary time, the
technical nature of the subject matters to be discussed. Flexibility which is
lacking in parliament is not good for elaborate and cumbersome matters which
need flexible and prolonged house procedures. This is contrary to ministerial
order or rules and regulations which are flexibly and speedily made.
There are also, unforeseen contingencies
which made delegation inevitable since foot dragging on the floor of the house
does not augur well for war time emergencies. In Nigeria, the Emergency powers Act
1961 was invoked in 1962 during the political crises in the Western state to
solve the problem generated by the crises. This is delegation and such could
not be realized on the floor of the house. Finally, there is the extensive executive
discretion which is required because there is need to deal with issues as they
arise. For instance, many modern commercial corporations and social welfare
establishments demand extensive executive powers to attend to matters on their
merit.
It is therefore in this respect that
delegated legislation has evolved to ensure that such powers are available to
the executive. It is also, very clear that in this regard delegated legislation
does not run counter to the modern tenets of the rule of law, and the doctrine
of separation of powers.
As a matter of fact, delegation of
powers to administrative authorities is inevitable if the machinery of
effective government is not to come to a standstill.
1 A.K. MGBOLU
LL.B (Hons) LL.M (UNIZIK) B.L. (Lagos)
Lecturer: Faculty of law. Ebonyi
State University:
Abakaliki.
2. Egwummuo: J,N Modern Trends in Administrative LAW. (2001)
Rojoint commercial services ltd 1st
ed. P. 134.
3 Wade and Godfrey Phillips, Constitutional Administrative Law. 2000 Oxford University
Press. London 9th
Edition.
4 John Stuart Mill: Representative Government: Macmillan London (1861) .P4
5.(1981)
NCLR. Vol 2. p. 337
6 S. 15 Poor law amendment, Act, Britain,
1834.
7 (1611) 12 Co.
Rep. 74.
8 S. (4) (b) 1999 Constitution of the Federal Republic
of Nigeria.
9.1962. 1 ALL NLR 413.
10Act of 1965.
11 Act of 1961.
12Section 65. (Supra)
13Ewelukwa: D.O “Declaratory Judgements in Nigerian Public
law. 8, Nigerian law Journal. 1974 P. 42
14 1938: AC
708 Page722 per Lord Atkin.
15See: Emergency powers Act. 1961.
17 Section
103 (1) 1999 constitution of the FRN.
18 See, Report 65
19 Dicey, A. V Introduction to the study if
the law of the constitution, Macmillan
London, 10th Edition, 1959
20 1962, I
All. NLR. 413. FSC.
21 (2006) 27
NSCQR. 27
222006 28 NSCQR 161.
23 (1961) 2 All NLR 62
24Nwabueze, B. O, Military Rule and Constitutionalism: Spectrum
Law Publishing Co. Ibadan,
1992.
25See
University of Zambia Handbook 1971. p.1.
26 Cap 5.
Revised Laws of Anambra State,
1991. vol. 1
27 Law of England (Application) Law. Cap 60.
laws of Lagos
state.
28 SS. 4 (6) Constitution of the Federation
of Nigeria
1999.
29 S. 62.
Constitution of the Federation of Nigeria 1999., also see AG. Bendel
State V. AG. of Federation 22 ors.
(191) All NLR pt. 11, 1
30 Report
65, Committee on Ministers powers (1932)
31 Garnar
J.F Administrative Law Bulterworts, London
5th Edition 1979
32 293 US,
440. (1935).
33 Carletton
Allen: Law and Orders: Stevens & Sons London 2nd Edition 1984
34 See,
Report 65.